Florida Senate - 2020                                    SB 1638
       
       
        
       By Senator Flores
       
       
       
       
       
       39-01327A-20                                          20201638__
    1                        A bill to be entitled                      
    2         An act relating to nicotine products; amending s.
    3         386.212, F.S.; revising the punishment for certain
    4         civil infractions; amending s. 877.112, F.S.; defining
    5         the terms “characterizing flavor” and “flavored liquid
    6         nicotine”; prohibiting the sale, delivery, bartering,
    7         furnishing, or giving of flavored liquid nicotine to
    8         any person; prohibiting a person from engaging in
    9         certain activities relating to the promotion of
   10         nicotine dispensing devices and nicotine products for
   11         unlawful use; providing a civil penalty; requiring
   12         retailers of electronic nicotine delivery systems to
   13         take certain actions when selling the devices;
   14         revising punishments for certain violations;
   15         conforming cross-references; providing an effective
   16         date.
   17          
   18  Be It Enacted by the Legislature of the State of Florida:
   19  
   20         Section 1. Subsection (3) of section 386.212, Florida
   21  Statutes, is amended to read:
   22         386.212 Smoking and vaping prohibited near school property;
   23  penalty.—
   24         (3) Any person issued a citation pursuant to this section
   25  shall be deemed to be charged with a civil infraction punishable
   26  by a maximum civil penalty not to exceed $25, or 50 hours of
   27  community service and or, where available, successful completion
   28  of a school-approved anti-tobacco or anti-vaping “alternative to
   29  suspension” program.
   30         Section 2. Section 877.112, Florida Statutes, is amended to
   31  read:
   32         877.112 Nicotine products and nicotine dispensing devices;
   33  flavored liquid nicotine; prohibitions for minors; penalties;
   34  civil fines; signage requirements; preemption.—
   35         (1) DEFINITIONS.—As used in this section, the term:
   36         (a)“Characterizing flavor” means a distinguishable taste
   37  or aroma other than tobacco or menthol, including, but not
   38  limited to, fruit, chocolate, vanilla, honey, candy, cocoa, a
   39  dessert, an alcoholic beverage, a herb or spice, or any
   40  combination thereof.
   41         (b)“Flavored liquid nicotine” means a nicotine product
   42  that is in liquid form; is composed of nicotine and other
   43  chemicals; is sold in, or for use with, a nicotine dispensing
   44  device; and that contains a natural or artificial constituent or
   45  additive that causes the liquid or its vapor to have a
   46  characterizing flavor.
   47         (c)(a) “Nicotine dispensing device” means any product that
   48  employs an electronic, chemical, or mechanical means to produce
   49  vapor from a nicotine product, including, but not limited to, an
   50  electronic cigarette, electronic cigar, electronic cigarillo,
   51  electronic pipe, or other similar device or product, any
   52  replacement cartridge for such device, and any other container
   53  of nicotine in a solution or other form intended to be used with
   54  or within an electronic cigarette, electronic cigar, electronic
   55  cigarillo, electronic pipe, or other similar device or product.
   56         (d)(b) “Nicotine product” means any product that contains
   57  nicotine, including liquid nicotine, that is intended for human
   58  consumption, whether inhaled, chewed, absorbed, dissolved, or
   59  ingested by any means, but does not include a:
   60         1. Tobacco product, as defined in s. 569.002;
   61         2. Product regulated as a drug or device by the United
   62  States Food and Drug Administration under Chapter V of the
   63  federal Food, Drug, and Cosmetic Act; or
   64         3. Product that contains incidental nicotine.
   65         (e)(c) “Self-service merchandising” means the open display
   66  of nicotine products or nicotine dispensing devices, whether
   67  packaged or otherwise, for direct retail customer access and
   68  handling before purchase without the intervention or assistance
   69  of the retailer or the retailer’s owner, employee, or agent. An
   70  open display of such products and devices includes the use of an
   71  open display unit.
