CS/HB 1167

1	A bill to be entitled
2	An act relating to the Reduced Cigarette Ignition
3	Propensity Standard and Firefighter Protection Act;
4	creating s. 633.042, F.S.; providing a short title;
5	providing legislative findings and intent; providing
6	definitions; providing cigarette testing methods and
7	performance standards; providing specific testing
8	criteria; requiring manufacturers to provide certain
9	written certification; requiring cigarettes to be marked
10	in specific manners; providing for alternative testing
11	methods under certain circumstances; providing reporting
12	requirements; providing the Division of Alcoholic
13	Beverages and Tobacco with certain powers and
14	responsibilities; providing certification requirements for
15	manufacturers; providing fee; providing requirements for
16	the marking of certain cigarette packaging; providing
17	reporting requirements; providing approval requirements
18	for markings submitted to the division by a manufacturer;
19	providing notification requirements; providing fines and
20	penalties; providing the division with rulemaking
21	authority; authorizing certain governmental entities with
22	inspection powers to examine specified documents of any
23	person in possession, control, or occupancy of any
24	premises where cigarettes are placed, stored, sold, or
25	offered for sale, as well as the stock of cigarettes on
26	the premises; providing that nothing in the act shall be
27	construed to prohibit any person or entity from
28	manufacturing or selling cigarettes that do not meet the
29	specified requirements if such cigarettes are or will be
30	stamped for sale in another state or are packaged for sale
31	outside the United States; providing for repeal upon the
32	enactment of a preemptive federal standard; prohibiting
33	local government units from enacting and enforcing any
34	ordinance or other local law or regulation that conflicts
35	with, or is preempted by, any provision of the act;
36	providing effective dates.
37
38	Be It Enacted by the Legislature of the State of Florida:
39
40	Section 1.  Section 633.042, Florida Statutes, is created
41	to read:
42	633.042  Reduced Cigarette Ignition Propensity Standard and
43	Firefighter Protection Act.--
44	(1)  SHORT TITLE.--This section may be cited as the
45	"Reduced Cigarette Ignition Propensity Standard and Firefighter
46	Protection Act."
47	(2)  LEGISLATIVE FINDINGS AND INTENT.--The Legislature
48	finds and declares that:
49	(a)  Cigarettes are the leading cause of fire deaths in
50	this state and in the nation.
51	(b)  Each year in the United States, between 700 and 900
52	persons are killed and around 3,000 persons are injured in fires
53	ignited by cigarettes, while in this state 153 residential fires
54	and 5 fatalities were attributable to fires caused by cigarettes
55	in 2006.
56	(c)  A high percentage of the victims of cigarette fires
57	are nonsmokers, including senior citizens and young children.
58	(d)  Fires caused by cigarettes result in billions of
59	dollars in property losses and damages in the United States and
60	millions of dollars in property losses and damages in this
61	state.
62	(e)  Cigarette fires unnecessarily jeopardize the safety of
63	firefighters and result in avoidable emergency response costs
64	for municipalities.
65	(f)  In 2004, the State of New York implemented a cigarette
66	firesafety regulation requiring cigarettes sold in that state to
67	meet a firesafety performance standard; in 2005, Vermont and
68	California enacted cigarette firesafety laws directly
69	incorporating New York's regulation into statute; and in 2006,
70	Illinois, New Hampshire, and Massachusetts joined these states
71	in enacting similar laws.
72	(g)  In 2005, Canada implemented the New York State
73	firesafety standard, becoming the first country to have a
74	nationwide cigarette firesafety standard.
75	(h)  New York State's cigarette firesafety standard is
76	based upon decades of research by the National Institute of
77	Standards and Technology, Congressional research groups, and
78	private industry. This cigarette firesafety standard minimizes
79	costs to the state; minimally burdens cigarette manufacturers,
80	distributors, and retail sellers; and, therefore, should become
81	law in this state.
