Florida Senate - 2013                                     SB 252
       
       
       
       By Senator Altman
       
       
       
       
       16-00204-13                                            2013252__
    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 in
   22         order to calculate their payments under the tobacco
   23         settlement agreement for the relevant year on the
   24         Internet website of the division; providing that any
   25         cigarette of a brand family not on the directory list
   26         be 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; creating s. 210.249, F.S.; providing
   36         conditions for imposing the fee on subsequent
   37         participating manufacturers who already make payments
   38         on Florida sales of cigarettes pursuant to the master
   39         settlement agreement; defining terms; providing an
   40         effective date.
   41  
   42  Be It Enacted by the Legislature of the State of Florida:
   43  
   44         Section 1. Section 210.23, Florida Statutes, is created to
   45  read:
   46         210.23Purpose.—The purpose of ss. 210.23-210.249 is to:
   47         (1)Prevent nonsettling manufacturers from undermining this
   48  state’s policy of discouraging underage smoking by offering
   49  cigarettes and cigarette tobacco products at prices that are
   50  substantially below the prices of cigarettes of other
   51  manufacturers.
   52         (2)Protect the tobacco settlement agreement and its
   53  funding, which has been reduced because of the growth of sales
   54  of nonsettling manufacturer cigarettes, by recouping for this
   55  state revenue that is lost because of sales of cigarettes by
   56  nonsettling manufacturers of cigarettes.
   57         (3)Provide funding to enforce and administer any
   58  legislation relating to nonsettling manufacturers.
   59         (4)Provide funding for any other purpose the Legislature
   60  determines.
   61         Section 2. Section 210.232, Florida Statutes, is created to
   62  read:
   63         210.232Definitions.—As used in ss. 210.23-210.249, the
   64  term:
   65         (1)“Agent” has the same meaning as in s. 210.01.
   66         (2)“Brand family” means each style of cigarettes sold
   67  under a common brand name, trademark, logo, symbol, motto,
   68  selling message, recognizable pattern of colors, or other
   69  indication of production identification.
   70         (3)“Cigarette” has the same meaning as in s. 210.01.
   71         (4)“Dealer” has the same meaning as in s. 210.01(5) and
   72  (6).
   73         (5)“Distributing agent” has the same meaning as in s.
   74  210.01.
   75         (6)“Distributor” has the same meaning as in s. 210.25.
   76         (7)“Division” has the same meaning as in s. 210.01.
   77         (8)“Manufacturer” means a person who manufactures,
   78  fabricates, or assembles cigarettes or cigarette tobacco
   79  products for sale or distribution. For purposes of ss. 210.23
   80  210.249, the term includes a person who is the first importer
   81  into the United States of cigarettes manufactured outside the
   82  United States.
   83         (9)“Nonsettling manufacturer” means a manufacturer of
   84  cigarettes which is not a settling manufacturer.
   85         (10)“Nonsettling manufacturer cigarettes” means cigarettes
   86  that are not manufactured by a settling manufacturer.
   87         (11)“Settling manufacturer” means a manufacturer of
   88  cigarettes which:
   89         (a)Signed one of the tobacco settlement agreements before
   90  July 1, 2008; or
   91         (b)Has voluntarily entered into an agreement with this
   92  state, approved by the division, agreeing to terms similar to
   93  those contained in the tobacco settlement agreement described in
   94  paragraph (13)(a), including making annual payments to the state
   95  with respect to the sale, receipt, purchase, possession,
   96  consumption, handling, distribution, and use in this state of
   97  its cigarettes equal to at least the amount of the fee that
   98  would have been due on such cigarettes under ss. 210.23-210.249
   99  for the relevant year if the manufacturer were a nonsettling
  100  manufacturer.
  101         (12)“Settling manufacturer cigarettes” means cigarettes of
  102  a brand family that a settling manufacturer certifies under s.
  103  210.238 is to be deemed its brand family for purposes of
  104  calculating that settling manufacturer’s payments under the
  105  tobacco settlement agreement or other agreement described in
  106  paragraph (11)(b) for the relevant year, including for purposes
  107  of calculating any payment obligations of that settling
  108  manufacturer under that agreement, or any other cigarettes that
  109  are included in calculating payments due to be made by a
  110  settling manufacturer under the tobacco settlement agreement
  111  described in paragraph (13)(a) or other agreement described in
  112  paragraph (11)(b).
  113         (13)“Tobacco settlement agreement” means:
  114         (a)The settlement agreement entered into on August 25,
  115  1997, in settlement of State of Florida v. American Tobacco Co.,
  116  No. 95-1466AH (Fla. 15th Cir. Ct. 1996), and under which the
  117  settling manufacturer undertook payment obligations to the
  118  state; or
  119         (b)The settlement agreement entered into on March 15,
  120  1996, in settlement of State of Florida v. American Tobacco Co.,
  121  No. 95-1466AH (Fla. 15th Cir. Ct. 1996).
  122         Section 3. Section 210.234, Florida Statutes, is created to
  123  read:
  124         210.234Fee imposed.—
  125         (1)A fee is imposed on the sale, receipt, purchase,
  126  possession, consumption, handling, distribution, and use in this
  127  state of nonsettling manufacturer cigarettes that are required
  128  to have a stamp affixed or stamp insignia applied to a package
  129  of those cigarettes under this chapter or on which tax is
  130  otherwise required to be paid under this chapter.