   72         (2) PROHIBITIONS ON SALE TO MINORS.—It is unlawful to sell,
   73  deliver, barter, furnish, or give, directly or indirectly, to
   74  any person who is under 18 years of age, any nicotine product or
   75  a nicotine dispensing device.
   76         (3) PROHIBITIONS ON GIFTING SAMPLES TO MINORS.—The gift of
   77  a sample nicotine product or nicotine dispensing device to any
   78  person under the age of 18 by a retailer of nicotine products or
   79  nicotine dispensing devices, or by an employee of such retailer,
   80  is prohibited.
   81         (4)PROHIBITION ON SELLING FLAVORED LIQUID NICOTINE.—It is
   82  unlawful to sell, deliver, barter, furnish, or give, directly or
   83  indirectly, flavored liquid nicotine to any person.
   84         (5)PROHIBITION ON PROMOTING NICOTINE DISPENSING DEVICES OR
   85  NICOTINE PRODUCTS FOR UNLAWFUL USE.—A person may not engage in
   86  any advertisement, marketing, promotion, or any other activity
   87  the person knows or should know is likely to cause or lead to
   88  the unlawful use of nicotine dispensing devices or nicotine
   89  products. A violation of this subsection constitutes an unlawful
   90  trade practice under part II of chapter 501.
   91         (6)(4) PENALTIES.—Any person who violates subsection (2) or
   92  subsection (3) commits a misdemeanor of the second degree,
   93  punishable as provided in s. 775.082 or s. 775.083. However, any
   94  person who violates subsection (2) or subsection (3) for a
   95  second or subsequent time within 1 year of the first violation
   96  commits a misdemeanor of the first degree, punishable as
   97  provided in s. 775.082 or s. 775.083. Any person who violates
   98  subsection (4) is subject to a fine of up to $500 per violation.
   99         (7)AGE VERIFICATION IN SALES OF NICOTINE DISPENSING
  100  DEVICES AND NICOTINE PRODUCTS.—
  101         (a)A retailer of nicotine dispensing devices, before
  102  accepting an order for delivery, must verify that the purchaser
  103  is at least 18 years of age.
  104         (b)A retailer must verify every order for delivery with a
  105  commercially available database or an aggregate of databases
  106  which is regularly used for the purpose of age and identity
  107  verification. Additionally, the seller must employ a second-step
  108  verification to secure delivery for every order in the form of:
  109         1.Requiring the signature of an adult upon delivery; and
  110         2.Verifying that the credit card or debit card used for
  111  the purchase has been issued in the purchaser’s name and that
  112  the delivery address is associated with the purchaser’s credit
  113  card or debit card.
  114         (8)(5) AFFIRMATIVE DEFENSES.—A person charged with a
  115  violation of subsection (2) or subsection (3) has a complete
  116  defense if, at the time the nicotine product or nicotine
  117  dispensing device was sold, delivered, bartered, furnished, or
  118  given:
  119         (a) The buyer or recipient falsely evidenced that she or he
  120  was 18 years of age or older;
  121         (b) The appearance of the buyer or recipient was such that
  122  a prudent person would believe the buyer or recipient to be 18
  123  years of age or older; and
  124         (c) Such person carefully checked a driver license or an
  125  identification card issued by this state or another state of the
  126  United States, a passport, or a United States Armed Services
  127  identification card presented by the buyer or recipient and
  128  acted in good faith and in reliance upon the representation and
  129  appearance of the buyer or recipient in the belief that the
  130  buyer or recipient was 18 years of age or older.
  131         (9)(6) PROHIBITIONS ON POSSESSION OF NICOTINE PRODUCTS OR
  132  NICOTINE DISPENSING DEVICES BY MINORS.—It is unlawful for any
  133  person under 18 years of age to knowingly possess any nicotine
  134  product or a nicotine dispensing device. Any person under 18
  135  years of age who violates this subsection commits a noncriminal
  136  violation as defined in s. 775.08(3), punishable by:
  137         (a) For a first violation, 16 hours of community service
  138  or, instead of community service, a $25 fine. In addition, the
  139  person must attend a school-approved anti-vaping anti-tobacco
  140  and nicotine program, if locally available; or
  141         (b) For a second or subsequent violation within 12 weeks
  142  after the first violation, a $25 fine.
