A Tobacco Control Policy & Legal Resource Center
Supporting Smokefree Air & Tobacco-Free Lives
NJ State & Federal Tobacco Control Laws
New Jersey has enacted legislation and regulations to control tobacco marketing, sales, and use. This wepage details tobacco-specific laws.
For brief summaries of the New Jersey state tobacco control laws, go to NJ State Laws at a Glance. Read the NJ state tobacco control bills introduced in the current and historical legislative sessions.
This information is created by the Tobacco Control Policy and Legal Resource Center of New Jersey GASP, which provides expert information, guidance, and technical assistance about policy, legislation, and litigation, especially regarding smokefree air and is not intended as, nor to be construed, or used, as legal advice, and should not be used to replace the advice of your legal counsel. Readers should obtain a copy of the full text of legislation and consult their legal counsel prior to taking action and keep in mind that interpretation of laws may depend upon court decisions and other rulings.
Table of Contents (click on topic):
On April 24, 2014, the FDA announced proposed regulations to gain regulatory authority over tobacco products not yet regulated by the FDA, including electronic smoking devices (ESD’s), hookah, cigars and dissolvable tobacco products. See the FDA website at http://www.fda.gov/TobaccoProducts/Labeling/ucm388395.htm. Once the proposed regulations become final, these four new categories of tobacco products will be classified under the FDA Act as “deeming tobacco products”, and further regulation can be made. The FDA states that once the products are classified as “deemed tobacco products”, then they will consider regulating flavors and restrictions on marketing and advertising. Public comment is being accepted until August 8, 2014. Read the proposed regulations and submit comments at http://www.regulations.gov/#!documentDetail;D=FDA-2014-N-0189-0001. For a detailed analysis of the proposed FDA regulations, read our tobacco control legal consortium member’s website, Public Health Law Center.
The proposed FDA regulations include:
- Ban sale of ESD’s, pipe tobacco and cigars to minors (NJ bans sale to under 19).
- ESS manufacturers to disclose ingredients, manufacturing processes and scientific data (2 year window).
- ESD manufacturers to register with the FDA, subject to inspections.
- Need FDA approval for ESD companies to assert claims that ESDs are less harmful than conventional cigarettes.
- Ban free samples, vending machine sales except adult only locations (like conventional cigarettes) of ESD’s, etc.
- Impose addictive nicotine warning labels on ESDs.
The proposed regulations:
- DO NOT BAN flavored ESD’s etc. FDA Act bans flavored cigarettes, except menthol (NJ banned flavored cigarettes, except menthol and clove, prior to the FDA Act).
- DO NOT BAN ESD marketing/ads on tv and radio.
- Do NOT BAN self-service displays of ESD’s etc. FDA Act bans self-service displays of cigarettes, cigarette tobacco and smokeless tobacco products.
- Do not regulate non-nicotine ESD’s.
- Option to exclude premium cigars (industry lobbying).
Family Smoking Prevention and Tobacco Control Act: On June 22, 2009, The Family Smoking Prevention and Tobacco Control Act (“FDA Act”) (a.k.a. FDA regulations HR 1256), was signed by President Obama. The FDA Act gives the U.S. Food and Drug Administration (“FDA”) authority to regulate cigarettes and smokeless tobacco products, along with other restrictions on cigarette and smokeless tobacco advertising, and to ban flavorings in cigarettes (menthol was excluded, see http://www.fda.gov/TobaccoProducts/ProtectingKidsfromTobacco/FlavoredTobacco/default.htm). Read the Guidance, Compliance and Regulatory Information published at the time by the FDA. The FDA hosts tobacco retailer trainings and posts online their powerpoint presentations. Presentations include restrictions on impersonal modes of sale (vending machines and self-service), smokeless tobacco product packaging and advertisement restrictions, and penalties. This FDA timeline gives the history, rationale and events associated with the Act as well as deadlines and requirements in full. Read the Act’s Provisions on banning the self-service displays of cigarettes and smokeless tobacco, and banning vending machine sales of cigarettes and smokeless tobacco.
On June 22, 2010, many provisions of the FDA Act took effect, regarding the sale, marketing and distribution of cigarettes and smokeless tobacco. Read Campaign for Tobacco Free Kid’s June 21, 2010 press release for specific details on which provisions took effect on June 22, 2010. In addition, read the FDA’s June 21, 2010 press release about the 1st year anniversary of the Tobacco Control Act and its progress. Read the FDA Center for Tobacco Products 2009-2010 Inaugural Year in Review. Visit our webpage about marketing the Campaign for Tobacco Free Kids March 2012 study about how point-of-sale tobacco marketing affects children. Read all FDA press releases on the Tobacco Control Act. Campaign for Tobacco Free Kids issued a March 2012 study analyzing how point of sale tobacco marketing affects children.
