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