New Jersey

Clean Indoor Air

Public Places

Smoking is prohibited in almost all indoor public places and workplaces, including restaurants and bars. “Indoor public place” is defined as a structurally enclosed place of business, commerce or other service-related activity, whether publicly or privately owned or operated on a for-profit or nonprofit basis, which is generally accessible to the public (see statute citation for list of specific places covered). This prohibition does not apply to: 1) cigar bars and cigar lounges as defined, 2) tobacco retail establishments that make 51 percent or more of their sales from tobacco products; 3) tobacco businesses as specified; 4) private homes, private residences, and private automobiles; 5) the floors of casinos and casino simulcasting facilities; and 6) up to 20 percent of rooms in hotels/motels.

N.J. STAT. ANN. §§ 26:3D-55 to 26:3D-64 (2008).

The provisions of this act shall supersede any other statute, municipal ordinance and rule or regulation adopted pursuant to law concerning smoking in an indoor public place or workplace, except where smoking is prohibited by municipal ordinance or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire or protecting public health, and except for those provisions of a municipal ordinance which provide restrictions on or prohibitions against smoking equivalent to, or greater than, those provided under this act.

N.J. STAT. ANN. § 26:3D-63 (2006).

Government Buildings

Smoking is prohibited in “indoor public places,” the definition of which includes an office or building owned, leased or rented by the state or by a county or municipal government.

N.J. STAT. ANN. §§ 26:3D-55 to 26:3D-64 (2008).

Private Workplaces

Smoking is prohibited in “workplaces,” which are defined as structurally enclosed locations or portions thereof at which a person performs any type of service or labor. Smoking is also prohibited in “indoor public places,” the definition of which includes all private workplaces that are open to the public. Tobacco businesses when the testing of a cigar or pipe tobacco by heating, burning or smoking is a necessary and integral part of the process of making, manufacturing, importing or distributing cigars or pipe tobacco are exempt.

N.J. STAT. ANN. §§ 26:3D-55 to 26:3D-64 (2008).

Schools

Smoking is prohibited in any area of any building of, or on the grounds of, any public or nonpublic elementary or secondary school, regardless of whether the area is an indoor public place or is outdoors.

N.J. STAT. ANN. §§ 26:3D-55 to 26:3D-64 (2008).

Child Care Centers

Smoking is prohibited in “indoor public places,” the definition of which includes licensed child care centers. Smoking is also prohibited in “workplaces,” that are defined as structurally enclosed locations or portions thereof at which a person performs any type of service or labor.

N.J. STAT. ANN. §§ 26:3D-55 to 26:3D-64 (2008).

A resource (a.k.a. foster) family parent shall maintain a smokefree environment in all indoor areas of the home, and in all vehicles used to transport a child in placement. Smoking may be permitted outdoors when no child in placement is present. The resource family parent shall also prohibit smoking and the use of smokeless tobacco by children in placement.

N.J. ADMIN. CODE § 10:122C-7.2(a)3 (2007).

Health Facilities

Smoking is prohibited in “indoor public places” the definition of which includes health care facilities and the patient waiting rooms of health care providers. Smoking is also prohibited in “workplaces,” that are defined as structurally enclosed locations or portions thereof at which a person performs any type of service or labor. Smoking may be prohibited on the grounds of a state psychiatric hospital, if the hospital offers a smoking cessation program for employees, patients and residents. The cessation program must be in place for one year before the policy prohibiting smoking on the grounds takes effect, and the cessation program must continue to be provided unless the policy prohibiting smoking on the grounds is rescinded.

N.J. STAT. ANN. §§ 26:3D-55 to 26:3D-64 (2008).

Restaurants

Restaurants: Smoking is prohibited in “indoor public places,” the definition of which includes restaurants or other establishments where the principal business is the sale of food for consumption on the premises, including the bar area of the establishment.

N.J. STAT. ANN. §§ 26:3D-55 to 26:3D-64 (2008).

Bars: Smoking is prohibited in “indoor public places,” the definition of which includes bars. Cigar bars and cigar lounges are exempt if in the calendar year ending December 31, 2004, the cigar bar or cigar lounge generated 15 percent or more of its total annual gross income from the on-site sale of tobacco products and the rental of on-site humidors, not including any sales from vending machines, and is registered with the local board of health in the municipality in which the bar or lounge is located. The registration shall remain in effect for one year and shall be renewable only if in the preceding calendar year, the cigar bar or lounge generated 15 percent or more of its total annual gross income from the on-site sale of tobacco products and the rental of on-site humidors, and the cigar bar or cigar lounge has not expanded its size or changed its location since December 31, 2004.

N.J. STAT. ANN. §§ 26:3D-55 to 26:3D-64 (2008).