On March 19, 2010, to help implement the FDA Act, the FDA issued federal Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, (“FDA Regulations”, cited 21 CFR Part 1140), effective June 22, 2010. These FDA Regulations contain a broad set of federal requirements designed to significantly curb access to and the appeal of cigarettes and smokeless tobacco products to children and adolescents in the United States. The FDA Regulations restrict the sale, distribution, and promotion of these products, to make them less accessible and less attractive to kids. Learn more about these Regulations at the FDA’s press release and Frequently Asked Questions on implementing the regulations. Enforcement inspections are done by visits to retailers nationwide looking for violations of federal laws barring the sale of cigarettes or other tobacco products to anyone under 18 years old. Read this news article from November 11, 2011 about 1200 warning letters across 15 states that the FDA sent out to tobacco retailers found to be violating the law.
MENTHOL TOBACCO PRODUCTS
On July 23, 2013, The U.S. Food and Drug Administration (FDA) released its own scientific review that found the mint flavoring made it easier to start smoking and harder to quit. The review is entitled “Preliminary Scientific Evaluation of the Possible Public Health Effects of Menthol vs. Nonmenthol Cigarettes“. The FDA reviewed many studies to draw its conclusions. The FDA’s review noted that 1/4 of all cigarettes sold in the U.S. are menthol. Read The New York Times’ July 23, 2013 news story.
Also on July 23, 2013, the FDA published a notice in the federal register asking for public input on the “potential regulation on menthol in cigarettes.” This public notice is the next step in the rulemaking progress that began in 2009 when Congress exempted menthol from a ban on flavors in cigarettes. The FDA Act (Section 907(e)) required the FDA’s Tobacco Products Scientific Advisory Committee (TPSAC) to submit a report and recommendation to the U.S. Secretary of Health and Human Services (HHS) by March 23, 2011, on the impact of the use of menthol in cigarettes on public health. In March 2010, TPSAC began reviewing the available evidence as well as soliciting and receiving input from researchers, tobacco industry representatives, consultants to the tobacco industry, representatives of the public health sector, and others. On July 21, 2011, TPSAC voted on its final report and recommendations on menthol, which concluded “removal of menthol cigarettes from the marketplace would benefit public health in the United States.”
REPORTING FEDERAL VIOLATIONS
On December 5, 2012, the FDA launched an online form system for the public to report potential violations of the Act to the FDA. Potential violations of the FDA federal law include: sales of tobacco to minors (in New Jersey, person under age 19 can’t be sold tobacco), sale of flavored cigarettes (except menthol), free samples, cigarette and smokeless tobacco self-service displays and vending machines, sale of cigarettes in packs of less than 20, etc. More details on the online form system are on the FDA website.
FEDERAL AD & PACKAGING RESTRICTIONS AND LITIGATION
The Federal Cigarette Labeling and Advertising Act (FCLAA) was first passed in 1965 and makes it unlawful to advertise cigarettes and little cigars on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission. Little cigar is defined in section 1332 of the FCLAA as “any roll of tobacco wrapped in leaf tobacco or any substance containing tobacco… and as to which one thousand units weigh not more than three pounds”. The prohibition has also been extended to smokeless and chewing tobacco by the Family Smoking Prevention and Tobacco Control Act.
On June 21, 2011, the FDA unveiled graphic health warning labels to appear as of September 2012 on cigarette packs sold in the USA and in cigarette ads seen in the USA. The cigarette companies filed a lawsuit against the FDA, claiming these graphic warnings violate their free speech rights. In Novemenber 2011, a federal District Court judge issued a preliminary injunction against the FDA, temporarily halting the FDA’s requirement that cigarette companies post the graphic warnings on their packaging. The American Lung Association issued a November 7, 2011 press release defending the FDA’s graphic warnings. Twenty-four attorneys general filed a friend of the court brief in the U.S. Court of Appeals in Washington in support of the FDA’s challenge. Read the December 24, 2011 ABC news article. Read about the FDA graphic warnings on the FDA’s website. On February 29, 2012, a Federal District judge in Washington ruled that the FDA’s required graphic warnings on cigarette packs violate the tobacco companies’ rights to free speech. On March 5, 2012 it was reported that the FDA filed an appeal with the U.S. Court of Appeals. On April 22, 2013 the Supreme Court announced it will not hear the tobacco industry’s challenge to the FDA Act provision to include graphic warning labels on cigarette packaging. Read Legacy’s Statement about the decision on their website.