  143  
  144  Any second or subsequent violation not within the 12-week time
  145  period after the first violation is punishable as provided for a
  146  first violation.
  147         (10)(7) PROHIBITION ON MISREPRESENTING AGE.—It is unlawful
  148  for any person under 18 years of age to misrepresent his or her
  149  age or military service for the purpose of inducing a retailer
  150  of nicotine products or nicotine dispensing devices or an agent
  151  or employee of such retailer to sell, give, barter, furnish, or
  152  deliver any nicotine product or nicotine dispensing device, or
  153  to purchase, or attempt to purchase, any nicotine product or
  154  nicotine dispensing device from a person or a vending machine.
  155  Any person under 18 years of age who violates this subsection
  156  commits a noncriminal violation as defined in s. 775.08(3),
  157  punishable by:
  158         (a) For a first violation, 16 hours of community service
  159  or, instead of community service, a $25 fine and, in addition,
  160  the person must attend a school-approved anti-vaping anti
  161  tobacco and nicotine program, if available; or
  162         (b) For a second violation within 12 weeks after the first
  163  violation, a $25 fine.
  164  
  165  Any second or subsequent violation not within the 12-week time
  166  period after the first violation is punishable as provided for a
  167  first violation.
  168         (11)(8) PENALTIES FOR MINORS.—
  169         (a) A person under 18 years of age cited for committing a
  170  noncriminal violation under this section must sign and accept a
  171  civil citation indicating a promise to appear before the county
  172  court or comply with the requirement for paying the fine and
  173  must attend a school-approved anti-vaping anti-tobacco and
  174  nicotine program, if locally available. If a fine is assessed
  175  for a violation of this section, the fine must be paid within 30
  176  days after the date of the citation or, if a court appearance is
  177  mandatory, within 30 days after the date of the hearing.
  178         (b) A person charged with a noncriminal violation under
  179  this section must appear before the county court or comply with
  180  the requirement for paying the fine. The court, after a hearing,
  181  shall make a determination as to whether the noncriminal
  182  violation was committed. If the court finds the violation was
  183  committed, it shall impose an appropriate penalty as specified
  184  in subsection (9) (6) or subsection (10) (7). A person who
  185  participates in community service shall be considered an
  186  employee of the state for the purpose of chapter 440, for the
  187  duration of such service.
  188         (c) If a person under 18 years of age is found by the court
  189  to have committed a noncriminal violation under this section and
  190  that person has failed to complete community service, pay the
  191  fine as required by paragraph (9)(a) (6)(a) or paragraph (10)(a)
  192  (7)(a), or attend a school-approved anti-vaping anti-tobacco and
  193  nicotine program, if locally available, the court may direct the
  194  Department of Highway Safety and Motor Vehicles to withhold
  195  issuance of or suspend the driver license or driving privilege
  196  of that person for 30 consecutive days.
  197         (d) If a person under 18 years of age is found by the court
  198  to have committed a noncriminal violation under this section and
  199  that person has failed to pay the applicable fine as required by
  200  paragraph (9)(b) (6)(b) or paragraph (10)(b) (7)(b), the court
  201  may direct the Department of Highway Safety and Motor Vehicles
  202  to withhold issuance of or suspend the driver license or driving
  203  privilege of that person for 45 consecutive days.
  204         (12)(9) DISTRIBUTION OF CIVIL FINES.—Eighty percent of all
  205  civil penalties received by a county court pursuant to
  206  subsections (9) (6) and (10) (7) shall be remitted by the clerk
  207  of the court to the Department of Revenue for transfer to the
  208  Department of Education to provide for teacher training and for
  209  research and evaluation to reduce and prevent the use of tobacco
  210  products, nicotine products, or nicotine dispensing devices by
  211  children. The remaining 20 percent of civil penalties received
  212  by a county court pursuant to this section shall remain with the
  213  clerk of the county court to cover administrative costs.
