167.35 Fire safety performance standards for cigarettes.

(1) Definitions. In this section:

(a) “Cigarette" means any roll of tobacco wrapped in paper or in any substance other than tobacco.

(b) “Department" means the department of safety and professional services unless the context requires otherwise.

(c) “Direct marketer" has the meaning given in s. 139.30 (2n).

(d) “Distributor" has the meaning given in s. 139.30 (3).

(e) “Jobber" has the meaning given in s. 139.30 (6).

(f) “Manufacturer" means any of the following:

1. Any person who manufactures or otherwise produces cigarettes anywhere or causes cigarettes to be manufactured or produced anywhere, if the person intends that the cigarettes are to be sold in this state, including cigarettes that are sold in the United States through an importer.

2. The first purchaser anywhere that intends to resell in the United States cigarettes that are manufactured anywhere, if the original manufacturer or producer did not intend that the cigarettes be sold in the United States.

3. Any entity that becomes a successor to a person described in subd. 1. or a purchaser described in subd. 2.

4. Any person who owns an automated roll-your-own machine that is used to make cigarettes, not including an individual who owns a roll-your-own machine and uses the machine in his or her home solely to make cigarettes for his or her personal use or for the use of other individuals who live in his or her home.

(g) “Repeatability" means the range of values within which the repeat results of cigarette test trials from a single laboratory will fall 95 percent of the time.

(h) “Retailer" has the meaning given in s. 134.66 (1) (g).

(i) “Sell" or “sale" has the meaning given in s. 139.30 (12).

(2) Certification filed by manufacturers.

(a) Each manufacturer that sells or offers to sell cigarettes in this state shall file a written certification with the department, certifying that each type of cigarette listed in the certification has been tested in accordance with sub. (3) and complies with the applicable fire safety performance standard under sub. (3).

(b) For each type of cigarette listed in the certification, all of the following information shall be included in the certification:

1. The brand or trade name that appears on the package.

2. The style of the cigarette, such as light or ultra-light.

3. The length in millimeters.

4. The circumference in millimeters.

5. Any flavor description for the cigarette.

6. Whether the cigarette is filter or nonfilter.

7. The type of individual container in which the cigarette is packaged, such as a soft pack or a box.

8. A description of the marking required under sub. (4).

9. The name, address, and telephone number of the laboratory conducting the testing of the cigarette as required under sub. (3), if the laboratory is not owned and operated by the manufacturer of the cigarette.

10. The date on which the testing required under sub. (3) occurred.

(c) Upon filing a certification under par. (a), a manufacturer shall provide a copy of the certification to each distributor, jobber, or direct marketer that purchases from the manufacturer cigarettes that are the subject of the certification. Each manufacturer shall also provide to each distributor, jobber, and direct marketer sufficient copies of an illustration of the package marking required under sub. (4) to be given to each retailer to whom the distributor, jobber, or direct marketer sells cigarettes.

(d) Each manufacturer shall file the certification under par. (a) with the department every 3 years.

(e) The department shall promptly forward a copy of each certification it receives under par. (a) to the attorney general.

(f) Each manufacturer shall pay to the department a fee of $1,000 for each brand family of cigarette listed in each certification filed with the department under par. (a). The fee shall apply to all cigarettes within the brand family and shall include any new cigarette that is included in the 3-year certification period for which the fee is paid. The manufacturer shall pay the fee upon filing each certification for a new brand family.

(g) If a manufacturer has certified a type of cigarette pursuant to this subsection, and makes any change after the certification to that type of cigarette that is likely to alter its compliance with the applicable fire safety performance standard, no person may offer for sale or sell that type of cigarette in this state unless the manufacturer retests the cigarette in accordance with the applicable testing method under sub. (3) (a) or (d) and maintains the reports of that testing as required under sub. (3) (f).

(3) Test methods; performance standards.

(a) Method of testing. For purposes of this section, testing of cigarettes conducted by a manufacturer or conducted or sponsored by the state shall meet all of the following requirements:

1. The testing shall be conducted in accordance with the standard test method for measuring the ignition strength of cigarettes established by ASTM International standard E2187-04. The department may adopt a substitute test method that is different from the standard test method, if the department finds that the substitute test method does not result in a change in the percentage of full-length burns exhibited by any tested cigarette when compared to the percentage of full-length burns the same cigarette would exhibit when tested in accordance with the standard test method.

2. The testing shall be conducted on 10 layers of filter paper.

3. The fire safety performance standard under this subsection shall be applied only to a complete test trial, which shall consist of 40 replicate tests for each cigarette tested.

4. Each laboratory conducting the testing shall implement a quality control and quality assurance program that meets the requirements under par. (b) and that includes a procedure that will determine the repeatability of the results from the testing. The repeatability value may not be greater than 0.19.

5. Each laboratory conducting the test under this subsection shall be accredited pursuant to the standard ISO/IEC 17025 of the International Organization for Standardization or other comparable accreditation standard required by the department.

