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------------------------------------------------------------------- State Laws on Tobacco in New Jersey
www.njgasp.org |
| About this document |
New Jersey has enacted legislation and regulations to control tobacco marketing, sales, and use. This publication summarizes tobacco-specific laws plus other laws and some regulations, policies, and lititigation that can be used to provide smokefree environments and to promote tobacco-free lives for children. For very short summaries, see State Laws on Tobacco at a Glance. Note: New state legislation is constantly being proposed. Also see "Loopholes in New Jersey State Statutes".
This digest was prepared by New Jersey GASP's attorney and other staff with consultation from the New Jersey Department of Health and Senior Services (NJDHSS), other agencies, and legal experts. Some provisions of these laws are not specific. Ultimately, interpretation may depend upon court decisions. New Jersey GASP suggests the reader obtain a copy of the full text of legislation and consult legal counsel other than New Jersey GASP prior to taking action.
| Federal Laws |
Federal legislators and administrators have enacted tobacco controls. For instance, smoking is prohibited on almost all domestic flights and is banned in federally funded youth facilities. In 1993, the U.S. Postal Service made all of its buildings and vehicles smokefree. In 1997, President Clinton issued an executive order to make all federal buildings in the executive branch smokefree. The Americans with Disabilities Act is being used by smoke sensitive individuals to obtain smokefree workplaces and public places. In addition, proposed legislation would make many public places smokefree.
Starting in November 1998, most states (including New Jersey) and most United States tobacco manufacturers signed the Master Settlement Agreement which governs the sale and marketing of tobacco to minors and provides compensation to the states in return for release from claims. New Jersey also requires non-participating tobacco manufacturers to contribute to an escrow reserve fund to guarantee a source of compensation to pay any judgment or settlement on any released claims brought by the State or a releasing party (any person or entity on behalf of the general public or people of the State). NJSA 52:4D-2 through 3.
New Jersey GASP tracks and selectively supports federal tobacco control legislation and regulation. National organizations that also track and selectively support federal legislation are:
- Americans for
Nonsmokers' Rights
2530 San Pablo Avenue, Suite J,
Berkeley, CA 94702
510 841-3032, fax 510 841-3071
www.no-smoke.org
- Campaign for
Tobacco-Free Kids
1400 I Street, NW, Suite 1200
Washington, DC 20005
202 296-5469, fax 202 296-5427
www.tobaccofreekids.org
- Action on Smoking
and Health (ASH)
2013 H Street, NW, Washington, DC 20006
202 659-4310, fax 202 833-3921
www.ash.org
| Local Laws |
New Jersey local legislators and boards of health are enacting ordinances. As of April 2001, more than 180 municipalities, representing approximately one third of all New Jersey municipalities, had passed controls on tobacco sales, including the elimination of cigarette vending machines and self service tobacco. Approximately 120 municipalities had enacted controls on tobacco use. Several communities had passed comprehensive smokefree air ordinances, which include public and private workplaces and restaurants. Some ordinances include outdoor areas, and some ban minors from using tobacco in public places. Several municipalities had restrictions on placement of tobacco advertising. New Jersey GASP publishes Local Laws on Tobacco in New Jersey, which charts these ordinances. A searchable database is at www.njgasp.org.
| State Laws |
The Environmental Tobacco Smoke (ETS) laws listed here specify areas where ETS is prohibited. One law, NJSA 2C:33-13b and c, empowers the proprietor or manager of any place open to the public to create a smokefree rule. This law may apply to public places that are owned, rented, or leased, such as hotels and casinos, and can also be applied to outdoor areas, such as sports facilities, playgrounds, swimming pools, and outdoor cafes.
Note: Proprietors and managers, including landlords of residential property, have always been free to make smokefree rules for their facilities, including grounds and vehicles.
In this publication, citation references to New Jersey Statutes Annotated and New Jersey Administrative Code are abbreviated NJSA and NJAC, respectively.
To see the current official text of the permanent statutes of New Jersey, see New Jersey Statutes at www.njleg.state.nj.us/html/statutes.htm.
Violations of laws enforced by the NJDHSS can be reported
to the:
Tobacco Control Program
Division of Addiction Services
New Jersey Department of Health and Senior Services
120 S. Stockton Street P.O. Box 362
Trenton, NJ 08625-0362
Report violations by phone: 609 984-0899
The Tobacco Control Policy and Legal Resource Center of New Jersey GASP is available to comment on current laws and to help legislators and citizens draft new legislation.