  131         (2)The fee imposed by this section does not apply to
  132  cigarettes made by a settling manufacturer.
  133         (3)The fee imposed by this section is in addition to any
  134  other privilege, license, fee, or tax required or imposed by
  135  state law.
  136         (4)The fee imposed by ss. 210.23-210.249 shall be
  137  collected from distributors, dealers, agents, and distributing
  138  agents of nonsettling manufacturer cigarettes or from other
  139  persons or entities from whom the tax imposed by this chapter on
  140  such nonsettling manufacturer cigarettes may be collected under
  141  this chapter and in the manner provided by this chapter. The
  142  provisions of ss. 210.01, 210.02, 210.021, 210.03, 210.04,
  143  210.05, 210.06, 210.07, 210.08, 210.09, 210.10, 210.11, 210.12,
  144  210.13, 210.14, 210.15, 210.16, 210.161, 210.18, 210.181,
  145  210.19, 210.20, 210.22, 210.25, 210.30, 210.31, 210.35, 210.40,
  146  210.50, 210.55, 210.60, 210.65, 210.67, 210.70, and 210.75, so
  147  far as lawful or practicable, apply to the fee imposed by ss.
  148  210.23-210.249 and to the collection thereof as if fully set out
  149  in ss. 210.23-210.249. However, any one or more sections may not
  150  apply to the extent the section conflicts with ss. 210.23
  151  210.249.
  152         (5)With respect to nonsettling manufacturer cigarettes,
  153  the division shall prescribe, prepare, and furnish stamps of
  154  such denominations and quantities as may be necessary for the
  155  payment of the fee imposed by ss. 210.23-210.249, and may also
  156  permit the fee to be paid through the use of a stamp insignia to
  157  be applied by metering machines. Such stamps or stamp insignia
  158  are required and shall be sold, affixed, and administered in the
  159  same manner as the stamps and stamp insignia that are
  160  prescribed, prepared, and furnished for the taxes imposed
  161  pursuant to other provisions of this chapter. The division may
  162  prescribe that payment of the fee imposed by ss. 210.23-210.249
  163  and the tax imposed by s. 210.30 shall be by way of a single
  164  stamp or stamp insignia whose value shall be the combined value
  165  of such fee and tax, and which shall be identifiable with such
  166  markings or colorings as may be necessary to distinguish the
  167  stamp or stamp insignia from the stamp or insignia used on
  168  cigarette packages not subject to the fee imposed by ss. 210.23
  169  210.249.
  170         Section 4. Section 210.236, Florida Statutes, is created to
  171  read:
  172         210.236Rate of fee.—A fee is imposed at the rate of 2.6
  173  cents for each nonsettling manufacturer cigarette.
  174         Section 5. Section 210.238, Florida Statutes, is created to
  175  read:
  176         210.238Settling manufacturer certification and list.—
  177         (1)By July 1, 2013, and annually thereafter not later than
  178  the 30th day of April in each year, each settling manufacturer
  179  shall certify to the Attorney General, on a form prescribed by
  180  the Attorney General, the names of the brand families that are
  181  to be deemed its cigarettes for purposes of its tobacco
  182  settlement agreement or other agreement described in s.
  183  210.232(11)(b) for the relevant year, including for purposes of
  184  calculating any payment obligations of that settling
  185  manufacturer under that agreement in the volume and shares
  186  determined under the agreement. A settling manufacturer may not
  187  include a brand family in such certification if it does not deem
  188  sales of cigarettes of that brand family in this state to be its
  189  cigarettes for purposes of the master settlement agreement
  190  between 52 states and territories and participating cigarette
  191  manufacturers. Each settling manufacturer shall update such
  192  information in the event of any change within 30 calendar days
  193  after the date of the change.
  194         (2)By July 15, 2013, the division shall develop, maintain,
  195  and publish on its Internet website a directory listing of all
  196  settling manufacturers that have provided accurate
  197  certifications under subsection (1). The directory shall list
  198  the brand families of such settling manufacturers included in
  199  such certifications. The division shall update the directory as
  200  necessary in order to add or remove a manufacturer or brand
  201  family and keep the directory in conformity with the
  202  requirements of ss. 210.23-210.249.
  203         (3)The division shall provide the list to each dealer,
  204  agent, or distributing agent authorized to affix stamps under
  205  this chapter, to each distributor, and to any other person upon
  206  request.
