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The Committee on Regulated Industries (King) recommended the

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following amendment:

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     Senate Amendment (with title amendment)

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     Delete everything after the enacting clause

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and insert:

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     Section 1.  Section 633.042, Florida Statutes, is created to

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read:

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     633.042 Reduced Cigarette Ignition Propensity Standard and

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Firefighter Protection Act.--

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     (1) SHORT TITLE.--This section may be cited as the "Reduced

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Cigarette Ignition Propensity Standard and Firefighter Protection

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Act."

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     (2) LEGISLATIVE FINDINGS AND INTENT.--The Legislature finds

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and declares that:

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     (a) Cigarettes are the leading cause of fire deaths in this

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state and in the nation.

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     (b) Each year in the United States, between 700 and 900

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persons are killed and around 3,000 persons are injured in fires

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ignited by cigarettes, while in this state 153 residential fires

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and 5 fatalities were attributable to fires caused by cigarettes

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in 2006.

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     (c) A high percentage of the victims of cigarette fires are

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nonsmokers, including senior citizens and young children.

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     (d) Fires caused by cigarettes result in billions of

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dollars in property losses and damages in the United States and

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millions of dollars in property losses and damages in this state.

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     (e) Cigarette fires unnecessarily jeopardize the safety of

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firefighters and result in avoidable emergency response costs for

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municipalities.

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     (f) In 2004, the State of New York implemented a cigarette

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firesafety regulation requiring cigarettes sold in that state to

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meet a firesafety performance standard; in 2005, Vermont and

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California enacted cigarette firesafety laws directly

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incorporating New York's regulation into statute; and in 2006,

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Illinois, New Hampshire, and Massachusetts joined these states in

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enacting similar laws.

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     (g) In 2005, Canada implemented the New York State

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firesafety standard, becoming the first country to have a

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nationwide cigarette firesafety standard.

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     (h) New York State's cigarette firesafety standard is based

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upon decades of research by the National Institute of Standards

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and Technology, Congressional research groups, and private

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industry. This cigarette firesafety standard minimizes costs to

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the state; minimally burdens cigarette manufacturers,

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distributors, and retail sellers; and, therefore, should become

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law in this state.

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     (i) It is therefore fitting and proper for this state to

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adopt the cigarette firesafety standard that is in effect in the

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State of New York to reduce the likelihood that cigarettes will

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cause fires and result in deaths, injuries, and property damages.

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     (3) DEFINITIONS.--For the purposes of this section:

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     (a) "Agent" means any person authorized by the Division of

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Alcoholic Beverages and Tobacco of the Department of Business and

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Professional Regulation to purchase and affix stamps on packages

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of cigarettes.

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     (b) "Cigarette" means:

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     1. Any roll for smoking, whether made wholly or in part of

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tobacco or any other substance, irrespective of size or shape,

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and whether such tobacco or substance is flavored, adulterated,

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or mixed with any other ingredient, the wrapper or cover of which

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is made of paper or any other substance or material other than

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tobacco; or

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     2. Any roll for smoking that is wrapped in any substance

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containing tobacco and that the type of tobacco used in the

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filler, or its packaging and labeling, is likely to be offered

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to, or purchased by, consumers as a cigarette as described in

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subparagraph 1.

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     (c) "Division" means the Division of Alcoholic Beverages

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and Tobacco of the Department of Business and Professional

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Regulation.

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     (d) "Manufacturer" means:

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     1. Any entity that manufactures or produces, or causes to

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be manufactured or produced, regardless of location, cigarettes

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that such manufacturer intends to be sold in this state,

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including cigarettes intended to be sold in the United States

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through an importer;

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     2. Any entity, regardless of location, that first purchases

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cigarettes manufactured anywhere and not intended by the original

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manufacturer or maker to be sold in the United States and that

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intends to resell such cigarettes in the United States; or

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     3. Any entity that becomes a successor of an entity

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described in subparagraph 1. or subparagraph 2.

