1

A bill to be entitled

2

An act relating to the Reduced Cigarette Ignition

3

Propensity Standard and Firefighter Protection Act;

4

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

5

providing legislative findings and intent; providing

6

definitions; providing cigarette testing methods and

7

performance standards; providing specific testing

8

criteria; requiring manufacturers to provide certain

9

written certification; requiring cigarettes to be marked

10

in specific manners; providing for alternative testing

11

methods under certain circumstances; providing reporting

12

requirements; providing the Division of Alcoholic

13

Beverages and Tobacco with certain powers and

14

responsibilities; providing certification requirements for

15

manufacturers; providing fee; providing for the deposit of

16

certification fees into the Reduced Cigarette Ignition

17

Propensity and Firefighter Protection Enforcement Trust

18

Fund; providing requirements for the marking of certain

19

cigarette packaging; providing reporting requirements;

20

providing approval requirements for markings submitted to

21

the division by a manufacturer; providing notification

22

requirements; providing fines and penalties; providing for

23

the deposit of penalties into the Fire Prevention and

24

Public Safety Trust Fund; providing the division with

25

rulemaking authority; authorizing certain government

26

entities with inspection powers to examine specified

27

documents of any person in possession, control, or

28

occupancy of any premises where cigarettes are placed,

29

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

30

cigarettes on the premises; providing that nothing in the

31

act shall be construed to prohibit any person or entity

32

from manufacturing or selling cigarettes that do not meet

33

the specified requirements if such cigarettes are or will

34

be stamped for sale in another state or are packaged for

35

sale outside the United States; providing for repeal upon

36

the enactment of a preemptive federal standard;

37

prohibiting local government units from enacting and

38

enforcing any ordinance or other local law or regulation

39

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

40

the act; providing an effective date.

41

42

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

43

44

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

45

read:

46

     633.042 Reduced Cigarette Ignition Propensity Standard and

47

Firefighter Protection Act.--

48

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

49

Cigarette Ignition Propensity Standard and Firefighter Protection

50

Act."

51

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

52

and declares that:

53

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

54

state and in the nation.

55

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

56

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

57

ignited by cigarettes, while in this state 153 residential fires

58

and 5 fatalities were attributable to fires caused by cigarettes

59

in 2006.

60

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

61

nonsmokers, including senior citizens and young children.

62

     (d) Fires caused by cigarettes result in billions of

63

dollars in property losses and damages in the United States and

64

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

65

     (e) Cigarette fires unnecessarily jeopardize the safety of

66

firefighters and result in avoidable emergency response costs for

67

municipalities.

68

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

69

firesafety regulation requiring cigarettes sold in that state to

70

meet a firesafety performance standard; in 2005, Vermont and

71

California enacted cigarette firesafety laws directly

72

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

73

Illinois, New Hampshire, and Massachusetts joined these states in

74

enacting similar laws.

75

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

76

firesafety standard, becoming the first country to have a

77

nationwide cigarette firesafety standard.

78

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

79

upon decades of research by the National Institute of Standards

80

and Technology, Congressional research groups, and private

81

industry. This cigarette firesafety standard minimizes costs to

82

the state; minimally burdens cigarette manufacturers,

83

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

84

law in this state.

85

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

86

adopt the cigarette firesafety standard that is in effect in the

87

State of New York to reduce the likelihood that cigarettes will

88

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

89

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

90

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

91

Alcoholic Beverages and Tobacco of the Department of Business and

92

Professional Regulation to purchase and affix stamps on packages

93

of cigarettes.

94

     (b) "Cigarette" means:

95

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

96

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

97

and whether such tobacco or substance is flavored, adulterated,

98

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

99

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

100

tobacco; or

101

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

102

containing tobacco and that the type of tobacco used in the

103

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

104

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

105

subparagraph 1.

106

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

107

and Tobacco of the Department of Business and Professional

108

Regulation.

109

     (d) "Manufacturer" means:

110

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

111

be manufactured or produced, regardless of location, cigarettes

112

that such manufacturer intends to be sold in this state,

113

including cigarettes intended to be sold in the United States

114

through an importer;

115

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

116

cigarettes manufactured anywhere and not intended by the original

117

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

118

intends to resell such cigarettes in the United States; or

119

     3. Any entity that becomes a successor of an entity

120

described in subparagraph 1. or subparagraph 2.