On March 20, 2012, the 6th Circuit Court of Appeals ruled in favor of the FDA on certain marketing restrictions of tobacco products in the federal Family Smoking Prevention and Tobacco Control Act (“Act”):
- large graphic warning labels required on tobacco packages
- a ban on brand-name event sponsorships
- a ban on branded non-tobacco items, such as hats and keychains
- a ban on claims implying that a tobacco product is safer because of FDA regulation and approval
- a ban on tobacco companies making health claims about tobacco products without FDA review
- a ban on the distribution of free samples
This 6th Circuit Court of Appeals also ruled that two provisions of the Act violated the First Amendment of the U.S. Constitution because they restricted too much of the tobacco companies’ speech:
- a ban on brand loyalty programs, and
- a ban on color and graphics in tobacco labels and advertising
Read the 6th Circuit Court of Appeals decision. This 6th Circuit Court of Appeals decision to uphold the graphic warning label requirement, is separate from a D.C. Circuit Court of Appeals lawsuit filed by the tobacco industry that questions the constitutionality of the FDA’s proposed graphic warning labels on cigarette packs. The D.C. Circuit Court of Appeals heard oral arguments for that case on April 10, 2012. Go to Time’s website to see cigarette warnings from around the world. Visit the Tobacco Label Resource Center to learn about required health warnings for cigarette packaging around the world.
Since the 2009 FDA Act, there have been three federal district court decisions that ruled against the Act, brought by the tobacco industry. All three initial decisions were made by one judge. The lawsuits related to the federal government’s attempt to halt importing electronic smoking devices, to require graphic pictorial warnings on tobacco packaging, and to apply a federal scientific review about how menthol makes it easier to start smoking or harder to quit. Read more about these decisions in Fair Warning’s September 29, 2014 news story.
Proposed “Tobacco Tax and Enforcement Reform Act”: On April 26, 2013, U.S. Senator Frank Lautenberg from New Jersey, and Senators Durbin, Harkin and Blumenthal introduced the “Tobacco Tax and Enforcement Reform Act”. The Act proposes to eliminate tax disparities between different tobacco products, increase the federal excise tax rate on tobacco products, and reduce illegal tobacco trafficking, The legislation lays out a comprehensive set of reforms that would help the federal government and states collect billions of dollars in tobacco tax revenues, which currently fund children’s health insurance programs, while also helping to lower youth tobacco consumption and combat those who profit from the illegal trade of tobacco. Under current law, small cigars and roll-your-own tobacco products are taxed at the same level as cigarettes; however, cigars, smokeless tobacco, and pipe tobacco are taxed at a dramatically lower rate. In addition, the bill would raise the tax rate on all tobacco products by 93 percent, which is consistent with President Obama’s budget proposal to raise tobacco taxes. Read more at Illinois Senator Durban’s April 26, 2013 press release.
PACT: On March 31, 2010, President Obama signed the Prevent All Cigarette Trafficking Act (PACT) into law, which regulates the tobacco product sales via mail and internet. PACT took effect in 90 days, on June 29, 2010. The purpose of PACT is to help curb the sale of tobacco to children. PACT also helps to collect taxes on tobacco products sold through the mail and internet, requires tax stamps be affixed before delivery of the products to the customer, bans the delivery of these products through the U.S. Postal Service, requires age verification when the products are purchased and delivered, and increases penalties and improves enforcement. Read a press release and fact sheet on PACT, from Campaign for Tobacco-Free Kids.
SCHIP Legislation enacted: Congress enacted a bill to reauthorize the State Children’s Health Insurance Plan (SCHIP) in early February 2009 and President Obama signed the bill the same day. It became effective April 1, 2009. The SCHIP expansion is funded by an increase in the federal cigarette tax of $0.61 per pack, raising the per pack tax from $0.39 to $1.00, along with tax increases on Other Tobacco Products, such as cigars, little cigars, loose tobacco, chew, etc (OTPs). Click here for information from the Campaign for Tobacco-Free Kids fact sheet.
Federal Bans on Smoking:
The U.S. Department of Health and Senior Services has a 100% tobacco-free campus policy effective July 1, 2011.
All Federal buildings of the Executive branch are 100% smokefree with a 25 foot outdoor perimeter: The General Services Administration (GSA) adopted a regulation in December 19, 2008, effective June 19, 2009 that prohibits smoking in all buildings owned, rented or leased by the GSA, and requires no smoking in outdoor courtyards, as well as no outdoor smoking within 25 feet of building doorways and intake ducts. Click here for the announcement. The GSA regulation is Title 41, Code of Federal Regulation (CFR) 102-74, “Federal Management Regulation; FMR Case 2008–102–3, Real Property Policies Update – Smoking Restrictions” dated December 19, 2008. Click here to access the GSA bulletin announcing the regulation. Prior to this 2009 Bulletin, in 1997 President Clinton issued an executive order to make all federal buildings in the executive branch smokefree.
