This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1007z1.DOCX
DATE: 4/29/2024
HOUSE OF REPRESENTATIVES STAFF FINAL BILL ANALYSIS
BILL #: CS/CS/HB 1007 Nicotine Dispensing Devices
SPONSOR(S): Commerce Committee and Appropriations Committee, Overdorf and others
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 1006
FINAL HOUSE FLOOR ACTION: 105 Y’s
5 N’s GOVERNOR’S ACTION: Approved
SUMMARY ANALYSIS
CS/HB 1007 passed the House on March 1, 2024. The bill was amended in the Senate on March 5, 2024,
and was returned to the House. The House concurred in the Senate amendment and passed the bill as
amended on March 7, 2024.
The bill:
Grants authority to the Attorney General (AG) to create a directory (AG Directory) of all nicotine
manufacturers that sell nicotine dispensing devices which the AG has deemed attractive to minors.
Provides that nicotine dispensing devices that are either single-use or disposable electronic cigarettes,
or devices that use sealed, prefilled, and disposable cartridge of nicotine in a solution may be reviewed
for inclusion on the AG Directory.
Sets standards for the AG, and reviewing courts, to use to determine how to evaluate whether a device
should be included in the AG Directory and allows review of such determination under the Florida
Administrative Procedure Act (APA).
Prohibits manufacturers, retailers, wholesalers and distributors from selling, shipping, or distributing
nicotine dispensing devices that are listed on the AG Directory.
Requires the Department of Legal Affairs in the Attorney General’s Office (Department) to make the AG
Directory publicly available on its website by January 1, 2025.
Provides that the AG Directory determination does not apply to a nicotine dispensing device that has
received a Federal Food and Drug Administration (FDA) marketing granted order.
Allows retailers and wholesalers holding a nicotine dispensing device which is on the AG Directory 60
days to sell or remove the product before it is considered contraband.
Allows a nicotine product manufacturer to be fined $1,000 per day that it offers to sell a nicotine
dispensing device that is on the AG Directory in violation of these provisions after March 1, 2025.
Provides that it is a first-degree misdemeanor for a retailer, a wholesaler, or a distributor who sells,
ships, or otherwise distributes a nicotine dispensing device on the AG Directory under certain
circumstances.
Provides that selling, shipping or distributing nicotine dispensing devices on the AG Directory is
deemed an unfair and deceptive trade practice.
Considers nicotine dispensing devices that are on the AG Directory to be contraband, and subject to
seizure and destruction by court order under certain circumstances.
Requires the Department to maintain detailed information and records related to seized nicotine
dispensing devices.
Provides agent of service procedures for a nonresident manufacturer of nicotine dispensing devices
under certain circumstances.
Provides that, in addition to current misdemeanor offenses for selling a nicotine products to a person
under 21, any person who sells a nicotine product to a person under 21 for a third or subsequent time
at any time after the first violation commits a third-degree felony.
The bill may have an indeterminate fiscal impact on state government and the private sector.
The bill was approved by the Governor on April 26, 2024, ch. 2024-127, L.O.F., and will become effective on
July 1, 2024.
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I. SUBSTANTIVE INFORMATION
A. EFFECT OF CHANGES:
Current Situation
Federal Regulation of Tobacco Products
The Family Smoking Prevention and Tobacco Control Act of 2009 (Tobacco Control Act) gives the U.S.
Food and Drug Administration (FDA) authority to regulate the manufacture, distribution, and marketing
of tobacco products to protect the public health. The Tobacco Control Act provides advertising and
labeling guidelines, provides standards for tobacco products, and requires face-to-face transactions for
tobacco sales with certain exceptions.
1
On August 8, 2016, the FDA extended the definition of “tobacco products” regulated under the Act to
include electronic nicotine delivery systems (ENDS). ENDS include e-cigarettes, e-cigars, e-
hookah, vape pens, personal vaporizers and electronic pipes. Additionally, the definition of tobacco
products includes components and parts such as e-liquids, tanks, cartridges, pods, wicks, and
atomizers. On April 14, 2022, the FDA’s authority was further expanded to include tobacco products
containing nicotine from any source, including synthetic nicotine.