Penalties/Enforcement

The person having control of an indoor public place or workplace shall place in every public entrance a sign, which shall be located so as to be clearly visible to the public indicating that smoking is prohibited or permitted in establishments allowed to do so. The person having control of an indoor public place or workplace shall order any person smoking in violation of this law to comply. A person, after being so ordered, who continues to smoke is subject to a fine of not less than $250 for the first offense, $500 for the second offense and $1,000 for each subsequent offense. The Department of Health and Senior Services or the local board of health or the board, body or officers exercising the functions of the local board of health, upon written complaint or having reason to suspect that an indoor public place or workplace may be in violation, shall, by written notification, advise the person having control of the place accordingly and order appropriate action to be taken. A person receiving that notice that fails or refuses to comply is subject to a fine of not less than $250 for the first offense, $500 for the second offense and $1,000 for each subsequent offense.

N.J. STAT. ANN. §§ 26:3D-55 to 26:3D-64 (2008).

Tobacco Excise Tax

Cigarettes

Tax rate per pack of 20: $2.575

Date last changed: July 15, 2006 — from $2.40 to $2.575

Year first enacted: 1948

N.J. STAT. ANN. § 54:40A-8 (2006).

The first $1 million in cigarette tax revenue is deposited annually in the Cancer Research Fund, to be appropriated toward funding of the New Jersey State Commission on Cancer Research or to projects authorized and approved by the commission. After the above deposit, beginning July 1, 2006 and each fiscal year thereafter, the next $365 million of cigarette tax revenue collected is dedicated to the Health Care Subsidy Fund.

N.J. STAT. ANN. §§ 26:2H-18.58g (2004) & 54:40A-37.1 (1990).

In 2004, the New Jersey Economic Development Authority (NJEDA) was authorized to issue “bonds” primarily for the purpose of providing revenue for the state in any fiscal year starting with FY2005. NJEDA then will establish and maintain a Cigarette Tax Securitization Proceeds Fund where proceeds from these sales minus required costs will be deposited. These bonds are payable solely by revenue from the cigarette tax starting in FY2007. The required revenue from the cigarette tax will be set aside in a Dedicated Cigarette Tax Revenue Fund in the Department of Treasury.

N.J. STAT. ANN. §§ 34:1B-21.16 to 34:1B-21.22 (2004).

Other Tobacco Products

Moist snuff: 75 cents/oz.;

All other tobacco products: 30% of the wholesale price

N.J. STAT. ANN. §§ 54:40B-3 & 54:40B-3.1 (2006).

Beginning July 1, 2006, the first $5 million of other tobacco products tax revenue collected in a fiscal year is dedicated to the Health Care Subsidy Fund.

N.J. STAT. ANN. § 26:2H-18.58g (2004).

Revenue Collected

$764,547,000

Youth Access

Compliance/Enforcement

The Commissioner of Health and Senior Services is authorized to enforce the prohibition on the sale and commercial distribution of tobacco products to persons less than 19 years of age. The commissioner may delegate the enforcement authority to local health agencies, subject to the availability of sufficient funding. Grants from the Special Projects and Development Fund shall be made on an annual basis to local health agencies for local enforcement efforts in an amount based on the number of cigarette retail dealer and vending machine licenses issued within their jurisdiction in order to ensure statewide coverage and statewide consistency. Each grant recipient shall report quarterly to the commissioner on the number of compliance check inspections it has completed and the results of those compliance checks. The commissioner reports to the legislature on a quarterly basis on enforcement efforts.

N.J. STAT. ANN. §§ 26:2F-7 (1995) & 26:3A2-20.1(2000).

Penalties for Sales to Minors

Any person who directly or indirectly, acting as an agent or otherwise, sells, gives or furnishes any cigarettes made of tobacco, or of any other matter or substance which can be smoked, or any cigarette paper or tobacco in any form, including smokeless tobacco, to a minor less than 19 years of age, including from tobacco product vending machines, is liable for a civil penalty of $250 for the first violation, $500 for the second violation and $1,000 for each subsequent violation. In addition, upon the recommendation of the municipality, following a hearing by the municipality, the Division of Taxation in the Department of Treasury may suspend or, after a second or subsequent violation, revoke the license of a retail dealer. The licensee shall be subject to administrative charges based on a schedule issued by the director of the division, which may provide for a fine in lieu of the suspension. The establishment of all of the following shall constitute a defense to any prosecution: that the purchaser of the tobacco product or person receiving a promotional sample falsely represented that he was of legal age by producing photo identification; that the appearance of the purchaser or recipient of the tobacco product was such that an ordinary prudent person would believe him to be of legal age; and that the sale or distribution was made in good faith, relying upon the identification, the minor’s appearance, and in the reasonable belief that the purchaser or recipient was actually of legal age to make the purchase or receive the sample.