82	(i)  It is therefore fitting and proper for this state to
83	adopt the cigarette firesafety standard that is in effect in the
84	State of New York to reduce the likelihood that cigarettes will
85	cause fires and result in deaths, injuries, and property
86	damages.
87	(3)  DEFINITIONS.--For the purposes of this section:
88	(a)  "Agent" means any person authorized by the Division of
89	Alcoholic Beverages and Tobacco of the Department of Business
90	and Professional Regulation to purchase and affix stamps on
91	packages of cigarettes.
92	(b)  "Cigarette" means:
93	1.  Any roll for smoking, whether made wholly or in part of
94	tobacco or any other substance, irrespective of size or shape,
95	and whether such tobacco or substance is flavored, adulterated,
96	or mixed with any other ingredient, the wrapper or cover of
97	which is made of paper or any other substance or material other
98	than tobacco; or
99	2.  Any roll for smoking that is wrapped in any substance
100	containing tobacco and that, because of the type of tobacco used
101	in the filler or its packaging and labeling, is likely to be
102	offered to, or purchased by, consumers as a cigarette as
103	described in subparagraph 1.
104	(c)  "Division" means the Division of Alcoholic Beverages
105	and Tobacco of the Department of Business and Professional
106	Regulation.
107	(d)  "Manufacturer" means:
108	1.  Any entity that manufactures or produces, or causes to
109	be manufactured or produced, regardless of location, cigarettes
110	that such manufacturer intends to be sold in this state,
111	including cigarettes intended to be sold in the United States
112	through an importer;
113	2.  Any entity, regardless of location, that first
114	purchases cigarettes manufactured anywhere and not intended by
115	the original manufacturer or maker to be sold in the United
116	States and that intends to resell such cigarettes in the United
117	States; or
118	3.  Any entity that becomes a successor of an entity
119	described in subparagraph 1. or subparagraph 2.
120	(e)  "Quality control and quality assurance program" means
121	laboratory procedures implemented to ensure that operator bias,
122	systematic and nonsystematic methodological errors, and
123	equipment-related problems do not affect the results of
124	laboratory testing. Such a program shall ensure that the testing
125	repeatability remains within the required repeatability values
126	stated in subparagraph (4)(a)6. for all test trials used to
127	certify cigarettes in accordance with this section.
128	(f)  "Repeatability" means the range of values within which
129	the results of repeated cigarette test trials from a single
130	laboratory will fall 95 percent of the time.
131	(g)  "Retail dealer" means any person, other than a
132	manufacturer or wholesale dealer, engaged in selling cigarettes.
133	(h)  "Sale" means any transfer of title or possession or
134	both, exchange or barter, conditional or otherwise, in any
135	manner or by any means whatever or any agreement therefor. In
136	addition to cash and credit sales, the giving of cigarettes as
137	samples, prizes, or gifts and the exchanging of cigarettes for
138	any consideration other than money are considered sales.
139	(i)  "Sell" means to execute a sale or to offer or agree to
140	execute a sale.
141	(j)  "Wholesale dealer" means:
142	1.  Any person other than a manufacturer who sells
143	cigarettes to retail dealers or other persons for purposes of
144	resale; or
145	2.  Any person who owns, operates, or maintains one or more
146	cigarette or tobacco-product vending machines in, at, or upon
147	premises owned or occupied by any other person.
148	(4)  TEST METHOD AND PERFORMANCE STANDARD.--
149	(a)  Except as provided in paragraph (g), no cigarettes may
150	be sold or offered for sale in this state, or sold or offered
151	for sale to persons located in this state, unless the cigarettes
152	have been tested in accordance with the test method and meet the
153	performance standard specified in this subsection, a written
154	certification has been filed by the manufacturer with the
155	division in accordance with subsection (5), and the cigarettes
156	have been marked in accordance with subsection (6).
