New Fire Safe Cigarette Certification - Deadlines in 2010

In 2003, New York passed legislation designed to enhance safety by requiring cigarettes sold in New York after June 2004 to be manufactured with papers that would make the cigarettes self-extinguishing. This initial piece of legislation on the subject of fire safe cigarettes, New York's fire safe law, set the nationwide standard. Ever since, 33 states and the District of Columbia have required fire safe certification for cigarettes. Despite this multi-state effort, the legislation passed in each state requiring all brands to be certified as fire safe is not uniform and varies by state.

Beginning on January 1, 2010, twelve additional states (Alabama, Arkansas, Florida, Georgia, Michigan, Nebraska, New Mexico, North Carolina, North Dakota, South Carolina, Tennessee, Virginia) will require cigarettes sold in those states to be fire safe certified to be sold (or to continue to be sold). Brands that have not been so certified on or before January 1, 2010, may be banned from sale in those states. Later in 2010, three additional states, Mississippi, Nevada and Ohio (July 1, 2010, June 1, 2010, and May 1, 2010, respectively), will impose deadlines for fire safe certification. A separate application to each state requiring fire safe cigarettes, therefore, will be required. In many of the states, the application is handled by the State Fire Marshall and the certification issued by the Fire Marshall must be submitted to that state's Office of Attorney General Tobacco Unit.

A limited exception will allow sales of product not certified as fire safe (after the effective date of the fire safe laws), provided the taxes have been paid to the relevant state on or before the effective date of the state fire safe law. For example, South Carolina will allow such an exception, provided that the purchases made prior to the law's effective date were made in the ordinary course of business, and in volume no larger than normal purchases.

It is advisable for the tobacco product manufacturer to quickly begin the process to become fire safe certified in the upcoming twelve states in order to meet the deadline before January 1, 2010, and to submit fire safe certifications to the Tobacco Units at these states Offices of Attorneys General so as to remain listed on Tobacco Directories. State laws vary concerning the requirements for applications to receive fire safe certification; however, most of the states require: (i) manufacturing with a paper that achieves the new required burn rate; (ii) copy of laboratory testing results on each brand and brand style that confirm the required burn rate; (iii) copies of packaging for each brand and brand style bearing "Fire Safe Certified" or "FSC" in a specific location on the package; (iv) application fee which varies by state; (v) completion of an application, in some instances; and (vi) renewal of this process within one to three years.

Distributors should be aware that some states are implementing dual lists of approved brands to accommodate sale (after the effective date of the law) of cigarettes that are not fire safe within the meaning of the statute. Therefore, in each state, distributors should review both the Tobacco Directory managed by the Office of the Attorney General, and the list of fire safe certified brands posted by the Fire Marshall. A comparison of these lists will be instructive in determining whether there is authorization by the appropriate regulators to sell brands after the effective date of the fire safe law.