N.J. STAT. ANN. § 2A:170-51.4 (2003).

A person who sells or gives to a person under 19 years of age any cigarettes made of tobacco or of any other matter or substance which can be smoked, or any cigarette paper or tobacco in any form, including smokeless tobacco, shall be punished by a fine as provided for a petty disorderly persons’ offense. Subsequent offenses are subject to twice the amount of the fine provided for a petty disorderly persons’ offense. The same defense to prosecution is available for an offense, see paragraph above.

N.J. STAT. ANN. § 2C: 33-13.1 (2000).

Sign Posting

A person to whom a license is issued shall, as a condition of the license, conspicuously post a legible sign at the point of display and at the point of sale, stating “A PERSON WHO SELLS OR OFFERS TO SELL A TOBACCO PRODUCT TO A PERSON UNDER 19 YEARS OF AGE SHALL PAY A PENALTY OF UP TO $1,000 AND MAY BE SUBJECT TO A LICENSE SUSPENSION OR REVOCATION. PROOF OF AGE MAY BE REQUIRED FOR PURCHASE.”

N.J. STAT. ANN. § 54:40A-4.1 (1995).

Bidis

The laws prohibiting the sale, giving or furnishing of tobacco products to minors includes bidi cigarettes as well. Violation is subject to the same penalties as selling or furnishing tobacco products to minors.

N.J. STAT. ANN. §§ 2A:170-51.4 (2003) & 2C:33-13.1 (2000).

Other Provisions

Flavored Cigarettes/Tobacco Products: No person, either directly or indirectly by an agent or employee, or by a vending machine owned by the person or located in the person’s establishment, shall sell, offer for sale, distribute for commercial purpose at no cost or minimal cost or with coupons or rebate offers, give or furnish, to a person a cigarette, or any component part thereof, which contains a natural or artificial constituent or additive that causes the cigarette or any smoke emanating from that product to have a characterizing flavor other than tobacco, clove or menthol. “Characterizing flavor other than tobacco, clove or menthol” means that: the cigarette, or any smoke emanating from that product, imparts a distinguishable flavor, taste or aroma other than tobacco, clove or menthol prior to or during consumption, including, but not limited to, any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb or spice flavoring; or the cigarette or any component part thereof is advertised or marketed as having or producing any such flavor, taste or aroma. Violation is subject to a civil penalty of not less than $250 for a first violation, not less than $500 for a second violation and $1,000 for subsequent violations. A retailer’s license to sell tobacco products may also be suspended after the first violation or revoked after the second or subsequent violations.

N.J. STAT. ANN. § 2A:170-51.5 (2008).

Internet Sales: A person may only engage in a non-face-to-face sale of cigarettes to a person in this state if: 1) the seller has complied with all requirements of the federal Jenkins Act; 2) the seller has verified payment of, paid, or collected all applicable state taxes; and 3) the seller has, before mailing or shipping the cigarettes, obtained from the purchaser reliable confirmation that the purchaser is at least 19 years old and a statement by the purchaser certifying the purchaser’s date of birth and address, made a good faith effort to verify the information in the certification against a commercially available database or has obtained a photocopy or other image of a government-issued identification bearing the purchaser’s image and stating the date of birth or age of the purchaser; 4) received payment for the sale from the prospective purchaser by a credit or debit card that has been issued in the purchaser’s name or by check, and verified that a credit or debit card used for payment has been issued in the purchaser’s name, and the address to which the cigarettes are being shipped matches the credit or debit card company’s address for the cardholder. In addition to any other remedies provided by law, the Director of the Division of Taxation in the Department of the Treasury shall assess a penalty of not less than $1,000 and not more than $2,000 for the first violation, a penalty of not less than $2,500 and not more than $3,500 for the second violation within a five-year period, penalty of not less than $4,000 and not more than $5,000 for the third violation within a five-year period, a penalty of not less than $5,500 and not more than $6,500 for a fourth violation within a five-year period, and a penalty of $10,000 for a fifth or subsequent violation within a five-year period.

N.J. STAT. ANN. §§ 54:40A-46 to 54:40A-53 (2005).

Note: Some parts of this law may be affected by the U.S. Supreme Court decision in Rowe v. New Hampshire Motor Transport Association, decided February 20, 2008.

Restrictions on Distribution of Tobacco Product Samples or Sales of Single Cigarettes

Samples

Any person who directly or indirectly, acting as an agent or otherwise, distributes any tobacco product for commercial purposes at no cost or at minimal cost or with coupons or rebate offers to a minor under the age of 19 is liable for a civil penalty of $250 for the first violation, $500 for the second violation and $1,000 for each subsequent violation. A defense to such action may be established if the conditions listed under the “Penalties for Sales to Minors” section are met.

