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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to nicotine dispensing devices; 2
amending s. 569.31, F.S.; defining and revising terms; 3
creating s. 569.311, F.S.; providing legislative 4
findings; authorizing the Attorney General to adopt 5
rules for the creation of a directory listing nicoti ne 6
dispensing devices for certain purposes; providing the 7
Attorney General with factors that must be considered 8
in determining which nicotine dispensing devices must 9
be listed on such a directory; providing construction; 10
providing that a determination by t he Attorney General 11
to include a nicotine dispensing device on the 12
directory is subject to review under ch. 120, F.S.; 13
providing applicability; requiring the Department of 14
Legal Affairs to develop and maintain a directory of 15
all nicotine products manufactu rers that sell nicotine 16
dispensing devices in this state which have been 17
listed on the directory by the Attorney General; 18
requiring the department to make the directory 19
available for public inspection on its website by a 20
certain date; providing retailers a nd wholesalers of a 21
nicotine dispensing device that has been added to the 22
directory a specified timeframe within which they may 23
sell or remove the nicotine dispensing device from 24
inventory; providing that such nicotine dispensing 25
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devices are considered con traband after such specified 26
timeframe; providing that nicotine products 27
manufacturers that offer for sale in this state a 28
nicotine dispensing device listed on the directory are 29
subject to a fine for each day the nicotine dispensing 30
device is offered until it is either removed from the 31
market or is no longer listed on the directory; 32
providing retailers, distributors, and wholesalers a 33
specified timeframe in which to remove a nicotine 34
dispensing device from inventory after such device has 35
been listed; creating s. 569.312, F.S.; providing 36
criminal and civil penalties for a person who sells, 37
ships, or otherwise distributes a listed nicotine 38
dispensing device in this state for eventual retail 39
sale; providing that a violation of this section is an 40
unfair and deceptive trade practice; providing that 41
the Department of Legal Affairs is the sole 42
enforcement authority that may bring an action for an 43
unfair or deceptive trade practice under this section; 44
creating s. 569.345, F.S.; declaring nicotine 45
dispensing devices t hat violate ch. 569, F.S., as 46
contraband subject to seizure and confiscation by 47
certain persons under the Florida Contraband 48
Forfeiture Act; providing procedures for the seizure 49
and destruction of such nicotine dispensing devices; 50
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providing applicability; creating s. 569.346, F.S.; 51
requiring nonresident manufacturers of nicotine 52
dispensing devices to appoint an agent in this state 53
to accept service for any action or proceeding against 54
the manufacturer; providing that service upon the 55
agent constitutes servi ce upon the manufacturer; 56
requiring such manufacturers to notify the department 57
of the termination and appointment of an agent within 58
a specified timeframe; providing that the Secretary of 59
State is deemed the agent for manufacturers that do 60
not appoint an agent as required by law; amending s. 61
569.41, F.S.; revising criminal penalties for those 62
who sell, deliver, barter, furnish, or give a nicotine 63
dispensing device, directly or indirectly, to persons 64
under 21 years of age; amending s. 569.002, F.S.; 65
conforming cross-references; providing an effective 66
date. 67
68
Be It Enacted by the Legislature of the State of Florida: 69
70
Section 1. Section 569.31, Florida Statutes, is amended to 71
read: 72
569.31 Definitions. —As used in this part, the term: 73
(1) "Dealer" is synonymous with the term "retail nicotine 74
products dealer." 75
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(2) "Division" means the Division of Alcoholic Beverages 76
and Tobacco of the Department of Business and Professional 77
Regulation. 78
(3) "FDA" means the United States Food and Drug 79
Administration. 80
(4)(3) "Nicotine dispensing device" means any product that 81
employs an electronic, chemical, or mechanical means to produce 82
vapor or aerosol from a nicotine product, including, but not 83
limited to, an electronic cigarette, electronic cigar, 84
electronic cigarillo, electronic pipe, or other similar device 85
or product, any replacement cartridge for such device, and any 86
other container of nicotine in a solution or other form intended 87
to be used with or within an electronic cigarette, electronic 88
cigar, electronic cigarillo, electronic pipe, or other similar 89
device or product. For purposes of this definition, each 90
individual stock keeping unit is considered a separate nicotine 91
dispensing device. 92
(5)(4) "Nicotine product" means any product that contains 93
nicotine, including liquid nicotine, which is intended for human 94
consumption, whether inhaled, chewed, absorbed, dissolved, or 95
