Bill Amendment: FL H1007 | 2024 | Regular Session
NOTE: For additional amemendments please see the Bill Drafting List
Bill Title: Nicotine Dispensing Devices
Status: 2024-04-29 - Chapter No. 2024-127 [H1007 Detail]
Download: Florida-2024-H1007-Senate_Floor_Amendment_Delete_All_955516.html
Bill Title: Nicotine Dispensing Devices
Status: 2024-04-29 - Chapter No. 2024-127 [H1007 Detail]
Download: Florida-2024-H1007-Senate_Floor_Amendment_Delete_All_955516.html
Florida Senate - 2024 SENATOR AMENDMENT Bill No. CS for CS for HB 1007 Ì9555164Î955516 LEGISLATIVE ACTION Senate . House . . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— Senator Perry moved the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 Section 1. Section 569.31, Florida Statutes, is amended to 6 read: 7 569.31 Definitions.—As used in this part, the term: 8 (1) “Dealer” is synonymous with the term “retail nicotine 9 products dealer.” 10 (2) “Division” means the Division of Alcoholic Beverages 11 and Tobacco of the Department of Business and Professional 12 Regulation. 13 (3) “FDA” means the United States Food and Drug 14 Administration. 15 (4)(3)“Nicotine dispensing device” means any product that 16 employs an electronic, chemical, or mechanical means to produce 17 vapor or aerosol from a nicotine product, including, but not 18 limited to, an electronic cigarette, electronic cigar, 19 electronic cigarillo, electronic pipe, or other similar device 20 or product, any replacement cartridge for such device, and any 21 other container of nicotine in a solution or other form intended 22 to be used with or within an electronic cigarette, electronic 23 cigar, electronic cigarillo, electronic pipe, or other similar 24 device or product. For purposes of this definition, each 25 individual stock keeping unit is considered a separate nicotine 26 dispensing device. 27 (5)(4)“Nicotine product” means any product that contains 28 nicotine, including liquid nicotine, which is intended for human 29 consumption, whether inhaled, chewed, absorbed, dissolved, or 30 ingested by any means. The term also includes any nicotine 31 dispensing device. The term does not include a: 32 (a) Tobacco product, as defined in s. 569.002; 33 (b) Product regulated as a drug or device by the United 34 States Food and Drug Administration under Chapter V of the 35 Federal Food, Drug, and Cosmetic Act; or 36 (c) Product that contains incidental nicotine. 37 (6) “Nicotine products manufacturer” means any person or 38 entity that manufactures nicotine products. 39 (7)(5)“Permit” is synonymous with the term “retail 40 nicotine products dealer permit.” 41 (8)(6)“Retail nicotine products dealer” means the holder 42 of a retail nicotine products dealer permit. 43 (9)(7)“Retail nicotine products dealer permit” means a 44 permit issued by the division under s. 569.32. 45 (10)(8)“Self-service merchandising” means the open display 46 of nicotine products, whether packaged or otherwise, for direct 47 retail customer access and handling before purchase without the 48 intervention or assistance of the dealer or the dealer’s owner, 49 employee, or agent. An open display of such products and devices 50 includes the use of an open display unit. 51 (11) “Sell” or “sale” means, in addition to its common 52 usage meaning, any sale, transfer, exchange, barter, gift, or 53 offer for sale and distribution, in any manner or by any means. 54 Section 2. Section 569.311, Florida Statutes, is created to 55 read: 56 569.311 Control of nicotine dispensing devices; grant of 57 authority to Attorney General to create a directory of nicotine 58 products attractive to minors.— 59 (1) The Legislature has determined that information, 60 testings, approvals, or scientific evidence may, from time to 61 time, indicate that certain nicotine dispensing devices have a 62 greater potential to be attractive to and be abused by minors 63 than was evident when such devices were allowed on the market. 64 It is the intent of the Legislature to quickly provide a method 65 to allow the state to seek removal of such items from the 66 market. 67 (2) The Attorney General is hereby authorized to adopt 68 rules creating a directory listing nicotine dispensing devices 69 that are attractive to minors. 70 (3) A nicotine dispensing device is deemed attractive to 71 minors, and the Attorney General shall include it in the 72 directory, if the nicotine dispensing device has features that 73 are significantly appealing to minors as compared to the 74 legitimate benefits those features offer to lawful users of the 75 product. In applying this standard, the Attorney General and 76 reviewing courts shall consider the following: 77 (a) Surveys or other data sources indicating that a 78 nicotine dispensing device is being used by minors at a higher 79 rate than other nicotine dispensing devices. 80 (b) Complaints, reports, or other information related to 81 the use of a nicotine dispensing device by minors from other 82 minors, parents, teachers, school employees, school boards, law 83 enforcement officers, retailers, and other industry related 84 officials as compared to other nicotine dispensing devices. 