  214         (13)(10) SIGNAGE REQUIREMENTS FOR RETAILERS OF NICOTINE
  215  PRODUCTS AND NICOTINE DISPENSING DEVICES.—
  216         (a) Any retailer that sells nicotine products or nicotine
  217  dispensing devices shall post a clear and conspicuous sign in
  218  each place of business where such products are sold which
  219  substantially states the following:
  220  
  221         THE SALE OF NICOTINE PRODUCTS OR NICOTINE DISPENSING
  222         DEVICES TO PERSONS UNDER THE AGE OF 18 IS AGAINST
  223         FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR PURCHASE.
  224  
  225         (b) A retailer that sells nicotine products or nicotine
  226  dispensing devices shall provide at the checkout counter in a
  227  location clearly visible to the retailer or the retailer’s agent
  228  or employee instructional material in a calendar format or
  229  similar format to assist in determining whether a person is of
  230  legal age to purchase nicotine products or nicotine dispensing
  231  devices. This point of sale material must contain substantially
  232  the following language:
  233  
  234                IF YOU WERE NOT BORN BEFORE THIS DATE              
  235                  (insert date and applicable year)                
  236                 YOU CANNOT BUY NICOTINE PRODUCTS OR               
  237                    NICOTINE DISPENSING DEVICES.                   
  238  
  239  In lieu of a calendar a retailer may use card readers, scanners,
  240  or other electronic or automated systems that can verify whether
  241  a person is of legal age to purchase nicotine products or
  242  nicotine dispensing devices.
  243         (14)(11) SELF-SERVICE MERCHANDISING PROHIBITED.—
  244         (a) A retailer that sells nicotine products or nicotine
  245  dispensing devices may not sell, permit to be sold, offer for
  246  sale, or display for sale such products or devices by means of
  247  self-service merchandising.
  248         (b) A retailer that sells nicotine products or nicotine
  249  dispensing devices may not place such products or devices in an
  250  open display unit unless the unit is located in an area that is
  251  inaccessible to customers.
  252         (c) Paragraphs (a) and (b) do not apply to an establishment
  253  that prohibits persons under 18 years of age on the premises.
  254         (15)(12) RESTRICTIONS ON SALE OR DELIVERY OF NICOTINE
  255  PRODUCTS OR NICOTINE DISPENSING DEVICES.—
  256         (a) In order to prevent persons under 18 years of age from
  257  purchasing or receiving nicotine products or nicotine dispensing
  258  devices, the sale or delivery of such products or devices is
  259  prohibited, except:
  260         1. When under the direct control, or line of sight where
  261  effective control may be reasonably maintained, of the retailer
  262  of nicotine products or nicotine dispensing devices or such
  263  retailer’s agent or employee; or
  264         2. Sales from a vending machine are prohibited under
  265  subparagraph 1. and are only permissible from a machine that is
  266  equipped with an operational lockout device which is under the
  267  control of the retailer of nicotine products or nicotine
  268  dispensing devices or such retailer’s agent or employee who
  269  directly regulates the sale of items through the machine by
  270  triggering the lockout device to allow the dispensing of one
  271  nicotine product or nicotine dispensing device. The lockout
  272  device must include a mechanism to prevent the machine from
  273  functioning, if the power source for the lockout device fails or
  274  if the lockout device is disabled, and a mechanism to ensure
  275  that only one nicotine product or nicotine dispensing device is
  276  dispensed at a time.
  277         (b) Paragraph (a) does not apply to an establishment that
  278  prohibits persons under 18 years of age on the premises.
  279         (c) A retailer of nicotine products or nicotine dispensing
  280  devices or such retailer’s agent or employee may require proof
  281  of age of a purchaser of such products or devices before selling
  282  the product or device to that person.
  283         Section 3. This act shall take effect July 1, 2020.