Following is
a summary of selected New Jersey state laws that can be used to control
smoking and tobacco.
Providing tobacco to persons under 19 years of age
--- Sales to persons under 19 years of age
--- Cigarette vending machines on school property
Tobacco use
--- Correctional facilities
--- Employment discrimination
--- Public places
--- Retail food establishments
--- Hotels and multiple dwellings
--- Cosmetology and hairstyling shops and schools
--- Hospitals
--- Residential health care facilities
--- School buses and vehicles
--- Public transportation
--- Fireworks plants and stores
--- Air and marine terminals
Other laws on tobacco
--- Highway littering
--- School curriculum
--- Tobacco products as prizes
--- Tobacco taxes
| Providing tobacco to persons under 19 years of age |
Sales
to sales to persons under 19 years of age
It is prohibited for any person to directly or indirectly distribute
for commercial purposes at no cost or minimal cost or with coupons or
rebate offers, or to directly or indirectly sell, give, or furnish to
a person under 19 years old, any cigarette, cigarette paper, or tobacco
in any form, including smokeless tobacco, either from a vending machine
or by retail counter sales. NJSA 2A:170-51.4.
Fines: (1) civil penalty of $250 for first violation, $500 for second violation, and $1,000 for a third and each subsequent violation. Further penalties may include suspension or revocation of license by the Division of Taxation upon recommendation by a municipality, following a hearing. Defense requires proving three elements [see statute for details]. NJSA 2A:170-51.4b and c. (2) Civil penalty up to $150 for the first violation, up to $300 for second violation, and elimination of the conduct of other businesses on the licensed premises plus a monetary fine for a third offense. Division of Alcoholic Beverage Control, New Jersey Department of Law and Public Safety, Bulletin 2465, item 3, March 13, 1995.
A person 19 years of age or older who purchases a tobacco product for a person who is under 19 years of age is a petty disorderly person. NJSA 2A:170-51.1 and 2C:33-13.1.
Municipal ordinances on tobacco vending machines are not preempted. NJSA 2A:170-51.4.
Penalties shall be paid into the municipality's treasury for the municipality's general uses. A municipal court has jurisdiction to enforce and collect penalties. Enforced by summons or warrant issued by the local board of health or police. NJSA 2A:170-51.4c.
The New Jersey Commissioner of Health is authorized to enforce NJSA 2A:170-51.4, section 1 and may delegate enforcement authority to local health agencies. The New Jersey Department of Treasury shall provide necessary information on retail tobacco dealer licensees to the Commissioner of Health. NJSA 26:3A2-20.1a and b.
A person licensed to sell tobacco shall post a sign, at least six inches by three inches, at all points of display and sale including vending machines, that shall read in bold letters, "A person who sells or offers to sell a tobacco product to a person under 19 years of age shall pay a penalty up to $1,000 and may be subject to a license suspension or revocation. Proof of age may be required for purchase." Enforced by police or citizen complaint. NJSA 54:40A-4.l.
Cigarette
vending machines on school property
Any person
who permits the operation, installation, or maintenance of coin operated
vending machines that dispense cigarettes on any school board owned
property used for school purposes shall be punishable by a fine of $250.
Enforced by police or citizen complaint. NJSA 18A:36-32.
| Tobacco use |
Note: In most of the following laws, smoking is defined as "the burning of a lighted cigar, cigarette, or pipe, or any other matter or substance which contains tobacco."
Correctional facilities
In March 1994,
the Commissioner of the New Jersey Department of Corrections issued
two policies to make most areas of Department of Corrections complexes
and vehicles smokefree. Exceptions: inmates may smoke in single-occupancy
cells in close custody housing and in designated outdoor areas; officers
may smoke in the institutional towers, in state owned vehicles if only
the driver is present, and in designated outdoor areas. Enforced by
the Inmate Code of Prohibited Acts or, for employees, consultants, volunteers,
and visitors, by HRB 84-17, E-3, "Smoking Where Prohibited".
Employment
discrimination
An employer
shall not refuse to hire, discharge, or take any adverse action against
an employee because that employee does or does not smoke or use tobacco
products, unless the employer has a rational basis for such actions
which is reasonably related to the employment. Note: the Senate Labor,
Industry, and Professions Committee statement specifies, "It is
not the intent of the Legislature that the provisions of this bill have
any impact on the terms and conditions of employer sponsored health
or life insurance plans, including the right of such plans to differentiate
between smokers and nonsmokers with regard to the amount of any employee
contributions or copayments." NJSA 34:6B-1 through 2.
