Florida Senate - 2009 SB 2474
By Senator Altman
24-01097B-09 20092474__
1 A bill to be entitled
2 An act relating to cigarette products of nonsettling
3 manufacturers; creating s. 210.23, F.S.; providing the
4 purpose of the act; creating s. 210.232, F.S.;
5 defining terms; creating s. 210.234, F.S.; imposing a
6 fee on the sale, receipt, purchase, possession,
7 consumption, handling, distribution, and use of
8 nonsettling manufacturer cigarettes that are required
9 to have a stamp affixed or stamp insignia applied to
10 the package of cigarettes on which tax is otherwise
11 required to be paid and nonsettling manufacturer
12 cigarette tobacco products that are subject to the tax
13 imposed by ch. 210, F.S.; providing that the fee
14 imposed is in addition to any other privilege,
15 license, fee, or tax required or imposed by state law;
16 prescribing methods to affix a stamp or insignia to
17 the tobacco products; creating s. 210.236, F.S.;
18 providing the fee rate for nonsettling manufacturers;
19 providing for the annual increase of fees; creating s.
20 210.238, F.S.; requiring the Attorney General to post
21 a directory listing of all settling manufacturers that
22 have provided accurate certifications of their
23 products to calculate its payments under the tobacco
24 settlement agreement for the relevant year on the
25 Internet website of the Attorney General; providing
26 that any cigarette or cigarette tobacco product of a
27 brand family not on the directory list be
28 presumptively considered a nonsettling manufacturer
29 product; creating s. 210.240, F.S.; requiring each
30 dealer, agent, and distributing agent to file a
31 report; requiring the report to include certain
32 specified information; creating s. 210.242, F.S.;
33 requiring the Division of Alcoholic Beverages and
34 Tobacco of the Department of Business and Professional
35 Regulation to provide a nonsettling manufacturer with
36 a report of the fees paid with respect to the
37 nonsettling manufacturer’s cigarettes and cigarette
38 tobacco products; requiring the division to respond by
39 a certain date; creating s. 210.245, F.S.; providing
40 penalties for a nonsettling manufacturer that fails to
41 pay the mandated fees; creating s. 210.246, F.S.;
42 providing for application of the act; creating s.
43 210.248, F.S.; authorizing the division to adopt
44 rules; providing an effective date.
45
46 Be It Enacted by the Legislature of the State of Florida:
47
48 Section 1.Section 210.23, Florida Statutes, is created to
49 read:
50 210.23 Purpose.—The purpose of ss. 210.23-210.248 is to:
51 (1) Prevent nonsettling manufacturers from undermining this
52 state’s policy of discouraging underage smoking by offering
53 cigarettes and cigarette tobacco products at prices that are
54 substantially below the prices of cigarettes and cigarette
55 tobacco products of other manufacturers.
56 (2) Protect the tobacco settlement agreement and its
57 funding, which has been reduced because of the growth of sales
58 of nonsettling manufacturer cigarettes and cigarette tobacco
59 products, by recouping for this state revenue that is lost
60 because of sales by nonsettling manufacturers of cigarettes and
61 cigarette tobacco products.
62 (3) Provide funding to enforce and administer any
63 legislation relating to nonsettling manufacturers.
64 (4) Provide funding for any other purpose the Legislature
65 determines.
66 Section 2. Section 210.232, Florida Statutes, is created to
67 read:
68 210.232 Definitions.—As used in ss. 210.23-210.248, the
69 term:
70 (1) “Agent” has the same meaning as in s. 210.01.
71 (2) “Brand family” means each style of cigarettes or
72 cigarette tobacco products sold under the same trademark and
73 differentiated from one another by means of additional
74 modifiers, including “menthol,” “lights,” “kings,” and “100s.”
75 The term includes any style of cigarettes or cigarette tobacco
76 products that have a brand name, trademark, logo, symbol, motto,
77 selling message, recognizable pattern of colors, or other
78 indication of product identification that is identical to,
79 similar to, or identifiable with a previously known brand of
80 cigarettes or cigarette tobacco products.
81 (3) “Cigarette” has the same meaning as in s. 210.01.
82 (4) “Cigarette tobacco product” means roll-your-own tobacco
83 or any tobacco that, because of the tobacco’s appearance, type,
84 packaging, or labeling, is suitable for use in making cigarettes
85 and is likely to be offered to or purchased by a consumer for
86 that purpose.
