AN ACT to amend the Indiana Code concerning labor and safety.
intend to be sold in the United States; or
(3) an entity that becomes a successor of an entity described
in subdivision (1) or (2).
Sec. 5. As used in this chapter, "quality control and quality
assurance program" means the laboratory procedures
implemented to ensure that:
(1) operator bias, systematic and nonsystematic
methodological errors, and equipment related problems do
not affect the results of the testing; and
(2) the testing repeatability remains within the required
repeatability values in section 13(f) of this chapter for all test
trials used to certify cigarettes under this chapter.
Sec. 6. As used in this chapter, "repeatability" means the range
of values within which the repeat results of cigarette test trials
from a single laboratory will fall ninety-five percent (95%) of the
time.
Sec. 7. As used in this chapter, "retail dealer" means a person,
other than a manufacturer or wholesale dealer, that sells
cigarettes.
Sec. 8. As used in this chapter, "sale" means any of the
following:
(1) Transfer of title or possession, or both.
(2) Exchange or barter, including conditional exchanges or
agreements.
(3) Giving cigarettes as samples, prizes, or gifts.
(4) Exchange of cigarettes for consideration other than
money.
Sec. 9. As used in this chapter, "sell" means to:
(1) sell; or
(2) offer or agree to sell.
Sec. 10. As used in this chapter, "UPC bar code" means the
universal product code or another product identification code that
includes:
(1) a unique symbol that consists of a machine readable code;
and
(2) numbers that are readable by an individual;
that meets the standards established by GS1 US.
Sec. 11. As used in this chapter, "wholesale dealer" means any
of the following:
(1) A person, other than a manufacturer, that sells cigarettes
to a retail dealer or other person for purposes of resale.
(2) A person who owns, operates, or maintains a cigarette
vending machine in, at, or upon premises owned or occupied
by another person.
Sec. 12. Except as provided in section 19 of this chapter,
cigarettes may not be sold or offered for sale in Indiana unless the
cigarettes:
(1) have been tested according to the test method and meet the
performance standard specified in section 13 or 15 of this
chapter;
(2) have been certified under section 21 of this chapter; and
(3) have been marked under section 23 of this chapter.
Sec. 13. (a) Testing of cigarettes must be conducted according
to the American Society of Testing and Materials (ASTM)
standard E2187-04, Standard Test Method for Measuring the
Ignition Strength of Cigarettes.
(b) Testing must be conducted on ten (10) layers of filter paper.
(c) Not more than twenty-five percent (25%) of the cigarettes
tested in a test trial under this section may exhibit full length
burns. Forty (40) replicate tests comprise a complete test trial for
each cigarette tested.
(d) The performance standard required by this section may be
applied only to a complete test trial.
(e) Written certifications must be based upon testing conducted
by a laboratory that has been accredited under standard ISO/IEC
17025 of the International Organization for Standardization (ISO)
or other comparable accreditation standard required by the state
fire marshal.
(f) Laboratories conducting testing under this section must
implement a quality control and quality assurance program that
includes a procedure that will determine the repeatability of the
testing results. The repeatability value may not be greater than
nineteen hundredths (0.19).
(g) This section does not require additional testing if cigarettes
are tested consistent with this chapter for any other purpose.
(h) Testing performed or sponsored by the state fire marshal to
determine a cigarette's compliance with the required performance
standard must be conducted according to this section.
Sec. 14. Each cigarette listed in a certification submitted under
section 21 of this chapter that uses lowered permeability bands in
the cigarette paper to achieve compliance with the performance
standard in section 13 or 15 of this chapter must have at least two
(2) nominally identical bands on the paper surrounding the tobacco
column. At least one (1) complete band must be located at least
fifteen (15) millimeters from the lighting end of the cigarette. For
cigarettes on which the bands are positioned by design, there must
be at least two (2) bands fully located at least fifteen (15)
millimeters from the lighting end and ten (10) millimeters from the
filter end of the tobacco column, or for nonfiltered cigarettes ten
(10) millimeters from the labeled end of the tobacco column.
Sec. 15. (a) A manufacturer of a cigarette that the state fire
marshal determines cannot be tested by the test method in section
13(a) of this chapter shall propose a test method and performance
standard for the cigarette to the state fire marshal. Upon approval
of the proposed test method and a determination by the state fire
marshal that the performance standard proposed by the
manufacturer is equivalent to the performance standard in section
13(c) of this chapter, the manufacturer may use the test method
and performance standard to certify the cigarette under section 21
of this chapter.