121

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

122

laboratory procedures implemented to ensure that operator bias,

123

systematic and nonsystematic methodological errors, and

124

equipment-related problems do not affect the results of

125

laboratory testing. Such a program shall ensure that the testing

126

repeatability remains within the required repeatability values

127

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

128

certify cigarettes in accordance with this section.

129

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

130

the results of repeated cigarette test trials from a single

131

laboratory will fall 95 percent of the time.

132

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

133

manufacturer or wholesale dealer, engaged in selling cigarettes.

134

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

135

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

136

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

137

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

138

prizes, or gifts and the exchanging of cigarettes for any

139

consideration other than money are considered sales.

140

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

141

execute a sale.

142

     (j) "Wholesale dealer" means:

143

     1. Any person other than a manufacturer who sells

144

cigarettes to retail dealers or other persons for purposes of

145

resale; or

146

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

147

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

148

premises owned or occupied by any other person.

149

     (4) TEST METHOD AND PERFORMANCE STANDARD.--

150

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

151

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

152

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

153

been tested in accordance with the test method and meet the

154

performance standard specified in this subsection, a written

155

certification has been filed by the manufacturer with the

156

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

157

have been marked in accordance with subsection (6).

158

     1. Testing of cigarettes shall be conducted in accordance

159

with the American Society for Testing and Materials standard

160

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

161

Strength of Cigarettes."

162

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

163

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

164

test trial in accordance with this subsection shall exhibit full-

165

length burns. Forty replicate tests shall comprise a complete

166

test trial for each cigarette tested.

167

     4. The performance standard required by this subsection

168

shall only be applied to a complete test trial.

169

     5. Written certifications shall be based upon testing

170

conducted by a laboratory that has been accredited pursuant to

171

standard ISO/IEC 17025 of the International Organization for

172

Standardization or another comparable accreditation standard

173

required by the division.

174

     6. Laboratories conducting testing in accordance with this

175

subsection shall implement a quality control and quality

176

assurance program that includes a procedure that will determine

177

the repeatability of the testing results. The repeatability value

178

shall be no greater than 0.19.

179

     7. This subsection does not require additional testing if

180

cigarettes are tested consistent with this section for any other

181

purpose.

182

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

183

testing to determine a cigarette's compliance with the required

184

performance standard; provided, any such discretionary compliance

185

testing by the division shall be conducted in accordance with

186

this subsection.

187

     (b) Each cigarette listed in a certification submitted

188

pursuant to subsection (5) that uses lowered permeability bands

189

in the cigarette paper to achieve compliance with the performance

190

standard set forth in this subsection shall have at least two

191

nominally identical bands on the paper surrounding the tobacco

192

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

193

millimeters from the lighting end of the cigarette. For

194

cigarettes on which the bands are positioned by design, there

195

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

196

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

197

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

198

tobacco column for nonfiltered cigarettes.

199

     (c) A manufacturer of a cigarette that the division

200

determines cannot be tested in accordance with the test method

201

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

202

performance standard for the cigarette to the division. Upon

203

approval of the proposed test method and a determination by the

204

division that the performance standard proposed by the

205

manufacturer is equivalent to the performance standard prescribed

206

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

207

method and performance standard to certify such cigarette

208

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

209

another state has enacted reduced cigarette ignition propensity

210

standards that include a test method and performance standard

211

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

212

division finds that the officials responsible for implementing

213

those requirements have approved the proposed alternative test

214

method and performance standard for a particular cigarette

215

proposed by a manufacturer as meeting the firesafety standards of

216

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

217

to this subsection, the division shall authorize that

218

manufacturer to employ the alternative test method and

219

performance standard to certify that cigarette for sale in this

220

state unless the division demonstrates a reasonable basis why the

221

alternative test should not be accepted under this section. All

222

other applicable requirements of this subsection shall apply to

223

the manufacturer.

224

     (d) Each manufacturer shall maintain copies of the reports

225

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

226

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

227

to the division and the Attorney General upon written request.

228

Any manufacturer who fails to make copies of the reports

229

available within 60 days after receiving a written request shall

230

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

231

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

232

copies available.

233

     (e) The division may adopt a subsequent American Society

234

for Testing and Materials Standard Test Method for Measuring the

235

Ignition Strength of Cigarettes upon a finding that such

236

subsequent method does not result in a change in the percentage

237

of full-length burns exhibited by any tested cigarette when

238

compared to the percentage of full-length burns the same

239

cigarette would exhibit when tested in accordance with American

240

Society for Testing and Materials Standard E2187-04 and the

241

performance standard in subparagraph (a)3.