87 (5) “Dealer” has the same meaning as in s. 210.01(5) and
88 (6).
89 (6) “Division” has the same meaning as in s. 210.01.
90 (7) “Distributing agent” has the same meaning as in s.
91 210.01.
92 (8) “Distributor” has the same meaning as in s. 210.25.
93 (9) “Manufacturer” means a person who manufactures,
94 fabricates, or assembles cigarettes or cigarette tobacco
95 products for sale or distribution. For purposes of ss. 210.23
96 210.248, the term includes a person who is the first importer
97 into the United States of cigarettes or cigarette tobacco
98 products manufactured outside the United States.
99 (10) “Nonsettling manufacturer” means a manufacturer of
100 cigarettes or cigarette tobacco products which is not a settling
101 manufacturer.
102 (11) “Nonsettling manufacturer cigarettes” means cigarettes
103 that are not manufactured by a settling manufacturer.
104 (12) “Nonsettling manufacturer cigarette tobacco products”
105 means cigarette tobacco products that are not manufactured by a
106 settling manufacturer.
107 (13) “Settling manufacturer” means a manufacturer of
108 cigarettes or cigarette tobacco products which:
109 (a) Signed the tobacco settlement agreement; or
110 (b) Has voluntarily entered into an agreement with this
111 state, approved by the Attorney General, agreeing to terms
112 similar to those contained in the tobacco settlement agreement,
113 including making annual payments to the state with respect to
114 the sale, receipt, purchase, possession, consumption, handling,
115 distribution, and use in this state of its cigarettes and
116 cigarette tobacco products equal to at least the amount of the
117 fee that would have been due on such cigarettes and cigarette
118 tobacco products under ss. 210.23-210.248 for the relevant year
119 if the manufacturer were a nonsettling manufacturer.
120 (14) “Settling manufacturer cigarettes” means cigarettes of
121 a brand family that a settling manufacturer certifies under s.
122 210.238 is to be deemed its brand family for purposes of
123 calculating that settling manufacturer’s payments under the
124 tobacco settlement agreement or other agreement described in
125 paragraph (13)(b) for the relevant year, in the volume and
126 shares determined under the tobacco settlement agreement or such
127 other agreement.
128 (15) “Settling manufacturer cigarette tobacco products”
129 means cigarette tobacco products of a brand family that a
130 settling manufacturer certifies pursuant to s. 210.238 is deemed
131 its brand family for purposes of calculating that settling
132 manufacturer’s payments under the tobacco settlement agreement
133 or other agreement described in subsection (13) for the relevant
134 year, in the volume and shares determined under the tobacco
135 settlement agreement or such other agreement.
136 (16) “Tobacco settlement agreement” means the settlement
137 agreement entered into on August 25, 1997, by this state and
138 settling manufacturers in the settlement of State of Florida v.
139 American Tobacco Co., No. 95-1466AH (Fla. 15th Cir. Ct. 1996).
140 Section 3. Section 210.234, Florida Statutes, is created to
141 read:
142 210.234 Fee imposed.—
143 (1) A fee is imposed on the sale, receipt, purchase,
144 possession, consumption, handling, distribution, and use in this
145 state, of:
146 (a) Nonsettling manufacturer cigarettes that are required
147 to have a stamp affixed or stamp insignia applied to a package
148 of those cigarettes under this chapter or on which tax is
149 otherwise required to be paid under this chapter; and
150 (b) Nonsettling manufacturer cigarette tobacco products
151 that are subject to the tax imposed by s. 210.30.
152 (2) The fee imposed by this section does not apply to
153 cigarettes or cigarette tobacco products that are included in
154 calculating payments due to be made by a settling manufacturer
155 under the tobacco settlement agreement or other agreement
156 described in s. 210.232(13).
157 (3) The fee imposed by this section is in addition to any
158 other privilege, license, fee, or tax required or imposed by
159 state law.