(b) If the state fire marshal determines that:
(1) 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) the officials in that state responsible for implementing
those requirements have approved the proposed 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 rule under a legal
provision comparable to this section;
the state fire marshal shall authorize that manufacturer to use the
alternative test method and performance standard to certify that
cigarette for sale in Indiana, unless the state fire marshal
demonstrates a reasonable basis for why the alternative test should
not be accepted under this chapter. All other applicable
requirements of this chapter apply to the manufacturer.
Sec. 16. Each manufacturer shall maintain copies of the reports
of all tests conducted on all cigarettes offered for sale for a period
of three (3) years and make copies of these reports available to the
state fire marshal and the attorney general upon written request.
Any manufacturer that fails to make copies of these reports
available within sixty (60) days after receiving a written request is
subject to a civil penalty not to exceed ten thousand dollars
($10,000) for each day after the sixty (60) days that the
manufacturer does not make the copies available.
required under section 13 or 15 of this chapter; and
(2) each cigarette listed in the certification meets the
performance standard in section 13(c) or 15 of this chapter.
(b) Each cigarette listed in the certification 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, if applicable.
(6) Filter or nonfilter.
(7) Package description, such as soft pack or box.
(8) Marking under section 23 of this chapter.
(9) The name, address, and telephone number of the
laboratory, if different than the manufacturer that conducted
the test.
(10) The date that the testing occurred.
(c) The certifications must be made available to the attorney
general for purposes consistent with this chapter and the
department of state revenue and the alcohol and tobacco
commission for the purposes of ensuring compliance with this
section.
(d) Notwithstanding subsection (a), the state fire marshal may
accept as evidence of compliance with this chapter a certification
issued to:
(1) the New York State Department of State's Office of Fire
Prevention and Control; or
(2) the responsible entity of another state that has:
(A) substantially equivalent certification requirements
relating to reduced ignition propensity cigarettes; and
(B) the same test method and performance standard
requirements as provided in sections 13 and 15 of this
chapter.
(e) Each cigarette listed in a certification submitted under this
section must be recertified every three (3) years.
(f) For each brand family listed in a certification submitted
under subsection (a) or (d), a manufacturer shall pay a fee to the
state fire marshal of eight hundred dollars ($800). The state fire
marshal may adjust the fee every three (3) years to ensure that the
fee defrays the actual costs of the processing, testing, enforcement,
and oversight activities required by this chapter under rules
adopted by the fire prevention and building safety commission.
However, the fee for each brand family may not exceed one
thousand dollars ($1,000).
(g) If a manufacturer has certified a cigarette under this section,
and after submitting the certification, makes a change to the
cigarette that is likely to alter the cigarette's compliance with the
reduced cigarette ignition propensity standards required by this
chapter, that cigarette may not be sold or offered for sale in
Indiana until the manufacturer retests the cigarette under the
testing standards in section 13 or 15 of this chapter and maintains
records of that retesting as required by section 16 of this chapter.
An altered cigarette that does not meet the performance standard
in section 13 or 15 of this chapter may not be sold in Indiana.
Sec. 22. (a) The reduced ignition propensity standards for
cigarettes fund is established. Money in the fund may be used to
support processing, testing, enforcement, and oversight activities
under this chapter. The fund shall be administered by the state fire
marshal.
(b) The expenses of administering the fund shall be paid from
money in the fund.
(c) The treasurer of state shall invest money in the fund not
currently needed to meet the obligations of the fund in the same
manner as other public money may be invested.
(d) The fund consists of:
(1) certification fees collected under section 21 of this chapter;
and
(2) grants, gifts, and donations intended for deposit in the
fund.
(e) The money in the fund at the end of the state fiscal year does
not revert to the state general fund.
Sec. 23. (a) Packages of cigarettes that are certified by a
manufacturer under section 21 of this chapter must be marked to
indicate compliance with the requirements of section 12 of this
chapter. The marking must be in eight (8) point type or larger and
consist of:
(1) modification of the product UPC bar code to include a
visible mark printed at or around the area of the UPC bar
code. The mark may consist of alphanumeric or symbolic
characters permanently stamped, engraved, embossed, or
printed in conjunction with the UPC bar code;
(2) any visible combination of alphanumeric or symbolic
characters permanently stamped, engraved, embossed, or
printed upon the cigarette package or cellophane wrap; or
cigarettes, other than through retail sale, in violation of section 12
of this chapter is subject to a civil penalty not to exceed one
hundred dollars ($100) for each pack of cigarettes sold or offered
for sale. However, the penalty against a person or an entity may
not exceed one hundred thousand dollars ($100,000) during any
thirty (30) day period.
