New York

Clean Indoor Air

Public Places

Smoking is prohibited in virtually all public places and places of employment, including restaurants and bars, see New York Public Health Law section 1399-o for a detailed list of places covered. Exceptions include: 1) private homes, private residences and private automobiles; 2) hotel and motel rooms; 3) retail tobacco businesses as defined; 4) separate, enclosed rooms of residential health and mental health care facilities; 5) membership organizations as defined that have no compensated work staff; 6) cigar bars as defined under certain conditions; 7) outdoor dining areas under certain conditions; and 8) specified enclosed places where the public is invited for the primary purpose of promoting and sampling tobacco products, and the service of food and drink is incidental to such purpose.




N.Y. [PUB. HEALTH] LAW §§ 1399-n et seq. (2003).

Smoking may not be permitted where prohibited by any other law rule, or regulation of any state agency or any political subdivision of the state. Nothing herein shall be construed to restrict the power of any county, city, town, or village to adopt and enforce additional local law, ordinances, or regulations which comply with at least the minimum applicable standards set forth in this article.

N.Y. [PUB. HEALTH] LAW § 1399-r(3) (2003).

The designated enforcement officer may grant a waiver from the above law, provided that prior to the granting of any such waiver the applicant for a waiver shall establish that compliance would cause undue financial hardship; or other factors exist which would render compliance unreasonable. Every waiver granted shall be subject to such conditions or restrictions as may be necessary to minimize the adverse effects of the waiver upon persons subject to an involuntary exposure to secondhand smoke and to ensure that the waiver is consistent with the general purpose of this article.

N.Y. [PUB. HEALTH] LAW § 1399-u (2003).

Government Buildings

Smoking is prohibited in places of employment. The definition of “employer” includes the legislative, executive and judicial branches of state government and any political subdivision of the state.

N.Y. [PUB. HEALTH] LAW §§ 1399-n et seq. (2003).

Private Workplaces

Smoking is prohibited in all places of employment. “Place of employment” means any indoor area or portion thereof under the control of an employer in which employees of the employer perform services, and shall include, but not be limited to, offices, school grounds, retail stores, banquet facilities, theaters, food stores, banks, financial institutions, factories, warehouses, employee cafeterias, lounges, auditoriums, gymnasiums, restrooms, elevators, hallways, museums, libraries, bowling establishments, employee medical facilities, rooms or areas containing photocopying equipment or other office equipment used in common, and company vehicles.

N.Y. [PUB. HEALTH] LAW §§ 1399-n et seq. (2003).

Schools

Tobacco use, including smoking, shall not be permitted on school grounds. “School grounds” means any building, structure and surrounding outdoor grounds contained within a public or private preschool, nursery school, elementary or secondary school’s legally defined property boundaries as registered in a county clerk’s office, and any vehicles used to transport children or school personnel.

N.Y. [EDUC.] LAW §§ 409(2) & N.Y. [PUB. HEALTH] LAW §§ 1399-n et seq. (2003).

Smoking is prohibited in all public and private colleges, universities and other educational and vocational institutions, including dormitories, residence halls and other group residential facilities that are owned or operated by such colleges, universities and other educational/vocational institutions. These restrictions do not apply to off-campus housing occupied by a person who is not enrolled as an undergraduate student in such college, university or other educational/vocational institution.

N.Y. [PUB. HEALTH] LAW § 1399-o(13) (2008).

Child Care Centers

Smoking is prohibited in all facilities that provide child care services, except for private homes when no children are present.

N.Y. [PUB. HEALTH] LAW § 1399-o (2003).

Health Facilities

Smoking is prohibited in all health care facilities except separate enclosed rooms in specified residential health and mental health care facilities.

N.Y. [PUB. HEALTH] LAW §§ 1399-n et seq. (2003).

Restaurants

Restaurants: Smoking is prohibited in all indoor food service establishments. Smoking is permitted in outdoor areas of food service establishments with no roof or ceiling enclosure as long as the smoking area constitutes no more than 25 percent of the total outdoor seating area, is at least three feet away from the non-smoking outdoor area, and is clearly designated by written signage.