160 (4) The fee imposed by ss. 210.23-210.248 shall be
161 collected from distributors, dealers, agents, and distributing
162 agents of nonsettling manufacturer cigarettes or nonsettling
163 manufacturer cigarette tobacco products to which the fee applies
164 or from other persons or entities from whom the tax imposed by
165 this chapter on such nonsettling manufacturer cigarettes or
166 nonsettling manufacturer cigarette tobacco products may be
167 collected under this chapter and in the manner provided by this
168 chapter. The provisions of ss. 210.01, 210.02, 210.021, 210.03,
169 210.04, 210.05, 210.06, 210.07, 210.08, 210.09, 210.10, 210.11,
170 210.12, 210.13, 210.14, 210.15, 210.16, 210.161, 210.18,
171 210.181, 210.19, 210.20, 210.22, 210.25, 210.30, 210.31, 210.35,
172 210.40, 210.50, 210.55, 210.60, 210.65, 210.67, 210.70, and
173 210.75, so far as lawful or practicable, apply to the fee
174 imposed by ss. 210.23-210.248 and to the collection thereof as
175 if fully set out in ss. 210.23-210.248. However, this subsection
176 does not apply if it conflicts with any provision of ss. 210.23
177 210.248.
178 (5) With respect to nonsettling manufacturer cigarettes,
179 the division shall prescribe, prepare, and furnish stamps of
180 such denominations and quantities as may be necessary for the
181 payment of the fee imposed by ss. 210.23-210.248, and may also
182 permit the fee to be paid through the use of a stamp insignia to
183 be applied by metering machines. Such stamps or stamp insignia
184 are required and shall be sold, affixed, and administered in the
185 same manner as the stamps and stamp insignia that are
186 prescribed, prepared, and furnished for the taxes imposed
187 pursuant to other provisions of this chapter.
188 (6) With respect to nonsettling manufacturer cigarettes,
189 the collection allowance granted pursuant to s. 210.05(3)(a)
190 shall be increased to reflect a discount of 2 percent of the par
191 value of any amount of stamps purchased during any fiscal year
192 from July 1 through June 30 of the following fiscal year, with
193 the discount computed upon the basis of 24 cents per pack for
194 stamps used to reflect payment of the tax and 40 cents per pack
195 for stamps used to reflect payment of the fee. For nonsettling
196 manufacture cigarette tobacco products, the collection allowance
197 shall be as specified in s. 210.55(7).
198 Section 4. Section 210.236, Florida Statutes, is created to
199 read:
200 210.236 Rate of fee.—
201 (1) Except as provided by subsection (2), the fee is
202 imposed at the rate of 2 cents for:
203 (a) Each nonsettling manufacturer cigarette; and
204 (b) Each 0.09 ounce of nonsettling manufacturer cigarette
205 tobacco product.
206 (2) On January 31 of each year, the division shall increase
207 the rate of the fee prescribed by subsection (1) by the greater
208 of:
209 (a) Three percent; or
210 (b) The percentage increase in the most recent annual
211 revised Consumer Price Index for All Urban Consumers, as
212 published by the Bureau of Labor Statistics of the United States
213 Department of Labor.
214 Section 5. Section 210.238, Florida Statutes, is created to
215 read:
216 210.238 Settling manufacturer certification and list.—
217 (1) By July 1, 2010, and annually thereafter not later than
218 the 30th day of April in each year, each settling manufacturer
219 shall certify to the Attorney General, on a form prescribed by
220 the Attorney General, the names of the brand families that are
221 to be deemed its cigarettes or cigarette tobacco products for
222 purposes of calculating its payments under the tobacco
223 settlement agreement or other agreement described in s.
224 210.232(13) for the relevant year, in the volume and shares
225 determined under the tobacco settlement agreement or such other
226 agreement. Each settling manufacturer shall update such
227 information in the event of any change, within 30 calendar days
228 after the date of the change.
229 (2) By July 15, 2010, the Attorney General shall develop,
230 maintain, and publish on its Internet website a directory
231 listing of all settling manufacturers that have provided
232 accurate certifications under subsection (1). The directory
233 shall list the brand families of such settling manufacturers
234 included in such certifications. The Attorney General shall
235 update the directory as necessary in order to add or remove a
236 manufacturer or brand family and keep the directory in
237 conformity with the requirements of ss. 210.23-210.248.
238 (3) The Attorney General shall provide the list to each
239 dealer, agent, or distributing agent authorized to affix stamps
240 under this chapter, to each distributor, and to any other person
241 upon request.
242 (4) The Attorney General shall make the information
243 contained in certifications under this section available to the
244 division.
245 (5) Cigarettes and cigarette tobacco products of a brand
246 family that is not on the directory list shall be presumptively
247 considered nonsettling manufacturer cigarettes or nonsettling
248 manufacturer cigarette tobacco products to which the fee imposed
249 by ss. 210.23-210.248 applies.
