Florida Senate - 2024                          SENATOR AMENDMENT
       Bill No. CS for CS for HB 1007
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                Floor: 1/AD/2R         .            Floor: C            
             03/05/2024 04:07 PM       .      03/07/2024 07:59 PM       

       Senator Perry moved the following:
    1         Senate Amendment (with title amendment)
    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.
  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 as provided in
  289  s. 569.31 s. 569.31(4).
  290         (4) “Nicotine dispensing device” has the same meaning as
  291  provided in s. 569.31 s. 569.31(3).
  292         Section 8. This act shall take effect October 1, 2024.
  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.