Bill Text: FL H1207 | 2011 | Regular Session | Introduced

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Bill Title: Cigarette Products of Nonsettling Manufacturers

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [H1207 Detail]

Download: Florida-2011-H1207-Introduced.html

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HB 1207

1	A bill to be entitled
2	An act relating to cigarette products of nonsettling
3	manufacturers; creating s. 210.23, F.S.; providing the
4	purpose of the act; creating s. 210.232, F.S.; defining
5	terms; creating s. 210.234, F.S.; imposing a fee on the
6	sale, receipt, purchase, possession, consumption,
7	handling, distribution, and use of nonsettling
8	manufacturer cigarettes that are required to have a stamp
9	affixed or stamp insignia applied to the package of
10	cigarettes on which tax is otherwise required to be paid;
11	providing that the fee imposed is in addition to any other
12	privilege, license, fee, or tax required or imposed by
13	state law; prescribing methods to affix a stamp or
14	insignia to the tobacco products; creating s. 210.236,
15	F.S.; providing the fee rate for nonsettling
16	manufacturers; creating s. 210.238, F.S.; requiring
17	settling manufacturers to certify specified information to
18	the Attorney General relating to the brand families of
19	their cigarettes; requiring the Division of Alcoholic
20	Beverages and Tobacco of the Department of Business and
21	Professional Regulation to post a directory listing all
22	settling manufacturers that have provided accurate
23	certifications of their products to calculate payments
24	under the tobacco settlement agreement for the relevant
25	year on the Internet website of the division; providing
26	that any cigarette of a brand family not on the directory
27	list be presumptively considered a nonsettling
28	manufacturer product; creating s. 210.240, F.S.; requiring
29	each dealer, agent, and distributing agent to file a
30	report; requiring the report to include certain specified
31	information; creating s. 210.245, F.S.; providing
32	penalties for a nonsettling manufacturer that fails to pay
33	the mandated fees; creating s. 210.246, F.S.; providing
34	for application of the act; creating s. 210.248, F.S.;
35	authorizing the division to adopt rules; creating s.
36	210.249, F.S.; providing conditions for imposing the fee
37	on subsequent participating manufacturers who already make
38	payments on Florida sales of cigarettes pursuant to the
39	master settlement agreement; providing an effective date.
40
41	Be It Enacted by the Legislature of the State of Florida:
42
43	Section 1.  Section 210.23, Florida Statutes, is created to
44	read:
45	210.23  Purpose.-The purpose of ss. 210.23-210.248 is to:
46	(1)  Prevent nonsettling manufacturers from undermining
47	this state's policy of discouraging underage smoking by offering
48	cigarettes and cigarette tobacco products at prices that are
49	substantially below the prices of cigarettes of other
50	manufacturers.
51	(2)  Protect the tobacco settlement agreement and its
52	funding, which has been reduced because of the growth of sales
53	of nonsettling manufacturer cigarettes, by recouping for this
54	state revenue that is lost because of sales of cigarettes by
55	nonsettling manufacturers of cigarettes.
56	(3)  Provide funding to enforce and administer any
57	legislation relating to nonsettling manufacturers.
58	(4)  Provide funding for any other purpose the Legislature
59	determines.
60	Section 2.  Section 210.232, Florida Statutes, is created
61	to read:
62	210.232  Definitions.-As used in ss. 210.23-210.248, the
63	term:
64	(1)  "Agent" has the same meaning as in s. 210.01.
65	(2)  "Brand family" means each style of cigarettes sold
66	under a common brand name, trademark, logo, symbol, motto,
67	selling message, recognizable pattern of colors, or other
68	indication of production identification.
69	(3)  "Cigarette" has the same meaning as in s. 210.01.
70	(4)  "Dealer" has the same meaning as in s. 210.01(5) and
71	(6).
72	(5)  "Division" has the same meaning as in s. 210.01.
73	(6)  "Distributing agent" has the same meaning as in s.
