20-27-2104. Test method and performance standard — Definition.

20-27-2104. Test method and performance standard — Definition. (a) Except as provided in subsection (h) of this section, cigarettes shall not be offered for sale in this state or offered for sale or sold to persons located in this state unless: (1) The cigarettes have been tested in accordance with the test method and meet the performance standard specified in this section; (2) A written certification has been filed by the manufacturer with the Director of Arkansas Tobacco Control under § 20-27-2105; and (3) The cigarettes have been marked in accordance with § 20-27-2106. (b)(1) Testing of cigarettes shall be conducted in accordance with the ASTM International standard E2187-04: Standard Test Method for Measuring the Ignition Strength of Cigarettes. (2) Testing shall be conducted on ten (10) layers of filter paper. (3)(A) No more than twenty-five percent (25%) of the cigarettes tested in a test trial under this section shall exhibit full-length burns. (B) Forty (40) replicate tests shall compose a complete test trial for each cigarette tested. (4) The performance standard required by this section shall be applied only to a complete test trial. (5) Written certifications shall be based on testing conducted by a laboratory that has been accredited under standard ISO/IEC 17025 of the International Organization for Standardization or other comparable accreditation standard required by the director. (6)(A) Laboratories conducting testing under this section shall implement a quality control and quality assurance program that includes a procedure that will determine the repeatability of the testing results. (B) The repeatability value shall be no greater than nineteen hundredths (0.19). (7) This section does not require additional testing if cigarettes are tested consistent with this subchapter for any other purposes. (8) Testing performed or sponsored by the director to determine a cigarette's compliance with the performance standard required by this section shall be conducted in accordance with this section. (c)(1) Each cigarette listed in a certification submitted under § 20-27-2105 that uses lowered permeability bands in the cigarette paper to achieve compliance with the performance standard under this section shall have at least two (2) nominally identical bands on the paper surrounding the tobacco column. (2) At least one (1) complete band shall be located at least fifteen millimeters (15 mm) from the lighting end of the cigarette. (3) For cigarettes on which the bands are positioned by design there shall be at least two (2) bands fully located at least fifteen millimeters (15 mm) from the lighting end and ten millimeters (10 mm) from the filter end of the tobacco column or ten millimeters (10 mm) from the labeled end of the tobacco column for nonfiltered cigarettes. (d)(1) A manufacturer of a cigarette that the director determines cannot be tested by the test method under subdivision (b)(1) of this section shall propose a test method and performance standard for the cigarette to the director. (2) Upon approval of the proposed test method and determination by the director that the performance standard proposed by the manufacturer is equivalent to the performance standard under subdivision (b)(3) of this section, the manufacturer may employ the test method and performance standard to certify the cigarette under § 20-27-2105. (3) Unless the director demonstrates a reasonable basis why a proposed alternative test should not be accepted under this subchapter, the director shall authorize a manufacturer to employ an alternative test method and performance standard to certify a cigarette for sale in this state if the director: (A) 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 subchapter; and (B) 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 fire safety standards of that state's law or rules under a legal provision comparable to this section. (4) All other applicable requirements of this section shall apply to the manufacturer. (e)(1) Each manufacturer shall maintain copies of the reports of all tests conducted on all cigarettes offered for sale for a period of three (3) years and shall make copies of these reports available to the director and the Attorney General upon written request. (2) A manufacturer who fails to make copies of these reports available within sixty (60) days of receiving a written request shall be subject to a civil penalty not to exceed ten thousand dollars ($10,000) for each day after the sixtieth day that the manufacturer does not make the copies available. (f) The director may adopt a subsequent ASTM International 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 a tested cigarette when compared to the percentage of full-length burns the same cigarette would exhibit when tested in accordance with ASTM International standard E2187-04 and the performance standard in subdivision (b)(3) of this section. (g)(1) The director shall review the effectiveness of this section and report every three (3) years his or her findings and recommendations to the Speaker of the House of Representatives and the President Pro Tempore of the Senate for legislation to improve the effectiveness of this subchapter. (2) The report and legislative recommendations shall be submitted no later than June 30 following the conclusion of each three-year period. (h) The requirement of subsections (a) and (b) of this section shall not prohibit: (1) A wholesaler or retailer from selling their existing inventory of cigarettes on or after January 1, 2010, if the wholesaler or retailer can establish that the inventory was in its possession before January 1, 2010, and the wholesaler or retailer can establish that the inventory was purchased before January 1, 2010, in comparable quantity to the inventory purchased during the same period of the prior year; or (2)(A) The sale of cigarettes solely for the purpose of consumer testing. (B) For purposes of this subsection, the term “consumer testing” means 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 assessment.