N.Y. [PUB. HEALTH] LAW §§ 1399-n et seq. (2003).
Bars: Smoking is prohibited in bars. A cigar bar that makes 10 percent of its gross income from the on-site sale of tobacco products and the rental of on-site humidors, not including vending machines sales are exempt. The cigar bar must also be registered with the appropriate enforcement officer, which will remain in effect for one year. The registration will only be renewable if in the preceding calendar year the cigar bar continued to make 10 percent of its gross income from the on-site sale of tobacco products and the rental of on-site humidors and has not expanded its size or changed its location from its size or location since December 31, 2002.

N.Y. [PUB. HEALTH] LAW §§ 1399-n et seq. (2003).

Penalties/Enforcement

Signs shall be prominently posted and maintained indicating smoking and nonsmoking areas. Failure to comply with any of the provisions of this article, including persons who smoke in areas where smoking is prohibited, is punishable by a civil penalty up to $1,000 if imposed by the state and up to $500 if imposed by a local enforcement officer. Each county’s board of health or a designated enforcement officer in counties with no local board of health shall enforce these provisions. If no such designation is made, the county will be deemed to have designated the state Department of Health and Mental Hygiene as its enforcement officer. In cities of over one million people the city’s board of health shall enforce these provisions within the city.

N.Y. [PUB. HEALTH] LAW §§ 1399-n et seq. (2003).

Tobacco Excise Tax

Cigarettes

Tax rate per pack of 20: $2.75

Date last changed: June 3, 2008 — from $1.50 to $2.75

Year first enacted: 1939

N.Y. [TAX] LAW § 471 (2008).

Cigarette tax revenue is distributed in accordance with section 171-a of New York Tax law, except 70.63 percent is distributed to the tobacco control and insurance initiatives pool, which is spent in accordance with section 2807-v of New York Public Health law.

N.Y. [TAX] LAW § 482 (2008).

Other Tobacco Products

Snuff: 96 cents/oz. (and proportionate rate on fractional parts of an ounce);

All other tobacco products: 37% of the wholesale price

N.Y. [TAX] LAW § 471 & 471-b (2008).

Revenue Collected

$934,689,000

Youth Access

Compliance/Enforcement

The commissioner of the state Department of Health shall develop, plan and implement a comprehensive program to reduce the prevalence of tobacco use, particularly among persons less than 18 years of age. This program shall include, but not be limited to, support for enforcement of article thirteen-F of this chapter (youth access laws.) An enforcement officer, as defined, may annually, on specific dates fixed by the commissioner, submit an application for such monies as are made available for such purpose. Such application shall include, but not be limited to, plans regarding random spot checks, including the number and types of compliance checks that will be conducted, and other activities to determine compliance.

N.Y. [PUB. HEALTH] LAW § 1399-hh (1997).

A contract between the state Department of Health and municipalities specifies that local enforcement officers perform at least one compliance check annually for all places where tobacco products are sold in that municipality using youth ages 15 to 17. Additional compliance checks are required when a place that sells tobacco products has past violations. Enforcement officers also check for violations of other youth access laws pursuant to Article 13-F of the New York Public Health Law.

New York State Dept. of Health, Youth Tobacco Enforcement and Prevention Annual Application and Agreement (2007).

Photo ID: The sale of tobacco products or herbal cigarettes other than by a vending machine, shall be made only to an individual who demonstrates, through a driver’s license or other photographic identification issued by a government entity or educational institution indicating that the individual is at least 18 years of age. Such identification need not be required of any individual who reasonably appears to be at least 25 years of age, provided that such appearance shall not constitute a defense in any proceeding alleging the sale of tobacco products or herbal cigarettes to an individual less than 18 years of age.

N.Y. [PUB. HEALTH] LAW § 1399-cc(3) (2001).