74	210.01.
75	(7)  "Distributor" has the same meaning as in s. 210.25.
76	(8)  "Manufacturer" means a person who manufactures,
77	fabricates, or assembles cigarettes or cigarette tobacco
78	products for sale or distribution. For purposes of ss. 210.23-
79	210.248, the term includes a person who is the first importer
80	into the United States of cigarettes manufactured outside the
81	United States.
82	(9)  "Nonsettling manufacturer" means a manufacturer of
83	cigarettes which is not a settling manufacturer.
84	(10)  "Nonsettling manufacturer cigarettes" means
85	cigarettes that are not manufactured by a settling manufacturer.
86	(11)  "Settling manufacturer" means a manufacturer of
87	cigarettes that:
88	(a)  Signed one of the tobacco settlement agreements before
89	July 1, 2008; or
90	(b)  Has voluntarily entered into an agreement with this
91	state, approved by the division, agreeing to terms similar to
92	those contained in the tobacco settlement agreement described in
93	paragraph (13)(a), including making annual payments to the state
94	with respect to the sale, receipt, purchase, possession,
95	consumption, handling, distribution, and use of its cigarettes
96	in this state equal to at least the amount of the fee that would
97	have been due on such cigarettes under ss. 210.23-210.248 for
98	the relevant year if the manufacturer were a nonsettling
99	manufacturer.
100	(12)  "Settling manufacturer cigarettes" means cigarettes
101	of a brand family that a settling manufacturer certifies under
102	s. 210.238 is to be deemed its brand family for purposes of
103	calculating that settling manufacturer's payments under the
104	tobacco settlement agreement or other agreement described in
105	paragraph (11)(b) for the relevant year, including for purposes
106	of calculating any payment obligations of that settling
107	manufacturer under that agreement, or any other cigarettes that
108	are included in calculating payments due to be made by a
109	settling manufacturer under the tobacco settlement agreement
110	described in paragraph (13)(a) or other agreement described in
111	paragraph (11)(b).
112	(13)  "Tobacco settlement agreement" means:
113	(a)  The settlement agreement entered into on August 25,
114	1997, in settlement of State of Florida v. American Tobacco Co.,
115	No. 95-1466AH (Fla. 15th Cir. Ct. 1996), and under which the
116	settling manufacturer undertook payment obligations to the
117	state; or
118	(b)  The settlement agreement entered into on March 15,
119	1996, in settlement of State of Florida v. American Tobacco Co.,
120	No. 95-1466AH (Fla. 15th Cir. Ct. 1996).
121	Section 3.  Section 210.234, Florida Statutes, is created
122	to read:
123	210.234  Fee imposed.-
124	(1)  A fee is imposed on the sale, receipt, purchase,
125	possession, consumption, handling, distribution, and use in this
126	state of nonsettling manufacturer cigarettes that are required
127	to have a stamp affixed or stamp insignia applied to a package
128	of those cigarettes under this chapter or on which tax is
129	otherwise required to be paid under this chapter.
130	(2)  The fee imposed by this section does not apply to
131	cigarettes made by a settling manufacturer.
132	(3)  The fee imposed by this section is in addition to any
133	other privilege, license, fee, or tax required or imposed by
134	state law.
135	(4)  The fee imposed by this section shall be collected
136	from distributors, dealers, agents, and distributing agents of
137	nonsettling manufacturer cigarettes or from other persons or
138	entities from whom the tax imposed by this chapter on such
139	nonsettling manufacturer cigarettes may be collected under this
140	chapter and in the manner provided by this chapter. The
141	provisions of ss. 210.01, 210.02, 210.021, 210.03, 210.04,
142	210.05, 210.06, 210.07, 210.08, 210.09, 210.10, 210.11, 210.12,
143	210.13, 210.14, 210.15, 210.16, 210.161, 210.18, 210.181,
144	210.19, 210.20, 210.22, 210.25, 210.30, 210.31, 210.35, 210.40,
145	210.50, 210.55, 210.60, 210.65, 210.67, 210.70, and 210.75, so
146	far as lawful or practicable, apply to the fee imposed by this
147	section and to the collection thereof as if fully set out in ss.