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     (e) "Quality control and quality assurance program" means

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laboratory procedures implemented to ensure that operator bias,

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systematic and nonsystematic methodological errors, and

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equipment-related problems do not affect the results of

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laboratory testing. Such a program shall ensure that the testing

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repeatability remains within the required repeatability values

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stated in subparagraph (4)(a)6. for all test trials used to

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certify cigarettes in accordance with this section.

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     (f) "Repeatability" means the range of values within which

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the results of repeated cigarette test trials from a single

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laboratory will fall 95 percent of the time.

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     (g) "Retail dealer" means any person, other than a

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manufacturer or wholesale dealer, engaged in selling cigarettes.

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     (h) "Sale" means any transfer of title or possession or

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both, exchange or barter, conditional or otherwise, in any manner

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or by any means whatever or any agreement therefor. In addition

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to cash and credit sales, the giving of cigarettes as samples,

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prizes, or gifts and the exchanging of cigarettes for any

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consideration other than money are considered sales.

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     (i) "Sell" means to execute a sale or to offer or agree to

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execute a sale.

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     (j) "Wholesale dealer" means:

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     1. Any person other than a manufacturer who sells

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cigarettes to retail dealers or other persons for purposes of

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resale; or

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     2. Any person who owns, operates, or maintains one or more

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cigarette or tobacco-product vending machines in, at, or upon

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premises owned or occupied by any other person.

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     (4) TEST METHOD AND PERFORMANCE STANDARD.--

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     (a) Except as provided in paragraph (g), no cigarettes may

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be sold or offered for sale in this state, or sold or offered for

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sale to persons located in this state, unless the cigarettes have

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been tested in accordance with the test method and meet the

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performance standard specified in this subsection, a written

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certification has been filed by the manufacturer with the

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division in accordance with subsection (5), and the cigarettes

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have been marked in accordance with subsection (6).

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     1. Testing of cigarettes shall be conducted in accordance

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with the American Society for Testing and Materials standard

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E2187-04, "Standard Test Method for Measuring the Ignition

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Strength of Cigarettes."

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     2. Testing shall be conducted on 10 layers of filter paper.

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     3. No more than 25 percent of the cigarettes tested in a

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test trial in accordance with this subsection shall exhibit full-

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length burns. Forty replicate tests shall comprise a complete

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test trial for each cigarette tested.

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     4. The performance standard required by this subsection

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shall only be applied to a complete test trial.

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     5. Written certifications shall be based upon testing

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conducted by a laboratory that has been accredited pursuant to

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standard ISO/IEC 17025 of the International Organization for

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Standardization or another comparable accreditation standard

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required by the division.

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     6. Laboratories conducting testing in accordance with this

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subsection shall implement a quality control and quality

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assurance program that includes a procedure that will determine

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the repeatability of the testing results. The repeatability value

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shall be no greater than 0.19.

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     7. This subsection does not require additional testing if

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cigarettes are tested consistent with this section for any other

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purpose.

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     8. In its discretion, the division may perform or sponsor

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testing to determine a cigarette's compliance with the required

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performance standard; provided, any such discretionary compliance

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testing by the division shall be conducted in accordance with

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this subsection.

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     (b) Each cigarette listed in a certification submitted

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pursuant to subsection (5) that uses lowered permeability bands

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in the cigarette paper to achieve compliance with the performance

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standard set forth in this subsection shall have at least two

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nominally identical bands on the paper surrounding the tobacco

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column. At least one complete band shall be located at least 15

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millimeters from the lighting end of the cigarette. For

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cigarettes on which the bands are positioned by design, there

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shall be at least two bands fully located at least 15 millimeters

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from the lighting end and 10 millimeters from the filter end of

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the tobacco column, or 10 millimeters from the labeled end of the

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tobacco column for nonfiltered cigarettes.