85 (c) The extent to which the nicotine dispensing device: 86 1. Is designed to be attractive to minors, such as through 87 the use of bright colors or cartoon characters. 88 2. Is designed so that it is easy for minors to use and to 89 conceal. 90 3. Uses or resembles the trade dress of a branded food 91 product, consumer food product, or logo of a food product. 92 4. Is marketed in a manner that uniquely appeals to minors. 93 5. Uses actual copyrights, service marks, or trademarks or 94 fake or actual copyrights, service marks, or trademarks that 95 resemble consumer or food products popular with minors, 96 including the names of candy or cereal products. 97 (d) Any reports of physical harm to minors from using the 98 nicotine dispensing device or evidence that the nicotine 99 dispensing device presents unique risks to minors. 100 (e) Whether the manufacturer of the nicotine dispensing 101 device submitted a timely filed premarket tobacco product 102 application for the nicotine dispensing device pursuant to 21 103 U.S.C. s. 387j. 104 (4) In making the determination in subsection (3), the 105 Attorney General shall consider a decision of the FDA regarding 106 the nicotine dispensing device, if the decision is final and not 107 subject to a stay, by a court or the agency, or subject to a 108 timely petition for supervisory review, and the extent to which 109 the FDA’s decision was predicated, in whole or part, on the 110 risks to minors outweighing other benefits of the nicotine 111 dispensing device. 112 (5) Rulemaking under this section shall be in accordance 113 with the procedural requirements of chapter 120, including the 114 emergency rule provisions found in s. 120.54, except that s. 115 120.54(7) does not apply. 116 (6) A determination by the Attorney General under 117 subsections (2) and (3) to include a nicotine dispensing device 118 in the directory is subject to review under chapter 120. 119 (7) This section does not apply to a nicotine dispensing 120 device that has received a marketing granted order under 21 121 U.S.C. s. 387j. 122 (8) This section shall only apply to, and a nicotine 123 dispensing device shall only be subject to this section when, a 124 nicotine dispensing device is either a single-use or disposable 125 electronic cigarette, electronic cigar, electronic cigarillo, 126 electronic pipe, or other similar device that is intended to be 127 discarded after use, or an electronic cigarette, an electronic 128 cigar, an electronic cigarillo, an electronic pipe, or other 129 similar device that uses a sealed, prefilled, and disposable 130 cartridge of nicotine in a solution. This section does not apply 131 to an electronic cigarette, an electronic cigar, an electronic 132 cigarillo, an electronic pipe, or other similar device that is 133 an open system where a consumer fills a vial or other container 134 with nicotine in a solution. 135 (9) The Department of Legal Affairs shall develop and 136 maintain a directory listing all nicotine product manufacturers 137 that sell nicotine dispensing devices in this state which the 138 Attorney General has deemed attractive to minors under 139 subsections (2) and (3). The department shall make the directory 140 available January 1, 2025, for public inspection on its website. 141 The department shall update the directory as necessary. The 142 department shall establish a process to provide retailers, 143 distributors, and wholesalers notice of the initial publication 144 of the directory and any changes made to the directory. 145 (10) If a nicotine dispensing device is added to the 146 directory, each retailer and each wholesaler holding nicotine 147 dispensing devices for eventual sale to a consumer in this state 148 has 60 days from the day such product is added to the directory 149 to sell the product or remove the product from its inventory. 150 After 60 days following the date a product is added to the 151 directory, the product identified in the directory is contraband 152 and subject to s. 569.345. 153 (11)(a) Except as provided in paragraphs (b) and (c), 154 beginning March 1, 2025, or on the date that the department 155 first makes the directory available for public inspection on its 156 website, whichever is later, a nicotine product manufacturer 157 that offers for sale in this state a nicotine dispensing device 158 listed on the directory is subject to a fine of $1,000 per day 159 for each individual nicotine dispensing device offered for sale 160 in violation of this section until the offending product is 161 removed from the market or until the offending product is no 162 longer listed on the directory. 163 (b) Each retailer shall have 60 days from the date that the 164 department first makes the directory available for public 165 inspection on its website to sell products that were in its 166 inventory before that date or remove those products from 167 inventory. 168 (c) Each distributor or wholesaler shall have 60 days from 169 the date that the department first makes the directory available 170 for public inspection on its website to remove from inventory 171 those products intended for eventual retail sale to a consumer 172 in this state. 