N.J. STAT. ANN. § 2A:170-51.4 (2003).

Single Cigarettes

A person shall not sell, offer for sale, give away or deliver single cigarettes, or cigarettes in packs of less than 20 cigarettes from a vending machine or in a retail establishment. A person owning a vending machine that is in violation of this section shall be fined not less than $100 but no more than $500 for each day the violation continues. A person who violates this law in a retail establishment shall be fined $250 for a first offense and $500 for the second and subsequent offenses.

N.J. STAT. ANN. § 54:40A-4.2 (2004).

Restrictions on Sale of Tobacco Products in Vending Machines

Sign Posting

A legible sign shall be posted conspicuously on any licensed cigarette vending machine stating “A PERSON WHO SELLS OR OFFERS TO SELL A TOBACCO PRODUCT TO A PERSON UNDER 19 YEARS OF AGE SHALL PAY A PENALTY OF UP TO $1,000 AND MAY BE SUBJECT TO A LICENSE SUSPENSION OR REVOCATION. PROOF OF AGE MAY BE REQUIRED FOR PURCHASE.”

N.J. STAT. ANN. § 54:40A-4.1 (1995).

Licensing Requirements

Requirements

Wholesalers, distributors, manufacturers, manufacturer’s representatives and retailers must obtain the appropriate license from the Commissioner of Taxation. Each vending machine must also be licensed. Wholesalers, distributors and retailers must obtain a license for each place of business. Licenses expire on March 31st of each year and must be renewed annually.

N.J. STAT. ANN. §§ 54:40A-3 (1952) & 54-40A-4 (1997).

Fee

$50 annually for a retail dealer or vending machine license for each place of business or machine; $250 annually for each wholesale dealer license; $350 annually for each distributor license; $10 annually for each manufacturers license; and $5 annually for each manufacturer’s representative license.

N.J. STAT. ANN. § 54:40A-4 (1997).

License Suspension for Sales to Minors

Upon the recommendation of a municipality, following a hearing by a municipality, the Division of Taxation may suspend, or, after a second or subsequent violation, revoke the license of a retail dealer that sells or distributes tobacco products to minors. The licensee shall be subject to administrative charges based on a schedule issued by the Director of the Division, which may provide for a fine in lieu of the suspension.

N.J. STAT. ANN. § 2A:170-51.4 (2003).

Smoker Protection Laws

No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions or other privileges of employment because that person does or does not smoke or use other tobacco products, unless the employer has a rational basis for doing so which is reasonably related to employment, including the responsibilities of the employee or prospective employee. An aggrieved person may institute a civil action within one year from the date of the alleged violation. The Commissioner of Labor may collect a civil penalty imposed against the employer of an amount up to $2,000 for the first violation and $5,000 for each subsequent violation.

N.J. STAT. ANN. §§ 34:6B-1 et seq. (1991).

Tobacco Liability

Industry Protection

The appeal bond required to appeal a lawsuit judgment for a signatory, a successor of a signatory, or any affiliate of a signatory to the Master Settlement Agreement is limited to $50 million regardless of the value of the judgment. If an appellee proves by a preponderance of the evidence that an appellant is dissipating assets outside the ordinary course of business to avoid payment of a judgment, a court may enter orders that: are necessary to protect the appellee; and require the appellant to post a bond in an amount up to the total amount of the judgment.

N.J. STAT. ANN. § 52:4D-13 (2003).

Tobacco Settlement

Tobacco Control Appropriations

New Jersey appropriated $9,100,000 for tobacco prevention and cessation programs in FY2009 (July 1, 2008 to June 30, 2009) from state cigarette tax revenue and the state general fund. $11,000,000 was appropriated in FY2008.

FY2009 Annual Budget (A.B. 2800) enacted 6/30/08 and effective 7/1/08.

Securitization

The Tobacco Settlement Financing Corporation was established in, but not of, the state Department of Treasury. The state acting through the department may sell to the corporation, and the corporation may purchase, for cash or other consideration and in one or more installments, all or a portion of the state’s Master Settlement Agreement payments pursuant to the terms of one or more sale agreements. The net proceeds, any earnings thereon and any residual interests shall be applied, transferred, or paid to, and upon the order of the state, and shall be used for any bona fide governmental purposes, including without limitation for capital expenditures, debt service on outstanding bonds, working capital expenditures or operating deficit needs of the state, endowments, or grants or aid to political subdivisions, including without limitation school districts, of the state.

N.J. STAT. ANN. §§ 52:18B-1 to 52:18B14 (2002).

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