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     (c) A manufacturer of a cigarette that the division

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determines cannot be tested in accordance with the test method

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prescribed in subparagraph (a)1. shall propose a test method and

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performance standard for the cigarette to the division. Upon

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approval of the proposed test method and a determination by the

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division that the performance standard proposed by the

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manufacturer is equivalent to the performance standard prescribed

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in subparagraph (a)3., the manufacturer may employ such test

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method and performance standard to certify such cigarette

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pursuant to subsection (5). If the division determines that

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another state has enacted reduced cigarette ignition propensity

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standards that include a test method and performance standard

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that are the same as those contained in this section, and if the

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division finds that the officials responsible for implementing

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those requirements have approved the proposed alternative test

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method and performance standard for a particular cigarette

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proposed by a manufacturer as meeting the firesafety standards of

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that state's law or regulation under a legal provision comparable

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to this subsection, the division shall authorize that

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manufacturer to employ the alternative test method and

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performance standard to certify that cigarette for sale in this

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state unless the division demonstrates a reasonable basis why the

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alternative test should not be accepted under this section. All

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other applicable requirements of this subsection shall apply to

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the manufacturer.

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     (d) Each manufacturer shall maintain copies of the reports

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of all tests conducted on all cigarettes offered for sale for a

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period of 3 years and shall make copies of the reports available

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to the division and the Attorney General upon written request.

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Any manufacturer who fails to make copies of the reports

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available within 60 days after receiving a written request shall

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be subject to a civil penalty not to exceed $10,000 for each day

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after the 60th day that the manufacturer does not make such

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copies available.

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     (e) The division may adopt a subsequent American Society

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for Testing and Materials Standard Test Method for Measuring the

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Ignition Strength of Cigarettes upon a finding that such

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subsequent method does not result in a change in the percentage

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of full-length burns exhibited by any tested cigarette when

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compared to the percentage of full-length burns the same

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cigarette would exhibit when tested in accordance with American

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Society for Testing and Materials Standard E2187-04 and the

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performance standard in subparagraph (a)3.

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     (f) The division shall review the effectiveness of this

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subsection and report every 3 years to the President of the

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Senate and the Speaker of the House of Representatives the

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division's findings and, if appropriate, recommendations for

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legislation to improve the effectiveness of this subsection. The

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report and legislative recommendations shall be submitted no

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later than June 13 following the conclusion of each 3-year

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period.

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     (g) The requirements of paragraph (a) shall not prohibit:

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     1. Wholesale or retail dealers from selling their existing

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inventory of cigarettes on or after the effective date of this

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section if the wholesale or retailer dealer can establish that

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state tax stamps were affixed to the cigarettes prior to the

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effective date and the wholesale or retailer dealer can establish

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that the inventory was purchased prior to the effective date in

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comparable quantity to the inventory purchased during the same

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period of the prior year; or

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     2. The sale of cigarettes solely for the purpose of

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consumer testing. For purposes of this subparagraph, the term

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"consumer testing" means an assessment of cigarettes that is

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conducted by or is under the control and direction of a

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manufacturer for the purpose of evaluating consumer acceptance of

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such cigarettes, that uses only the quantity of cigarettes that

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is reasonably necessary for such assessment.

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     (h) It is the intent of the Legislature to promote

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uniformity among the states in the regulation of cigarettes per

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this section. As a result, the Legislature intends that the

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resolution of issues regarding the interpretation or

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implementation of this section be made in a manner consistent

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with the New York Fire Safety Standards for Cigarettes, New York

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Executive Law, Section 156-c, as amended and Part 429 of Title 19

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New York Codes, Rules, and Regulations, as amended, that are in

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effect on March 1, 2008.

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     (5) CERTIFICATION AND PRODUCT CHANGE.--

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     (a) Each manufacturer shall submit to the division a

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written certification attesting that:

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     1. Each cigarette listed in the certification has been

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tested in accordance with subsection (4).

