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AN ACT
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relating to the regulation of cigarettes; providing a penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle C, Title 9, Health and Safety Code, is |
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amended by adding Chapter 796 to read as follows: |
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CHAPTER 796. CIGARETTE FIRE SAFETY STANDARDS |
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Sec. 796.001. DEFINITIONS. In this chapter: |
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(1) "Agent" means a person licensed by the comptroller |
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to purchase and affix adhesive or meter stamps on packages of |
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cigarettes. |
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(2) "Cigarette" means a roll for smoking: |
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(A) that is made of tobacco or tobacco mixed with |
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another ingredient and wrapped or covered with a material other |
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than tobacco; or |
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(B) that is wrapped in any substance containing |
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tobacco that, because of the roll's appearance, the type of tobacco |
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used in the filler, or the roll's packaging and labeling, is likely |
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to be offered to or purchased by a consumer as a cigarette. |
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(3) "Manufacturer" means: |
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(A) a person that manufactures or otherwise |
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produces cigarettes for sale in this state, including cigarettes |
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intended to be sold through an importer; or |
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(B) the first purchaser that intends to resell in |
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this state cigarettes manufactured anywhere that the original |
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manufacturer does not intend to be sold in this state. |
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(4) "Retailer" means a person, other than a wholesale |
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dealer, engaged in selling cigarettes or tobacco products. |
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(5) "Sale" means any transfer of title or possession |
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or both, exchange or barter, conditional or otherwise, in any |
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manner or by any means or any agreement. The term includes, in |
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addition to sales using cash or credit, the giving of a cigarette as |
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a sample, prize, or gift and the exchange of a cigarette for any |
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consideration other than money. |
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(6) "Sell" means to sell or to offer or agree to sell. |
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(7) "Wholesale dealer" means a person who sells |
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cigarettes or tobacco products to retail dealers or other persons |
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for purposes of resale, including a person who owns, operates, or |
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maintains one or more cigarette or tobacco product vending machines |
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in premises owned or occupied by another person. |
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Sec. 796.002. REQUIREMENTS FOR SALE OF CIGARETTE. A |
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cigarette may not be sold or offered for sale in this state unless: |
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(1) the cigarette has been tested in accordance with |
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Section 796.003; |
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(2) the cigarette meets the performance standard under |
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Section 796.003; |
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(3) a written certification has been filed by the |
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manufacturer with the state fire marshal in accordance with Section |
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796.005; and |
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(4) the cigarette has been marked in accordance with |
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Section 796.006. |
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Sec. 796.003. TESTING. (a) A manufacturer of cigarettes |
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shall ensure that tests on cigarettes are conducted: |
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(1) in accordance with Standard Test Method for |
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Measuring the Ignition Strength of Cigarettes, E2187-04, by the |
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American Society of Testing and Materials, as that standard existed |
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on January 1, 2007; |
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(2) on 10 layers of filter paper; and |
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(3) in a complete test trial of 40 replica tests. |
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(b) Not more than 25 percent of the cigarettes tested in a |
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test trial in accordance with this section may exhibit full-length |
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burns. |
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(c) The performance standard required by this section shall |
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only be applied to a complete test trial. |
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(d) A written certification shall be based on testing |
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conducted by a laboratory that has been accredited pursuant to |
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standard ISO/IEC 17025 of the International Organization for |
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Standardization, or another comparable accreditation standard |
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required by the state fire marshal. |
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(e) A laboratory testing in accordance with this section |
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shall implement a quality control and quality assurance program to |
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ensure that operator bias, systematic and nonsystematic |
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methodological errors, and equipment-related problems do not |
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affect the results of the testing. The program must include a |
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procedure to determine the repeatability of the testing results. |
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The repeatability value may not be greater than 0.19. For purposes |
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of this subsection, "repeatability value" means the range of values |
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within which the repeat results of cigarette test trials from a |
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single laboratory will fall 95 percent of the time. |
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(f) The state fire marshal may adopt a subsequent ASTM |
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Standard Test Method for Measuring the Ignition Strength of |
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Cigarettes on finding that the subsequent method does not result in |
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a change in the percentage of full-length burns exhibited by any |
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tested cigarette when compared to the percentage of full-length |
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burns the same cigarette would exhibit when tested in accordance |
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with ASTM Standard E2187-04 and the performance standard in |
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Subsection (b). |