The Americans with Disabilities Act (ADA) can protect you from second-hand smoke. Employers with at least 15 employees are expected to implement a smokefree policy “for someone who simply cannot tolerate tobacco smoke because of a medical condition”. The amendment takes away some restrictions from the original bill by expanding the definition of some terminology. Click here for the full text of the amended act.
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.
- Smoking is prohibited in Air Force recreation facilities, including its bowling alleys, beaches, parks, golf courses and basketball courts, under a new regulation announced in late March 2015. Smoking is also prohibited in vehicles on Air Force medical campuses, or when there’s a child in the car under age 14. The instruction also prohibits tobacco use while in uniform for students in technical training, accession and graduate medical education programs. You can read the full April 3, 2015 story here.
- The U.S. Public Health Service has banned the use of all tobacco products by men and women in uniform. Effective January 1, 2014, the June 2013 Uniforms and Appearance policy (page 14) includes the tobacco products ban stating “..tobacco products include, but not limited to, cigars, cigarettes, electronic cigarettes (e-cigarettes), stem pipes, water pipes, hookahs, and smokeless products that are chewed, dipped or snuffed.”
- The U.S. Air Force has banned the use of all tobacco products with a new policy put in place in March 26, 2012. The policy states, “Tobacco use damages personal health and detracts from unit mission readiness. Tobacco use by Airmen reflects poorly on professional image/appearance. Tobacco includes, but is not limited to, cigars, cigarettes, electronic-cigarettes (―e-cigarettes.), stem pipes, water pipes, hookahs, and smokeless products that are chewed, dipped, or sniffed.” Read a December 12, 2012 news article about the current air force policy and expansion to smokefree medical centers by September 2013.
- U.S. Department of Health and Senior Services has a 100% tobacco-free campus policy for all DHSS facilities and outdoor properties. Effective July 1, 2011, it is the policy of HHS to prohibit the use of all tobacco [products (including cigarettes, cigars, pipes, smokeless tobacco, or any other tobacco products, and e-cigarettes) at al times in its facilities. This policy applies to all interior space owned, rented or wholly leased by HHS; all outside property or grounds owned or leased by HHS, including parking areas; private vehicles while on HHS property; and government vehicles – except to the extent that the prohibition interferes with traditional beliefs and ceremonial practices. Since January 1, 2011, the Office of Personnel Management has made tobacco use cessation resources available to all Federal employees by requiring all Federal Employees Health Benefits plans to provide comprehensive, barrier free coverage including counseling and medication. These benefits must be provided with no copayments or coinsurance and are not subject to deductibles, annual or life time dollar limits.
- The U.S. Navy has announced that smoking will no longer be permitted below decks on its submarines, effective December 31, 2010. The policy was initiated to protect the health of nonsmoking sailors. The Navy offers smoking cessation programs and nicotine replacement therapy will be widely available on the submarines. Prescription drugs will be off-limits due to the potential to modify behavior patterns. Electronic cigarettes are not authorized.
- The Air Force Surgeon General, Lt. Gen. (Dr.) Charles B. Green, has issued a memo alerting all Airmen about safety concerns regarding electronic cigarettes. The memo states that due to the nature, appearance and safety concerns of electronic cigarettes, they are considered to be in the same category as tobacco products, the use of which is governed by Air Force Instruction 40-102, Tobacco Use in the Air Force. Subsequent to this 2010 memo, electronic smoking devices were included in the revised AFI 40-102 that was issued in 2012.
- Smoking is prohibited on commercial airline domestic flights.
- Smoking is banned in federally funded youth facilities.
- In 1993, the U.S. Postal Service made all of its buildings and vehicles smokefree. See USPS’s manual, Sections 880-882 at http://about.usps.com/manuals/elm/html/elmc8_042.htm
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
New Jersey Local Laws
New Jersey local legislators and boards of health continue to enact local and county ordinances. In addition to the state’s 2006 Smokefree Air Act (SFAA), hundreds of New Jersey municipalities have enacted local laws to control tobacco use in public places and workplace, and to restrict tobacco sales such as banning cigarette vending machines and self service tobacco displays. Some ordinances include outdoor areas, and some ban minors from using tobacco in public places. Prior to the 2006 SFAA, several communities enacted comprehensive indoor smokefree air ordinances, which included workplaces and restaurants. NJSA 26:3A2-21 et.seq., in particular NJSA 26:3A2-27 gives authority to local and county governing agencies to enact environmental health ordinances. GASP maintains a database of Local Laws on Tobacco in New Jersey. Call our office for more information.
