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A bill to be entitled

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An act relating to cigarettes; creating s. 633.042, F.S.;

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providing definitions; requiring that cigarettes sold in

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this state meet certain reduced cigarette ignition

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propensity standards; providing a test method and

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performance standards; requiring the use of bands on the

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paper surrounding the tobacco column of certain

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cigarettes; requiring certain manufacturers to propose an

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alternative test method and performance standard for

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certain cigarettes; requiring a cigarette manufacturer to

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maintain and make available copies of reports of all tests

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conducted on certain cigarettes for a specified period;

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providing a penalty; authorizing the State Fire Marshall

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to adopt an additional standard testing method for

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measuring the ignition strength of cigarettes upon a

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certain finding; requiring the State Fire Marshal to

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report findings and recommendations to the Legislature;

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authorizing wholesale and retail dealers to sell their

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existing inventory of cigarettes under certain

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circumstances; requiring manufacturers to submit a written

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certification to the State Fire Marshal; providing

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requirements for the written certification; requiring the

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certification to be made available to the Attorney General

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and the Division of Alcoholic Beverages and Tobacco within

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the Department of Business and Professional Regulation;

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requiring recertification; requiring the manufacturer to

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pay a certification fee; requiring recertification of an

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altered cigarette; providing for the deposit of

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certification fees into the Reduced Cigarette Ignition

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Propensity and Firefighter Protection Enforcement Trust

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Fund; requiring the marking of cigarette packaging;

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providing requirements for marking; requiring the State

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Fire Marshal to approve the marking; requiring a

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manufacturer to provide a copy of the certification and

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copies of an illustration of the package marking to

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wholesaler dealers and agents; requiring wholesalers and

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agents to provide a copy of the package markings to retail

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dealers; requiring wholesaler dealers, agents, and retail

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dealers to allow the Attorney General to inspect markings;

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providing for penalties; providing for the deposit of

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penalties into the Fire Prevention and Public Safety Trust

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Fund; requiring the State Fire Marshal to adopt rules;

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authorizing the division to inspect the marking on

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cigarette packages; authorizing the Attorney General, the

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division, the State Fire Marshal, and other law

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enforcement personnel to examine books and records of any

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person in possession, control, or occupancy of any

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premises where cigarettes are placed, stored, sold, or

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offered for sale; providing an exception for compliance

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for any person or entity who manufactures cigarettes for

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sale outside the state; providing for the repeal of the

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act upon adoption of federal standards for reduced

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cigarette ignition propensity; providing that the act

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preempts any local ordinance; providing a contingent

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effective date.

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Be It Enacted by the Legislature of the State of Florida:

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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 ignition propensity standards for

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cigarettes.--

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     (1) DEFINITIONS.--As used in this section, the term:

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

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Alcoholic Beverages and Tobacco within the Department of Business

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and Professional Regulation to purchase and affix adhesive or

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meter stamps on packages 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 or not such tobacco or substance is flavored,

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adulterated or mixed with any other ingredient, or the wrapper or

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

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than leaf tobacco; or

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     2. Any roll for smoking wrapped in any substance containing

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tobacco which, because of its appearance, the type of tobacco

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used in the filler, or its packaging and labeling, is likely to

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be offered to, or purchased by, consumers as a cigarette as

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described in subparagraph 1.

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

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and Tobacco within 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 otherwise produces

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cigarettes or causes cigarettes to be manufactured or produced

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which the 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; or

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     2. The first purchaser anywhere that intends to resell in

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the United States cigarettes manufactured anywhere that the

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original manufacturer or maker does not intend to be sold in the

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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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the laboratory procedures implemented to ensure that operator

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bias, systematic and nonsystematic methodological errors, and

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equipment-related problems do not affect the results of the

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testing. This program ensures that the testing repeatability

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remains within the required repeatability values stated in

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subparagraph (2)(a)6. for all test trials used to certify

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cigarettes in accordance with this section.

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

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the repeat results of 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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or tobacco products.

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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 sell or to offer or agree to do the

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same.

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     (j) "Wholesale dealer" means any person other than a

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manufacturer who sells cigarettes or tobacco products to retail

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dealers or other persons for purposes of resale, and any person

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who owns, operates, or maintains one or more cigarette or tobacco

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product vending machines in, at, or upon premises owned or

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occupied by any other person.

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     (2) TEST METHOD AND PERFORMANCE STANDARD.--

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     (a) Except as provided in paragraph (g), cigarettes may not

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

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sold 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 State

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Fire Marshal in accordance with subsection (3), and the

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cigarettes have been marked in accordance with subsection (4).

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     1. Testing of cigarettes shall be conducted in accordance

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with the American Society of Testing and Materials (ASTM)

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

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Ignition 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 be applied only 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 other comparable accreditation standard

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required by the State Fire Marshal.

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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. Testing performed or sponsored by the State Fire Marshal

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to determine a cigarette's compliance with the performance

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standard required shall be conducted in accordance with this

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subsection.

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     (b) Each cigarette listed in a certification submitted

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pursuant to subsection (3) which 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 non-filtered cigarettes.