2
Federal law preempts states from providing additional or different requirements for tobacco products in
regards to “standards, premarket review, adulteration, misbranding, labeling, registration, good
manufacturing standards, or modified risk tobacco products.” However, federal law explicitly preserves
the right of states, or any political subdivision of a state, to enact laws, rules, regulations or other
measures related to prohibiting the sale, distribution, possession, exposure to, access to, advertising
and promotion of tobacco products which are more stringent than federal requirements.
3
Registration by Manufacturers
Under federal law, manufacturers
4
are required initially, and annually thereafter, to register the name
5
,
places of business, and all such establishments of that manufacturer in any State with the FDA.
6
These
manufacturers are required to register any additional places which they own or operate and start to
manufacture, prepare, compound, or process a tobacco product or tobacco products.
7
FDA Premarket Review Application Process for Tobacco Products
8
1
Federal Food, Drug, and Cosmetic Act, 21 USC § 351 et seq; 15 U.S.C. s. 1333, s. 1335; 21 U.S.C. s. 387g, s. 387f.
2
“NTN is the term used to describe nicotine that did not come from a tobacco plant. NTN includes ‘synthetic’ nicotine.” U.S. Food
and Drug Administration. Regulation and Enforcement of Non-Tobacco Nicotine (NTN) Products, U.S. Food and Drug
Administration, www.fda.gov/tobacco-products/products-ingredients-components/regulation-and-enforcement-non-tobacco-nicotine-
ntn-products (last visited Jan. 19, 2024).
3
21 U.S.C. § 387p.
4
“The term ‘manufacture, preparation, compounding, or processing’ shall include repackaging or otherwise changing the container,
wrapper, or labeling of any tobacco product package in furtherance of the distribution of the tobacco product from the original place of
manufacture to the person who makes final delivery or sale to the ultimate consumer or user.” 21 USCA § 387e(a)(1).
5
“The term ‘name’ shall include in the case of a partnership the name of each partner and, in the case of a corporation, the name of
each corporate officer and director, and the State of incorporation.” 21 USCA § 387e(a)(2).
6
21 USCA § 387e(b)(c).
7
21 USCA § 387e(d).
8
See generally, 21 U.S.C. § 387j.
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Before a new tobacco product
9
can be distributed into interstate commerce, the manufacturer is
required to submit a marketing application to the FDA and receive authorization.
10
These applications
are reviewed by the FDA to determine whether the product meets the proper requirements to receive
marketing authorization. Marketing authorization can be achieved through a Premarket Tobacco
Product Application (PMTA), Substantial Equivalence (SE) Report, or Exemption from Substantial
Equivalence Request (EX REQ).
11
The FDA may issue a marketing granted order, temporarily suspend
a marketing order, withdraw a marketing granted order, or issue a marketing denial order.
12
Preexisting
tobacco products were required to submit marketing applications to the FDA and receive authorization
by a particular date depending on the kind of tobacco product. A tobacco manufacturer may challenge
the FDA’s marketing denial.
13
Manufactures must hold onto records that show their tobacco products
are legally on the market.
An applicant may submit a PMTA to demonstrate that a new tobacco product meets the requirements
to receive a marketing granted order.
14
The PMTA must contain certain information
15
for the FDA to
ascertain whether there are any applicable grounds for a marketing denial order. A PMTA must
demonstrate the new tobacco product would be appropriate for the protection of the public health and
takes into account the increased or decreased likelihood that existing users of tobacco products will
stop using such products, as well as the increased or decreased likelihood that those who do not use
tobacco products will start using such products.
16
A SE Report can be submitted by the tobacco manufacturer to seek an FDA substantially equivalent
order. The applicant must provide information on the new tobacco product’s characteristics and
compare its characteristics to another tobacco product.
17
The SE Report must contain certain
information to allow the FDA to determine whether the new tobacco product is substantially equivalent
to a tobacco product that was commercially marketed in the United States as of February 15, 2007.
18
On the other hand, FDA may exempt from the requirements relating to the demonstration that a
tobacco product is substantially equivalent tobacco products that are modified by adding or deleting a
tobacco additive, or increasing or decreasing the quantity of an existing tobacco additive if certain
conditions are met. An EX REQ from the requirement of showing a substantial equivalence may be
made only by the manufacturer of a legally marketed tobacco product for a minor modification to that
tobacco product.