Maximum fines: (1) $2,000 for first offense, $5,000 for each subsequent violation; collectible by the New Jersey Commissioner of Labor and enforced by the Commissioner of Labor in a summary proceeding. NJSA 34:6B-4. (2) An employee or prospective employee may file a complaint within one year from the date of the alleged violation in a court of competent jurisdiction and may be awarded an injunction, compensatory and consequential damages, or reasonable attorneys' fees and court costs. NJSA 34:6B-3.
Public
places
Smoking or
carrying lighted tobacco may be prohibited by the owner or person responsible
for operating any public place or by municipal ordinance under the authority
of NJSA 40:48-1 and 40:48-2. Conspicuous posting of adequate notice
of the prohibition is required. [This law may also apply to outdoor
areas, including sports facilities.] Maximum penalty: $200 and 30 days
imprisonment. Enforced by police or citizen complaint. Violator is a
petty disorderly person. NJSA 2C:33-13b and c.
Retail
food establishments
Employees
shall not use tobacco in any form while engaged in food preparation
or service, or in equipment and utensil washing or food preparation
areas in a retail food establishment. NJAC 8:24- 4.2(b). A retail food
establishment includes, but is not limited to, any fixed or mobile restaurant,
tavern, bar, night club, roadside stand, catering kitchen, deli, and
grocery store. NJAC 8:24-1.3. Fine: $50 to $1,000 per offense and/or
injunction. Enforced by the NJDHSS or local board of health. Penalties
shall be recovered by the New Jersey Commissioner of Health and paid
into the state treasury, or by the local board of health and paid into
the municipal treasury. NJAC 8:24-10.7 and 8:52-3.4, and NJSA 26:1A-9
through 10.
Hotels
and multiple dwellings
The owner
shall eliminate or abate any odors arising out of the use or occupancy
of the premises which constitute a nuisance that is harmful or potentially
harmful to the health and wellbeing of ordinarily sensitive occupants
or users. NJAC 5:10-6.2. Enforced by the New Jersey Bureau of Housing
Inspection, which may authorize a municipality to enforce. A municipality
or county may contract with the Bureau to perform inspections in response
to complaints received by the Bureau. NJAC 5:10-1.3(a) and (b)(12).
Also enforced by the local board of health through local health personnel.
NJSA 26:3-19.
Note: For problems in a HUD-subsidized dwelling, contact the county HUD office. See also Section 504 of the Federal Rehabilitation Act of 1973, as amended, and the Federal Fair Housing Act of 1968, as amended.
Nuisance
The following may apply to hotels, multiple dwellings, and multi-tenant
office buildings:
Local boards of health shall pass, alter, or amend ordinances and make rules and regulations to declare and define what constitutes a nuisance in all public and private places. Local boards of health shall also examine and prohibit any nuisance, offensive matter, foul or noxious odors, gases, or vapors which may be known to the board of health or brought to its attention, which, in its opinion, is injurious to the health of inhabitants. The local board of health (or its health officer or registered environmental health specialist) shall then cause the nuisance to be removed and abated by either (1) notifying the owner to remove or abate the nuisance at the owner's expense, and providing a copy of the notice to the tenants or occupants; or (2) instituting an action in Superior Court to seek injunctive relief to prohibit the nuisance. NJSA 26:3-45 through 63, and NJAC 8:52-3.6 generally. The local board of health can also employ personnel, such as health officers, for enforcement. NJSA 26:3-19.
The Commissioner of Health can require a local health department to enforce nuisance laws or regulations if a local board of health fails to do so. The Commissioner first notifies the local board of health to give that board an opportunity to explain its failure. If no good reason exists for that failure, then the Commissioner shall issue an order directing that local board of health to enforce the law or provisions of the State Sanitary Code. If the local board of health then fails to comply, the Commissioner shall take necessary action to perform the acts specified in the order. NJSA 26:1A-23 through 24.
The Commissioner of Health can also determine the existence of a nuisance and require a local board of health to act. Whenever any nuisance or source of foulness is, in the State Health Commissioner's opinion, hazardous to a person's health, the Commissioner may cause a written notice to be sent to the local board of health, requiring it to cause the nuisance or source of foulness to be abated within the time specified in the notice. If the local board of health fails to abate the nuisance, the Commissioner may institute an action in Superior Court to stop the nuisance or source of foulness. NJSA 26:1A-26 through 30.