New Jersey State Laws
The New Jersey Smoke-Free Air Act, N.J.S.A. 26:D-55 et seq., (NJ SFAA) was passed by the New Jersey legislature and signed by Governor Corzine in January, 2006. Effective April 15, 2006, the new law requires smokefree environments in almost all indoor workplaces and places open to the public, with the exception of gaming floors in casinos.
In 2007, the NJ State Department of Heath and Senior Services (NJ DHSS) issued regulations to help implement the NJ SFAA. Go to the NJ SFAA section of our website where you’ll find more details on the 2006 NJ SFAA and 2007 implementing regulations, as well as information on its enforcement, using local laws to enhance and augment the law, and data that supports passage of the NJ SFAA.
In January 2010, the NJ SFAA was amended to prohibit the use of electronic cigarettes and other electronic smoking devices in public places and workplaces, and took effect March 13, 2010. Visit our e-cigarettes webpage for more information on these nicotine-delivery devices.
Also in January 2010, the NJ Compassionate Use Medical Marijuana Act was passed. The NJ DHSS has proposed rules to implement this law. NJ’s Office of Legislative Services (OLS) issued two letters on July 16, 2010 and October 12, 2010 explaining that New Jersey’s smokefree air laws supercede this law. This means that medical marijuana cannot be smoked in locations that are required to be smokefree by state, county or local laws. In addition, if a business that is exempted from the state law declares their property to be smokefree under N.J.S. 2C:33-13, then medical marijuana cannot be smoked on that property. Visit our medical marijuana webpage to learn more.
In addition to the NJ SFAA, other NJ State laws and regulations restrict smoking for specific occupations and facilities. See additional NJ State laws and regulations below, summarized by type. Also a business owner can declare their property smokefree under NJSA 2C:33-13b and c, which may apply to indoor public places that are owned, rented, or leased, such as hotels and casinos, and to outdoor areas, such as sports facilities, playgrounds, swimming pools and outdoor cafes.
Each law has its own enforcement provisions. Your local or county health or police departments may be responsible, or you can contact the the New Jersey State Department of Health’s Office of Tobacco Control at (609) 984-3317.
The state of New Jersey, Division of Taxation has a Tobacco Interdiction Program (TIP) Hotline which is open 24 hours a day, 7 days a week. To report the illegal sales of untaxed or counterfeit cigarettes call 609-588-5001.
Here is a summary of New Jersey state laws on tobacco control, other than the NJ SFAA (citation references to New Jersey Statutes Annotated and New Jersey Administrative Code are abbreviated as NJSA and NJAC, respectively):
- Ban on Sales/giving (includes electronic smoking devices) to persons under 19 years of age
- Ban on Cigarette vending machines on school property
- Ban on sale of loose cigarettes (not sold in a pack)
- Ban on sale of flavored cigarettes
- Ban on sale of novelty lighters
- Electronic Cigarettes
- Correctional facilities
- Employment discrimination
- Public places
- Retail food establishments
- College residential housing
- Hotels and multiple dwellings
- Cosmetology and hairstyling shops and schools
- Hospitals, State psychiatric hospitals
- Residential health care facilities
- Residential substance abuse treatment facilities
- Resource family children in homes and vehicles
- School buses and vehicles
- Public transportation
- Fireworks plants and stores
- Air and marine terminals
- Increased penalties for violating cigarette and tobacco product licensing and distribution law; requires monthly reporting by tobacco industry and NJ Division of Taxation.
- Forfeiture and destruction of certain contraband tobacco products and cigarettes and related equipment
- Reduced Cigarette Ignition Propensity and Firefighter Protection Act
- School curriculum
- Tobacco products as prizes
- Tobacco taxes
Sales to persons under 19 years of age
A person 19 years of age or older who purchases a tobacco product (no reference to electronic smoking devices) for a person who is under 19 years of age is a petty disorderly person. NJSA 2A:170-51.1.
Municipal ordinances on tobacco product vending machines are not preempted. NJSA 2A:170-51.2.
No person, with either directly or indirectly by an agent or employee, or by a vending machine owned by the person or located in the person’s establishment, shall sell, offer for sale, distribute for commercial purpose at no cost or minimal cost or with coupons or rebate offers, give or furnish, to a person under 19 years of age, any cigarettes made of tobacco or of any other matter or substance which can be smoked, or any cigarette paper or tobacco in any form, including smokeless tobacco, or any electronic smoking devices that can be used to deliver nicotine or others substances to the person inhaling from the device, including but not limited to, an electronic cigarette, cigar, cigarillo or pipe, or any cartridge or other component of the device or related product. NJSA 2A:170-51.4(a).