157	1.  Testing of cigarettes shall be conducted in accordance
158	with the American Society for Testing and Materials standard
159	E2187-04, "Standard Test Method for Measuring the Ignition
160	Strength of Cigarettes."
161	2.  Testing shall be conducted on 10 layers of filter
162	paper.
163	3.  No more than 25 percent of the cigarettes tested in a
164	test trial in accordance with this subsection shall exhibit
165	full-length burns. Forty replicate tests shall comprise a
166	complete test trial for each cigarette tested.
167	4.  The performance standard required by this subsection
168	shall only be applied to a complete test trial.
169	5.  Written certifications shall be based upon testing
170	conducted by a laboratory that has been accredited pursuant to
171	standard ISO/IEC 17025 of the International Organization for
172	Standardization or another comparable accreditation standard
173	required by the division.
174	6.  Laboratories conducting testing in accordance with this
175	subsection shall implement a quality control and quality
176	assurance program that includes a procedure that will determine
177	the repeatability of the testing results. The repeatability
178	value shall be no greater than 0.19.
179	7.  This subsection does not require additional testing if
180	cigarettes are tested consistently with this section for any
181	other purpose.
182	8.  The division may, in its discretion, perform or sponsor
183	testing to determine a cigarette's compliance with the required
184	performance standard. Any such discretionary compliance testing
185	by the division shall be conducted in accordance with this
186	subsection.
187	(b)  Each cigarette listed in a certification submitted
188	pursuant to subsection (5) that uses lowered permeability bands
189	in the cigarette paper to achieve compliance with the
190	performance standard set forth in this subsection shall have at
191	least two nominally identical bands on the paper surrounding the
192	tobacco column. At least one complete band shall be located at
193	least 15 millimeters from the lighting end of the cigarette. For
194	cigarettes on which the bands are positioned by design, there
195	shall be at least two bands fully located at least 15
196	millimeters from the lighting end and 10 millimeters from the
197	filter end of the tobacco column, or 10 millimeters from the
198	labeled end of the tobacco column for nonfiltered cigarettes.
199	(c)  A manufacturer of a cigarette that the division
200	determines cannot be tested in accordance with the test method
201	prescribed in subparagraph (a)1. shall propose a test method and
202	performance standard for the cigarette to the division. Upon
203	approval of the proposed test method and a determination by the
204	division that the performance standard proposed by the
205	manufacturer is equivalent to the performance standard
206	prescribed in subparagraph (a)3., the manufacturer may employ
207	such test method and performance standard to certify such
208	cigarette pursuant to subsection (5). If the division determines
209	that another state has enacted reduced cigarette ignition
210	propensity standards that include a test method and performance
211	standard that are the same as those contained in this section,
212	and if the division finds that the officials responsible for
213	implementing those requirements have approved the proposed
214	alternative test method and performance standard for a
215	particular cigarette proposed by a manufacturer as meeting the
216	firesafety standards of that state's law or regulation under a
217	legal provision comparable to this subsection, the division
218	shall authorize that manufacturer to employ the alternative test
219	method and performance standard to certify that cigarette for
220	sale in this state unless the division demonstrates a reasonable
221	basis why the alternative test should not be accepted under this
222	section. All other applicable requirements of this subsection
223	shall apply to the manufacturer.
224	(d)  Each manufacturer shall maintain copies of the reports
225	of all tests conducted on all cigarettes offered for sale for a
226	period of 3 years and shall make copies of the reports available
227	to the division and the Attorney General upon written request.
228	Any manufacturer who fails to make copies of the reports
229	available within 60 days after receiving a written request shall
230	be subject to a civil penalty not to exceed $10,000 for each day
231	after the 60th day that the manufacturer does not make such
232	copies available.
233	(e)  The division may adopt a subsequent American Society
234	for Testing and Materials Standard Test Method for Measuring the
235	Ignition Strength of Cigarettes upon a finding that such
236	subsequent method does not result in a change in the percentage
237	of full-length burns exhibited by any tested cigarette when
238	compared to the percentage of full-length burns the same
239	cigarette would exhibit when tested in accordance with American
240	Society for Testing and Materials Standard E2187-04 and the
241	performance standard in subparagraph (a)3.