A person commits a petty disorderly offense if, with purpose to harass another, s/he engages in alarming conduct or repeatedly committed acts with purpose to alarm or seriously annoy another person. NJSA 2C:33-4. A person is guilty of maintaining a nuisance when s/he, by conduct either unlawful or in itself unreasonable, knowingly or recklessly creates or maintains a condition which endangers the safety or health of a considerable number of persons. The court may order an immediate abatement of the nuisance. NJSA 2C:33-12 to 12.1.
Cosmetology
and hairstyling shops and schools
No licensed
practitioner or patron shall smoke while services are performed. NJAC
13:28-3.3(f). Cosmetology and hairstyling schools shall not permit smoking
by students or teachers in classrooms or clinics. NJAC 13:28-6.14. Maximum
fine: up to $2,500 for the first offense, and up to $5,000 for second
and each subsequent offense. Enforced by written citizen complaint to
the New Jersey State Board of Cosmetology and Hairstyling. NJSA 45:1-25.
Hospitals
A hospital
is an institution that operates facilities for diagnosis, treatment,
or care of at least two non-related individuals, and where emergency,
out-patient, surgical, or other medical and nursing care is given for
periods over 24 hours. NJAC 8:43G-12. Hospitals shall be smokefree.
Employees, visitors, and patients shall not smoke in the facility. Exception:
a patient may smoke only on written orders of the attending physician
when the physician has concluded that smoking is in the patient's best
interest, and any room designated for smoking (1) shall not share the
same ventilation system as rooms occupied by patients and/or nonsmokers
and (2) shall vent to the outside. The hospital shall have a written
policy establishing the maximum number of patients permitted in a designated
smoking room at the same time, which shall not exceed five smokers per
100 square feet per room. Maximum fine: $250 to the hospital. Enforced
by citizen complaint to the NJDHSS. NJAC 8:43G-5.2(m)-(o).
Note: The Joint Commission on Accreditation of Healthcare Organizations standards prohibit smoking by patients, visitors, and staff in any hospital buildings. Exceptions: (1) if a licensed independent practitioner authorizes smoking for an adult patient for medical reasons; or (2) in long term (more than 30 days) care institutions, in locations environmentally separate from all patient care areas, provided the hospital discourages smoking and provides education and nicotine addiction withdrawal assistance. 1998 Hospital Accreditation Standards E.C. 5 and 5.1.
Residential
health care facilities
A residential
health care facility provides food, shelter, supervised health care,
and related services to four or more persons 18 years of age or older,
who do not require skilled nursing care, and who are unrelated to the
owner or administrator. NJAC 8:43-1.2 and 1.3. Residents shall not be
permitted to smoke in their rooms and in other secluded areas. Exception:
a resident may smoke in a restricted smoking area that has adequate
outside ventilation to prevent recirculation to other areas. The facility
may establish a smokefree policy that shall be in its admission agreement.
NJAC 8:43-6.1(a)6(i) through (iv).
Residential
substance abuse facilities
A
residential substance abuse facility includes all residential health
care facilities which provide substance abuse treatment, hospitals which
offer hospital-based medical detoxification services in a designated
detoxification unit or facility or provide any of the modalities of
residential substance abuse treatment. NJAC 8:42A-1.1 The smoking of
tobacco products and the use of spit tobacco is prohibited within all
buildings. The use of tobacco products and spit tobacco on the grounds
of free standing treatment facilities shall be phased out by November
15, 2001. Tobacco products shall not be used in vehicles used to transport
patients at any time. NJAC 8:42A-3.11(a) and (b).
School
buses and vehicles
No smoking
on school buses and vehicles even if students are not present in the
vehicle. Applies to public, private, or professional tranining school
buses. 2C:33-13a. Up to $200 fine to the smoker, and considered a petty
disorderly persons offense. 2C:33-13b.
Public
transportation
No smoking
in buses, including school buses, or other public conveyances. Exceptions:
group charter buses, smoking permitted cars on trains, limousines or
livery services, taxis occupied only by the driver. Violator is a petty
disorderly person. Maximum penalty: $200 and 30 days imprisonment. Enforced
by police or citizen complaint. NJSA 2C:33-13a through c.
