State
Laws on Tobacco in New Jersey:
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 the
Governor in January, 2006. Effective April 15, 2006, the
new law requires smokefree environments in essentially all
indoor workplaces and places open to the public, except
gaming floors in casinos. Click
here to go to the NJ SFAA section of this website
where you'll find information on the provisions of the law,
enforcement, implementation, using local laws to enhance
and augment the law, background, other assistance, etc.
In
addition to the NJ SFAA, there are State laws and regulations
that also pertain to specific facilities and occupations.
See below for details.
Here is a summary of selected New Jersey state laws that
can be used to control smoking and tobacco.
Full
text of the laws can be found at www.njleg.state.nj.us.
- Table
of Contents (click
topic to go there):
- About
This Document
Federal Laws
Local Laws
State Laws
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, 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--
Other
laws on tobacco
- ---
Reduced Cigarette Ignition Propensity and Firefighter
Protection Act
--- Highway littering
--- School curriculum
--- Tobacco products as prizes
--- Tobacco taxes
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 litigation 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.
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.
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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
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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.
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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.
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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 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, 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
Other
laws on tobacco
---
Reduced Cigarette Ignition Propensity and Firefighter
Protection Act
--- Highway littering
--- School curriculum
--- Tobacco products as prizes
--- Tobacco taxes
| Providing tobacco to persons
under 19 years of age |
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.
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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.
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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".
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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.
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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.
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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.
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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.
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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.
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Hospitals
In
addtion 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.
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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).
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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 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).
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Resource
family children in homes and vehiclesesource
family children in homes and vehicles
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).
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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.
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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.
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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.
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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.
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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 ot $500 fine for each over-the-counter
sale. NJSA 54:40A-1 and 2.
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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.
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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.
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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.
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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.
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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.
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This
page updated July 23, 2008.
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