Penalties for Sales to Minors

The sale of tobacco products, herbal cigarettes, rolling papers or pipes to minors by any person operating a place of business wherein tobacco products or herbal cigarettes are sold or offered for sale is prohibited. Any person operating a place of business wherein tobacco products or herbal cigarettes are sold or offered for sale may perform a transaction scan as a precondition for such purchases. In any instance where the information deciphered by the transaction scan fails to match the information printed on the driver’s license or non-driver identification card, or if the transaction scan indicates that the information is false or fraudulent, the attempted transaction shall be denied. It shall be an affirmative defense to prosecution that a person had produced a driver’s license or non-driver ID apparently issued by a governmental entity, successfully completed a transaction scan, and that the tobacco product or herbal cigarette had been sold, delivered or given to such person in reasonable reliance upon such identification and transaction scan. In evaluating the applicability of such affirmative defense the commissioner shall take into consideration any written policy adopted and implemented by the seller. Use of a transaction scan shall not excuse any person from using reasonable diligence.

N.Y. [PUB. HEALTH] LAW § 1399-cc (2001).

If the enforcement officer determines, after a hearing, that a violation of the above provision occurred, a civil penalty of $300, but not to exceed $1,000, shall be imposed for a first violation; and a minimum of $500, but not to exceed $1,500 for each subsequent violation. The enforcement officer shall also assign two points to a retailer’s record for violation if the individual committing the violation has not completed a state certified tobacco sales training program, and one point if the individual has. Points remain on the retailer’s record for 36 months. If the state Department of Health determines that a retailer has accumulated three points or more, the department shall direct the Commissioner of Taxation and Finance to suspend such dealer’s registration for six months. The three points serving as the basis for a suspension shall be erased upon the completion of the six month penalty. If the enforcement officer determines the retailer has violated the above provisions four or more times in a three year period, they shall direct the Commissioner of Taxation and Finance to revoke the retailer’s registration for one year. If a retail dealer was selling tobacco products or herbal cigarettes while their registration was either suspended or permanently revoked, a civil penalty of $2,500 shall be imposed. The Commissioner of Taxation and Finance shall also permanently revoke the dealer’s registration and not permit the dealer to obtain a new registration in the case of selling with a suspended license. A $50 surcharge shall also be imposed for each violation to be used for enforcement purposes.

N.Y. [PUB. HEALTH] LAW § 1399-ee (2001).

In addition, the enforcement officer shall promptly notify the Director of the Division of the Lottery of any determination that a violation of the article regulating the sale of tobacco products/sales to minors has occurred. The lottery license shall be suspended for a period of six months upon notification to the division by the Commissioner of Health of a lottery sales agent’s accumulating three points or more. A license shall be revoked for one year upon notification of a lottery sales agent’s fourth violation within a three year period.

N.Y. [TAX] LAW § 1607-h (2000).

Tobacco Products

No person operating a place of business wherein tobacco products or herbal cigarettes are sold or offered for sale shall sell, permit to be sold, offer for sale or display for sale any tobacco product or herbal cigarettes in any manner, unless such products and cigarettes are stored for sale behind a counter in an area accessible only to the personnel of such business, or in a locked container; however, such restriction shall not apply to tobacco businesses and to places to which admission is restricted to persons 18 years of age or older. Violation is subject to a civil penalty of $300, but not to exceed $1,000 for the first violation; and a minimum of $500, but not to exceed $1,500 for each subsequent violation.

N.Y. [PUB. HEALTH] LAW § 1399-cc (2001).

Sign Posting

Any person operating a business wherein tobacco products or herbal cigarettes are sold shall post in a conspicuous place a sign upon which there shall be imprinted the following statement, “SALE OF CIGARETTES, CIGARS, CHEWING TOBACCO, POWDERED TOBACCO, OR OTHER TOBACCO PRODUCTS, HERBAL CIGARETTES, ROLLING PAPERS OR PIPES, TO PERSONS UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW.” Violation is subject to a civil penalty of $300, but not to exceed $1,000 for the first violation; and a minimum of $500, but not to exceed $1,500 for each subsequent violation.

N.Y. [PUB. HEALTH] LAW § 1399-cc (2001).