ingested by any means. The term also includes any nicotine 96
dispensing device. The term does not include a: 97
(a) Tobacco product, as defi ned in s. 569.002; 98
(b) Product regulated as a drug or device by the United 99
States Food and Drug Administration under Chapter V of the 100
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Federal Food, Drug, and Cosmetic Act; or 101
(c) Product that contains incidental nicotine. 102
(6) "Nicotine products manuf acturer" means any person or 103
entity that manufactures nicotine products. 104
(7)(5) "Permit" is synonymous with the term "retail 105
nicotine products dealer permit." 106
(8)(6) "Retail nicotine products dealer" means the holder 107
of a retail nicotine products deale r permit. 108
(9)(7) "Retail nicotine products dealer permit" means a 109
permit issued by the division under s. 569.32. 110
(10)(8) "Self-service merchandising" means the open 111
display of nicotine products, whether packaged or otherwise, for 112
direct retail customer access and handling before purchase 113
without the intervention or assistance of the dealer or the 114
dealer's owner, employee, or agent. An open display of such 115
products and devices includes the use of an open display unit. 116
(11) "Sell" or "sale" means, in addition to its common 117
usage meaning, any sale, transfer, exchange, barter, gift, or 118
offer for sale and distribution, in any manner or by any means. 119
Section 2. Section 569.311, Florida Statutes, is created 120
to read: 121
569.311 Control of nicotine dispensing devices; grant of 122
authority to Attorney General to create a directory of nicotine 123
products attractive to minors. — 124
(1) The Legislature has determined that information, 125
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testings, approvals, or scientific evidence may, from time to 126
time, indicate that certain nicotine dispensing devices have a 127
greater potential to be attractive to and be abused by minors 128
than was evident when such devices were allowed on the market. 129
It is the intent of the Legislature to quickly provide a method 130
to allow the state to seek removal of such items from the 131
market. 132
(2) The Attorney General is hereby authorized to adopt 133
rules creating a directory listing nicotine dispensing devices 134
that are attractive to minors. 135
(3) A nicotine dispensing device is deemed attractive to 136
minors, and the Attorney General shall include it in the 137
directory, if the nicotine dispensing device has features that 138
are significantly appealing to minors as compared to the 139
legitimate benefits those features offer to lawful users of the 140
product. In applying this standard, the Attorney General and 141
reviewing courts shall consider the following: 142
(a) Surveys or other data sources i ndicating that a 143
nicotine dispensing device is being used by minors at a higher 144
rate than other nicotine dispensing devices. 145
(b) Complaints, reports, or other information related to 146
the use of a nicotine dispensing device by minors from other 147
minors, parents, teachers, school employees, school boards, law 148
enforcement officers, retailers, and other industry related 149
officials as compared to other nicotine dispensing devices. 150
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(c) The extent to which the nicotine dispensing device: 151
1. Is designed to be at tractive to minors, such as through 152
the use of bright colors or cartoon characters. 153
2. Is designed so that it is easy for minors to use and to 154
conceal. 155
3. Uses or resembles the trade dress of a branded food 156
product, consumer food product, or logo of a food product. 157
4. Is marketed in a manner that uniquely appeals to 158
minors. 159
5. Uses actual copyrights, service marks, or trademarks or 160
fake or actual copyrights, service marks, or trademarks that 161
resemble consumer or food products popular with minors, 162
including the names of candy or cereal products. 163
(d) Any reports of physical harm to minors from using the 164
nicotine dispensing device or evidence that the nicotine 165
dispensing device presents unique risks to minors. 166
(e) Whether the manufacturer of the nic otine dispensing 167
device submitted a timely filed premarket tobacco product 168
application for the nicotine dispensing device pursuant to 21 169
U.S.C. s. 387j. 170
(4) In making the determination in subsection (3), the 171
Attorney General shall consider a decision of the FDA regarding 172
the nicotine dispensing device, if the decision is final and not 173
subject to a stay, by a court or the agency, or subject to a 174
timely petition for supervisory review, and the extent to which 175
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the FDA's decision was predicated, in whole or p art, on the 176
risks to minors outweighing other benefits of the nicotine 177
dispensing device. 178
(5) Rulemaking under this section shall be in accordance 179
with the procedural requirements of chapter 120, including the 180
emergency rule provisions found in s. 120.54 , except that s. 181
120.54(7) does not apply. 182
(6) A determination by the Attorney General under 183