242	(f)  The division shall review the effectiveness of this
243	subsection and report every 3 years to the President of the
244	Senate and the Speaker of the House of Representatives the
245	division's findings and, if appropriate, recommendations for
246	legislation to improve the effectiveness of this subsection. The
247	report and legislative recommendations shall be submitted no
248	later than June 13 following the conclusion of each 3-year
249	period.
250	(g)  The requirements of paragraph (a) shall not prohibit:
251	1.  Wholesale or retail dealers from selling their existing
252	inventory of cigarettes on or after the effective date of this
253	section if the wholesale or retailer dealer can establish that
254	state tax stamps were affixed to the cigarettes prior to the
255	effective date and the wholesale or retailer dealer can
256	establish that the inventory was purchased prior to the
257	effective date in comparable quantity to the inventory purchased
258	during the same period of the prior year; or
259	2.  The sale of cigarettes solely for the purpose of
260	consumer testing. For purposes of this subparagraph, the term
261	"consumer testing" means an assessment of cigarettes that is
262	conducted by or is under the control and direction of a
263	manufacturer for the purpose of evaluating consumer acceptance
264	of such cigarettes and that uses only the quantity of cigarettes
265	that is reasonably necessary for such assessment.
266	(h)  It is the intent of the Legislature by this section to
267	promote uniformity among the states in the regulation of reduced
268	cigarette ignition propensity. As a result, the resolution of
269	issues regarding the interpretation and implementation of this
270	section should be made in a manner consistent with the New York
271	Fire Safety Standards for Cigarettes, New York Executive Law,
272	Section 156-C, as amended, and Part 429 of Title 19 New York
273	Codes, Rules, and Regulations, as amended, and the
274	interpretation and implementation thereof, as they exist on
275	March 1, 2008.
276	(5)  CERTIFICATION AND PRODUCT CHANGE.--
277	(a)  Each manufacturer shall submit to the division a
278	written certification attesting that:
279	1.  Each cigarette listed in the certification has been
280	tested in accordance with subsection (4).
281	2.  Each cigarette listed in the certification meets the
282	performance standard set forth in subsection (4).
283	(b)  Each cigarette listed in the certification shall be
284	described with the following information:
285	1.  Brand, or trade name, on the package.
286	2.  Style, such as light or ultra light.
287	3.  Length in millimeters.
288	4.  Circumference in millimeters.
289	5.  Flavor, such as menthol or chocolate, if applicable.
290	6.  Filter or nonfilter.
291	7.  Package description, such as soft pack or box.
292	8.  Marking pursuant to subsection (6).
293	9.  The name, address, and telephone number of the testing
294	laboratory, if different from the name, address, and telephone
295	number of the manufacturer that conducted the test.
296	10.  The date the testing occurred.
297	(c)  Each certification shall be made available to the
298	Attorney General for purposes consistent with this section and
299	to the Department of Revenue for the purposes of ensuring
300	compliance with this subsection.
301	(d)  Each cigarette certified under this subsection shall
302	be recertified every 3 years.
303	(e)  At the time it submits a written certification under
304	this subsection, a manufacturer shall pay to the division a fee
305	of $250 for each brand of cigarettes listed in the
306	certification. The fee paid shall apply to all cigarettes within
307	the brand certified and to any new cigarette certified within
308	the brand during the 3-year certification period.
309	(f)  If a manufacturer has certified a cigarette pursuant
310	to this subsection and thereafter makes any change to such
311	cigarette that is likely to alter its compliance with the
312	reduced cigarette ignition propensity standards required by this
313	section, that cigarette shall not be sold or offered for sale in
314	this state until the manufacturer retests the cigarette in
315	accordance with the testing standards set forth in subsection
316	(4) and maintains records of that retesting as required by
317	subsection (4). Any altered cigarette that does not meet the
318	performance standard set forth in subsection (4) may not be sold
319	in this state.