148	210.23-210.248. However, any one or more sections may not apply
149	to the extent that the section conflicts with ss. 210.23-
150	210.248.
151	(5)  With respect to nonsettling manufacturer cigarettes,
152	the division shall prescribe, prepare, and furnish stamps of
153	such denominations and quantities as may be necessary for the
154	payment of the fee imposed by this section, and may also permit
155	the fee to be paid through the use of a stamp insignia to be
156	applied by metering machines. Such stamps or stamp insignia are
157	required and shall be sold, affixed, and administered in the
158	same manner as the stamps and stamp insignia that are
159	prescribed, prepared, and furnished for the taxes imposed
160	pursuant to other provisions of this chapter. The division may
161	prescribe that payment of the fee imposed by this section and
162	the tax imposed by s. 210.30 shall be by way of a single stamp
163	or stamp insignia whose value shall be the combined value of
164	such fee and tax, and which shall be identifiable with such
165	markings or colorings as may be necessary to distinguish the
166	stamp or stamp insignia from the stamp or stamp insignia used on
167	cigarette packages not subject to the fee imposed by this
168	section.
169	Section 4.  Section 210.236, Florida Statutes, is created
170	to read:
171	210.236  Rate of fee.-The fee imposed pursuant to s.
172	210.234 shall be at the rate of 2.6 cents for each nonsettling
173	manufacturer cigarette.
174	Section 5.  Section 210.238, Florida Statutes, is created
175	to read:
176	210.238  Settling manufacturer certification and list.-
177	(1)  By July 1, 2011, and annually thereafter, not later
178	than the 30th day of April in each year, each settling
179	manufacturer shall certify to the Attorney General, on a form
180	prescribed by the Attorney General, the names of the brand
181	families that are to be deemed its cigarettes for purposes of
182	its tobacco settlement agreement or other agreement described in
183	s. 210.232(11)(b) for the relevant year, including for purposes
184	of calculating any payment obligations of that settling
185	manufacturer under that agreement in the volume and shares
186	determined under the agreement. A settling manufacturer may not
187	include a brand family in such certification if it does not deem
188	sales of cigarettes of that brand family in this state to be its
189	cigarettes for purposes of the master settlement agreement as
190	defined in s. 210.249. Each settling manufacturer shall update
191	such information in the event of any change within 30 calendar
192	days after the date of the change.
193	(2)  By July 15, 2011, the division shall develop,
194	maintain, and publish on its Internet website a directory
195	listing of all settling manufacturers that have provided
196	accurate certifications under subsection (1). The directory
197	shall list the brand families of such settling manufacturers
198	included in such certifications. The division shall update the
199	directory as necessary in order to add or remove a manufacturer
200	or brand family and keep the directory in conformity with the
201	requirements of ss. 210.23-210.248.
202	(3)  The division shall provide the list to each dealer,
203	agent, or distributing agent authorized to affix stamps under
204	this chapter, to each distributor, and to any other person upon
205	request.
206	(4)  Cigarettes of a brand family that is not on the
207	directory list shall be presumptively considered nonsettling
208	manufacturer cigarettes to which the fee imposed by s. 210.234
209	applies.
210	Section 6.  Section 210.240, Florida Statutes, is created
211	to read:
212	210.240  Reports.-
213	(1)  Each dealer, agent, and distributing agent required to
214	file a report under s. 210.05 or s. 210.09, and each distributor
215	required to file a return under s. 210.55 or s. 210.60, shall,
216	in addition to the information required by those sections,
217	include in that required report or return each month, as
218	appropriate:
219	(a)  The number of individual nonsettling manufacturer
220	cigarettes in packages on which the dealer, agent, distributing
221	agent, or distributor affixed or was required to affix a stamp
222	or stamp insignia by the use of a metering machine during the
223	preceding month;
224	(b)  The amount of the fee imposed by s. 210.234 paid on
225	cigarettes described in paragraph (a); and
226	(c)  Any other information that the division considers
227	necessary or appropriate to determine the amount of the fee
228	imposed by s. 210.234, to enforce ss. 210.23-210.248, or to
229	provide the reports showing fees paid for nonsettling
230	manufacturer cigarettes.