- Penalties/fines: $250 for first violation, $500 for second violation, and $1,000 for a third and each subsequent violation. 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. NJSA 2A:170-51.4(c) Additional penalties may include suspension or revocation of license by the Division of Taxation upon recommendation by a municipality, following a hearing. NJSA 2A:170-51.4(d).
- Defense requires proving certain elements [see statute for details]. NJSA 2A:170-51.4(c). A penalty imposed pursuant to NJSA 2A:170-51.4 shall be in addition to any penalty that may be imposed pursuant to NJSA 2C:33-13.1. NJSA 2A:170-51.4(e).
- 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.
Civil penalty of up to $150 for the first violation of NJSA 2A:170-51, 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 sells or gives to a person under 19 years of age any tobacco or electronic smoking device shall be punished by a fine as provided for a petty disorderly persons offense. A person who has been previously punished under this section and who commits another offense under it may be punishable by a fine of twice that provided for a petty disorderly persons offense. Defense requires proving certain elements [see statute for details]. NJSA 2C:33-13.1(a).
Under the NJ Cigarette Tax Act, a person licensed to sell cigarettes shall, as a condition of the license, conspicuously post a legible sign at least six inches by three inches at all points of display and sale of tobacco products 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. License can be suspended or revoked for violations of the act, at the discretion of the Director of the Division of Taxation in the NJ Department of the Treasury. NJSA 54:40A-5.
See also the February 1, 2010 memo from the Administrative Office of the State of New Jersey to all NJ Assignment Judges on the January 2010 amendments to NJSA 2A:170-51.4 and NJSA 2C:33-13.1 at http://www.judiciary.state.nj.us/legis/182.pdf
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.
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 fine for 1st offense, $500 fine for each susequent over-the-counter loosie sale. Cigarette license can be suspended or revoked. NJSA 54:40A-2 through 6. NJSA 54:40A-4.2 et.seq. Selling cigarettes without a NJ State cigarette tax stamp affixed shall be guilty of a crime of the third degree (criminal penalty). NJSA 54:40A-28.
Ban on sale of certain flavored cigarettes
Prohibits selling or furnishing of cigarettes with characterizing flavors other than tobacco, clove, or menthol. $250 for first violation, not less than $500 for the second violation, and $1,000 for the third and each subsequent violation, to be collected pursuant to the “Penalty Enforcement Law of 1999,” in a summary proceeding before the municipal court having jurisdiction. A health or law enforcement officer may issue a summons. NJSA 2A:170-51.5 et seq. Click here for NJ Health Commissioner Heather Howard’s letter to the local health officers. Click here for the state’s implementation guidelines. Click here for an Action Alert to view sample images of flavored cigarette packs.
Under the bill, a person shall not sell, or offer to sell, a “novelty lighter,” which is defined as a mechanical or electrical device typically used for lighting cigarettes, cigars, or pipes, that is designed to resemble any cartoon character, animal, musical instrument, toy, gun, watch, vehicle, food, or beverage or similar articles, or that plays musical notes, or has flashing lights or other entertaining features. The bill exempts the following from the definition of “novelty lighter”: (1) any lighter manufactured prior to January 1, 1980; (2) any lighter incapable of being fueled or lacking a device necessary to produce combustion or a flame; (3) any mechanical or electrical device primarily used to ignite fuel for fireplaces or for charcoal or gas grills; or (4) standard disposable lighters that are printed or decorated with logos, labels, decals, or artwork, or heat shrinkable sleeves. Any law enforcement officer or fire official may confiscate a novelty lighter sold or offered for sale in violation of the bill’s provisions. In addition, a person who violates the bill’s provisions shall be liable for a civil penalty of not more than $1,000 for a first offense and not more than $2,000 for each subsequent offense, plus reasonable costs, including investigative and legal costs, incurred by the enforcing agency. A3207 and S2151 bills and joint resolutions signed by the Governor 11/20/2009 approved P.L. 2009, c.163, effective June 21, 2010.
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.”
On January 11, 2010, New Jersey Governor Corzine signed into law A4227/4228, which bans the use of e-cigarettes in public places and workplaces (amended the 2006 NJ Smokefree Air Act), and ban e-cigarette sales to people 18 years and younger. This is the first state law of its kind, in the nation, with the New Jersey Senate and Assembly both voting unanimously in favor of the law. The law took effect in 60 days on March 13, 2010. Click here to read A-4227/4228.