Bidis

No person shall knowingly sell or provide bidis to any other person. “Bidis” means a product containing tobacco that is wrapped in temburni leaf or tendra leaf or any other product offered to consumers as “beedies” or “bidis”. Any person who violates the provisions of this subdivision shall be subject to a civil fine of not more than $500. This does not apply to a tobacco business. This law further prohibits tobacco businesses from selling bidis to minors, and directs posting of a sign in a conspicuous place upon which there shall be imprinted the following statement, “SALE OF BIDIS TO PERSONS UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW.” The sign is to be printed on a white card in red letters at least one half inch in height.

N.Y. [PUB. HEALTH] LAW § 1399-LL (2000).

Other Provisions

Internet Sales: It is unlawful for any person to knowingly transport cigarettes to any person in this state, other than (a) a person licensed as a cigarette tax agent or wholesale dealer or registered retail dealer; (b) an export warehouse proprietor or an operator of a customs bonded warehouse; or (c) a person who is an officer, employee or agent of the United States government, this state or a department, agency, instrumentality or political subdivision of the United States or this state, when such person is acting in accordance with their official duties. Any person who violates these provisions shall be guilty of a Class A misdemeanor and for a second or subsequent violation shall be guilty of a Class E felony. In addition to the criminal penalty, the Commissioner of Taxation and Finance may impose a civil fine not to exceed $5,000 for each violation.

N.Y. [PUB. HEALTH] LAW § 1399-ll (2000).

The sale of “Gutka” (a tobacco product containing lime paste, spices, areca, and tobacco) is prohibited except at a “tobacco business”. At a tobacco business it is unlawful to sell “gutka” to a person under 18 years of age. Violation is a civil penalty of not more than $500.

N.Y. [PUB. HEALTH] LAW § 1399-mm (2003).

Nicotine water, bottled water that is laced with nicotine, was added to the definition of tobacco product thus prohibiting its sale to minors.

N.Y. [PUB. HEALTH] LAW § 1399-aa (2005).

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

Samples

No person engaged in the business of selling or otherwise distributing tobacco products or herbal cigarettes for commercial purposes, or any agent or employee of such person, shall knowingly distribute without charge any tobacco products or herbal cigarettes to any individual; or distribute coupons which are redeemable for tobacco products or herbal cigarettes to any individual, provided that this shall not apply to: a) coupons contained in newspapers, magazines or other types of publications; b) coupons obtained through the purchase of tobacco products or herbal cigarettes or obtained at locations which sell tobacco products or herbal cigarettes provided that such distribution is confined to a designated area; or c) to coupons sent through the mail. Sampling restrictions shall not apply at all to: 1) private social functions when seating arrangements are under the control of the sponsor of the function; 2) conventions and trade shows, provided that the distribution is confined to designated areas generally accessible only to persons over the age of 18; 3) events sponsored by tobacco or herbal cigarette manufacturers provided that the distribution is confined to designated areas generally accessible only to persons over the age of 18; 4) bars; 5) tobacco businesses; and 6) factories, provided that the distribution is confined to designated areas generally accessible only to persons over the age of 18. No person shall distribute tobacco products or herbal cigarettes at trade shows, events sponsored by tobacco or herbal cigarette manufacturers or factories unless such person gives five days written notice to an enforcement officer. Before distribution a photographic ID is required for any person who appears to be under the age of 25. Violation is subject to a civil penalty of $300, but not to exceed $1,000 for the first violation; and a minimum of $500, but not to exceed $1,500 for each subsequent violation.

N.Y. [PUB. HEALTH] LAW § 1399-bb (1992).

Single Cigarettes

All cigarettes must be sold or offered for sale in the package or container provided by the manufacturer, which bears all health warnings required by applicable law. No person shall sell or distribute any package or other container of cigarettes containing fewer than 20 cigarettes; any package of roll-your-own tobacco containing less than six-tenths of an ounce of tobacco; or any package or other container of cigarette wrapping papers, wrapping leaves or tubes containing fewer than 20 sheets, leaves, or tubes. Violation is subject to a civil penalty of $300, but not to exceed $1,000 for the first violation; and a minimum of $500, but not to exceed $1,500 for each subsequent violation.