(b) A retail dealer who knowingly sells or offers to sell cigarettes
in violation of section 12 of this chapter is subject to a civil penalty
not to exceed one hundred dollars ($100) for each pack of
cigarettes sold or offered for sale. However, the penalty against a
retail dealer may not exceed twenty-five thousand dollars ($25,000)
during any thirty (30) day period.
(c) In addition to any penalty prescribed by law, any
corporation, partnership, sole proprietor, limited partnership, or
association engaged in the manufacture of cigarettes that
knowingly makes a false certification under section 21 of this
chapter is subject to a civil penalty of at least seventy-five thousand
dollars ($75,000). However, the penalty may not exceed two
hundred fifty thousand dollars ($250,000) for each false
certification.
(d) A person that violates any other provision of this chapter is
subject to a civil penalty for a first offense not to exceed one
thousand dollars ($1,000), and for a subsequent offense not to
exceed five thousand dollars ($5,000), for each violation.
(e) A cigarette that has been sold or offered for sale that does
not comply with the performance standard required by section 13
or 15 of this chapter is subject to forfeiture. Cigarettes forfeited
under this section must be destroyed. However, before the
destruction of any cigarette forfeited under this section, the holder
of the trademark rights in the cigarette brand is allowed to inspect
the cigarette.
(f) In addition to any other remedy provided by law, the state
fire marshal may file an action in a court of competent jurisdiction
for a violation of this chapter, including petitioning for injunctive
relief or to recover any costs or damages suffered by the state
because of a violation of this chapter, including enforcement costs
relating to the specific violation and attorney's fees. Each violation
of this chapter or rules adopted under this chapter constitutes a
separate civil violation for which the state fire marshal may obtain
relief.
(g) A law enforcement officer or representative of the state fire
marshal may seize and take possession of any cigarettes that have
not been marked in the manner required by section 23 of this
chapter. The seized cigarettes must be turned over to the
department of state revenue. Cigarettes seized under this section
are forfeited to the state and must be destroyed. However, before
the destruction of any cigarette seized under this section, the holder
of the trademark rights in the cigarette brand is allowed to inspect
the cigarette.
Sec. 25. (a) The:
(1) department of state revenue, in the regular course of
conducting inspections of wholesale dealers, agents, and retail
dealers, as authorized under IC 6-7; and
(2) alcohol and tobacco commission;
may inspect cigarettes to determine if the cigarettes are marked as
required by section 23 of this chapter.
(b) The department of state revenue and the alcohol and tobacco
commission shall notify the state fire marshal upon the discovery
of cigarettes that are not marked as required.
Sec. 26. To enforce this chapter, the attorney general and the
state fire marshal, their authorized representatives, and law
enforcement officers may examine the books, papers, invoices, and
other records of any person in possession, control, or occupancy of
any premises where cigarettes are placed, stored, sold, or offered
for sale, as well as the stock of cigarettes on the premises. Every
person in the possession, control, or occupancy of any premises
where cigarettes are placed, sold, or offered for sale is required to
give the attorney general, the department of state revenue, the
alcohol and tobacco commission, the state fire marshal, their
authorized representatives, and law enforcement officers the
means, facilities, and opportunity for the examinations authorized
by this chapter.
Sec. 27. (a) The fire prevention and public safety fund is
established. The fund shall be administered by the state fire
marshal. Money in the fund may used to support fire safety and
prevention programs.
(b) The expenses of administering the fund shall be paid from
money in the fund.
(c) The treasurer of state shall invest money in the fund not
currently needed to meet the obligations of the fund in the same
manner as other public money may be invested.
(d) The fund consists of:
(1) penalties recovered under section 24 of this chapter; and
(2) grants, gifts, and donations intended for deposit in the
fund.
(e) The money in the fund at the end of the state fiscal year does
not revert to the state general fund.
Sec. 28. Nothing in this chapter prohibits a person or entity
from manufacturing or selling cigarettes that do not meet the
requirements of section 12 of this chapter if the cigarettes:
(1) are or will be stamped for sale in another state; or
(2) are packaged for sale outside the United States;
and the person or entity has taken reasonable steps to ensure that
the cigarettes will not be sold or offered for sale to persons in
Indiana.
Sec. 29. The commission may adopt rules under IC 4-22-2 to
implement this chapter.
Sec. 30. A local governmental unit may not adopt an ordinance
concerning any subject regulated by this chapter.
Sec. 31. This chapter may not be construed to supersede or
preempt applicable federal laws or regulations concerning reduced
ignition propensity standards for cigarettes.