250 Section 6. Section 210.240, Florida Statutes, is created to
251 read:
252 210.240 Reports.—
253 (1) Each dealer, agent, and distributing agent required to
254 file a report under s. 210.05 or s. 210.09, and each distributor
255 required to file a return or return under s. 210.55 or s.
256 210.60, shall, in addition to the information required by those
257 sections, include in that required report or return each month,
258 as appropriate:
259 (a) The number of individual nonsettling manufacturer
260 cigarettes in packages on which the dealer, agent, distributing
261 agent, or distributor affixed or was required to affix a stamp
262 or stamp insignia by the use of a metering machine during the
263 preceding month;
264 (b) The quantity of nonsettling manufacturer cigarette
265 tobacco product sold or otherwise distributed in this state by
266 the dealer, agent, distributing agent, or distributor during the
267 preceding month;
268 (c) The amount of the fee imposed by ss. 210.23-210.248
269 paid on cigarettes and cigarette tobacco products described in
270 paragraphs (a) and (b); and
271 (d) Any other information that the division considers
272 necessary or appropriate to determine the amount of the fee
273 imposed by ss. 210.23-210.248, to enforce ss. 210.23-210.248, or
274 to provide the reports showing fees paid for nonsettling
275 manufacturer cigarette and cigarette tobacco products as
276 required by s. 210.242.
277 (2) The information required by paragraphs (1)(a)-(c) must
278 be itemized for each place of business and by manufacturer and
279 brand family.
280 (3) The requirement to report information under this
281 section shall be enforced in the same manner as the requirement
282 to deliver to or file with the division a report or return
283 required under this chapter.
284 Section 7. Section 210.242, Florida Statutes, is created to
285 read:
286 210.242 Division report to nonsettling manufacturers.—
287 (1) By December 15 of each year, a nonsettling manufacturer
288 may request, on a form prescribed by the division, that the
289 division provide the nonsettling manufacturer with a report of
290 the fees paid under ss. 210.23-210.248 with respect to the
291 nonsettling manufacturer’s cigarettes and cigarette tobacco
292 products during that year. In the request, the nonsettling
293 manufacturer shall identify its brand families of cigarettes and
294 cigarette tobacco products.
295 (2) On or before January 15 of the year following the year
296 during which each request described in subsection (1) is made,
297 the division shall provide the report to each nonsettling
298 manufacturer that makes a timely request. The report shall
299 contain the amount of fees reported to the division by dealers,
300 agents, distributing agents, and distributors in reports under
301 s. 210.240 as having been paid in the year during which the
302 request is made with respect to the brand families of cigarettes
303 and cigarette tobacco products identified by the nonsettling
304 manufacturer in its request. If the division receives a request
305 under subsection (1) from more than one nonsettling manufacturer
306 that identifies any of the same brand families of cigarettes and
307 cigarette tobacco products, the division shall note that more
308 than one nonsettling manufacturer has identified the brand
309 family or families, and list the brand families at issue on the
310 report provided to each of the nonsettling manufacturers that
311 identified the brand family or families at issue. The division
312 shall update or revise reports in light of additional or changed
313 information or as otherwise necessary to keep the reports in
314 conformity with the requirements of ss. 210.23-210.248.
315 Section 8. Section 210.245, Florida Statutes, is created to
316 read:
317 210.245 Penalties for noncompliance.—Nonsettling
318 manufacturer cigarettes and nonsettling manufacturer cigarette
319 tobacco products subject to any fee imposed by ss. 210.23
320 210.248, but upon which the fee has not been paid, shall be
321 treated as cigarettes or tobacco products for which the tax
322 assessed by this chapter has not been paid, and all persons
323 selling, receiving, purchasing, possessing, consuming, handling,
324 distributing, or using such cigarettes or cigarette tobacco
325 products are subject to all penalties imposed by this chapter
326 for violations of this chapter.
327 Section 9. Section 210.246, Florida Statutes, is created to
328 read:
329 210.246 Application.—Sections 210.23-210.248 apply without
330 regard to s. 210.06(5), or any other law that might be read to
331 create an exemption for interstate sales.
332 Section 10. Section 210.248, Florida Statutes, is created
333 to read:
334 210.248 General powers of the Division of Alcoholic
335 Beverages and Tobacco.—The Division of Alcoholic Beverages and
336 Tobacco may adopt rules to administer ss. 210.23-210.248,
337 including rules that address the imposition, collection, and
338 enforcement of the fees and required reporting.
339 Section 11. This act shall take effect July 1, 2009.