  207         (4)Cigarettes of a brand family that is not on the
  208  directory list shall be presumptively considered nonsettling
  209  manufacturer cigarettes to which the fee imposed by ss. 210.23
  210  210.249 applies.
  211         Section 6. Section 210.240, Florida Statutes, is created to
  212  read:
  213         210.240Reports.—
  214         (1)Each dealer, agent, and distributing agent required to
  215  file a report under s. 210.05 or s. 210.09, and each distributor
  216  required to file a return under s. 210.55 or s. 210.60, shall,
  217  in addition to the information required by those sections,
  218  include in that required report or return each month, as
  219  appropriate:
  220         (a)The number of individual nonsettling manufacturer
  221  cigarettes in packages on which the dealer, agent, distributing
  222  agent, or distributor affixed or was required to affix a stamp
  223  or stamp insignia by the use of a metering machine during the
  224  preceding month;
  225         (b)The amount of the fee imposed by ss. 210.23-210.249
  226  paid on cigarettes described in paragraph (a); and
  227         (c)Any other information that the division considers
  228  necessary or appropriate to determine the amount of the fee
  229  imposed by ss. 210.23-210.249, to enforce ss. 210.23-210.249, or
  230  to provide the reports showing fees paid for nonsettling
  231  manufacturer cigarettes as required by s. 210.234.
  232         (2)The information required under subsection (1) must be
  233  itemized for each place of business and by manufacturer and
  234  brand family.
  235         (3)The requirement to report information under this
  236  section shall be enforced in the same manner as the requirement
  237  to deliver to or file with the division a report or return
  238  required under this chapter.
  239         Section 7. Section 210.245, Florida Statutes, is created to
  240  read:
  241         210.245Penalties for noncompliance.—Nonsettling
  242  manufacturer cigarettes subject to any fee imposed by ss.
  243  210.23-210.249, but upon which the fee has not been paid, shall
  244  be treated as cigarettes for which the tax assessed by this
  245  chapter has not been paid, and all persons selling, receiving,
  246  purchasing, possessing, consuming, handling, distributing, or
  247  using such cigarettes are subject to all penalties imposed by
  248  this chapter for violations of this chapter.
  249         Section 8. Section 210.246, Florida Statutes, is created to
  250  read:
  251         210.246Application.—Sections 210.23-210.249 apply without
  252  regard to s. 210.06(5) or any other law that might be read to
  253  create an exemption for interstate sales.
  254         Section 9. Section 210.248, Florida Statutes, is created to
  255  read:
  256         210.248General powers of the Division of Alcoholic
  257  Beverages and Tobacco.—The Division of Alcoholic Beverages and
  258  Tobacco may adopt rules to administer ss. 210.23-210.249,
  259  including rules that address the imposition, collection, and
  260  enforcement of the fees and required reporting.
  261         Section 10. Section 210.249, Florida Statutes, is created
  262  to read:
  263         210.249Exemption for subsequent participating
  264  manufacturers.—The fee imposed by ss. 210.23-210.249 does not
  265  apply to cigarettes of any subsequent participating
  266  manufacturer, as defined in the Master Settlement Agreement,
  267  which would otherwise be required to pay the fee under ss.
  268  210.23-210.249 until the effective date of a credit amendment to
  269  the Master Settlement Agreement, and such cigarettes shall be
  270  treated as settling manufacturer cigarettes until such time. For
  271  purposes of ss. 210.23-210.249, the term “Master Settlement
  272  Agreement” means the settlement agreement entered into on
  273  November 23, 1998, by the settling states and the participating
  274  manufacturers, as defined in that agreement, as amended to date.
  275  For purposes of ss. 210.23-210.249, the term “credit amendment”
  276  means an amendment to the Master Settlement Agreement which
  277  offers a credit to subsequent participating manufacturers for
  278  amounts paid under that agreement with respect to their products
  279  in a form agreed upon by:
  280         (1) The settling states, as defined in the Master
  281  Settlement Agreement, with aggregate allocable shares, as
  282  defined in the Master Settlement Agreement, equal to at least
  283  99.937049 percent;
  284         (2) The original participating manufacturers, as defined in
  285  the Master Settlement Agreement; and
  286         (3) The subsequent participating manufacturers who would
  287  otherwise be required to pay the fee under ss. 210.23-210.249
  288  whose aggregate market share, expressed as a percentage of the
  289  total number of individual cigarettes sold in the 50 states, the
  290  District of Columbia, and Puerto Rico, during the calendar year
  291  at issue, as measured by excise taxes collected by the Federal
  292  Government and, in the case of cigarettes sold in Puerto Rico,
  293  by arbitrios de cigarillos collected by the Puerto Rico taxing
  294  authority, is greater than 3.75 percent. For purposes of
  295  calculating subsequent participating manufacturer share under
  296  ss. 210.23-210.249, 0.09 ounces of “roll your own” tobacco
  297  constitutes one individual cigarette.
  298         Section 11. This act shall take effect July 1, 2013.