Fireworks
plants and stores
Smoking
or carrying matches, a lighted cigar, cigarette, or pipe within any
room or enclosed place or upon any part of a fireworks plant is prohibited.
NJSA 21:2-18. Fireworks plants shall post "Warning" and "No
Smoking" signs. NJSA 21:2-19. Smoking shall be prohibited in any
building where fireworks are sold and over each entrance to such a store
a sign in large letters shall be displayed reading "Fireworks For
Sale-No Smoking Allowed". NJSA 21:2-30. Any person who violates
this statute shall be guilty of a crime of the fourth degree. NJSA 21:2-35.
The Commissioner of Labor shall enforce, make complaints against violators, and prosecute violators. NJSA 21:1A-130.
Fine: between $100 to $5,000 for the first offense, $300 to $5,000 for the second offense, and $500 to $10,000 for the third and each succeeding offense. NJSA 21:1A-140.
Air
and marine terminals
No person
shall smoke, carry, or possess a lighted cigarette, cigar, pipe, match,
or other lighted instrument capable of causing naked flame in or about
any area, building, or appurtenance of an air terminal owned or operated
by the Port Authority of New York and New Jersey ("Port Authority")
or in or upon any area, bulkhead, dock, pier, wharf, warehouse, building,
structure, or shed of a marine terminal owned or operated by the Port
Authority where smoking is prohibited by the Port Authority and where
signs are posted, or on the open deck of any ship, lighter, carfloat,
scow, or other similar floating craft or equipment when berthed or moored
at such dock, wharf, pier, or to a vessel. NJSA 32:1-146.4.
Fine: not more than $50 and/or up to 30 days imprisonment for a first offense, $25 to $100 and/or up to 60 days imprisonment for a second offense, and $50 to $200 and/or up to 60 days imprisonment for a third or subsequent offense. Such a violation shall be brought to the Superior Court or municipal court where the offense was committed. NJSA 32:1-146.5.
| Other laws on tobacco |
Ban
on sale of loose cigarettes (not sold in a pack)
New Jersey
bans the sale or giving away of single cigarettes, or in sealed packs
of less than 20 cigarettes. $100 to $500 fine for each day of the violation
for a cigarette vending machine owner; $250 to $500 fine for each over-the-counter
sale. NJSA 54:40A-1 and 2.
Highway
littering
No person
shall throw or drop a cigarette, cigar, match, or ashes, or any substance
likely to cause or fuel a fire, from a vehicle on a highway. Minimum
fine: $200; maximum fine: $1,000. Enforced by police or citizen complaint.
NJSA 39:4-64.
School
curriculum
All public
schools shall provide instructional programs on the nature of tobacco
and its physiological, psychological, sociological, and legal effects
on the individual, family, and society, in each grade (K through 12).
Guidelines shall be established by the New Jersey Commissioner of Education
and reviewed annually by the Commissioners of Education and Health to
update information. Upon request, a board of education has the duty
to lend such educational materials to pupils attending nonpublic schools
in its district. NJSA 18A:40A-1 through 7.
Tobacco products as prizes
It is prohibited
for charitable games of chance to offer or award any prize consisting
of tobacco products or any merchandise refundable in tobacco products.
NJAC 13:47-6.19. Maximum fine: civil penalty not to exceed $7,500 for
first offense and $15,000 for second and each subsequent offense. An
action may be brought in an administrative proceeding, or Superior Court,
or by the Attorney General in the name of the Legalized Games of Chance
Control Commission through a summons or warrant, to collect or enforce
civil penalties. The Legalized Games of Chance Control Commission or
the court may order payment of costs to the State. NJSA 5:8-57.2.
Tobacco taxes
New Jersey
imposes a tax of twelve cents per cigarette ($2.40 per pack). NJSA 54:40A-8.
Selling cigarettes without revenue stamp(s) affixed to each package
is prohibited [may be interpreted as prohibiting the sale of single
cigarettes, or "loosies", except from properly stamped packages].
Fines: (1) misdemeanor, and (2) up to $1,000 and/or jail term up to
one year. NJSA 54:40A-11 and NJSA 54:40A-28.
New Jersey imposes a 30% tax on the wholesale price of cigars, little cigars, cigarillos, chewing tobacco, pipe tobacco, smoking tobacco and their substitutes, and snuff, upon their sale, use or distribution within New Jersey. This does not apply to cigarettes. NJSA 54:40B-3.
This document updated January 9, 2007