New York Adolescent Tobacco Use Prevention Act (ATUPA)

Purpose

The Adolescent Tobacco Use Prevention Act was passed to stop sales of tobacco products to minors and encompasses cigarettes, cigars, bidis, gutka, chewing tobacco, powdered tobacco, nicotine water, herbal cigarettes, shisha, electronic cigarettes, and smoking paraphernalia.

  • Bidis are products made from tobacco wrapped in a temburni leaf or endra leaf, but this prohibition also includes any other product advertised to consumers as “beedies” or “bidis.”
  • “Gutka” means a product containing lime paste, spices, areca and tobacco.
  • Nicotine water” is bottled water laced with nicotine.
  • “Electronic cigarette” is defined as a battery-operated device that contains cartridges filled with a combination of nicotine, flavor and chemicals that are turned into vapor which is inhaled by the user.
  • “Smoking paraphernalia” includes any pipe, water pipe, hookah, rolling papers, vaporizer or any other device designed for the inhalation of tobacco.

Who Enforces It?

Generally, enforcement is the responsibility of a county’s Board of Health. If a county doesn’t have a board of health, the county legislators or board of supervisors can designate a county officer to be in charge of enforcement.

  • Enforcement Officers  are officers designated to enforce smoking regulations and hold hearings. Any officer or employee of a city with a population of more than one million can be authorized to enforce local regulations regarding the sale of tobacco products to minors.
    • oOfficers make regular visits to businesses that sell tobacco to ensure compliance with public health laws. These compliance visits can include staging an attempt by an underage youth to buy prohibited products.

How Does ATUPA Restrict Sales to Minors?

Sale of Tobacco, E-cigarettes, Herbal Cigarettes, Rolling Papers or Pipes to Minors

  • Tobacco products must either be in a locked container or stored behind the counter in an area accessible only to store employees.
  • Only those who can show a valid photo ID, passport, or armed forces ID that indicates they are at least eighteen can buy tobacco products, electronic cigarettes, shisha, or smoking paraphernalia.
    • oIdentification is not required of individuals who reasonably appear to be at least twenty-five, BUT
    • oSaying someone appeared old enough is not a defense to an allegation of selling tobacco to minors.
    • oBusiness must also display the following sign in a conspicuous place:
    • oBusiness owners can choose to use an electronic device capable of reading information on a state-issued ID card’s magnetic strip.
    • If the information obtained by the scanner does not match the information contained in the strip, the attempted transaction should be denied.
    • If the information obtained on the scanner does match the ID card, the use of the scanner provides a defense for business owners if who’ve been deceived into violating the law.
      • “SALE OF CIGARETTES, CIGARS, CHEWING TOBACCO, POWDERED TOBACCO, SHISHA OR OTHER TOBACCO PRODUCTS, HERBAL CIGARETTES, ELECTRONIC CIGARETTES, ROLLING PAPERS OR SMOKING PARAPHERNALIA, TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW.”
      • This sign must be printed on a white card in red letters at least one-half inch in height.

Distribution of Tobacco Products or Herbal Cigarettes Without Charge

  • Businesses that sell tobacco products or herbal cigarettes must charge for those products and cannot distribute coupons redeemable for tobacco products.
    • oThis prohibition does not apply to selling newspapers or magazines that contain coupons.
    • Exception: In the following places, tobacco products can be distributed to those who can provide a photo ID indicating they are at least eighteen years old:
      • Private functions where the seating arrangements are under the control of the function’s sponsor.
      • Businesses that almost exclusively sell tobacco.
      • Bars.
      • Exception: With five days written notice to the enforcement officer and within areas accessible only to those over eighteen, tobacco can be distributed at:
        • Conventions and trade shows.
        • Tobacco company events.
        • Mill or manufacturing establishments and construction sites.

Out-of-package Sales and Minimum Package Sizes

  • All cigarettes must be sold in the manufacturer’s packaging which bears the health warnings required by law.
  • Retailers cannot sell packages containing fewer than twenty cigarettes, packages of rolling tobacco containing less than 0.6 ounces, or packages of rolling papers (or rolling sleeves or leaves) with less than twenty sheets.

Vending Machines

  • Vending machines can only be located in bars or food service establishments with valid full liquor licenses, in private clubs or places of employment where the majority of members or employees are over eighteen, or in business that almost exclusively sell tobacco.
  • Vending machines must be in plain view and under the supervision and control of the person in charge or a designated employee.

Penalties

If an enforcement officer believes a retailer has violated the law, the officer will issue, either in person or by certified mail, a violation notice to appear at a hearing. If the hearing determines the retailer did break the law, the penalty includes a fine and an assignment of points.

  • First time violations carry a fine of $300 – $1000 while subsequent violations range from $500 – $1500. Retailers found to have been selling tobacco products while their registration was suspended face a fine of $2500.
    • oAn additional $50 surcharge is assessed for every violation. This money shall be used by enforcement officers to fund compliance checks.
    • oRetailers found to have sold cigarettes to minors are assigned 2 points. If they can show the individual who committed the violation had completed a state certified tobacco sales training program, the retailer is only assigned 1 point.
      • Points stay on a retailer’s record three years and those with a total of three points or more have their dealer registration suspended for six months.
      • Retailers that violate this article four times within three years have their registration revoked for one year. If the retailer is found to violate ATUPA during this period of suspension, their license is revoked permanently.

Tobacco Use Prevention and Control Program

  • ATUPA establishes a statewide program to prevent and control tobacco use through various school-based and community programs. An advisory board is created to advise the commissioner on preventing and reducing tobacco use and other tobacco issues.
  • ATUPA also calls for regular evaluations of the effectiveness of efforts to reduce tobacco use, as well as annual reporting on enforcement efforts.

Other Provisions

  • ATUPA also makes it unlawful for cigarette sellers to ship cigarettes into New York State, except when shipping to licensed dealers, export warehouses, or government officials.
  • Boxes containing cigarettes must be clearly marked with the word “cigarettes.” First time violation of this provision is a class A misdemeanor, subsequent violations are a class E felony.