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(g) A cigarette submitted for testing that uses lowered |
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permeability bands in the cigarette paper to comply with the |
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performance standard under this section must have at least two |
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nominally identical bands on the paper surrounding the tobacco |
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column and at least one complete band not less than 15 millimeters |
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from the lighting end of the cigarette. A cigarette on which the |
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bands are positioned by design must have at least two bands located |
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not less than 15 millimeters from the lighting end and 10 |
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millimeters from the filter end of the tobacco column or 10 |
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millimeters from the labeled end of the tobacco column for |
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nonfiltered cigarettes. |
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(h) This section does not require additional testing if a |
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cigarette is tested in a manner that is consistent with this chapter |
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for any other purpose. |
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(i) Testing performed or sponsored by the state fire marshal |
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to determine a cigarette's compliance with the performance standard |
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required under this section shall be conducted in accordance with |
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this section. |
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Sec. 796.004. ALTERNATIVE TEST METHODS. (a) A |
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manufacturer of a cigarette that the state fire marshal determines |
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cannot be tested in accordance with Section 796.003 shall propose a |
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test method and performance standard for the cigarette to the state |
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fire marshal. If the state fire marshal determines that the |
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performance standard proposed by the manufacturer is equivalent to |
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the performance standard under Section 796.003, the manufacturer |
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may use the proposed test method. |
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(b) Unless the state fire marshal demonstrates a reasonable |
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basis why an alternative test should not be accepted under this |
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chapter, the state fire marshal shall authorize a manufacturer to |
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employ the alternative test method and performance standard to |
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certify a cigarette for sale in this state if the state fire |
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marshal: |
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(1) determines that another state has enacted reduced |
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cigarette ignition propensity standards that include a test method |
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and performance standard that are the same as those contained in |
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this chapter; and |
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(2) finds that the officials responsible for |
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implementing those requirements have approved an alternative test |
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method and performance standard for a particular cigarette proposed |
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by a manufacturer as meeting the fire safety standards of that |
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state's law or regulation under a legal provision comparable to |
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this section. |
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Sec. 796.005. CERTIFICATION. (a) Before a cigarette may be |
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sold or offered for sale in this state, the cigarette's |
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manufacturer must certify in writing to the state fire marshal that |
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the cigarette has been tested in accordance with and meets the |
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performance standard in Section 796.003 or 796.004. |
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(b) A certification filed under this section must include |
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the following information: |
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(1) brand or trade name on the package; |
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(2) style, such as light or ultra light; |
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(3) length in millimeters; |
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(4) circumference in millimeters; |
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(5) flavor, such as menthol or chocolate, if |
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applicable; |
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(6) filter or nonfilter; |
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(7) package description, such as soft pack or box; |
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(8) marking approved in accordance with Section |
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796.006; |
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(9) the name, address, and telephone number of the |
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laboratory, if different from the manufacturer that conducted the |
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test; and |
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(10) the date that the testing occurred. |
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(c) The state fire marshal shall retain a copy of a |
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certification and provide a copy to the comptroller to ensure |
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compliance with this chapter. |
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(d) A cigarette certified under this section shall be |
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recertified every three years. |
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(e) For each cigarette included in a certification, a |
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manufacturer shall pay to the state fire marshal a fee in the amount |
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of $250, to be deposited only to the Texas Department of Insurance |
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operating account in the general revenue fund. |
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(f) A cigarette certified under this section that is altered |
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by the manufacturer in a way likely to alter its compliance with the |
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reduced cigarette ignition propensity standards required by this |
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chapter may not be sold or offered for sale in this state unless the |
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manufacturer retests the cigarette in accordance with Section |
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796.003 or 796.004 and maintains the records required by Section |
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796.007. |
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Sec. 796.006. MARKING OF PACKAGE. (a) A manufacturer shall |
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mark, in eight-point or larger type, cigarettes certified by the |
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manufacturer in accordance with Section 796.005 to indicate |
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compliance with the requirements of Section 796.003. The marking |
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must consist of: |
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(1) modification of the product Universal Product Code |
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to include a visible mark printed at or around the area of the |
