Florida Statutes 569.311 – Control of nicotine dispensing devices; grant of authority to Attorney General to create a directory of nicotine products attractive to minors
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(1) The Legislature has determined 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. It is the intent of the Legislature to quickly provide a method to allow the state to seek removal of such items from the market.
(2) The Attorney General is hereby authorized to adopt rules creating a directory listing nicotine dispensing devices that are attractive to minors.
(3) A nicotine dispensing device is deemed attractive to minors, and the Attorney General shall include it in the directory, 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. In applying this standard, the Attorney General and reviewing courts shall consider the following:
(a) Surveys or other data sources indicating that a nicotine dispensing device is being used by minors at a higher rate than other nicotine dispensing devices.
Terms Used In Florida Statutes 569.311
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- FDA: means the United States Food and Drug Administration. See Florida Statutes 569.31
- 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. See Florida Statutes 569.31
- 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. See Florida Statutes 569.31
- sale: means , in addition to its common usage meaning, any sale, transfer, exchange, barter, gift, or offer for sale and distribution, in any manner or by any means. See Florida Statutes 569.31
(b) 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.
(c) The extent to which the nicotine dispensing device:
1. Is designed to be attractive to minors, such as through the use of bright colors or cartoon characters.
2. Is designed so that it is easy for minors to use and to conceal.
3. Uses or resembles the trade dress of a branded food product, consumer food product, or logo of a food product.
4. Is marketed in a manner that uniquely appeals to minors.
5. 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.
(d) 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.
(e) Whether the manufacturer of the nicotine dispensing device submitted a timely filed premarket tobacco product application for the nicotine dispensing device pursuant to 21 U.S.C. § 387j.
(4) In making the determination in subsection (3), the Attorney General shall consider a decision of the FDA regarding the nicotine dispensing device, if the decision is 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 predicated, in whole or part, on the risks to minors outweighing other benefits of the nicotine dispensing device.
(5) Rulemaking under this section shall be in accordance with the procedural requirements of chapter 120, including the emergency rule provisions found in s. 120.54, except that s. 120.54(7) does not apply.
(6) A determination by the Attorney General under subsections (2) and (3) to include a nicotine dispensing device in the directory is subject to review under chapter 120.
(7) This section does not apply to a nicotine dispensing device that has received a marketing granted order under 21 U.S.C. § 387j.
(8) This section shall only apply to, and a nicotine dispensing device shall only be subject to this section when, a 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. This section does not apply to 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.
(9) The Department of Legal Affairs shall develop and maintain a directory listing all nicotine product manufacturers that sell nicotine dispensing devices in this state which the Attorney General has deemed attractive to minors under subsections (2) and (3). The department shall make the directory available January 1, 2025, for public inspection on its website. The department shall update the directory as necessary. The department shall establish a process to provide retailers, distributors, and wholesalers notice of the initial publication of the directory and any changes made to the directory.
(10) If a nicotine dispensing device is added to the directory, each retailer and each wholesaler holding nicotine dispensing devices for eventual sale to a consumer in this state 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 60 days following the date a product is added to the directory, the product identified in the directory is contraband and subject to s. 569.345.
(11)(a) Except as provided in paragraphs (b) and (c), beginning March 1, 2025, or on the date that the department first makes the directory available for public inspection on its website, whichever is later, a nicotine product manufacturer that offers for sale in this state a nicotine dispensing device listed on the directory is subject to a fine of $1,000 per day for each individual nicotine dispensing device offered for sale in violation of this section until the offending product is removed from the market or until the offending product is no longer listed on the directory.
(b) Each retailer shall have 60 days from the date that the department first makes the directory available for public inspection on its website to sell products that were in its inventory before that date or remove those products from inventory.
(c) Each distributor or wholesaler shall have 60 days from the date that the department first makes the directory available for public inspection on its website to remove from inventory those products intended for eventual retail sale to a consumer in this state.