Florida Senate - 2010 SB 2344 By Senator Altman 24-01490B-10 20102344__ 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; providing that the fee imposed is 12 in addition to any other privilege, license, fee, or 13 tax required or imposed by state law; prescribing 14 methods to affix a stamp or insignia to the tobacco 15 products; creating s. 210.236, F.S.; providing the fee 16 rate for nonsettling manufacturers; creating s. 17 210.238, F.S.; requiring the Division of Alcoholic 18 Beverages and Tobacco of the Department of Business 19 and Professional Regulation to post a directory 20 listing of all settling manufacturers that have 21 provided accurate certifications of their products to 22 calculate its payments under the tobacco settlement 23 agreement for the relevant year on the Internet 24 website of the division; providing that any cigarette 25 of a brand family not on the directory list be 26 presumptively considered a nonsettling manufacturer 27 product; creating s. 210.240, F.S.; requiring each 28 dealer, agent, and distributing agent to file a 29 report; requiring the report to include certain 30 specified information; creating s. 210.245, F.S.; 31 providing penalties for a nonsettling manufacturer 32 that fails to pay the mandated fees; creating s. 33 210.246, F.S.; providing for application of the act; 34 creating s. 210.248, F.S.; authorizing the division to 35 adopt rules; providing an effective date. 36 37 Be It Enacted by the Legislature of the State of Florida: 38 39 Section 1. Section 210.23, Florida Statutes, is created to 40 read: 41 210.23 Purpose.—The purpose of ss. 210.23-210.248 is to: 42 (1) Prevent nonsettling manufacturers from undermining this 43 state’s policy of discouraging underage smoking by offering 44 cigarettes and cigarette tobacco products at prices that are 45 substantially below the prices of cigarettes of other 46 manufacturers. 47 (2) Protect the tobacco settlement agreement and its 48 funding, which has been reduced because of the growth of sales 49 of nonsettling manufacturer cigarettes by recouping for this 50 state revenue that is lost because of sales of cigarettes by 51 nonsettling manufacturers of cigarettes. 52 (3) Provide funding to enforce and administer any 53 legislation relating to nonsettling manufacturers. 54 (4) Provide funding for any other purpose the Legislature 55 determines. 56 Section 2. Section 210.232, Florida Statutes, is created to 57 read: 58 210.232 Definitions.—As used in ss. 210.23-210.248, the 59 term: 60 (1) “Agent” has the same meaning as in s. 210.01. 61 (2) “Brand family” means each style of cigarettes sold 62 under a common brand name, trademark, logo, symbol, motto, 63 selling message, recognizable pattern of colors, or other 64 indication of production identification. 65 (3) “Cigarette” has the same meaning as in s. 210.01. 66 (4) “Dealer” has the same meaning as in s. 210.01(5) and 67 (6). 68 (5) “Division” has the same meaning as in s. 210.01. 69 (6) “Distributing agent” has the same meaning as in s. 70 210.01. 71 (7) “Distributor” has the same meaning as in s. 210.25. 72 (8) “Manufacturer” means a person who manufactures, 73 fabricates, or assembles cigarettes or cigarette tobacco 74 products for sale or distribution. For purposes of ss. 210.23 75 210.248, the term includes a person who is the first importer 76 into the United States of cigarettes manufactured outside the 77 United States. 78 (9) “Nonsettling manufacturer” means a manufacturer of 79 cigarettes which is not a settling manufacturer. 80 (10) “Nonsettling manufacturer cigarettes” means cigarettes 81 that are not manufactured by a settling manufacturer. 82 (11) “Settling manufacturer” means a manufacturer of 83 cigarettes that: 84 (a) Signed one of the tobacco settlement agreements before 85 July 1, 2008; or 86 (b) Has voluntarily entered into an agreement with this 87 state, approved by the division, agreeing to terms similar to 88 those contained in the tobacco settlement agreement described in 89 paragraph (13)(a), including making annual payments to the state 90 with respect to the sale, receipt, purchase, possession, 91 consumption, handling, distribution, and use in this state of 92 its cigarettes equal to at least the amount of the fee that 93 would have been due on such cigarettes under ss. 210.23-210.248 94 for the relevant year if the manufacturer were a nonsettling 95 manufacturer. 