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Universal Product Code and permanently stamped, engraved, |
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embossed, or printed in conjunction with the Universal Product |
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Code; |
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(2) a visible combination of alphanumeric or symbolic |
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characters permanently stamped, engraved, or embossed upon the |
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cigarette package or cellophane wrap; or |
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(3) other printed, stamped, engraved, or embossed text |
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that indicates that the cigarettes meet the standards of this |
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chapter. |
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(b) A manufacturer shall present its proposed marking to the |
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state fire marshal for approval. Proposed markings are considered |
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approved if the state fire marshal fails to disapprove the proposed |
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markings on or before the 10th business day after the date the |
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proposed markings are received. The state fire marshal must |
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approve a marking: |
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(1) in use and approved for sale in another state; or |
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(2) with the letters "FSC" for Fire Standards |
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Compliant appearing in eight-point or larger type and permanently |
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printed, stamped, engraved, or embossed on the package at or near |
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the Universal Product Code. |
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(c) A manufacturer shall use only one type of marking and |
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shall apply the marking uniformly to all packages, including packs, |
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cartons, and cases, and brands marketed by the manufacturer in this |
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state. |
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(d) A manufacturer may not modify its approved marking |
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unless the state fire marshal has approved the modification. |
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(e) A manufacturer shall provide sufficient copies of an |
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illustration of the package marking to a wholesale dealer and agent |
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to which the manufacturer sells cigarettes and provide sufficient |
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copies of an illustration of the package marking used by the |
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manufacturer under this section for each retailer to which the |
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wholesale dealers or agents will sell cigarettes. A wholesale |
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dealer and an agent shall provide a copy of package markings |
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received from a manufacturer to a retail dealer to which the |
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wholesale dealer or agent sells cigarettes. A wholesale dealer, |
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agent, and retail dealer shall permit the state fire marshal, the |
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comptroller, and the attorney general to inspect markings of |
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cigarette packaging marked in accordance with this section. |
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Sec. 796.007. MANUFACTURER RECORDS AND REPORTING. (a) A |
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manufacturer shall maintain copies of the reports of all tests |
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conducted on all cigarettes offered for sale for the previous three |
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years and shall make copies of the reports available to the state |
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fire marshal on the state fire marshal's written request. |
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(b) A manufacturer that fails to make copies of the reports |
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available not later than 60 days after the date the manufacturer |
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receives a written request shall be subject to a civil penalty, |
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imposed as provided by Section 796.010, in an amount not to exceed |
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$10,000 per violation. Each day that the manufacturer does not make |
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the copies available is a separate violation. |
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Sec. 796.008. RULES. The state fire marshal may adopt rules |
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to administer this chapter. |
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Sec. 796.009. INSPECTION. (a) The state fire marshal may |
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inspect the records and the stock of cigarettes of a person who |
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manufactures, stores, or sells cigarettes to establish whether the |
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person is complying with this chapter. |
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(b) The comptroller may, in the course of an inspection |
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under Chapter 154, Tax Code, inspect cigarettes for a marking |
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required under Section 796.006 and report the comptroller's |
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findings to the state fire marshal. |
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Sec. 796.010. CIVIL PENALTY; INJUNCTION. (a) A person who |
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knowingly violates this chapter or a rule adopted under this |
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chapter is subject to a civil penalty in the following amounts: |
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(1) if the person is a manufacturer, wholesale dealer, |
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or agent knowingly selling or offering to sell a cigarette in |
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violation of this chapter, a civil penalty not to exceed $100 for |
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each pack of cigarettes sold or offered for sale, but not more than |
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$100,000 for all violations occurring within a 30-day period; |
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(2) if the person is a retailer knowingly selling or |
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offering to sell a cigarette in violation of this chapter, a civil |
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penalty not to exceed $100 for each pack of cigarettes sold or |
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offered for sale, but not more than $25,000 for all violations |
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occurring within a 30-day period; |
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(3) if the person knowingly makes a false |
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certification under Section 796.005, a civil penalty not to exceed |
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$75,000 for a first violation or $250,000 for a second or subsequent |
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violation; and |
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(4) if the person violates another provision of this |
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chapter, other than Section 796.007(b), or another rule adopted |
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under this chapter, a civil penalty not to exceed $1,000 for a first |
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violation or $5,000 for a second or subsequent violation. |
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(b) If it appears that a person has violated, is violating, |