(b) Quality control and quality assurance program. For purposes of par. (a) 4., a quality control and quality assurance program shall include a laboratory procedure that ensures all of the following:

1. That operator bias, systematic and nonsystematic methodological errors, and equipment-related problems do not affect the results of the testing.

2. That the testing repeatability remains within the required repeatability value stated in par. (a) 4. for all of the test trials used to certify cigarettes under sub. (2).

(c) Fire safety performance standard.

1. A testing of cigarettes does not meet the applicable fire safety performance standard unless no more than 25 percent of the cigarettes tested in a complete test trial under par. (a) exhibit full-length burns.

2. Each type of cigarette listed in a certification under sub. (2) that uses lowered permeability bands in the cigarette paper in order to meet the fire safety performance standard under subd. 1. shall meet one of the following requirements:

a. For a cigarette that does not have bands positioned by design, the cigarette shall have at least 2 nominally identical bands on the paper surrounding the tobacco column, at least one of them being a complete band located at least 15 millimeters from the lighting end of the tobacco column.

b. For a cigarette that has bands positioned by design, the cigarette shall have at least 2 nominally identical bands on the paper surrounding the tobacco column. At least one of these bands shall fully be located at least 15 millimeters from the lighting end of the tobacco column, and at least one of the remaining bands shall fully be located at least 10 millimeters from the filter end of the tobacco column or at least 10 millimeters from the labeled end of the tobacco column for a nonfiltered cigarette.

(d) Alternative test methods and performance standards proposed by manufacturers.

1. If the department determines that a type of cigarette cannot be tested in accordance with the test method required under par. (a), the manufacturer thereof shall propose an alternative test method and alternative fire safety performance standard for approval by the department.

2. If the department determines that the alternative fire safety performance standard proposed under subd. 1. is equivalent to the applicable fire safety performance standard under par. (c), the department shall approve the alternative test method and the alternative performance standard for use by the manufacturer.

(e) Provisions from other states. In lieu of approving an alternative test method and alternative fire safety performance standard under par. (d), the department may review the cigarette fire safety requirements enacted or otherwise adopted by another state. The department shall allow a manufacturer to use the results of the other state's alternative test method and alternative performance standard for the purpose of certification under sub. (2) (a), if the department determines that the safety requirements are comparable to the requirements under this section, that the other state's safety requirements specify the same test method and the same performance standard that are specified in pars. (a) and (c), and that the other state has approved an alternative test method and alternative performance standard as meeting the requirements under that state's cigarette fire safety requirements. The department may not require additional testing under this paragraph, unless the department determines that it is not reasonable for the results to be used for this purpose.

(em) Additional testing. This subsection does not require additional testing if the cigarettes have been tested for another purpose with methods that are in accordance with the testing methods recognized under this subsection.

(f) Reporting requirement.

1. Each manufacturer shall keep reports on all test results on all types of cigarettes that are offered for sale and that are conducted to determine compliance with this section and shall keep copies of these reports for 3 years.

2. Upon written request from the department or the attorney general, a manufacturer shall make copies of the reports under subd. 1. available to the department or the attorney general within 60 days after receiving the request.

(4) Marking of cigarettes.

(a) Each manufacturer of cigarettes that are the subject of a certification filed under sub. (2) (a) shall mark the cigarettes to show that the cigarettes meet the applicable fire safety performance standard under sub. (3). The marking shall be in 8-point or larger type and shall be located at or near the universal product code.

(b) For the purposes of par. (a), the marking shall consist of one of the following:

1. Alphanumeric or symbolic characters permanently stamped, engraved, embossed, or printed in conjunction with the universal product code.

2. A visible combination of alphanumeric or symbolic characters permanently stamped, engraved, embossed, or printed upon the cigarette package or cellophane wrap.

3. Printed, stamped, engraved, or embossed text that indicates the cigarettes must meet the applicable fire safety performance standard under sub. (3).

4. The letters “FSC."

(c) A manufacturer shall use only one marking, shall use this marking uniformly for all types of cigarettes marketed by the manufacturer, and shall apply this marking to all packs, cartons, cases, and other packages containing the cigarettes.

(d) Prior to the certification of a type of cigarette, a manufacturer shall present its proposed marking to the department for approval. Upon receipt of the proposed marking, the department shall approve or disapprove the marking presented subject to par. (e). If the department fails to act within 10 business days after receiving the proposed marking, the marking shall be considered to have been approved by the department.

(e) The department shall approve a proposed marking under par. (d), if the proposed marking meets the size and location requirements under par. (a) and if either of the following applies:

1. The marking is in use and has been approved for cigarettes that are sold in New York.

2. The marking consists of the letters “FSC."

(f) A manufacturer may not modify a marking approved under par. (d).

(5) Prohibition.