N.Y. [PUB. HEALTH] LAW § 1399-gg (2004).

Restrictions on Sale of Tobacco Products in Vending Machines

Placement

Vending machines that sell tobacco or herbal cigarettes are restricted to locations such as bars or bar areas of food service establishments with valid, on-premises full liquor licenses; private clubs; tobacco businesses; and workplaces that have an insignificant portion of its regular workforce comprised of minors and only in such locations that are not accessible to the general public. However, vending machines located in such places of employment must be in plain view and under the direct supervision and control of the person in charge of the location or their designated employee.

N.Y. [PUB. HEALTH] LAW § 1399-dd (1992).

Penalty

Violation is subject to a civil penalty of $300, but not to exceed $1,000 for the first violation; and a minimum of $500, but not to exceed $1,500 for each subsequent violation. In addition, if it is determined that a vending machine operator has violated this article three times within a two year period, or four times cumulatively, the Commissioner of Taxation and Finance shall suspend the vendor’s registration for one year.

N.Y. [PUB. HEALTH] LAW § 1399-ee (1992).

Licensing Requirements

Requirements

Wholesale dealers are required to obtain a license from the Department of Taxation and Finance. The license must be displayed in the wholesaler’s place of business. Licenses are valid indefinitely unless suspended or revoked.

N.Y. [TAX] LAW § 480 (2000).

Retail dealers are required to obtain and display a certificate of registration from the Department of Taxation and Finance. Retail dealers are defined as all other people dealing in cigarettes and tobacco products besides wholesalers. All vending machines must also be registered with the department and have a registration certificate affixed to it. Registrations for retail dealers and vending machines are valid for a calendar year unless suspended or revoked and must be renewed each year.

N.Y. [TAX] LAW § 480-a (2000).

Fee

$100 annually for a retail license; $1,500 for a wholesale license; $25 annually for a vending machine license.

N.Y. [TAX] LAW §§ 480 & 480-a (2000).

License Suspension for Sales to Minors

Retailers are subject to a suspension or revocation of their certificate of registration based on a point system for violation. Retailers receive two points for violation if the individual seller has not completed a state certified tobacco sales training program, and one point if the seller has. Three points or more is subject to a six-month registration certificate suspension. Four violations in a three year period is subject to a license revocation for one year. A vending machine operator that violates the sales to minors law three times within a two year period, or four or more times cumulatively shall have the registration certificate for the vending machine(s) suspended for a year.

N.Y. [PUB. HEALTH] LAW § 1399-ee (1992).

Smoker Protection Laws

It shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion, or terms, conditions or privileges of employment because of an individual’s legal use of consumable products prior to the beginning or after the conclusion of the employee’s work hours and off of the employer’s premises and without use of the employer’s equipment or property. This does not apply to activities that create a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest; state employees when the activity could conflict with performance of their official duties under specified circumstances; and when the activity is in violation of a collective bargaining agreement. This shall not prohibit an organization or employer from offering, imposing or having in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees’ recreational activities or use of consumable products, provided that differential premium rates charged employees reflect a differential cost to the employer and that employers provide employees with a statement delineating the differential rates used by the carriers providing insurance for the employer, and provided further that such distinctions in type or price of coverage shall not be utilized to expand, limit or curtail the rights or liabilities of any party with regard to a civil cause of action. The attorney general may apply for an order enjoining or restraining the commission or continuance of the alleged unlawful acts. The court may impose a civil penalty in the amount of $300 for the first violation and $500 for subsequent violations. An aggrieved individual may commence an action for equitable relief and damages as well.

N.Y. [LABOR] LAW § 201-d (1992).

Tobacco Settlement

Tobacco Control Appropriations

New York allocated $80,400,000 for tobacco prevention and cessation programs in FY2009 (April 1, 2008 to March 31, 2009) from the state general fund. $85,485,000 was allocated in FY2008.

FY2009 Department of Health and Mental Hygiene Annual Budget (S.B. 6804) enacted and effective 4/23/08.

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