231	(2)  The information required under subsection (1) must be
232	itemized for each place of business and by manufacturer and
233	brand family.
234	(3)  The requirement to report information under this
235	section shall be enforced in the same manner as the requirement
236	to deliver to or file with the division a report or return
237	required under this chapter.
238	Section 7.  Section 210.245, Florida Statutes, is created
239	to read:
240	210.245  Penalties for noncompliance.-Nonsettling
241	manufacturer cigarettes subject to any fee imposed by ss.
242	210.23-210.248, but upon which the fee has not been paid, shall
243	be treated as cigarettes for which the tax assessed by this
244	chapter has not been paid, and all persons selling, receiving,
245	purchasing, possessing, consuming, handling, distributing, or
246	using such cigarettes are subject to all penalties imposed by
247	this chapter for violations of this chapter.
248	Section 8.  Section 210.246, Florida Statutes, is created
249	to read:
250	210.246  Application.-Sections 210.23-210.248 apply without
251	regard to s. 210.06(5), or any other law that might be read to
252	create an exemption for interstate sales.
253	Section 9.  Section 210.248, Florida Statutes, is created
254	to read:
255	210.248  General powers of the Division of Alcoholic
256	Beverages and Tobacco.-The Division of Alcoholic Beverages and
257	Tobacco may adopt rules to administer ss. 210.23-210.248,
258	including rules that address the imposition, collection, and
259	enforcement of the fees and required reporting.
260	Section 10.  Section 210.249, Florida Statutes, is created
261	to read:
262	210.249  Exemption for subsequent participating
263	manufacturers.-
264	(1)  The fee imposed under s. 210.234 does not apply to
265	cigarettes of any subsequent participating manufacturer, as
266	defined in the master settlement agreement, that would otherwise
267	be required to pay the fee under s. 210.234 until the effective
268	date of a credit amendment to the master settlement agreement,
269	and such cigarettes shall be treated as settling manufacturer
270	cigarettes until such time.
271	(2)  For purposes of this section, the term:
272	(a)  "Credit amendment" means an amendment to the master
273	settlement agreement that offers a credit to subsequent
274	participating manufacturers for amounts paid under that
275	agreement with respect to their products in a form agreed upon
276	by:
277	1.  The settling states, as defined in the master
278	settlement agreement, with aggregate allocable shares, as
279	defined in the master settlement agreement, equal to at least
280	99.937049 percent;
281	2.  The original participating manufacturers, as defined in
282	the master settlement agreement; and
283	3.  The subsequent participating manufacturers that would
284	otherwise be required to pay the fee under s. 210.234 whose
285	aggregate market share, expressed as a percentage of the total
286	number of individual cigarettes sold in the 50 United States,
287	the District of Columbia, and Puerto Rico during the calendar
288	year at issue, as measured by excise taxes collected by the
289	Federal Government, and in the case of cigarettes sold in Puerto
290	Rico, by arbitrios de cigarillos collected by the Puerto Rico
291	taxing authority, is greater than 3.75 percent. For purposes of
292	calculation of subsequent participating manufacturer share under
293	s. 210.234, 0.09 ounces of "roll your own" tobacco shall
294	constitute one individual cigarette.
295	(b)  "Master settlement agreement" means the settlement
296	agreement entered into on November 23, 1998, by the settling
297	states and the participating manufacturers, as defined in that
298	agreement, as amended to date.
299	Section 11.  This act shall take effect July 1, 2011.

CODING: Words stricken are deletions; words underlined are additions.