320	(6)  MARKING OF CIGARETTE PACKAGING.--
321	(a)  Cigarettes that are certified by a manufacturer in
322	accordance with subsection (5) shall be marked to indicate
323	compliance with the requirements of subsection (4). The marking
324	shall be in 8-point type or larger and consist of:
325	1.  Modification of the universal product code to include a
326	visible mark printed at or around the area of the universal
327	product code. The mark may consist of alphanumeric or symbolic
328	characters permanently stamped, engraved, embossed, or printed
329	in conjunction with the universal product code;
330	2.  Any visible combination of alphanumeric or symbolic
331	characters permanently stamped, engraved, or embossed upon the
332	cigarette package or cellophane wrap; or
333	3.  Printed, stamped, engraved, or embossed text that
334	indicates that the cigarettes meet the standards of this
335	section.
336	(b)  A manufacturer shall use only one marking and shall
337	apply this marking uniformly for all brands and all packages,
338	including, but not limited to, packs, cartons, and cases,
339	marketed by that manufacturer.
340	(c)  The division shall be notified as to the marking that
341	is selected.
342	(d)  Prior to the certification of any cigarette, a
343	manufacturer shall present its proposed marking to the division
344	for approval. Upon receipt of the request, the division shall
345	approve or disapprove the marking offered, except that the
346	division shall approve:
347	1.  Any marking in use and approved for sale in the State
348	of New York pursuant to the New York Fire Safety Standards for
349	Cigarettes; or
350	2.  The letters "FSC," which signify "Fire Standards
351	Compliant," appearing in 8-point type or larger and permanently
352	printed, stamped, engraved, or embossed on the package at or
353	near the universal product code.
354
355	Proposed markings shall be deemed approved if the division fails
356	to act within 10 business days after receiving a request for
357	approval.
358	(e)  No manufacturer shall modify its approved marking
359	unless the modification has been approved by the division in
360	accordance with this subsection.
361	(f)  Manufacturers certifying cigarettes in accordance with
362	subsection (5) shall provide a copy of the certifications to all
363	wholesale dealers and agents to which they sell cigarettes and
364	shall also provide sufficient copies of an illustration of the
365	package marking used by the manufacturer pursuant to this
366	subsection for each retail dealer to which the wholesale dealers
367	or agents sell cigarettes. Wholesale dealers and agents shall
368	provide a copy of these package markings received from
369	manufacturers to all retail dealers to which they sell
370	cigarettes. Wholesale dealers, agents, and retail dealers shall
371	permit the division, the Department of Revenue, the Attorney
372	General, and their employees to inspect markings of cigarette
373	packaging marked in accordance with this subsection.
374	(7)  PENALTIES.--
375	(a)  A manufacturer, wholesale dealer, agent, or any other
376	person or entity that knowingly sells or offers to sell
377	cigarettes, other than through retail sale, in violation of
378	subsection (4) shall be subject to a civil penalty not to exceed
379	$100 for each pack of such cigarettes sold or offered for sale.
380	In no case shall the penalty against any such person or entity
381	exceed $100,000 during any 30-day period.
382	(b)  A retail dealer who knowingly sells or offers to sell
383	cigarettes in violation of subsection (4) shall be subject to a
384	civil penalty not to exceed $100 for each pack of such
385	cigarettes sold or offered for sale. In no case shall the
386	penalty against any retail dealer exceed $25,000 during any 30-
387	day period.
388	(c)  In addition to any penalty prescribed by law, any
389	corporation, partnership, sole proprietor, limited partnership,
390	or association engaged in the manufacture of cigarettes that
391	knowingly makes a false certification pursuant to subsection (5)
392	shall be subject to a civil penalty of at least $75,000 and not
393	to exceed $250,000 for each such false certification.
