Section 23-51-30 - Performance standards testing(A) Except as provided in subsection (O), cigarettes may not be sold or offered for sale in this State or offered for sale or sold to persons located in this State unless the cigarettes have been tested in accordance with the test method and meet the performance standard specified in this section, a written certification has been filed by the manufacturer with the State Fire Marshal in accordance with Section 23-51-40, and the cigarettes have been marked in accordance with Section 23-51-50.(B) Testing of cigarettes must be conducted in accordance with the American Society of Testing and Materials (ASTM) Standard E2187-04, "Standard Test Method for Measuring the Ignition Strength of Cigarettes".(C) Testing must be conducted on ten layers of filter paper.(D) No more than twenty-five percent of the cigarettes tested in a test trial in accordance with this section shall exhibit full-length burns. Forty replicate tests shall comprise a complete test trial for each cigarette tested.(E) The performance standard required by this section must be applied to a complete test trial.(F) Written certifications must be based upon testing conducted by a laboratory that has been accredited pursuant to standard ISO/IEC 17025 of the International Organization for Standardization (ISO), or another comparable accreditation standard required by regulations promulgated under this chapter.(G) Laboratories conducting testing in accordance with this section shall implement a quality control and quality assurance program that includes a procedure that will determine the repeatability of the testing results. The repeatability value must be no greater than 0.19.(H) This section does not require additional testing if cigarettes are tested consistent with this chapter for another purpose.(I) Testing performed or sponsored by the State Fire Marshal to determine a cigarette's compliance with the performance standard required by this section must be conducted in accordance with this section.(J) Each cigarette listed in a certification submitted pursuant to Section 23-51-40 that uses lowered permeability bands in the cigarette paper to achieve compliance with the performance standard contained in this section shall have at least two nominally identical bands on the paper surrounding the tobacco column. At least one complete band must be located at least fifteen millimeters from the lighting end of the cigarette. For cigarettes on which the bands are positioned by design, there must be at least two bands fully located at least fifteen millimeters from the lighting end and ten millimeters from the filter end of the tobacco column, or ten millimeters from the labeled end of the tobacco column for nonfiltered cigarettes.(K) A manufacturer of a cigarette that the State Fire Marshal determines cannot be tested in accordance with the test method prescribed in subsection (B) shall propose a test method and performance standard for the cigarette to the State Fire Marshal. Upon approval of the proposed test method and a determination by the State Fire Marshal that the performance standard proposed by the manufacturer is equivalent to the performance standard prescribed in subsection (D), the manufacturer may employ the approved test method and performance standard to certify the cigarette pursuant to Section 23-51-40. If the State Fire Marshal determines that another state has enacted reduced cigarette ignition propensity standards that include a test method and performance standard that are the same as those contained in this chapter, and the State Fire Marshal finds that the officials responsible for implementing those requirements have approved the proposed alternative test method and performance standard for a particular cigarette proposed by a manufacturer as meeting the reduced cigarette ignition propensity standards of that state's law or regulation under a legal provision comparable to this section, then the State Fire Marshal shall authorize that manufacturer to employ the alternative test method and performance standard to certify that the cigarette for sale in this State, unless the State Fire Marshal demonstrates a reasonable basis why the alternative test should not be accepted under this chapter. All other applicable requirements of this section shall apply to the manufacturer.(L) Each manufacturer shall maintain copies of the reports of all tests conducted on all cigarettes offered for sale for a period of three years, and shall make copies of these reports available to the State Fire Marshal and the Attorney General upon written request. A manufacturer who fails to make copies of these reports available within sixty days of receiving a written request is subject to a civil penalty not to exceed ten thousand dollars for each day after the sixtieth day that the manufacturer does not make these copies available.(M) The State Fire Marshal may adopt a subsequent ASTM Standard Test Method for Measuring the Ignition Strength of Cigarettes upon a finding that the subsequent 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 ASTM Standard E2187-04 and the performance standard in subsection (D).(N) The State Fire Marshal shall review the effectiveness of this section and report every three years to the General Assembly the State Fire Marshal's findings and, if appropriate, recommendations for legislation to improve the effectiveness of this chapter. The report and legislative recommendations must be submitted no later than June thirtieth following the conclusion of each three-year period.(O) The requirements of subsection (A) shall not prohibit:(1) wholesale or retail dealers from selling their existing inventory of cigarettes on or after the effective date of this chapter if the wholesale or retail dealer can establish that all taxes owed on the cigarettes pursuant to Article 5, Chapter 21 of Title 12 have been paid before the effective date and the wholesale or retail dealer can establish that the inventory was purchased before the effective date in comparable quantity to the inventory purchased during the same period of the prior year; or(2) the sale of cigarettes solely for the purpose of consumer testing. For purposes of this subsection, the term "consumer testing" shall mean an assessment of cigarettes that is conducted by a manufacturer or under the control and direction of a manufacturer, for the purpose of evaluating consumer acceptance of the cigarettes, utilizing only the quantity of cigarettes that is reasonably necessary for this assessment, and in a controlled setting where the cigarettes are either consumed on-site or returned to the testing administrators at the conclusion of the testing.(P) This chapter shall be implemented in accordance with the implementation and substance of New York Fire Safety Standards for Cigarettes in effect on May 1, 2008. If after May 1, 2008, the New York Fire Safety Standards are changed, then the State Fire Marshal shall recommend to the chairpersons of the appropriate standing committees of the General Assembly such proposed legislation as may be necessary to make this chapter consistent, as far as possible, with the New York Fire Safety Standards for Cigarettes.2008 Act No. 331, Section 1, eff 1/1/2010.