New York’s Adolescent Tobacco Use Prevention Act (ATUPA) regulates the sale of tobacco products with the goal of restricting access by youth and young adults. The law defines “tobacco product” to include cigarettes, cigars, bidis, chewing tobacco and powdered tobacco, and also covers herbal cigarettes, gutka, shisha, smoking paraphernalia, liquid nicotine, vapor products, and electronic cigarettes. ATUPA separately defines “electronic cigarette” and “vapor product,” and both terms include non-nicotine products unless otherwise specified. ATUPA prohibits the sale of tobacco products to persons under 21 years old and further restricts the in-person and online distribution and sale of tobacco products, as detailed below.
Who Enforces ATUPA?
County boards of health or health departments typically enforce ATUPA. In counties without a board of health, county legislators or the county’s board of supervisors must designate and charge a county officer with enforcement. Enforcement Officers are agents and entities designated to enforce tobacco product use and sales regulations and hold hearings to determine whether an ATUPA violation has occurred. Officers make periodic visits to businesses that sell regulated products to ensure compliance with public health laws. These compliance visits can include staging an attempt by persons under 21 to buy ATUPA-restricted products.
How Does ATUPA Restrict Access to Tobacco Products?
- Retailers must store these products either in a locked container or behind the counter in an area accessible only to store employees.
- Retail pharmacies may not sell tobacco products, nicotine vapor products, nor herbal cigarettes.
- Retailers in New York State may not sell a flavored nicotine vapor product, other than in tobacco flavor, if the product has not received sales authorization from FDA.
- Retailers located within 1,500 feet of a school (or 500 feet in New York City) may not display tobacco products, electronic cigarettes, smoking paraphernalia, or advertising for these products inside or outside their stores in a manner visible from outside of the store. (Also regulated via General Business Law).
- Only customers who show a valid photo ID that indicates they are of the minimum legal sales age (21 years) for ATUPA-regulated products may purchase regulated products.
- Identification is not required of individuals who reasonably appear to be at least age 25. However, this appearance is not a defense to selling tobacco to a person under the age of 21.
- A retailer may verify age through an electronic device capable of reading information on a state-issued ID card’s magnetic strip. Use of the scanner provides a defense for business owners who inadvertently sell to a person under the age of 21 if the information obtained by the scanner matches the ID card reflecting a legal sales age.
- ATUPA requires tobacco retailers to “post in a conspicuous place a sign upon which there shall be imprinted the following statement: ‘SALE OF CIGARETTES, CIGARS, CHEWING TOBACCO, POWDERED TOBACCO, SHISHA OR OTHER TOBACCO PRODUCTS, HERBAL CIGARETTES, LIQUID NICOTINE, ELECTRONIC CIGARETTES, ROLLING PAPERS OR SMOKING PARAPHERNALIA, TO PERSONS UNDER TWENTY-ONE YEARS OF AGE IS PROHIBITED BY LAW.’”
- Tobacco businesses that offer for sale bidis must “post in a conspicuous place a sign upon which there shall be imprinted the following statement, ‘SALE OF BIDIS TO PERSONS UNDER TWENTY-ONE YEARS OF AGE IS PROHIBITED BY LAW.’”
- Tobacco businesses that offer for sale gutka must “post in a conspicuous place a sign upon which there shall be imprinted the following statement, ‘SALE OF GUTKA TO PERSONS UNDER TWENTY-ONE YEARS OF AGE IS PROHIBITED BY LAW.’”
These signs must be printed on a white card in red letters at least one-half inch in height.
Businesses that sell tobacco products, nicotine vapor products or their components/parts, or herbal cigarettes must charge for these products and may not distribute in-store coupons redeemable for these products. Further, tobacco retailers may not redeem coupons, provide multi-pack discounts, or otherwise sell tobacco products, nicotine vapor products or their components/parts, or herbal cigarettes below the price displayed on the store shelf, nor provide a non-tobacco product in exchange for the purchase of one of these products.
- Exception: Herbal cigarettes may be distributed in limited places to those who can provide a photo ID indicating they are at least 21 years old. Sampling of herbal cigarettes is limited to private functions where the seating arrangements are under the control of the function’s sponsor, businesses that almost exclusively sell tobacco, or bars.
- Exception: Smokeless tobacco products and herbal cigarettes may be distributed at limited events with five days written notice to the enforcement officer and within areas accessible only to those at least 21 years old, as demonstrated by a photo ID. These events are limited to conventions and trade shows, tobacco company events, mill or manufacturing establishments and construction sites.
- 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 may be located only 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 at least 21 years old, 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.
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 officer determines after a hearing that a violation occurred, the officer may impose a civil penalty consisting of a fine and an assignment of points.
First time violations carry a fine of $300 – $1500 while subsequent violations range from $1000 – $2500. Retailers found to have been selling tobacco products while their registration was suspended face a fine of $2500.
- A $250 surcharge is assessed for every violation. These monies shall be used solely to fund compliance checks.
- Retailers found to have sold ATUPA-regulated products to persons under the age of 21 are assigned two points. If the retailer can demonstrate that the individual who committed the violation had completed a state-certified tobacco sales training program, the retailer is assigned only one point.
- Points stay on a retailer’s record three years, and the state will suspend one year the tobacco dealer registration of a retailer who acquires three points or more.
- If a retailer is found to violate ATUPA while their registration is suspended, their registration will be permanently revoked.
- Separately, the state will revoke for one year the tobacco dealer registration of a retailer who violates ATUPA four times within three years.
ATUPA establishes a statewide program to prevent and control tobacco product and vapor product use through various school-based and community programs. For instance, ATUPA requires the state departments of Health and Education to collaborate to create curricula and marketing materials to educate students, parents, and school staff about the health harms of tobacco and e-cigarette use. ATUPA further requires the creation of an advisory board to advise the commissioner on preventing and reducing tobacco product and vapor product use and other tobacco control issues. ATUPA also calls for regular evaluations of the effectiveness of efforts to reduce tobacco product and vapor product use, as well as annual reporting on enforcement efforts.
ATUPA prohibits cigarette or vapor product sellers from shipping cigarettes or nicotine vapor products into or within New York State, except when shipping to licensed dealers, export warehouses, or government officials. The seller must clearly mark packages that contain cigarettes or nicotine vapor products with their contents, “cigarettes” or “vapor products.” ATUPA further prohibits common carriers such as UPS, FedEx, and DHL from knowingly transporting cigarettes or nicotine vapor products to an address other than a licensed dealer, export warehouse, or government official. ATUPA does not prohibit individuals from transporting small quantities of cigarettes or nicotine vapor products for personal use (up to 800 cigarettes or four cartons, or the lessor of 500 milliliters of nicotine liquid or 3 total grams of nicotine). First-time violation of this provision is a class A misdemeanor, and subsequent violations are a class E felony.