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     2. Each cigarette listed in the certification meets the

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performance standard set forth in subsection (4).

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     (b) Each cigarette listed in the certification shall be

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described with the following information:

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     1. Brand, or trade name, on the package.

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     2. Style, such as light or ultra light.

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     3. Length in millimeters.

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     4. Circumference in millimeters.

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     5. Flavor, such as menthol or chocolate, if applicable.

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     6. Filter or nonfilter.

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     7. Package description, such as soft pack or box.

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     8. Marking pursuant to subsection (6).

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     9. The name, address, and telephone number of the testing

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laboratory, if different from the name, address, and telephone

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number of the manufacturer that conducted the test.

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     10. The date the testing occurred.

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     (c) Each certification shall be made available to the

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Attorney General for purposes consistent with this section and to

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the Department of Revenue for the purposes of ensuring compliance

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with this subsection.

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     (d) Each cigarette certified under this subsection shall be

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recertified every 3 years.

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     (e) At the time is submits a written certification under

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subsection (5), a manufacturer shall pay to the division a fee of

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$250 dollars for each brand family of cigarettes listed in the

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certification. The fee paid shall apply to all cigarettes within

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the brand family certified and shall include any new cigarette

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certified within the brand family during the three-year

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certification period. Proceeds of the certification fee shall be

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deposited into the Reduced Cigarette Ignition Propensity and

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Firefighter Protection Enforcement Trust Fund.

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     (f) If a manufacturer has certified a cigarette pursuant to

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this subsection and thereafter makes any change to such cigarette

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that is likely to alter its compliance with the reduced cigarette

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ignition propensity standards required by this section, that

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cigarette shall not be sold or offered for sale in this state

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until the manufacturer retests the cigarette in accordance with

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the testing standards set forth in subsection (4) and maintains

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records of that retesting as required by subsection (4). Any

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altered cigarette that does not meet the performance standard set

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forth in subsection (4) may not be sold in this state.

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     (6) MARKING OF CIGARETTE PACKAGING.--

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     (a) Cigarettes that are certified by a manufacturer in

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accordance with subsection (5) shall be marked to indicate

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compliance with the requirements of subsection (4). The marking

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shall be in 8-point type or larger and consist of:

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     1. Modification of the universal product code to include a

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visible mark printed at or around the area of the universal

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product code. The mark may consist of alphanumeric or symbolic

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characters permanently stamped, engraved, embossed, or printed in

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conjunction with the universal product code;

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     2. Any visible combination of alphanumeric or symbolic

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characters permanently stamped, engraved, or embossed upon the

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cigarette package or cellophane wrap; or

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     3. Printed, stamped, engraved, or embossed text that

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indicates that the cigarettes meet the standards of this section.

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     (b) A manufacturer shall use only one marking and shall

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apply this marking uniformly for all brands and all packages,

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including, but not limited to, packs, cartons, and cases,

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marketed by that manufacturer.

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     (c) The division shall be notified as to the marking that

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is selected.

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     (d) Prior to the certification of any cigarette, a

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manufacturer shall present its proposed marking to the division

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for approval. Upon receipt of the request, the division shall

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approve or disapprove the marking offered, except that the

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division shall approve:

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     1. Any marking in use and approved for sale in the State of

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New York pursuant to the New York Fire Safety Standards for

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Cigarettes; or

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     2. The letters "FSC," which signify "Fire Standards

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Compliant," appearing in 8-point type or larger and permanently

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printed, stamped, engraved, or embossed on the package at or near

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the universal product code.

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Proposed markings shall be deemed approved if the division fails

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to act within 10 business days after receiving a request for

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approval.

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     (e) No manufacturer shall modify its approved marking

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unless the modification has been approved by the division in

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accordance with this subsection.