19
9
“A ‘new tobacco product’ is defined as any product not commercially marketed in the U.S. as of Feb. 15, 2007, or the modification
of a tobacco product where the modified product was commercially marketed in the U.S. after Feb. 15, 2007.” 21 U.S.C. § 387j(1).
10
Market and Distribute a Tobacco Product, U.S. Food and Drug Administration, www.fda.gov/tobacco-products/products-
guidance-regulations/market-and-distribute-tobacco-product (last visited Jan. 19, 2024).
11
Tobacco Products Marketing Orders, U.S. Food and Drug Administration, www.fda.gov/tobacco-products/market-and-distribute-
tobacco-product/tobacco-products-marketing-orders (last visited Jan. 19, 2024).
12
21 U.S.C. § 387j.
13
See Melissa Kress, Bat to Challenge FDA’s Marketing Denial Order for Flavored Vuse Products, Convenience Store News, (Oct.
13, 2023), https://csnews.com/bat-challenge-fdas-marketing-denial-order-flavored-vuse-products (last visited Jan. 20, 2024).
14
21 CFR 1114.5.
15
The PMTA must include information, such as, full reports of investigations of health risks, effect on the population as a whole,
product formulation, statement of compliance and certification, and manufacturing. See 21 CFR § 1114.7(a).
16
Supra note 9.
17
See 21 CFR 1107.16 and 21 CFR 1107.18.
18
21 CFR 1107.18.
19
21 CFR 1107.1.
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The FDA receives millions of applications.
20
“To date, the FDA has authorized marketing of 45
products, including 23 tobacco-flavored e-cigarette products and devices.”
21
However, the FDA
tobacco premarket application process has been challenged. In 2022, the Eleventh Circuit Court of
Appeals set aside FDA marketing order denials as arbitrary and capricious
22
because FDA failed to
consider relevant factors in evaluating the applications submitted by the six tobacco companies.
23
In
2024, the Fifth Circuit Court of Appeals stated in reference to the tobacco premarketing application
process, that “[o]ver several years, the Food and Drug Administration sent manufacturers of flavored e-
cigarette products on a wild goose chase.”
24
Florida Regulation of Tobacco and Nicotine Products
The Division of Alcoholic Beverages and Tobacco (Division) within the Department of Business and
Professional Regulation (DBPR) is the state agency responsible for the regulation and enforcement of
tobacco products under part I of Ch. 569, F.S., and nicotine products under part II of Ch. 569, F.S.
Under Florida law, tobacco products and nicotine products have different definitions. This differs from
federal law where tobacco products include nicotine products.
Regulation of Tobacco Products
“Tobacco products” include loose tobacco leaves, and products made from tobacco leaves, in whole or
in part, and cigarette wrappers, which can be used for smoking, sniffing, or chewing.
25
Section 210.25(11), F.S., relating to the tax on tobacco products other than cigarettes or cigars, defines
the term “tobacco products” differently as “loose tobacco suitable for smoking; snuff; snuff flour;
cavendish; plug and twist tobacco; fine cuts and other chewing tobaccos; shorts; refuse scraps;
clippings, cuttings, and sweepings of tobacco, and other kinds and forms of tobacco prepared in such
manner as to be suitable for chewing.”
“Tobacco products” in either definition does not include nicotine products or nicotine dispensing
devices.
Under Section 210.01, F.S.:
“Wholesale dealer” means any person located inside or outside this state who sells cigarettes
26
to retail
dealers or other persons for purposes of resale only. Such term shall not include any cigarette
20
“FDA Makes Determinations on More than 99% of the 26 Million Tobacco.” U.S. Food and Drug Administration,
www.fda.gov/tobacco-products/ctp-newsroom/fda-makes-determinations-more-99-26-million-tobacco-products-which-applications-
were-submitted (last visited Jan. 24, 2024).
21
“Premarket Tobacco Product Marketing Granted Orders”, U.S. Food and Drug Administration, (updated as of Jan. 9, 2024),
www.fda.gov/tobacco-products/premarket-tobacco-product-applications/premarket-tobacco-product-marketing-granted-orders (last
visited Jan. 24, 2024).