242

     (f) The division shall review the effectiveness of this

243

subsection and report every 3 years to the President of the

244

Senate and the Speaker of the House of Representatives the

245

division's findings and, if appropriate, recommendations for

246

legislation to improve the effectiveness of this subsection. The

247

report and legislative recommendations shall be submitted no

248

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

249

period.

250

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

251

     1. Wholesale or retail dealers from selling their existing

252

inventory of cigarettes on or after the effective date of this

253

section if the wholesale or retailer dealer can establish that

254

state tax stamps were affixed to the cigarettes prior to the

255

effective date and the wholesale or retailer dealer can establish

256

that the inventory was purchased prior to the effective date in

257

comparable quantity to the inventory purchased during the same

258

period of the prior year; or

259

     2. The sale of cigarettes solely for the purpose of

260

consumer testing. For purposes of this subparagraph, the term

261

"consumer testing" means an assessment of cigarettes that is

262

conducted by or is under the control and direction of a

263

manufacturer for the purpose of evaluating consumer acceptance of

264

such cigarettes, that uses only the quantity of cigarettes that

265

is reasonably necessary for such assessment.

266

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

267

uniformity among the states in the regulation of cigarettes per

268

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

269

resolution of issues regarding the interpretation or

270

implementation of this section be made in a manner consistent

271

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

272

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

273

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

274

effect on March 1, 2008.

275

     (5) CERTIFICATION AND PRODUCT CHANGE.--

276

     (a) Each manufacturer shall submit to the division a

277

written certification attesting that:

278

     1. Each cigarette listed in the certification has been

279

tested in accordance with subsection (4).

280

     2. Each cigarette listed in the certification meets the

281

performance standard set forth in subsection (4).

282

     (b) Each cigarette listed in the certification shall be

283

described with the following information:

284

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

285

     2. Style, such as light or ultra light.

286

     3. Length in millimeters.

287

     4. Circumference in millimeters.

288

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

289

     6. Filter or nonfilter.

290

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

291

     8. Marking pursuant to subsection (6).

292

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

293

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

294

number of the manufacturer that conducted the test.

295

     10. The date the testing occurred.

296

     (c) Each certification shall be made available to the

297

Attorney General for purposes consistent with this section and to

298

the Department of Revenue for the purposes of ensuring compliance

299

with this subsection.

300

     (d) Each cigarette certified under this subsection shall be

301

recertified every 3 years.

302

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

303

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

304

$250 for each brand family of cigarettes listed in the

305

certification. The fee paid shall apply to all cigarettes within

306

the brand family certified and shall include any new cigarette

307

certified within the brand family during the 3-year certification

308

period. Proceeds of the certification fee shall be deposited into

309

the Reduced Cigarette Ignition Propensity and Firefighter

310

Protection Enforcement Trust Fund.

311

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

312

this subsection and thereafter makes any change to such cigarette

313

that is likely to alter its compliance with the reduced cigarette

314

ignition propensity standards required by this section, that

315

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

316

until the manufacturer retests the cigarette in accordance with

317

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

318

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

319

altered cigarette that does not meet the performance standard set

320

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

321

     (6) MARKING OF CIGARETTE PACKAGING.--

322

     (a) Cigarettes that are certified by a manufacturer in

323

accordance with subsection (5) shall be marked to indicate

324

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

325

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

326

     1. Modification of the universal product code to include a

327

visible mark printed at or around the area of the universal

328

product code. The mark may consist of alphanumeric or symbolic

329

characters permanently stamped, engraved, embossed, or printed in

330

conjunction with the universal product code;

331

     2. Any visible combination of alphanumeric or symbolic

332

characters permanently stamped, engraved, or embossed upon the

333

cigarette package or cellophane wrap; or

334

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

335

indicates that the cigarettes meet the standards of this section.

336

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

337

apply this marking uniformly for all brands and all packages,

338

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

339

marketed by that manufacturer.

340

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

341

is selected.

342

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

343

manufacturer shall present its proposed marking to the division

344

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

345

approve or disapprove the marking offered, except that the

346

division shall approve:

347

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

348

New York pursuant to the New York Fire Safety Standards for

349

Cigarettes; or

350

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

351

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

352

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

353

the universal product code.

354

355

Proposed markings shall be deemed approved if the division fails

356

to act within 10 business days after receiving a request for

357

approval.