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”.
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.
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.
Smoking in restaurants and food stores: All retail food establishments shall comply with the New Jersey Smoke-Free Air Act, as applicable, at N.J.S.A. 26:3D-55 through 3D-64 and the rules promulgated thereunder (NJAC 8:24-10.2). Any person who shall violate any provision of this chapter or who shall refuse to comply with a lawful order or direction of the Department or health authority, shall be liable for penalties as provided by N.J.S.A. 26:1A-10 or an injunctive action as provided by law, or both (8:24-8.9 Penalties). See State Code on Sanitation in Retail Food Establishments. Each violation of any provision of the State Sanitary Code shall constitute a separate offense and shall be punishable by a penalty of not less than $50 nor more than $1,000. Each such penalty shall be sued for and recovered in a civil action, in any court of competent jurisdiction, by and in the name of the State Department of Health or by and in the name of the local board of health of the municipality in which the violation occurred; any penalty recovered in any such action shall be paid to the plaintiff therein. When the plaintiff is the State Department of Health, the penalty recovered shall be paid by the department to the State Treasurer. When the plaintiff is a local board of health, the penalty recovered shall be paid by the local board into the treasury of the municipality within which the local board has jurisdiction (NJSA 26:1A-10. Violation of State Sanitary Code, penalty, L.1947,c.177,s.10; amended 1953,c.26,s.1; 1993,c.55).
K-12 Public and Private NJ Schools
Smoking is banned on all K-12 school grounds including outdoors, buildings, school vehicles at all times. No exception for theatrical productions or classroom activities. (NJSA 26:3D-58) Smoking is also banned during K-12 school activities that take place off of school premises. (NJAC 8:6-7.1 and 2)
Licensed Child Care Centers
Smoking is banned in all rooms, vehicles and outside play areas when occupied by children. Smoking is also banned inside even when children are not present, unless that area is separately ventilated to the outside. Signs need to be posted. “Smoking” means the burning of a lighted cigar, cigarette, pipe or other matter or substance which contains tobacco. NJAC 19:122-7.7(d) (Environmental sanitation requirements.) Smoking shall be banned in al vehicles when occupied by children. NJAC 10:122-9.5(l) (Vehicle related safety practices.) “Child care center” requires at least 6 children under age 13 and includes nursery and play schools (see rules for more requirements to be defined as a “child care center”). Chapter 122 Manual of Requirements for Child Care Centers, effective Sept. 1, 2013, expires August 6, 2016. NJ Dept. of Children and Families, Office of Licensing (phone 1-877-667-9845). http://www.state.nj.us/dcf/providers/licensing/laws/CCCmanual.pdf
College Residential Housing
New Jersey’s Smokefree College Residential Housing Law prohibits smoking in any portion of a building used as a student dormitory that is owned and operated or otherwise utilized by a school or institution of higher education. The school administration, police officer, or public servant shall enforce the regulation, and post signs at the entrances. Fines are $100, maximum, for the smoker. For the administrator or person in control of the premises who knowingly fails or refuses to comply, fines are $25 for the first offense, $100 for the second offense, and $200 for each subsequent offense. Enforcement is by written citizen complaint filed with the New Jersey Department of Health or local board of health (N.J.S.A. 26:3D-17 through 20). The law took effect 60 days after signing (signed August 22, 2005).
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.
In addition to the NJSFAA, the New Jersey Administrative Code also requires hospitals to be 100% smokefree indoors. Maximum fine: $250 to the hospital. Enforced by citizen complaint to the NJDHSS. NJAC 8:43G-5.2(m)-(o).
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.
State psychiatric hospitals: smoking indoors in these facilities is prohibited. NJSA 26:3D-55 et seq. These hospitals may prohibit smoking on their grounds, so long as it offers a smoking cessation program for both employees and patients, that has been initiated for one year. NJSA 26:3D-58.1 et seq.
Residential health care facilities
The NJSFAA superseded the former partial smoking ban at residential health care facilities in NJ summarized in NJAC 8:43-6.1 below, since the NJSFAA requires 100% smokefree indoors inside the entire facility. 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. 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 treatment 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 In addition to the 2006 NJSFAA, 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).
Resource family children in homes and vehicle
Bans smoking in all resource family homes (foster homes, adoptive homes, family friend homes and relative care homes), cars that transport a resource family child, and outdoors when a resource family child is present. NJAC 10:122C-7.2(a)(3) was adopted by the Department of Human Services on December 19, 2005, effective February 6, 2006 (located in the Manual of Requirements for Resource Family parents).
