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

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