subsections (2) and (3) to include a nicotine dispensing device 184
in the directory is subject to review under chapter 120. 185
(7) This section does not apply to a n icotine dispensing 186
device that has received a marketing granted order under 21 187
U.S.C. s. 387j. 188
(8) This section shall only apply to, and a nicotine 189
dispensing device shall only be subject to this section when, a 190
nicotine dispensing device is either a sin gle-use or disposable 191
electronic cigarette, electronic cigar, electronic cigarillo, 192
electronic pipe, or other similar device that is intended to be 193
discarded after use, or an electronic cigarette, an electronic 194
cigar, an electronic cigarillo, an electronic pipe, or other 195
similar device that uses a sealed, prefilled, and disposable 196
cartridge of nicotine in a solution. This section does not apply 197
to an electronic cigarette, an electronic cigar, an electronic 198
cigarillo, an electronic pipe, or other similar dev ice that is 199
an open system where a consumer fills a vial or other container 200
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with nicotine in a solution. 201
(9) The Department of Legal Affairs shall develop and 202
maintain a directory listing all nicotine product manufacturers 203
that sell nicotine dispensing d evices in this state which the 204
Attorney General has deemed attractive to minors under 205
subsections (2) and (3). The department shall make the directory 206
available January 1, 2025, for public inspection on its website. 207
The department shall update the director y as necessary. The 208
department shall establish a process to provide retailers, 209
distributors, and wholesalers notice of the initial publication 210
of the directory and any changes made to the directory. 211
(10) If a nicotine dispensing device is added to the 212
directory, each retailer and each wholesaler holding nicotine 213
dispensing devices for eventual sale to a consumer in this state 214
has 60 days from the day such product is added to the directory 215
to sell the product or remove the product from its inventory. 216
After 60 days following the date a product is added to the 217
directory, the product identified in the directory is contraband 218
and subject to s. 569.345. 219
(11)(a) Except as provided in paragraphs (b) and (c), 220
beginning March 1, 2025, or on the date that the depar tment 221
first makes the directory available for public inspection on its 222
website, whichever is later, a nicotine product manufacturer 223
that offers for sale in this state a nicotine dispensing device 224
listed on the directory is subject to a fine of $1,000 per d ay 225
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for each individual nicotine dispensing device offered for sale 226
in violation of this section until the offending product is 227
removed from the market or until the offending product is no 228
longer listed on the directory. 229
(b) Each retailer shall have 60 days from the date that 230
the department first makes the directory available for public 231
inspection on its website to sell products that were in its 232
inventory before that date or remove those products from 233
inventory. 234
(c) Each distributor or wholesaler shall have 60 days from 235
the date that the department first makes the directory available 236
for public inspection on its website to remove from inventory 237
those products intended for eventual retail sale to a consumer 238
in this state. 239
Section 3. Section 569.312, Florida Statutes, is created 240
to read: 241
569.312 Shipment of nicotine dispensing devices sold for 242
retail sale in this state. — 243
(1) A nicotine product manufacturer, a retail nicotine 244
products dealer, a wholesaler, or a distributor may not sell, 245
ship, or otherwise distribute a nicotine dispensing device in 246
this state for eventual retail sale to a consumer in this state 247
that is listed on the directory. 248
(2) Any person who knowingly sells, ships or receives 249
nicotine dispensing devices in violation of this s ection commits 250
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a misdemeanor of the first degree, punishable as provided in s. 251
775.082 or s. 775.083. 252
(3) A violation of this part is deemed an unfair and 253
deceptive trade practice actionable under part II of chapter 501 254
that can only be enforced by the D epartment of Legal Affairs. If 255
the department has reason to believe that a person is in 256
violation of this section, the department may, as the sole 257
enforcement authority, bring an action against such person for 258
an unfair or deceptive act or practice. For th e purpose of 259
bringing an action pursuant to this section, ss. 501.211 and 260
501.212 do not apply. In addition to other remedies under part 261
II of this chapter, the department may collect a civil penalty 262
of up to $1,000 per nicotine dispensing device sold, shi pped, or 263
otherwise distributed. 264
Section 4. Section 569.345, Florida Statutes, is created 265
to read: 266
569.345 Seizure and destruction of contraband nicotine 267
dispensing devices.—All nicotine dispensing devices sold, 268
delivered, possessed, or distributed co ntrary to any provision 269