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     (c) A manufacturer of a cigarette that the State Fire

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Marshal determines cannot be tested in accordance with the test

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

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method and performance standard for the cigarette to the State

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Fire Marshal. Upon approval of the proposed test method and a

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determination by the State Fire Marshal that the performance

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standard proposed by the manufacturer is equivalent to the

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performance standard prescribed in subparagraph (a)3., the

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manufacturer may employ such test method and performance standard

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to certify such cigarette pursuant to subsection (3). If the

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State Fire Marshal determines that another state has enacted

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reduced cigarette ignition propensity standards that include a

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test method and performance standard that are the same as those

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contained in this section, and the State Fire Marshal finds that

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the officials responsible for implementing those requirements

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have approved the proposed alternative test method and

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performance standard for a particular cigarette proposed by a

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manufacturer as meeting the fire safety standards of that state's

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law or rules under a legal provision comparable to this

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subsection, the State Fire Marshal 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 State Fire Marshal demonstrates a reasonable

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basis why the alternative test should not be accepted under this

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section. All other applicable requirements of this subsection

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shall apply to 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 these reports

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available to the State Fire Marshal and the Attorney General upon

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written request. Any manufacturer who fails to make copies of

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these reports available within 60 days after receiving a written

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request shall be subject to a civil penalty not to exceed $10,000

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for each day after the 60th day that the manufacturer does not

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make such copies available.

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     (e) The State Fire Marshal may adopt a subsequent ASTM

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standard test method for measuring the ignition strength of

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cigarettes upon a finding that such subsequent method does not

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result in a change in the percentage of full-length burns

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exhibited by any tested cigarette when compared to the percentage

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of full-length burns the same cigarette would exhibit when tested

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in accordance with ASTM Standard E2187-04 and the performance

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standard in subparagraph (a)3.

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     (f) The State Fire Marshal shall review the effectiveness

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of this section and report every 3 years to the President of the

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Senate and the Speaker of the House of Representatives the State

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Fire Marshal's findings and, if appropriate, recommendations for

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legislation to improve the effectiveness of this section. The

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report and legislative recommendations shall be submitted by July

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1 of each 3-year period.

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

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     1. A wholesale or retail dealer from selling his or her

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existing inventory of cigarettes on or after July 1, 2008, if the

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wholesale or retailer dealer can establish that state tax stamps

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were affixed to the cigarettes before July 1, 2008, and the

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wholesale or retailer dealer can establish that the inventory was

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purchased before July 1, 2008, in comparable quantity to the

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inventory purchased during the same period of the prior year.

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     2. The sale of cigarettes solely for the purpose of

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consumer testing. For purposes of this subsection, the term

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"consumer testing" means an assessment of cigarettes which is

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conducted by a manufacturer, or under the control and direction

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of a manufacturer, for the purpose of evaluating consumer

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acceptance of such cigarettes using only the quantity of

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cigarettes that is reasonably necessary for such assessment, and

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in a controlled setting where the cigarettes are consumed on-site

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or returned to the testing administrators at the conclusion of

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the testing.

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     (3) CERTIFICATION AND PRODUCT CHANGE.--

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     (a) Each manufacturer shall submit to the State Fire

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Marshal a 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 (2); and

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     2. Each cigarette listed in the certification meets the

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performance standard set forth in subparagraph (2)(a)3.

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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 approved in accordance with subsection (4);

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

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laboratory, if different than the manufacturer that conducted the

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test; and

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     10. The date that the testing occurred.

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     (c) The certifications shall be made available to the

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Attorney General for purposes consistent with this section and

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the division for the purposes of ensuring compliance with this

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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) For each cigarette listed in a certification, a

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manufacturer shall pay to the State Fire Marshal a fee that may

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not exceed $250. The State Fire Marshal may annually adjust this

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fee, not to exceed $500 per cigarette listed in a certification,

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to ensure it defrays the actual costs of the processing, testing,

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enforcement, and oversight activities required by this section.

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Proceeds of the certification fee shall be deposited into the

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Cigarette Ignition Propensity and Firefighter Protection

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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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which is likely to alter its compliance with the reduced

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cigarette ignition propensity standards required by this section,

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that cigarette may 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 (2) and maintains

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records of that retesting. Any altered cigarette that does not

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meet the performance standard set forth in subsection (2) may not

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be sold in this state.

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     (4) MARKING OF CIGARETTE PACKAGING.--

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     (a) Cigarettes that are certified by a manufacturer in

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accordance with subsection (3) shall be marked to indicate

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compliance with the requirements of subsection (2). 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 product UPC bar code to include a

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visible mark printed at or around the area of the UPC bar code.

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The mark may consist of alphanumeric or symbolic characters

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permanently stamped, engraved, embossed, or printed in

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conjunction with the UPC bar 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 to all packages, including, but not

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limited to, packs, cartons, cases, and brands marketed by that

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manufacturer.

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     (c) The State Fire Marshal shall be notified as to the

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marking that is selected.