394	(d)  Any person violating any other provision of this
395	section shall be subject to a civil penalty not to exceed $1,000
396	for a first offense and not to exceed $5,000 for each subsequent
397	offense.
398	(e)  Any cigarettes that have been sold or offered for sale
399	that do not comply with the performance standard required by
400	subsection (4) shall be subject to forfeiture following a
401	hearing pursuant to chapter 120 at which the true holder of the
402	trademark rights in the cigarette brand may appear and present
403	evidence. Cigarettes forfeited pursuant to this paragraph shall
404	be destroyed; however, prior to destruction of any such
405	cigarette, the true holder of the trademark rights in the
406	cigarette brand shall be permitted to inspect the cigarette.
407	(f)  In addition to any other remedy provided by law, the
408	division or the Attorney General may file an action in circuit
409	court for a violation of this section, including petitioning for
410	injunctive relief or to recover any costs or damages suffered by
411	the state because of a violation of this section, including
412	enforcement costs relating to the specific violation and
413	attorney's fees. Each violation of this section or of rules
414	adopted under this section constitutes a separate civil
415	violation for which the division or the Attorney General may
416	obtain relief.
417	(g)  Whenever any law enforcement personnel or duly
418	authorized representative of the division discovers any
419	cigarettes that have not been marked in the manner required by
420	subsection (6), such personnel or representative is authorized
421	and empowered to seize and take possession of such cigarettes.
422	Such cigarettes shall be turned over to the Department of
423	Revenue and shall be forfeited to the state. Cigarettes seized
424	pursuant to this paragraph shall be destroyed; however, prior to
425	the destruction of any such cigarette, the true holder of the
426	trademark rights in the cigarette brand shall be permitted to
427	inspect the cigarette.
428	(8)  IMPLEMENTATION.--
429	(a)  The division may adopt rules to implement the
430	provisions of this section.
431	(b)  The division, in the regular course of conducting
432	inspections of wholesale dealers, agents, and retail dealers as
433	authorized pursuant to chapter 210, may inspect such cigarettes
434	to determine if the cigarettes are marked as required by
435	subsection (6).
436	(9)  INSPECTION.--To enforce the provisions of this
437	section, the Attorney General, the Department of Revenue, the
438	division, and their duly authorized representatives and other
439	law enforcement personnel are authorized to examine the books,
440	papers, invoices, and other records of any person in possession,
441	control, or occupancy of any premises where cigarettes are
442	placed, stored, sold, or offered for sale, as well as the stock
443	of cigarettes on the premises. Every person in the possession,
444	control, or occupancy of any premises where cigarettes are
445	placed, sold, or offered for sale is directed and required to
446	give the Attorney General, the Department of Revenue, the
447	division, and their duly authorized representatives and other
448	law enforcement personnel the means, facilities, and opportunity
449	for the examinations authorized by this subsection.
450	(10)  SALE OUTSIDE OF FLORIDA.--Nothing in this section
451	shall be construed to prohibit any person or entity from
452	manufacturing or selling cigarettes that do not meet the
453	requirements of subsection (4) if the cigarettes are or will be
454	stamped for sale in another state or are packaged for sale
455	outside the United States and that person or entity has taken
456	reasonable steps to ensure that such cigarettes will not be sold
457	or offered for sale to persons located in this state.
458	(11)  PREEMPTION.--This section shall be repealed if a
459	federal reduced cigarette ignition propensity standard that
460	preempts this section is adopted and becomes effective.
461	Section 2.  Effective upon this act becoming a law, and
462	notwithstanding any other provision of law, local government
463	units of this state may neither enact nor enforce any ordinance
464	or other local law or regulation conflicting with, or preempted
465	by, any provision of this act or any policy of this state
466	expressed by this act, whether that policy be expressed by
467	inclusion of a provision in this act or by exclusion of that
468	subject from this act.
469	Section 3.  Except as otherwise expressly provided in this
470	act, this act shall take effect January 1, 2010.

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