358

     (e) No manufacturer shall modify its approved marking

359

unless the modification has been approved by the division in

360

accordance with this subsection.

361

     (f) Manufacturers certifying cigarettes in accordance with

362

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

363

wholesale dealers and agents to which they sell cigarettes and

364

shall also provide sufficient copies of an illustration of the

365

package marking used by the manufacturer pursuant to this

366

subsection for each retail dealer to which the wholesale dealers

367

or agents sell cigarettes. Wholesale dealers and agents shall

368

provide a copy of these package markings received from

369

manufacturers to all retail dealers to which they sell

370

cigarettes. Wholesale dealers, agents, and retail dealers shall

371

permit the division, the Department of Revenue, the Attorney

372

General, and their employees to inspect markings of cigarette

373

packaging marked in accordance with this subsection.

374

     (7) PENALTIES.--

375

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

376

person or entity that knowingly sells or offers to sell

377

cigarettes, other than through retail sale, in violation of

378

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

379

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

380

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

381

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

382

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

383

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

384

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

385

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

386

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

387

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

388

corporation, partnership, sole proprietor, limited partnership,

389

or association engaged in the manufacture of cigarettes that

390

knowingly makes a false certification pursuant to subsection (5)

391

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

392

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

393

     (d) Any person violating any other provision of this

394

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

395

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

396

offense.

397

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

398

that do not comply with the performance standard required by

399

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

400

undertaken pursuant to chapter 120 at which the true holder of

401

the trademark rights in the cigarette brand may appear and

402

present evidence. Cigarettes forfeited pursuant to this paragraph

403

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

404

cigarette, the true holder of the trademark rights in the

405

cigarette brand shall be permitted to inspect the cigarette.

406

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

407

division or the Attorney General may file an action in circuit

408

court for a violation of this section, including petitioning for

409

injunctive relief or to recover any costs or damages suffered by

410

the state because of a violation of this section, including

411

enforcement costs relating to the specific violation and

412

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

413

adopted under this section constitutes a separate civil violation

414

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

415

     (g) Whenever any law enforcement personnel or duly

416

authorized representative of the division discovers any

417

cigarettes that have not been marked in the manner required by

418

subsection (6), such personnel or representative is authorized

419

and empowered to seize and take possession of such cigarettes.

420

Such cigarettes shall be turned over to the Department of Revenue

421

and shall be forfeited to the state. Cigarettes seized pursuant

422

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

423

destruction of any such cigarette, the true holder of the

424

trademark rights in the cigarette brand shall be permitted to

425

inspect the cigarette.

426

     (h) Penalties collected under this subsection shall be

427

deposited into the Fire Prevention and Public Safety Trust Fund

428

within the Department of Financial Services.

429

     (8) IMPLEMENTATION.--

430

     (a) The division may adopt rules to implement the

431

provisions of this section.

432

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

433

inspections of wholesale dealers, agents, and retail dealers as

434

authorized pursuant to chapter 210, may inspect such cigarettes

435

to determine if the cigarettes are marked as required by

436

subsection (6)

437

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

438

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

439

and their duly authorized representatives and other law

440

enforcement personnel are authorized to examine the books,

441

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

442

control, or occupancy of any premises where cigarettes are

443

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

444

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

445

control, or occupancy of any premises where cigarettes are

446

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

447

give the Attorney General, the Department of Revenue, the

448

division, and their duly authorized representatives and other law

449

enforcement personnel the means, facilities, and opportunity for

450

the examinations authorized by this subsection.

451

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

452

be construed to prohibit any person or entity from manufacturing

453

or selling cigarettes that do not meet the requirements of

454

subsection (4) if the cigarettes are or will be stamped for sale

455

in another state or are packaged for sale outside the United

456

States and that person or entity has taken reasonable steps to

457

ensure that such cigarettes will not be sold or offered for sale

458

to persons located in this state.

459

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

460

federal reduced cigarette ignition propensity standard that

461

preempts this section is adopted and becomes effective.

462

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

463

notwithstanding any other provision of law, local government

464

units of this state may neither enact nor enforce any ordinance

465

or other local law or regulation conflicting with, or preempted

466

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

467

expressed by this act, whether that policy be expressed by

468

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

469

subject from this act.

470

     Section 3.  This act shall take effect January 1, 2010, if

471

SB 2584 and SB 2586, or similar legislation is adopted in the

472

same legislative session or an extension thereof and becomes law.