22
Arbitrary and capricious means “founded on prejudice or preference rather than on reason or fact.” ARBITRARY, Black's Law
Dictionary (11th ed. 2019); see also, “…[A]n agency action is lawful only if it rests ‘on a consideration of the relevant factors. An
agency rule would be arbitrary and capricious if the agency ... entirely failed to consider an important aspect of the problem.” Bidi
Vapor LLC v. U.S. Food & Drug Admin., 47 F.4th 1191, 1202 (11th Cir. 2022).
23
See, Bidi Vapor LLC v. U.S. Food & Drug Admin., 47 F.4th 1191, 1205 (11th Cir. 2022) (where 6 tobacco companies included their
proposed marketing and sales-access restrictions in their application, and the FDA marketing denial orders specifically stated that it
did not consider the marketing or sales-access-restriction plans in the companies' applications.).
24
Wages & White Lion Investments, L.L.C. v. Food & Drug Admin., 90 F.4th 357 (5th Cir. 2024) (the court held that the FDA’s denial
of marketing orders was arbitrary and capricious because FDA failed to give manufacturers fair notice of the rules, did not explain or
admit a change in position regarding application requirements, and disregarded the tobacco manufacturers’ good faith reliance on
previous FDA guidance).
25
S. 569.002(6), F.S.
26
“’Cigarette” means any roll for smoking, except one of which the tobacco is fully naturally fermented, without regard to the kind of
tobacco or other substances used in the inner roll or the nature or composition of the material in which the roll is wrapped, which is
STORAGE NAME: h1007z1.DOCX PAGE: 5
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manufacturer, export warehouse proprietor, or importer with a valid permit
27
if such person sells or
distributes cigarettes in this state only to dealers who are agents and who hold valid and current
permits under s. 210.15, F.S. or to any cigarette manufacturer, export warehouse proprietor, or importer
who holds a valid and current permit under 26 U.S.C. s. 5712.
28
“Distributing agent” means every person, firm or corporation in this state who acts as an agent for any
person, firm or corporation outside or inside the state by receiving cigarettes in interstate or intrastate
commerce and storing such cigarettes subject to distribution or delivery upon order from said principal
to wholesale dealers and other distributing agents inside or outside this state.
29
Cigarette and Tobacco Product Wholesalers, Distributors, and Manufacturers
A person must obtain a permit from the Division in order to distribute tobacco products, not including
cigarettes or cigars. A person must obtain a permit for each place of business. The fee for such permit
is $25.
30
A person must obtain a cigarette permit from the Division in order to import, export, manufacture, deal
at wholesale, or distribute cigarettes in the state. A person must obtain a permit for each place of
business in the state or its principal place of business if the person does not have a business in this
state. The fee for such permit is $100. The Division may only issue permits to persons who are 18
years or older or corporations with officers who are 21 years or older.
31
Retail Tobacco Product Dealers
In order to sell tobacco products at retail or operate a tobacco product vending machine in Florida, a
person must obtain a retail tobacco products dealer permit from the Division. A tobacco products dealer
permit holder is allowed to sell nicotine products and nicotine dispensing devices, in addition to tobacco
products. A person must obtain a permit for each place of business or premises where tobacco
products are sold. Any person who owns, leases, furnishes, or operates a vending machine that
dispense tobacco products must also obtain a permit for each machine. The fee for such permit is
$50.
32
The Division may only issue permits to persons who are 21 years or older or corporations with
officers who are 21 years or older.
33
Anyone who deals in tobacco products at retail or allows a vending machine on the premises without a
permit is subject to a $500 fine.
34
DBPR is required to submit an annual report to the Governor and Legislature regarding the
enforcement of tobacco products, including:
35
The number and results of compliance visits by the Division;
The number of violations for failure of a retailer to hold a valid license;
The number of violations for selling tobacco products to anyone under the age of 21 and the
results of administrative hearings on such violations; and
The number of people under the age of 21 cited, including sanctions imposed as a result of
such citation, for misrepresenting their age, purchasing tobacco products underage, and
misrepresenting military service for the purpose of obtaining tobacco products underage.
made wholly or in part of tobacco irrespective of size or shape and whether such tobacco is flavored, adulterated or mixed with any
other ingredient. S. 210.01(1), F.S.