96 (12) “Settling manufacturer cigarettes” means cigarettes of 97 a brand family that a settling manufacturer certifies under s. 98 210.238 is to be deemed its brand family for purposes of 99 calculating that settling manufacturer’s payments under the 100 tobacco settlement agreement or other agreement described in 101 paragraph (11)(b) for the relevant year, including for purposes 102 of calculating any payment obligations of that settling 103 manufacturer under that agreement, or any other cigarettes that 104 are included in calculating payments due to be made by a 105 settling manufacturer under the tobacco settlement agreement 106 described in paragraph (13)(a) or other agreement described in 107 paragraph (11)(b). 108 (13) “Tobacco settlement agreement” means: 109 (a) The settlement agreement entered into on August 25, 110 1997, in settlement of State of Florida v. American Tobacco Co., 111 No. 95-1466AH (Fla. 15th Cir. Ct. 1996), and under which the 112 settling manufacturer undertook payment obligations to the 113 state; or 114 (b) The settlement agreement entered into on March 15, 115 1996, in settlement of State of Florida v. American Tobacco Co., 116 No. 95-1466AH (Fla. 15th Cir. Ct. 1996). 117 Section 3. Section 210.234, Florida Statutes, is created to 118 read: 119 210.234 Fee imposed.— 120 (1) A fee is imposed on the sale, receipt, purchase, 121 possession, consumption, handling, distribution, and use in this 122 state, of nonsettling manufacturer cigarettes that are required 123 to have a stamp affixed or stamp insignia applied to a package 124 of those cigarettes under this chapter or on which tax is 125 otherwise required to be paid under this chapter. 126 (2) The fee imposed by this section does not apply to 127 cigarettes made by a settling manufacturer. 128 (3) The fee imposed by this section is in addition to any 129 other privilege, license, fee, or tax required or imposed by 130 state law. 131 (4) The fee imposed by ss. 210.23-210.248 shall be 132 collected from distributors, dealers, agents, and distributing 133 agents of nonsettling manufacturer cigarettes or from other 134 persons or entities from whom the tax imposed by this chapter on 135 such nonsettling manufacturer cigarettes may be collected under 136 this chapter and in the manner provided by this chapter. The 137 provisions of ss. 210.01, 210.02, 210.021, 210.03, 210.04, 138 210.05, 210.06, 210.07, 210.08, 210.09, 210.10, 210.11, 210.12, 139 210.13, 210.14, 210.15, 210.16, 210.161, 210.18, 210.181, 140 210.19, 210.20, 210.22, 210.25, 210.30, 210.31, 210.35, 210.40, 141 210.50, 210.55, 210.60, 210.65, 210.67, 210.70, and 210.75, so 142 far as lawful or practicable, apply to the fee imposed by ss. 143 210.23-210.248 and to the collection thereof as if fully set out 144 in ss. 210.23-210.248. However, any one or more sections may not 145 apply to the extent the section conflicts with ss. 210.23 146 210.248. 147 (5) With respect to nonsettling manufacturer cigarettes, 148 the division shall prescribe, prepare, and furnish stamps of 149 such denominations and quantities as may be necessary for the 150 payment of the fee imposed by ss. 210.23-210.248, and may also 151 permit the fee to be paid through the use of a stamp insignia to 152 be applied by metering machines. Such stamps or stamp insignia 153 are required and shall be sold, affixed, and administered in the 154 same manner as the stamps and stamp insignia that are 155 prescribed, prepared, and furnished for the taxes imposed 156 pursuant to other provisions of this chapter. The division may 157 prescribe that payment of the fee imposed by ss. 210.23-210.248 158 and the tax imposed by s. 210.30 shall be by way of a single 159 stamp or stamp insignia whose value shall be the combined value 160 of such fee and tax, and which shall be identifiable with such 161 markings or colorings as may be necessary to distinguish the 162 stamp or stamp insignia from the stamp or insignia used on 163 cigarette packages not subject to the fee imposed by ss. 210.23 164 210.248. 165 Section 4. Section 210.236, Florida Statutes, is created to 166 read: 167 210.236 Rate of fee.—A fee is imposed at the rate of 2 168 cents for each nonsettling manufacturer cigarette. 169 Section 5. Section 210.238, Florida Statutes, is created to 170 read: 171 210.238 Settling manufacturer certification and list.