173 Section 3. Section 569.312, Florida Statutes, is created to 174 read: 175 569.312 Shipment of nicotine dispensing devices sold for 176 retail sale in this state.— 177 (1) A nicotine product manufacturer, a retail nicotine 178 products dealer, a wholesaler, or a distributor may not sell, 179 ship, or otherwise distribute a nicotine dispensing device in 180 this state for eventual retail sale to a consumer in this state 181 that is listed on the directory. 182 (2) Any person who knowingly sells, ships or receives 183 nicotine dispensing devices in violation of this section commits 184 a misdemeanor of the first degree, punishable as provided in s. 185 775.082 or s. 775.083. 186 (3) A violation of this part is deemed an unfair and 187 deceptive trade practice actionable under part II of chapter 501 188 that can only be enforced by the Department of Legal Affairs. If 189 the department has reason to believe that a person is in 190 violation of this section, the department may, as the sole 191 enforcement authority, bring an action against such person for 192 an unfair or deceptive act or practice. For the purpose of 193 bringing an action pursuant to this section, ss. 501.211 and 194 501.212 do not apply. In addition to other remedies under part 195 II of this chapter, the department may collect a civil penalty 196 of up to $1,000 per nicotine dispensing device sold, shipped, or 197 otherwise distributed. 198 Section 4. Section 569.345, Florida Statutes, is created to 199 read: 200 569.345 Seizure and destruction of contraband nicotine 201 dispensing devices.—All nicotine dispensing devices sold, 202 delivered, possessed, or distributed contrary to any provision 203 of this chapter are declared to be contraband, are subject to 204 seizure and confiscation under the Florida Contraband Forfeiture 205 Act by any person whose duty it is to enforce this chapter, and 206 must be disposed of as follows: 207 (1) A court having jurisdiction shall order such nicotine 208 dispensing devices forfeited upon a showing that, by a 209 preponderance of the evidence, such devices were sold, 210 delivered, possessed, or distributed contrary to any provision 211 of this chapter. Once any chapter 120 proceedings related to 212 such devices have been completed, the court shall order any 213 seized nicotine dispensing devices destroyed except as provided 214 by applicable court orders. A record of the place where such 215 devices were seized, the kinds and quantities of such devices 216 destroyed, and the time, place, and manner of the destruction of 217 such devices must be kept, and a return under oath reporting the 218 destruction must be made to the court by the officer who 219 destroys such devices. 220 (2) The Department of Legal Affairs shall keep a full and 221 complete record of all nicotine dispensing devices seized under 222 this section showing: 223 (a) The exact kinds, quantities, and forms of such nicotine 224 dispensing devices; 225 (b) The persons from whom such devices were seized and to 226 whom they were delivered; 227 (c) By whose authority such devices were seized, delivered, 228 and destroyed; and 229 (d) The dates of the seizure, disposal, or destruction of 230 such devices. 231 232 Such record must be open to inspection by all persons charged 233 with the enforcement of tobacco and nicotine product laws. 234 (3) The cost of seizure, confiscation, and destruction of 235 contraband nicotine dispensing devices is borne by the person 236 from whom such products are seized. 237 (4) Except as otherwise provided in this section, the 238 procedures of the Florida Contraband Forfeiture Act apply to 239 this section. 240 Section 5. Section 569.346, Florida Statutes, is created to 241 read: 242 569.346 Agent for service of process.— 243 (1) Any nonresident manufacturer of nicotine dispensing 244 devices which has not registered to do business in this state as 245 a foreign corporation or business entity shall appoint and 246 continually engage without interruption the services of an agent 247 in this state to act as agent for the service of process on whom 248 all process, and any action or proceeding against it concerning 249 or arising out of the enforcement of this chapter, may be served 250 in any manner authorized by law. Such service constitutes legal 251 and valid service of process on the manufacturer. The 252 manufacturer shall provide the name, address, telephone number, 253 and proof of the appointment and availability of such agent to 254 the division. 255 (2) The manufacturer shall provide notice to the Department 256 of Legal Affairs 30 calendar days before termination of the 257 authority of an agent and shall further provide proof to the 258 satisfaction of the department of the appointment of a new agent 259 no less than 5 calendar days before the termination of an 260 existing agent appointment. In the event an agent terminates an 261 agency appointment, the manufacturer shall notify the department 262 of the termination within 5 calendar days and shall include 263 proof to the satisfaction of the department of the appointment 264 of a new agent. 265 (3) Any manufacturer whose nicotine dispensing devices are 266 sold in this state which has not appointed and engaged the 267 services of an agent as required by this section shall be deemed 268 to have appointed the Secretary of State as its agent for 269 service of process. 