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or is threatening to violate this chapter or a rule or order adopted |
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under this chapter, the attorney general, as determined by the |
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attorney general or on request of the state fire marshal, may bring |
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a civil action in a district court for: |
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(1) injunctive relief to restrain the person from |
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continuing the violation or threat of violation; |
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(2) the assessment of a civil penalty; or |
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(3) both injunctive relief and a civil penalty. |
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(c) A cigarette sold or offered for sale in violation of |
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this chapter is subject to forfeiture under Chapter 154, Tax Code, |
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except that before a forfeited cigarette may be destroyed, the true |
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holder of the trademark rights in the cigarette brand must be |
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permitted to inspect the cigarette. |
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(d) A civil penalty collected under this section shall be |
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deposited to the credit of the fire prevention and public safety |
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account. |
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Sec. 796.011. FIRE PREVENTION AND PUBLIC SAFETY ACCOUNT. |
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(a) The fire prevention and public safety account is a separate |
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account in the general revenue fund. |
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(b) The account consists of civil penalties collected under |
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Section 796.010. |
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(c) Money in the account may be appropriated only to the |
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state fire marshal to support fire safety and prevention programs. |
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Sec. 796.012. SALE OUTSIDE OF TEXAS. This chapter does not |
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prohibit a person from manufacturing or selling cigarettes that do |
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not meet the requirements of this chapter if: |
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(1) the cigarettes are or will be stamped for sale in |
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another state or are packaged for sale outside the United States; |
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and |
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(2) the person has taken reasonable steps to ensure |
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that the cigarettes will not be sold or offered for sale in this |
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state. |
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Sec. 796.013. INTERPRETATION. This chapter shall be so |
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interpreted and construed as to effectuate its general purpose to |
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make uniform this chapter with the laws of those states that have |
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enacted reduced cigarette ignition propensity laws. |
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Sec. 796.014. CONSUMER TESTING. This chapter does not |
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prohibit the sale of a cigarette solely for the purpose of the |
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cigarette's assessment conducted by a manufacturer, or under the |
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control and direction of a manufacturer, to evaluate consumer |
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acceptance of the cigarette by using only the quantity of |
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cigarettes that is reasonably necessary for the assessment. |
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Sec. 796.015. LOCAL REGULATION. A political subdivision of |
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this state may not adopt or enforce any ordinance or other |
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regulation conflicting with, or preempted by, any provision of this |
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chapter or with any policy of this state expressed by this chapter, |
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whether that policy be expressed by inclusion of a provision in the |
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chapter or by exclusion of that subject from the chapter. |
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Sec. 796.016. FEDERAL REGULATION. On and after the date |
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that a federal reduced cigarette ignition propensity standard that |
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preempts this chapter is adopted and becomes effective, this |
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chapter has no effect. |
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Sec. 796.017. REPORTS. Not later than January 1 of each |
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odd-numbered year, the state fire marshal shall: |
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(1) review the effectiveness of this chapter; |
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(2) submit a report to the governor, the lieutenant |
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governor, the speaker of the house of representatives, and the |
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appropriate committees of the legislature on the state fire |
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marshal's administration of this chapter; and |
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(3) make recommendations to improve the effectiveness |
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of this chapter, if appropriate. |
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SECTION 2. (a) Subject to Subsection (b) of this section, |
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the change in law made by Chapter 796, Health and Safety Code, as |
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added by this Act, does not prohibit a wholesale dealer or retailer |
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from selling the person's existing inventory of cigarettes on or |
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after the effective date of this Act if the person can establish |
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that state tax stamps were affixed to the cigarettes before the |
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effective date of this Act in a quantity that is comparable to the |
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quantity of cigarettes purchased by the person during the previous |
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year. |
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(b) A person may not sell or offer for sale a cigarette in |
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this state that does not comply with Chapter 796, Health and Safety |
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Code, as added by this Act, after January 1, 2010. |
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SECTION 3. This Act takes effect January 1, 2009. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 2935 was passed by the House on May |
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10, 2007, by the following vote: Yeas 141, Nays 0, 1 present, not |
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voting; and that the House concurred in Senate amendments to H.B. |
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No. 2935 on May 25, 2007, by the following vote: Yeas 131, Nays 4, |
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2 present, not voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 2935 was passed by the Senate, with |
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amendments, on May 22, 2007, by the following vote: Yeas 31, Nays |
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0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: __________________ |
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Date |
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__________________ |
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Governor |