27
26 U.S.C. s. 5712.
28
S. 210.01(6), F.S.
29
S. 210.01(14), F.S.
30
S. 210.40, F.S.
31
S. 210.15, F.S.
32
S. 569.003, F.S.
33
S. 569.003, F.S.
34
S. 569.005, F.S.
35
S. 569.19, F.S.
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Florida also has an excise tax and surcharge on cigarettes and other tobacco products, not including
cigars. The tax and surcharge for cigarettes is $0.1695 to $0.42375 per pack and a surcharge of $0.50
to $1.25 per pack depending on the number of cigarettes in the pack. The excise tax for tobacco
products is 25 percent of the wholesale price and the surcharge is 60 percent of the wholesale price.
There is no excise tax or surcharge for nicotine products or nicotine dispensing devices.
36
Nicotine Regulations
“Nicotine dispensing device” means any product that employs an electronic, chemical, or mechanical
means to produce vapor or aerosol from a nicotine product, including, but not limited to, an electronic
cigarette, electronic cigar, electronic cigarillo, electronic pipe, or other similar device or product, any
replacement cartridge for such device, and any other container of nicotine in a solution or other form
intended to be used with or within an electronic cigarette, electronic cigar, electronic cigarillo, electronic
pipe, or other similar device or product.
“Nicotine product” means any product that contains nicotine, including liquid nicotine, which is intended
for human consumption, whether inhaled, chewed, absorbed, dissolved, or ingested by any means.
Retail Nicotine Product Dealers
The regulations for the sale of nicotine products and nicotine dispensing devices mirror the regulations
for the sale of tobacco products. However, nicotine products do not have a tax or permit fee similar to
tobacco products.
Advertising to Minors
Hemp
In 2023, the Governor signed Senate Bill 1676, which only allows the distribution and sale of hemp
37
in
Florida if the product is distributed and sold in a container that is not “attractive to children.” Under this
law, “attractive to children” means manufactured in the shape of humans, cartoons, or animals;
manufactured in a form that bears any reasonable resemblance to an existing candy product that is
familiar to the public as a widely distributed, branded food product such that a product could be
mistaken for the branded product, especially by children; or containing any color additives.
38
Lawsuits Against Juul Labs, Inc.
Juul Labs faced over 5,000 lawsuits, with most alleging the company engaged in deceptive marketing
or failed to warn about the risks of its product. Multiple states also sued Juul Labs, Inc. (Juul)
39
regarding its marketing of its nicotine products.
40
However, many of these lawsuits have been settled:
In April 2023, Juul settled with six states and the District of Columbia for $462 million for how
products were marketed.
36
Ss. 210.011, 210.02, 210.276, and 210.30, F.S.; DBPR, Alcoholic Beverages & Tobacco – Tax & Reporting Information For
Licensees, http://www.myfloridalicense.com/DBPR/alcoholic-beverages-and-tobacco/tax-and-reporting-information-for-
licensees/#1510753842753-25986d10-086f (last visited Jan. 20, 2024).
37
“Hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts,
cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9-tetrahydrocannabinol
concentration that does not exceed 0.3 percent on a dry-weight basis, with the exception of hemp extract, which may not exceed 0.3
percent total delta-9-tetrahydrocannabinol on a wet-weight basis. S. 581.217(3)(e), F.S.
38
S. 581.217(3)(a), F.S.
39
Juul manufactures electronic cigarettes and other accessories.
40
Christy Bieber, Juul Lawsuit Update March 2024, Forbes Magazine (Nov. 1, 2023), www.forbes.com/advisor/legal/product-
liability/juul-lawsuit-update/ (last visited Mar. 12, 2024).
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In January 2023, U.S. District Judge William Orrick in San Francisco approved a $255 million
settlement resolving the class action alleging the company deceptively marketed the product,
downplaying addiction and marketed to minors.
In December 2022, Juul agreed to a settlement reportedly between $1.2 and $1.7 billion with
10,000 plaintiffs in 5,000 cases in California in regard to marketing and addiction to the product.
The deal involves school district plaintiffs. Judge Orrick has yet to approve this but did call it fair
and reasonable.