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     (f) Manufacturers certifying cigarettes in accordance with

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subsection (5) shall provide a copy of the certifications to all

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wholesale dealers and agents to which they sell cigarettes and

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shall also provide sufficient copies of an illustration of the

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package marking used by the manufacturer pursuant to this

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subsection for each retail dealer to which the wholesale dealers

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or agents sell cigarettes. Wholesale dealers and agents shall

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provide a copy of these package markings received from

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manufacturers to all retail dealers to which they sell

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cigarettes. Wholesale dealers, agents, and retail dealers shall

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permit the division, the Department of Revenue, the Attorney

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General, and their employees to inspect markings of cigarette

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packaging marked in accordance with this subsection.

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     (7) PENALTIES.--

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     (a) A manufacturer, wholesale dealer, agent, or any other

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person or entity that knowingly sells or offers to sell

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cigarettes, other than through retail sale, in violation of

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subsection (4) shall be subject to a civil penalty not to exceed

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$100 for each pack of such cigarettes sold or offered for sale.

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In no case shall the penalty against any such person or entity

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exceed $100,000 during any 30-day period.

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     (b) A retail dealer who knowingly sells or offers to sell

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cigarettes in violation of subsection (4) shall be subject to a

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civil penalty not to exceed $100 for each pack of such cigarettes

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sold or offered for sale. In no case shall the penalty against

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any retail dealer exceed $25,000 during any 30-day period.

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     (c) In addition to any penalty prescribed by law, any

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corporation, partnership, sole proprietor, limited partnership,

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or association engaged in the manufacture of cigarettes that

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knowingly makes a false certification pursuant to subsection (5)

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shall be subject to a civil penalty of at least $75,000 and not

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to exceed $250,000 for each such false certification.

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     (d) Any person violating any other provision of this

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section shall be subject to a civil penalty not to exceed $1,000

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for a first offense and not to exceed $5,000 for each subsequent

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offense.

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     (e) Any cigarettes that have been sold or offered for sale

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that do not comply with the performance standard required by

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subsection (4) shall be subject to forfeiture following a hearing

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undertaken pursuant to chapter 120 at which the true holder of

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the trademark rights in the cigarette brand may appear and

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present evidence. Cigarettes forfeited pursuant to this paragraph

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shall be destroyed; however, prior to destruction of any such

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cigarette, the true holder of the trademark rights in the

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cigarette brand shall be permitted to inspect the cigarette.

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     (f) In addition to any other remedy provided by law, the

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division or the Attorney General may file an action in circuit

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court for a violation of this section, including petitioning for

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injunctive relief or to recover any costs or damages suffered by

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the state because of a violation of this section, including

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enforcement costs relating to the specific violation and

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attorney's fees. Each violation of this section or of rules

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adopted under this section constitutes a separate civil violation

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for which the division or the Attorney General may obtain relief.

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     (g) Whenever any law enforcement personnel or duly

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authorized representative of the division discovers any

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cigarettes that have not been marked in the manner required by

381

subsection (6), such personnel or representative is authorized

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and empowered to seize and take possession of such cigarettes.

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Such cigarettes shall be turned over to the Department of Revenue

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and shall be forfeited to the state. Cigarettes seized pursuant

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to this paragraph shall be destroyed; however, prior to the

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destruction of any such cigarette, the true holder of the

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trademark rights in the cigarette brand shall be permitted to

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inspect the cigarette.

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(h) Penalties collected under this subsection shall be

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deposited into the Fire Prevention and Public Safety Trust Fund

391

within the Department of Financial Services.

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     (8) IMPLEMENTATION.--

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     (a) The division may adopt rules to implement the

394

provisions of this section.