270 Section 6. Subsection (2) of section 569.41, Florida 271 Statutes, is amended to read: 272 569.41 Selling, delivering, bartering, furnishing, or 273 giving nicotine products to persons under 21 years of age; 274 criminal penalties; defense.— 275 (2) Any person who violates subsection (1) commits a 276 misdemeanor of the second degree, punishable as provided in s. 277 775.082 or s. 775.083. However, any person who violates 278 subsection (1) for a second or subsequent time within 1 year 279 after the first violation commits a misdemeanor of the first 280 degree, punishable as provided in s. 775.082 or s. 775.083. Any 281 person who violates subsection (1) for a third or subsequent 282 time at any time after the first violation commits a felony of 283 the third degree, punishable as provided in s. 775.082 or s. 284 775.083. 285 Section 7. Subsections (3) and (4) of section 569.002, 286 Florida Statutes, are amended to read: 287 569.002 Definitions.—As used in this part, the term: 288 (3) “Nicotine product” has the same meaning asprovidedin 289 s. 569.31s. 569.31(4). 290 (4) “Nicotine dispensing device” has the same meaning as 291providedin s. 569.31s. 569.31(3). 292 Section 8. This act shall take effect October 1, 2024. 293 294 ================= T I T L E A M E N D M E N T ================ 295 And the title is amended as follows: 296 Delete everything before the enacting clause 297 and insert: 298 A bill to be entitled 299 An act relating to nicotine dispensing devices; 300 amending s. 569.31, F.S.; defining and revising terms; 301 creating s. 569.311, F.S.; providing legislative 302 findings; authorizing the Attorney General to adopt 303 rules for the creation of a directory listing nicotine 304 dispensing devices for certain purposes; providing the 305 Attorney General with factors that must be considered 306 in determining which nicotine dispensing devices must 307 be listed on such a directory; providing construction; 308 providing that a determination by the Attorney General 309 to include a nicotine dispensing device on the 310 directory is subject to review under ch. 120, F.S.; 311 providing applicability; requiring the Department of 312 Legal Affairs to develop and maintain a directory of 313 all nicotine products manufacturers that sell nicotine 314 dispensing devices in this state which have been 315 listed on the directory by the Attorney General; 316 requiring the department to make the directory 317 available for public inspection on its website by a 318 certain date; providing retailers and wholesalers of a 319 nicotine dispensing device that has been added to the 320 directory a specified timeframe within which they may 321 sell or remove the nicotine dispensing device from 322 inventory; providing that such nicotine dispensing 323 devices are considered contraband after such specified 324 timeframe; providing that nicotine products 325 manufacturers that offer for sale in this state a 326 nicotine dispensing device listed on the directory are 327 subject to a fine for each day the nicotine dispensing 328 device is offered until it is either removed from the 329 market or is no longer listed on the directory; 330 providing retailers, distributors, and wholesalers a 331 specified timeframe in which to remove a nicotine 332 dispensing device from inventory after such device has 333 been listed; creating s. 569.312, F.S.; providing 334 criminal and civil penalties for a person who sells, 335 ships, or otherwise distributes a listed nicotine 336 dispensing device in this state for eventual retail 337 sale; providing that a violation of this section is an 338 unfair and deceptive trade practice; providing that 339 the Department of Legal Affairs is the sole 340 enforcement authority that may bring an action for an 341 unfair or deceptive trade practice under this section; 342 creating s. 569.345, F.S.; declaring nicotine 343 dispensing devices that violate ch. 569, F.S., as 344 contraband subject to seizure and confiscation by 345 certain persons under the Florida Contraband 346 Forfeiture Act; providing procedures for the seizure 347 and destruction of such nicotine dispensing devices; 348 providing applicability; creating s. 569.346, F.S.; 349 requiring nonresident manufacturers of nicotine 350 dispensing devices to appoint an agent in this state 351 to accept service for any action or proceeding against 352 the manufacturer; providing that service upon the 353 agent constitutes service upon the manufacturer; 354 requiring such manufacturers to notify the department 355 of the termination and appointment of an agent within 356 a specified timeframe; providing that the Secretary of 357 State is deemed the agent for manufacturers that do 358 not appoint an agent as required by law; amending s. 359 569.41, F.S.; revising criminal penalties for those 360 who sell, deliver, barter, furnish, or give a nicotine 361 dispensing device, directly or indirectly, to persons 362 under 21 years of age; amending s. 569.002, F.S.; 363 conforming cross-references; providing an effective 364 date.