In September 2022, Juul tentatively agreed to pay more than $438 million to settle
investigations by nearly three dozen states over how it may have marketed to teenagers. The
company did not admit any wrongdoing.
On October 4, 2023, Florida Attorney General Ashley Moody filed a lawsuit against Juul alleging that it
was intentionally marketing its products to minors.
41
According to the complaint, “Juul relentlessly
marketed to underage users with launch parties, advertisements using trendy-looking and young
models, social media posts, and free samples. It created a technology-focused, sleek design that could
be easily concealed and sold its product in flavors known to be attractive to underage users. Juul also
manipulated the chemical composition of its product to make the vapor less harsh on the throats of the
young and inexperienced consumers it courted. To preserve its young customer base, Juul relied on
age-verification techniques that it knew were ineffective.”
42
Juul indicated in a response that AG Moody
had decided against participating in the settlement between the company and 48 other states and
territories. It also pointed to steps the company has taken, “including ceasing distribution of non-
tobacco, non-menthol products in advance of FDA guidance on flavors, halting mass market product
advertising, and restructuring our entire company with an emphasis on combating underage use. In
part, due to these efforts, we have seen underage use of Juul products cut by 95%.”
43
Emergency Rules
Agencies are authorized to respond to immediate dangers to the public health, safety, or welfare by
adopting emergency rules.
44
Emergency rule adoption follows different procedures.
45
The notice of the
emergency rule and its text is published in the first available issue of the Florida Administrative Code
(FAR). There is no requirement that an emergency rule be published in the FAC.
46
The agency must
publish prior to, or contemporaneous with, the rule’s promulgation the specific facts and reasons for
finding an immediate danger to the public health, safety, or welfare.
47
Emergency rules are effective
immediately, or on a date less than 20 days after filing if specified in the rule,
48
but are effective for no
longer than 90 days.
49
An emergency rule is not renewable, except when the agency has initiated
rulemaking to adopt rules relating to the subject of the emergency rule and either a challenge to the
proposed rules has been filed and remains pending or the proposed rule is awaiting ratification by the
Legislature.
50
The validity of an emergency rule may be challenged at DOAH subject to an expedited
filing and hearing schedule.
51
41
See Office of the Attorney General. State of Florida, Department of Legal Affairs v. Juul Labs, Inc. Compl.,
https://www.myfloridalegal.com/sites/default/files/2023-10/dkt-1-complaint.pdf. The lawsuit is still pending.
42
WUSF, Health News Florida, Florida attorney general's lawsuit claims Juul improperly marketed to children, October 5, 2023,
https://www.wusf.org/courts-law/2023-10-05/florida-attorney-generals-lawsuit-claims-juul-improperly-marketed-to-children (last
visited Mar. 12, 2024).
43
Id.
44
S. 120.54(4), F.S.
45
S. 120.54(4)(a)1., F.S.
46
S. 120.54(4)(a)3., F.S.
47
Id.
48
S. 120.54(4)(d), F.S.
49
S. 120.54(4)(c), F.S.
50
Id.
51
Id.
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Effect of the Bill
Definitions
The bill modifies the definition of “nicotine dispensing device” by providing that “each individual stock
keeping unit is considered a separate nicotine product.” The bill provides the following definitions:
“FDA” means the United States Food and Drug Administration.
“Sell” or “sale” means any sale, transfer, exchange, barter, gift, or offer for sale and distribution,
in any manner or by any means whatsoever.
“Nicotine product manufacturer” means any person or entity that manufactures nicotine
products.
Legislative Intent
The bill provides that information, testings, approvals, or scientific evidence may, from time to time,
indicate that certain nicotine dispensing devices have a greater potential to be attractive to and be
abused by minors than was evident when such devices were allowed on the market. The bill states that
the intent of the Legislature to quickly provide a method to allow Florida to seek removal of such items
from the market.
AG Directory of Nicotine Products Attractive to Minors
The bill empowers the Attorney General (AG) to adopt rules to create a directory which lists nicotine
dispensing devices that are attractive to minors.
