| 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 |
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| 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. |