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, and electronic cigarettes.
ATUPA was recently amended to raise the minimum legal sales age for tobacco products from 18 to 21 (effective November 13, 2019). The law also restricts the distribution of these products for no charge, sales through self-service vending machines, out-of-package sales, and sales of products noncompliant with minimum package sizes. Further, the law establishes the Tobacco Use Prevention and Control Program and regulates shipments of cigarettes into New York State.
Who Enforces ATUPA?
County boards of health 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.
- Only customers who show a valid photo ID that indicates they are of the minimum legal sales age (which will be 21, effective November 13, 2019) 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.
- Tobacco retailers must register with the state and “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, electronic cigarettes, or herbal cigarettes must charge for these products and may not distribute coupons redeemable for these products. This prohibition does not apply to selling newspapers or magazines that contain coupons.
- Exception: In the following places, tobacco products or herbal cigarettes may be distributed to those who can provide a photo ID indicating they are at least 21 years old:
- Private functions where the seating arrangements are under the control of the function’s sponsor.
- Businesses that almost exclusively sell tobacco.
- Exception: 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, tobacco products or herbal cigarettes may be distributed at:
- 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 – $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.
- A $50 surcharge is assessed for every violation. These monies shall be used solely to fund compliance checks.
- Retailers found to have sold cigarettes to persons under the age of 21 are assigned 2 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 1 point.
- Points stay on a retailer’s record three years, and the state will suspend for six months 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 use through various school-based and community programs. The Act requires the creation of an advisory board to advise the commissioner on preventing and reducing tobacco use and other tobacco control issues. ATUPA also calls for regular evaluations of the effectiveness of efforts to reduce tobacco use, as well as annual reporting on enforcement efforts.
ATUPA 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, and subsequent violations are a class E felony.