— 172 (1) By July 1, 2010, and annually thereafter not later than 173 the 30th day of April in each year, each settling manufacturer 174 shall certify to the Attorney General, on a form prescribed by 175 the Attorney General, the names of the brand families that are 176 to be deemed its cigarettes for purposes its tobacco settlement 177 agreement or other agreement described in s. 210.232(11)(b) for 178 the relevant year, including for purposes of calculating any 179 payment obligations of that settling manufacturer under that 180 agreement in the volume and shares determined under agreement. A 181 settling manufacturer may not include a brand family in such 182 certification if it does not deem sales of cigarettes of that 183 brand family in this state to be its cigarettes for purposes of 184 the master settlement agreement between 52 states and 185 territories and participating cigarette manufacturers. Each 186 settling manufacturer shall update such information in the event 187 of any change, within 30 calendar days after the date of the 188 change. 189 (2) By July 15, 2010, the division shall develop, maintain, 190 and publish on its Internet website a directory listing of all 191 settling manufacturers that have provided accurate 192 certifications under subsection (1). The directory shall list 193 the brand families of such settling manufacturers included in 194 such certifications. The division shall update the directory as 195 necessary in order to add or remove a manufacturer or brand 196 family and keep the directory in conformity with the 197 requirements of ss. 210.23-210.248. 198 (3) The division shall provide the list to each dealer, 199 agent, or distributing agent authorized to affix stamps under 200 this chapter, to each distributor, and to any other person upon 201 request. 202 (4) Cigarettes of a brand family that is not on the 203 directory list shall be presumptively considered nonsettling 204 manufacturer cigarettes to which the fee imposed by ss. 210.23 205 210.248 applies. 206 Section 6. Section 210.240, Florida Statutes, is created to 207 read: 208 210.240 Reports.— 209 (1) Each dealer, agent, and distributing agent required to 210 file a report under s. 210.05 or s. 210.09, and each distributor 211 required to file a return or return under s. 210.55 or s. 212 210.60, shall, in addition to the information required by those 213 sections, include in that required report or return each month, 214 as appropriate: 215 (a) The number of individual nonsettling manufacturer 216 cigarettes in packages on which the dealer, agent, distributing 217 agent, or distributor affixed or was required to affix a stamp 218 or stamp insignia by the use of a metering machine during the 219 preceding month; 220 (b) The amount of the fee imposed by ss. 210.23-210.248 221 paid on cigarettes described in paragraphs (a); and 222 (c) Any other information that the division considers 223 necessary or appropriate to determine the amount of the fee 224 imposed by ss. 210.23-210.248, to enforce ss. 210.23-210.248, or 225 to provide the reports showing fees paid for nonsettling 226 manufacturer cigarette as required by s. 210.242. 227 (2) The information required under subsection (1) must be 228 itemized for each place of business and by manufacturer and 229 brand family. 230 (3) The requirement to report information under this 231 section shall be enforced in the same manner as the requirement 232 to deliver to or file with the division a report or return 233 required under this chapter. 234 Section 7. Section 210.245, Florida Statutes, is created to 235 read: 236 210.245 Penalties for noncompliance.—Nonsettling 237 manufacturer cigarettes subject to any fee imposed by ss. 238 210.23-210.248, but upon which the fee has not been paid, shall 239 be treated as cigarettes for which the tax assessed by this 240 chapter has not been paid, and all persons selling, receiving, 241 purchasing, possessing, consuming, handling, distributing, or 242 using such cigarettes are subject to all penalties imposed by 243 this chapter for violations of this chapter. 244 Section 8. Section 210.246, Florida Statutes, is created to 245 read: 246 210.246 Application.—Sections 210.23-210.248 apply without 247 regard to s. 210.06(5), or any other law that might be read to 248 create an exemption for interstate sales. 249 Section 9. Section 210.248, Florida Statutes, is created to 250 read: 251 210.248 General powers of the Division of Alcoholic 252 Beverages and Tobacco.—The Division of Alcoholic Beverages and 253 Tobacco may adopt rules to administer ss. 210.23-210.248, 254 including rules that address the imposition, collection, and 255 enforcement of the fees and required reporting. 256 Section 10. This act shall take effect July 1, 2010.