(a) Except as provided in pars. (b) and (c), no person may sell or offer to sell cigarettes to a person located in this state unless all of the following apply:

1. The cigarettes are of a type that has been tested in accordance with this section.

2. The cigarettes meet the applicable fire safety performance standard required under this section.

3. The cigarettes are of a type that are covered by a certification filed under sub. (2) (a).

4. The cigarettes are marked in compliance with sub. (4).

(b) Paragraph (a) does not apply to the selling or the offering for sale of cigarettes by a manufacturer, distributor, direct marketer, jobber, or retailer if the stamps acquired under s. 139.32 were affixed to the cigarette packages prior to October 1, 2009, and if the quantity of such cigarettes in the manufacturer's, distributor's, direct marketer's, jobber's, or retailer's possession prior to October 1, 2009, is comparable to the quantity of cigarettes in the manufacturer's, distributor's, direct marketer's, jobber's, or retailer's possession during the same period of the previous year.

(c) Paragraph (a) does not apply to the selling or the offering for sale of cigarettes solely for the purpose of consumer testing that is conducted by a manufacturer or under the control and direction of a manufacturer if all of the following apply:

1. The purpose of testing is to evaluate consumer acceptance of the cigarettes.

2. The testing involves only the number of cigarettes that is reasonably necessary for the testing.

(6) Penalties.

(a) Any person who knowingly sells or offers to sell cigarettes at wholesale in violation of sub. (5) (a) shall forfeit not more than $10,000 for each sale subject to par. (e).

(b) Any person who knowingly sells or offers to sell cigarettes at retail in violation of sub. (5) (a) shall forfeit:

1. Not more than $500 for each violation that involves not more than 1,000 cigarettes.

2. Not more than $1,000 for each violation that involves 1,000 or more cigarettes, subject to par. (e).

(c) Any manufacturer that knowingly files a false certification under sub. (2) (a) shall forfeit not more than $10,000. Each false certification constitutes a separate offense.

(d) Any manufacturer who fails to comply with sub. (3) (f) 2. shall forfeit not more than $10,000. Each day of violation constitutes a separate offense.

(e) The total amount of forfeitures imposed under par. (a) against a single violator may not exceed more than $100,000 during any 30-day period. The total amount of forfeitures imposed under par. (b) 2. against a single violator may not exceed more than $25,000 during any 30-day period.

(7) Administration and enforcement.

(a) The department or attorney general may file an action in civil court for a violation of this section. The relief sought in the action may include injunctive relief, damages incurred by the state because of the violation, enforcement costs, court costs, and attorney fees. Each violation of this section constitutes a separate civil violation for which the department or attorney general may seek relief.

(b) The department of revenue, in the course of conducting any inspection or examination authorized under s. 139.39, may inspect cigarettes to determine if the cigarettes are marked as provided under sub. (4), and the department of revenue shall notify the department of safety and professional services of any unmarked cigarettes.

(c) Authorized personnel from the department of justice, from the department of safety and professional services, and from the department of revenue, and any sheriff, police officer, or other law enforcement personnel, within their respective jurisdictions, may enter and inspect any premises where cigarettes are made, sold, offered for sale, or stored to determine if the cigarettes comply with this section. An inspection under this paragraph includes examining the books, papers, invoices, and other records of any person who is subject to this section and who is in control, possession, or occupancy of the premises.

(8) Seizure. All cigarettes acquired, owned, imported, possessed, kept, stored, made, sold, distributed, or transported that have not been marked as provided in sub. (4) are subject to seizure by anyone authorized to inspect premises under sub. (7) (c). All seized cigarettes shall be destroyed after the person who holds the trademark rights in the cigarette brand has been given a reasonable opportunity to inspect the cigarettes.

(9) Selling cigarettes outside of this state. This section does not apply to any manufacturer or any person who sells or offers to sell cigarettes that are prohibited from being sold under sub. (5) (a) if either of the following applies:

(a) The cigarettes will be stamped for sale in a state other than this state.

(b) The cigarettes are packaged to be sold outside the United States and the manufacturer or seller has taken reasonable steps to ensure that the cigarettes will not be sold or offered to be sold to any person in this state.

(10) New York, federal, and local laws.

(a) This section shall be implemented in accordance with the implementation and substance of the New York Fire Safety Standards for Cigarettes that are in effect on October 1, 2009. If, after October 1, 2009, the New York safety standards are changed, the department shall suggest proposed legislation to the chairpersons of the appropriate standing committees of the legislature, as designated by the presiding officer of each house. The proposed legislation shall contain the provisions necessary to bring this section into accordance with the New York safety standards.

(b) If the department determines that the federal government has enacted legislation that establishes a fire safety performance standard that conflicts with or that preempts the provisions of this section that establish fire safety performance standards, this section does not apply after the date on which the federal legislation takes effect.

History: 2007 a. 225; 2011 a. 32; 2013 a. 20; 2015 a. 186.