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     (d) Before the certification of any cigarette, a

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manufacturer shall present its proposed marking to the State Fire

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Marshal for approval. Upon receipt of the request, the State Fire

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Marshal shall approve or disapprove the marking offered, except

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that the State Fire Marshal shall approve a marking with the

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letters "FSC," that signifies Fire Standards Compliant, appearing

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in 8-point type or larger and permanently printed, stamped,

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engraved, or embossed on the package at or near the UPC bar code.

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Proposed markings shall be deemed approved if the State Fire

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Marshal fails to act within 10 business days after receiving a

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request for approval.

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     (e) A manufacturer may not modify its approved marking

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unless the modification has been approved by the State Fire

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Marshal in accordance with this subsection.

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     (f) A manufacturer certifying a cigarette in accordance

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with subsection (3) shall provide a copy of the certification to

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each wholesale dealer and agent to which he or she sells

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cigarettes and shall also provide sufficient copies of an

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illustration of the package marking used by the manufacturer

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pursuant to this subsection for each retail dealer to which the

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wholesale dealer or agent sells cigarettes. Each wholesale dealer

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and agent shall provide a copy of these package markings received

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from a manufacturer to each retail dealer to which he or she

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sells cigarettes. Wholesale dealers, agents, and retail dealers

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shall allow the State Fire Marshal, the division, the Attorney

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General, and each agency's respective employees to inspect

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markings of cigarette packaging marked in accordance with this

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subsection.

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     (5) 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 (2), shall pay a civil penalty not to exceed $100 for

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each pack of such cigarettes sold or offered for sale. The

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penalty against any such person or entity may not exceed $100,000

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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 (2) shall pay a civil

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

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or offered for sale. The penalty against any such person or

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entity may not exceed $25,000 for sales or offers to sell during

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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 which

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knowingly makes a false certification pursuant to subsection (3)

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shall pay a civil penalty of at least $75,000, not to exceed

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$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 pay a civil penalty for a first offense not to

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exceed $1,000, and for a subsequent offense shall pay a civil

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penalty not to exceed $5,000 for each such violation.

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

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which do not comply with the performance standard required by

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subsection (2) are subject to forfeiture in accordance with

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chapter 210. Cigarettes forfeited pursuant to this section shall

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be destroyed. Before destruction of any cigarette forfeited

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pursuant to this paragraph, the true holder of the trademark

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rights in the cigarette brand shall be allowed to inspect the

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cigarettes.

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

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State Fire Marshal or the Attorney General may file an action in

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circuit court, including petitioning for injunctive relief and

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recovery for any costs or damages suffered by the state because

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of a violation of this section, including enforcement costs

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relating to the specific violation and attorney's fees. Each

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violation of this section or rules adopted by the division under

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this section constitutes a separate civil violation for which the

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State Fire Marshal or 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 State Fire Marshal discovers any

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cigarettes that have not been marked in the manner required by

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section (4), such personnel may seize and take possession of such

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cigarettes. Such cigarettes shall be turned over to the division

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and shall be forfeited to the state. Cigarettes seized pursuant

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to this section shall be destroyed; however, before the

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destruction of any cigarette seized pursuant to this paragraph,

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the true holder of the trademark rights in the cigarette brand

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shall be allowed to 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

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within the Department of Financial Services.

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     (6) IMPLEMENTATION.--

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     (a) The State Fire Marshal may adopt rules pursuant to ss.

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120.536(1) and 120.54 to administer this section.

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

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inspections of wholesale dealers, agents, and retail dealers, as

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authorized under chapter 569, may inspect cigarettes to determine

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if the cigarettes are marked as required by subsection (4). If

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the cigarettes are not marked as required, the division shall

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notify the State Fire Marshal.

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     (7) INSPECTION.--In order to enforce the provisions of this

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section, the Attorney General, the division, and the State Fire

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Marshal, their duly authorized representatives, and other law

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enforcement personnel may examine the books, papers, invoices,

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and other records of any person in possession, control, or

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occupancy of any premises where cigarettes are placed, stored,

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sold, or offered for sale, as well as the stock of cigarettes on

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the premises. Each person in the possession, control, or

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occupancy of any premises where cigarettes are placed, sold, or

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offered for sale shall give the Attorney General, the division,

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the State Fire Marshal, the authorized representatives of each

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respective agency, or other law enforcement personnel the means,

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facilities, and opportunity for the examinations authorized by

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this subsection.

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     (8) SALE OUTSIDE THE STATE.--This section does not prohibit

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any person or entity from manufacturing or selling cigarettes

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that do not meet the requirements of subsection (2) if the

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cigarettes are or will be stamped for sale in another state or

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are packaged for sale outside the United States and that person

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or entity has taken reasonable steps to ensure that such

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cigarettes will not be sold or offered for sale to persons

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located in this state.

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

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federal reduced cigarette ignition propensity standard that

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preempts this section is adopted and becomes effective. However,

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this section supersedes any municipality or county ordinance on

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the subject.

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     Section 2.  This act shall take effect July 1, 2008, if SB

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____ and SB ______, or similar legislation are adopted in the

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same legislative session or an extension thereof and becomes law.