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     (b) The division, in the regular course of conducting

396

inspections of wholesale dealers, agents, and retail dealers as

397

authorized pursuant to chapter 210, may inspect such cigarettes

398

to determine if the cigarettes are marked as required by

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subsection (6)

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     (9) INSPECTION.--To enforce the provisions of this section,

401

the Attorney General, the Department of Revenue, the division,

402

and their duly authorized representatives and other law

403

enforcement personnel are authorized to examine the books,

404

papers, invoices, and other records of any person in possession,

405

control, or occupancy of any premises where cigarettes are

406

placed, stored, sold, or offered for sale, as well as the stock

407

of cigarettes on the premises. Every person in the possession,

408

control, or occupancy of any premises where cigarettes are

409

placed, sold, or offered for sale is directed and required to

410

give the Attorney General, the Department of Revenue, the

411

division, and their duly authorized representatives and other law

412

enforcement personnel the means, facilities, and opportunity for

413

the examinations authorized by this subsection.

414

     (10) SALE OUTSIDE OF FLORIDA.--Nothing in this section

415

shall be construed to prohibit any person or entity from

416

manufacturing or selling cigarettes that do not meet the

417

requirements of subsection (4) if the cigarettes are or will be

418

stamped for sale in another state or are packaged for sale

419

outside the United States and that person or entity has taken

420

reasonable steps to ensure that such cigarettes will not be sold

421

or offered for sale to persons located in this state.

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     (11) PREEMPTION.--This section shall be repealed if a

423

federal reduced cigarette ignition propensity standard that

424

preempts this section is adopted and becomes effective.

425

     Section 2. Effective upon this act becoming a law, and

426

notwithstanding any other provision of law, local government

427

units of this state may neither enact nor enforce any ordinance

428

or other local law or regulation conflicting with, or preempted

429

by, any provision of this act or any policy of this state

430

expressed by this act, whether that policy be expressed by

431

inclusion of a provision in this act or by exclusion of that

432

subject from this act.

433

     Section 3.  This act shall take effect July 1, 2008, if SB

434

2584 and SB 2586, or similar legislation are adopted in the same

435

legislative session or an extension thereof and becomes law.

436

437

438

================ T I T L E  A M E N D M E N T ================

439

And the title is amended as follows:

440

     Delete everything before the enacting clause

441

and insert:

442

A bill to be entitled

443

An act relating to the Reduced Cigarette Ignition

444

Propensity Standard and Firefighter Protection Act;

445

creating s. 633.042, F.S.; providing a short title;

446

providing legislative findings and intent; providing

447

definitions; providing cigarette testing methods and

448

performance standards; providing specific testing

449

criteria; requiring manufacturers to provide certain

450

written certification; requiring cigarettes to be marked

451

in specific manners; providing for alternative testing

452

methods under certain circumstances; providing reporting

453

requirements; providing the Division of Alcoholic

454

Beverages and Tobacco with certain powers and

455

responsibilities; providing certification requirements for

456

manufacturers; providing fee; providing for the deposit of

457

certification fees into the Reduced Cigarette Ignition

458

Propensity and Firefighter Protection Enforcement Trust

459

Fund; providing requirements for the marking of certain

460

cigarette packaging; providing reporting requirements;

461

providing approval requirements for markings submitted to

462

the division by a manufacturer; providing notification

463

requirements; providing fines and penalties; providing for

464

the deposit of penalties into the Fire Prevention and

465

Public Safety Trust Fund; providing the division with

466

rulemaking authority; authorizing certain government

467

entities with inspection powers to examine specified

468

documents of any person in possession, control, or

469

occupancy of any premises where cigarettes are placed,

470

stored, sold, or offered for sale, as well as the stock of

471

cigarettes on the premises; providing that nothing in the

472

act shall be construed to prohibit any person or entity

473

from manufacturing or selling cigarettes that do not meet

474

the specified requirements if such cigarettes are or will

475

be stamped for sale in another state or are packaged for

476

sale outside the United States; providing for repeal upon

477

the enactment of a preemptive federal standard;

478

prohibiting local government units from enacting and

479

enforcing any ordinance or other local law or regulation

480

that conflicts with, or is preempted by, any provision of

481

the act; providing effective dates.

3/30/2008  4:02:00 PM     RI.RI.06094