The bill states that if the nicotine dispensing device has features that are significantly appealing to
minors as compared to the legitimate benefits those features offer to lawful users of the product, a
nicotine dispensing device is deemed attractive to minors, and the AG shall include it on the directory.
In order to determine whether a nicotine dispensing device is attractive to minors, the AG and the
reviewing court must consider:
Surveys or other data sources indicating that the nicotine dispensing device is being used by
minors at a higher rate than other nicotine dispensing devices.
Complaints, reports, or other information related to the use of a nicotine dispensing device by
minors from other minors, parents, teachers, school employees, school boards, law
enforcement officers, retailers, and other industry related officials as compared to other nicotine
dispensing devices.
The extent to which the nicotine dispensing device:
o Is designed to be attractive to minors, such as through the use of bright colors or cartoon
characters.
o Is designed so that it is easy for minors to use and to conceal.
o Uses or resembles the trade dress of a branded food product, consumer food product,
or logo of a food product.
o Is marketed in a manner that uniquely appeals to minors.
o Uses actual copyrights, service marks, or trademarks or fake or actual copyrights,
service marks, or trademarks that resemble consumer or food products popular with
minors, including the names of candy or cereal products.
Any reports of physical harm to minors from using the nicotine dispensing device or evidence
that the nicotine dispensing device presents unique risks to minors.
Whether the manufacturer of the nicotine dispensing device submitted a timely filed premarket
tobacco product application for the nicotine dispensing device pursuant to 21 103 U.S.C. s.
387j.A decision of the FDA regarding the nicotine dispensing device, if the decision was final
and not subject to a stay, by a court or the agency, or subject to a timely petition for supervisory
review, and the extent to which the FDA's decision was based on the risks to minors
outweighing other benefits of the nicotine dispensing device.
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The bill requires the Department of Legal Affairs (DLA) within the Office of the Attorney General to:
Develop and maintain a directory listing all nicotine product manufacturers that sell nicotine
dispensing devices in Florida which the AG has deemed attractive to minors.
Make such directory publicly available January 1, 2025 on its website.
Update such directory as necessary.
Establish a process to provide retailers, distributors, and wholesalers notice of the initial
publication of the directory and any changes made to the directory.
The bill states that a nicotine dispensing device may be subject to the AG directory if:
The nicotine dispensing device is either a single-use or disposable electronic cigarette,
electronic cigar, electronic cigarillo, electronic pipe, or other similar device that is intended to be
discarded after use, or
An electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, or other
similar device that uses a sealed, prefilled, and disposable cartridge of nicotine in a solution.
The bill provides that the following nicotine dispensing devices are not subject to the AG directory if:
It has received a marketing granted order from the FDA 21 U.S.C. s. 387j; or
It is an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, or
other similar device that is an open system where a consumer fills a vial or other container with
nicotine in a solution.
AG’s Rulemaking Authority and Review of Determination
The bill requires that AG’s rulemaking to be in accordance with the procedural requirements of the
APA, including the emergency rule provisions, except that the petition to initiate rulemaking subsection
under s. 120.54(7), F.S. does not apply.
The AG’s determination to include a nicotine dispensing device in the directory is subject to review
under the APA.
Retailers, Wholesalers, Distributors, and Nicotine Product Manufacturers
The bill provides that when a nicotine dispensing device is added to the directory, each retailer,
wholesaler, and distributor holding nicotine dispensing devices for eventual sale in Florida has 60 days
from the day such product is added to the directory to sell the product or remove the product from its
inventory. After the 60 days has expired, the product identified in the directory is contraband, and is
subject to seizure and destruction.
Potential Fine for Nicotine Product Manufacturer
The bill states that beginning on March 1, 2025, or on the date DLA first makes the directory publicly
available on its website, whichever is later, a nicotine product manufacturer that offers a nicotine
dispensing device which is listed on the AG directory for sale in Florida is subject to a fine of $1,000 per
day for each individual nicotine dispensing device offered for sale until the offending product is removed
from the market or until the offending product is no longer listed on the directory.
Violations
The bill prohibits a nicotine product manufacturer, a retail nicotine products dealer, a wholesaler, or a
distributor from selling, shipping, or otherwise distribute nicotine dispensing devices for retail sale to
consumers in Florida that is listed on the AG directory. Any person who knowingly sells, ships, or
receives, a nicotine dispensing device listed on the AG directory commits a first-degree misdemeanor.