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 training school buses. NJSA 2C:33-13a. Up to $200 fine to the smoker, and considered a petty disorderly persons offense. NJSA 2C:33-13b.
No smoking in buses, including school buses, or other public conveyances. 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.
NJ Transit smoking policy, effective May 9, 2006, located on page 23 at http://www.njtransit.com/pdf/May%209%202006-1.pdf. For both employees and customers, smoking is prohibited in enclosed indoor places owned or controlled by NJ Transit in New Jersey. This includes customer waiting rooms, trains, buses, light rail vehicles, and structurally enclosed parking garages and facilities. Smoking is also prohibited on bus and light rail platforms at stations and terminals owned or controlled by NJ Transit in New Jersey, whether opened or closed; and at major bus terminal boarding areas controlled by NJ Transit, whether open or enclosed.
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
Increased penalties for violating cigarette and tobacco product licensing and distribution law; requires monthly reporting by tobacco industry and NJ Division of Taxation.
On August 19, 2013, NJ Governor Christie signed into law S2516/A3278 which amends NJAC 54:45A-4 et.seq. The law increases the civil and criminal penalties for offenses involving unstamped and counterfeit cigarettes and cigarette smuggling; revises licensing requirements for manufacturers and importers of cigarette and tobacco products; expands monthly reporting requirements of licensed distributors of cigarettes; requires the NJ Treasury’s Division of Taxation to website-publish a monthly report on the quantity of cigarettes sold in NJ by distributors, aggregated by manufacturer and brand family; increases penalties for engaging in business activity without a license, for manufacturer representatives who sell cigarettes that are not the employer’s manufacture, for wholesaler dealers and retailers who possess cigarettes without the required tax stamp; upgrades to a disorderly persons offense for other related violations.
Forfeiture and destruction of certain contraband tobacco products and cigarettes and related equipment.
Effective June 29, 2011, the NJ “Tobacco Products Wholesale Sales and Use Tax Act” was amended to require that untaxed tobacco products, unstamped or illegally stamped cigarettes, or other contraband tobacco products or cigarettes that are sold or possessed by a manufacturer, importer, distributor,wholesale dealer, retail dealer or any other person, following notice and a hearing, be forfeited to the State. Following the forfeiture of the untaxed or otherwise contraband tobacco products or cigarettes, all such products are to be destroyed. Any machinery or equipment used to produce the tobacco products or cigarettes, or falsely mark the tobacco products or cigarettes to reflect the payment of excise taxes, are also subject to forfeiture.
Seizure of any contraband tobacco products or cigarettes does not relieve any person from a fine, imprisonment, or other penalty under the law. Untaxed or otherwise contraband tobacco products are added to the list of items that are considered to be prima facie contraband under the criminal code and, as such, are subject to forfeiture and for which there are no property rights.
The law amends part of the”Cigarette Tax Act” to mirror the changes that the law makes to the “Tobacco Products Wholesale Sales and Use Tax Act.” Supplementing P.L.1990, c.39 (C.54:40B-1 etseq.), and amending P.L.1948, c.65 and N.J.S.2C:64-1.
Reduced Cigarette Ignition Propensity and Firefighter Protection Act
Effective June 1, 2008, New Jersey requires a new cigarette fire safety standard to reduce the likelihood that cigarettes will cause fires and result in deaths, injuries and property damage. Monetary fines imposed for violations incurred by a manufacturer, wholesale dealer, agent, or retail dealer; and any corporation, partnership, sole proprietor, limited partnership or association engaged in the manufacture of cigarettes that knowingly makes a false certification; any person violating any other provision of this Act.
Any cigarettes that have been sold or offered for sale that do not comply with the safety standard required by section 4 of this act shall be subject to forfeiture. Monies collected from fines will be deposited in a new State Treasury special fund to be known as the “Fire Prevention and Public Safety Fund,” and be made available to the director to support fire safety and prevention programs. NJSA 54:40A-54 through 66.
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.
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 and revenue stamps
New Jersey imposes a tax of $0.135 per cigarette ($2.70 per pack) effective July 1, 2009. 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-1 et seq.
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.
Revenue stamps: Amendments authorize the Director of the Division of Taxation to implement a program requiring the affixation of encrypted counterfeit-resistant stamps to cigarette packs before distribtuion for retail sale in New Jersey. NJSA 54:40A-17. The Director must provide notice of the program to all licensed distributors and other licensees under the “Cigarette Tax Act”. The Director shall report to the Governor and the Legislature concerning evasion of the “Cigarette Tax Act”. NJSA 54:40A-1 et seq.