of this chapter are declared to be contraband, are subject to 270
seizure and confiscation under the Florida Contraband Forfeiture 271
Act by any person whose duty it is to enforce this chapter, and 272
must be disposed of as follows: 273
(1) A court having jurisdiction shall order such nicotine 274
dispensing devices forfeited upon a showing that, by a 275
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preponderance of the evidence, such devices were sold, 276
delivered, possessed, or distributed contrary to any provision 277
of this chapter. Once any chapte r 120 proceedings related to 278
such devices have been completed, the court shall order any 279
seized nicotine dispensing devices destroyed except as provided 280
by applicable court orders. A record of the place where such 281
devices were seized, the kinds and quantit ies of such devices 282
destroyed, and the time, place, and manner of the destruction of 283
such devices must be kept, and a return under oath reporting the 284
destruction must be made to the court by the officer who 285
destroys such devices. 286
(2) The Department of Le gal Affairs shall keep a full and 287
complete record of all nicotine dispensing devices seized under 288
this section showing: 289
(a) The exact kinds, quantities, and forms of such 290
nicotine dispensing devices; 291
(b) The persons from whom such devices were seized a nd to 292
whom they were delivered; 293
(c) By whose authority such devices were seized, 294
delivered, and destroyed; and 295
(d) The dates of the seizure, disposal, or destruction of 296
such devices. 297
298
Such record must be open to inspection by all persons charged 299
with the enforcement of tobacco and nicotine product laws. 300
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(3) The cost of seizure, confiscation, and destruction of 301
contraband nicotine dispensing devices is borne by the person 302
from whom such products are seized. 303
(4) Except as otherwise provided in this se ction, the 304
procedures of the Florida Contraband Forfeiture Act apply to 305
this section. 306
Section 5. Section 569.346, Florida Statutes, is created 307
to read: 308
569.346 Agent for service of process. — 309
(1) Any nonresident manufacturer of nicotine dispensing 310
devices which has not registered to do business in this state as 311
a foreign corporation or business entity shall appoint and 312
continually engage without interruption the services of an agent 313
in this state to act as agent for the service of process on whom 314
all process, and any action or proceeding against it concerning 315
or arising out of the enforcement of this chapter, may be served 316
in any manner authorized by law. Such service constitutes legal 317
and valid service of process on the manufacturer. The 318
manufacturer shall provide the name, address, telephone number, 319
and proof of the appointment and availability of such agent to 320
the division. 321
(2) The manufacturer shall provide notice to the 322
Department of Legal Affairs 30 calendar days before termination 323
of the authority of an agent and shall further provide proof to 324
the satisfaction of the department of the appointment of a new 325
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agent no less than 5 calendar days before the termination of an 326
existing agent appointment. In the event an agent terminates an 327
agency appointment, the manufacturer shall notify the department 328
of the termination within 5 calendar days and shall include 329
proof to the satisfaction of the department of the appointment 330
of a new agent. 331
(3) Any manufacturer whose nicotine dispensing devices are 332
sold in this state which has not appointed and engaged the 333
services of an agent as required by this section shall be deemed 334
to have appointed the Secretary of State as its agent for 335
service of process. 336
Section 6. Subsection (2) of section 569.41, Florida 337
Statutes, is amended to read: 338
569.41 Selling, delivering, bartering, furnishing, or 339
giving nicotine products to persons under 21 years of age; 340
criminal penalties; defense. — 341
(2) Any person who violates subsection (1) commits a 342
misdemeanor of the second d egree, punishable as provided in s. 343
775.082 or s. 775.083. However, any person who violates 344
subsection (1) for a second or subsequent time within 1 year 345
after the first violation commits a misdemeanor of the first 346
degree, punishable as provided in s. 775.0 82 or s. 775.083. Any 347
person who violates subsection (1) for a third or subsequent 348
time at any time after the first violation commits a felony of 349
the third degree, punishable as provided in s. 775.082 or s. 350
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775.083. 351
Section 7. Subsections (3) and (4) o f section 569.002, 352
Florida Statutes, are amended to read: 353
569.002 Definitions. —As used in this part, the term: 354
(3) "Nicotine product" has the same meaning as provided in 355
s. 569.31 s. 569.31(4). 356
(4) "Nicotine dispensing device" has the same meaning as 357
provided in s. 569.31 s. 569.31(3). 358
Section 8. This act shall take effect October 1, 2024. 359