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The bill states that a violation of this part is deemed an unfair and deceptive trade practice that can only
be enforced by the DLA. The bill allows the DLA, when it has reason to believe that a person is selling
devices that are listed on the AG directory, or bring an action against such person for an unfair or
deceptive act or practice.
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In addition to the other remedies provided in Part II of Ch. 569, F.S. concerning nicotine products, the
DLA is allowed to collect a civil penalty of up to $1,000 per nicotine dispensing device sold, shipped, or
otherwise distributed.
Seizure and Destruction of Contraband Nicotine Dispensing Devices
The bill declares all nicotine dispensing devices sold in contravention of Ch. 569, F.S., to be
contraband. The contraband may be searched and seized per the Florida Contraband Forfeiture Act.
The bill requires:
The cost of seizure and destruction of the contraband is to be borne by the person from whom
such nicotine dispensing devices are seized.
Court’s having jurisdiction to order the destruction and forfeiture of contraband nicotine
dispensing devices:
o Upon a showing that more likely than not such devices were sold, delivered, possessed,
or distributed contrary to any provision of Ch. 569, F.S.
o Once any APA proceedings under Ch. 120, F.S. related to such devices have been
completed.
A report by the officer who destroyed the contraband to document and return under oath to
the court the following information:
o The place where the contraband was seized,
o The kind and quantity of such contraband seized,
o The time, place, and manner of destruction of such contraband,
DLA Records
The bill requires the DLA to maintain a full and complete record of all nicotine dispensing devices
showing:
The exact types, kinds, and quantities, and forms of such nicotine devices.
The persons from whom such nicotine dispensing devices were received, delivered, or
destroyed.
By whose authority such nicotine dispensing devices were received, delivered, or destroyed.
The dates of the receipt, disposal, or destruction of such nicotine dispensing devices.
o The bill requires such record to be available for inspection by all persons charged
with the enforcement of tobacco and nicotine product laws.
Agent for Service of Process
The bill requires a nonresident nicotine dispensing device manufacturer that has not registered to do
business in Florida as a foreign corporation or business entity to, as a condition precedent to being
listed on the nicotine directory, appoint and continually engage without interruption the services of an
agent in this state to act as agent for the service of process on whom all process, and any action or
proceeding against the manufacturer concerning or arising out of the enforcement of Ch. 569, F.S.,
may be served in any manner authorized by law.
The bill:
Provides that such service constitutes legal and valid service of process on the nonresident
manufacturer.
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For the purposes of bringing an action pursuant to this section, ss. 501.211 and 501.212, F.S. do not apply.
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Requires the nonresident manufacturer to provide the name, address, telephone number, and
proof of the appointment and availability of such agent to the Division.
Requires the nonresident nicotine dispensing device manufacturer to provide notice to the DLA
30 calendar days before termination of the appointment of an agent and further provide proof to
the satisfaction of the DLA of the appointment of a new agent at least 5 calendar days before
termination of the existing agent.
Requires, if an agent terminates his or her existing appointment, the manufacturer to notify the
DLA of the termination within 5 calendar days and include proof to the satisfaction of the DLA of
the appointment of a new agent.
Requires any manufacturer whose nicotine dispensing devices are sold in this state who has not
appointed and engaged the services of an agent as required to be deemed to have appointed
the Secretary of State as manufacturer’s agent for service of process.
Criminal Offense for Selling to Person Under 21
The bill provides that, in addition to current misdemeanor offenses for selling nicotine products to a
person under 21, any person who sells a nicotine product to a person under 21 for a third or
subsequent time at any time after the first violation commits a third-degree felony.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill establishes new fines and penalties that the DLA may impose. The revenue generated
from these penalties will vary each year depending on the number of violations enforced.
2. Expenditures:
Indeterminate.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Businesses that are selling, manufacturing or distributing nicotine products that the AG has deemed
attractive to minors may be subject to fines and penalties under certain circumstances.
D. FISCAL COMMENTS:
The impact to DLA is indeterminate, however, if after the bill becomes effective and additional
resources are needed, DLA may request them as part of the LBR process.