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A bill to be entitled

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An act relating to the Reduced Cigarette Ignition

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Propensity Standard and Firefighter Protection Act;

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

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providing legislative findings and intent; providing

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definitions; providing cigarette testing methods and

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performance standards; providing specific testing

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criteria; requiring manufacturers to provide certain

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written certification; requiring cigarettes to be marked

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in specific manners; providing for alternative testing

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methods under certain circumstances; providing reporting

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requirements; providing the Division of Alcoholic

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Beverages and Tobacco with certain powers and

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responsibilities; providing certification requirements for

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manufacturers; providing fee; 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; providing requirements for the marking of certain

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cigarette packaging; providing reporting requirements;

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providing approval requirements for markings submitted to

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the division by a manufacturer; providing notification

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requirements; providing fines and penalties; providing for

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the deposit of penalties into the Fire Prevention and

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Public Safety Trust Fund; providing the division with

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rulemaking authority; authorizing certain government

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entities with inspection powers to examine specified

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documents of any person in possession, control, or

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occupancy of any premises where cigarettes are placed,

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

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cigarettes on the premises; providing that nothing in the

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act shall be construed to prohibit any person or entity

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from manufacturing or selling cigarettes that do not meet

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the specified requirements if such cigarettes are or will

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be stamped for sale in another state or are packaged for

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sale outside the United States; providing for repeal upon

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the enactment of a preemptive federal standard;

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prohibiting local government units from enacting and

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enforcing any ordinance or other local law or regulation

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

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the act; providing effective dates.

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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 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:

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     1. Any person, other than a manufacturer or wholesale

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dealer, engaged in selling cigarettes; 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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     (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 any person other than a

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manufacturer who sells cigarettes to retail dealers or other

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persons for purposes of resale.

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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 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 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 consistently with this section for any

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other purpose.

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8. The State Fire Marshal may, in his or her discretion or

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upon the request of the division, perform or sponsor testing to

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determine a cigarette's compliance with the required performance

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standard. Any such discretionary compliance testing by the State

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Fire Marshal 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 (5) 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 nonfiltered 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 (5). 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 if the State Fire Marshal finds

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that the officials responsible for implementing those

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requirements have approved the proposed alternative test method

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and performance standard for a particular cigarette proposed by a

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manufacturer as meeting the firesafety standards of that state's

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law or regulation 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 the reports available

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to the division, the State Fire Marshal, and the Attorney General

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upon written request. Any manufacturer who fails to make copies

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of the 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 American

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Society for Testing and Materials Standard Test Method for

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Measuring the Ignition Strength of Cigarettes upon a finding that

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such subsequent method does not result in a change in the

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percentage of full-length burns exhibited by any tested cigarette

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when 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 February 1 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 and that uses only the quantity of cigarettes

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that is reasonably necessary for such assessment.

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     (h) It is the intent of the Legislature by this section to

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promote uniformity among the states in the regulation of reduced

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cigarette ignition propensity. As a result, the resolution of

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issues regarding the interpretation and implementation of this

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section should be made in a manner consistent with the New York

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Fire Safety Standards for Cigarettes, New York Executive Law,

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Section 156-C, as amended, and Part 429 of Title 19 New York

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Codes, Rules, and Regulations, as amended, and the interpretation

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and implementation thereof, as they exist 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 State Fire Marshal 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) 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 State Fire Marshal, 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) is subject to a civil penalty, not to exceed $100

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for each pack of such cigarettes sold or offered for sale. In no

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case shall the penalty against any such person or entity exceed

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$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) is subject to 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. In no case shall the penalty against any

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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 which

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knowingly makes a false certification pursuant to subsection (5)

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

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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 is subject to a civil penalty, not to exceed $1,000 for a

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

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offense.

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     (e) Any penalties collected under this subsection shall be

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deposited into the Insurance Regulatory Trust Fund of the

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Department of Financial Services to support costs associated with

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the responsibilities of the State Fire Marshal under this

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section.

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

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division, the State Fire Marshal, or the Attorney General may

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file an action in circuit court for a violation of this section,

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including petitioning for injunctive relief or to recover any

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costs or damages suffered by the state because of a violation of

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this section, including enforcement costs relating to the

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specific violation and attorney's fees. Each violation of this

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section or of rules adopted under this section constitutes a

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separate civil violation for which the division, the State Fire

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Marshal, 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

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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 division and shall be

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forfeited to the state. Cigarettes seized pursuant to this

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paragraph shall be destroyed; however, prior to the destruction

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of any such cigarette, the true holder of the trademark rights in

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the cigarette brand shall be permitted to inspect the cigarette.

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     (8) IMPLEMENTATION.--

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     (a) The division and the State Fire Marshal may adopt rules

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to implement the provisions of 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 pursuant to chapter 210, may inspect such cigarettes

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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,

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

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their duly authorized representatives and other law enforcement

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personnel are authorized to 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. Every 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 is directed and required to give the Attorney

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General, the State Fire Marshal, the division, and their duly

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authorized representatives and other law enforcement personnel

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the means, facilities, and opportunity for the examinations

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authorized by this subsection.

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

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be construed to prohibit any person or entity from manufacturing

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or selling cigarettes that do not meet the requirements of

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

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in another state or are packaged for sale outside the United

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States and that person or entity has taken reasonable steps to

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

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to persons located in this state.

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     (11) 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.

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

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notwithstanding any other provision of law, local government

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units of this state may neither enact nor enforce any ordinance

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or other local law or regulation conflicting with, or preempted

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

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expressed by this act, whether that policy be expressed by

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

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subject from this act.

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     Section 3.  Except as otherwise expressly provided in this

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act and except for this section, which shall take effect upon

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becoming a law, this act shall take effect January 1, 2010.