During the 2020 Florida Legislative Session, the House and Senate passed a compromise bill (SB 810) that would significantly alter the regulation of tobacco and recreational nicotine sales in the state. The bill is currently awaiting the signature of Governor Ron DeSantis before it takes effect.
In recent years Florida laws regarding the regulation of tobacco and nicotine has not kept up with changes by the U.S. Food and Drug Administration (FDA). For example, in 2016 The FDA added e-cigarettes and vaping products to the list of products to be regulated by the rules established by the Tobacco Control Act of 2009. In addition, the Federal Government raised the age for the sale and purchase of all tobacco and recreational nicotine products to 21 at the end of 2019, and banned the sale of flavored e-cigarette pods that have contributed to increased use of these products by underage minors. The goal of SB 810 is to make the regulation of tobacco and nicotine products in Florida consistent with these Federal rules.
While SB 810 is overall beneficial in the fight to reduce youth access and exposure to all tobacco products in Florida, the legislation did create some loopholes that may decrease its overall effectiveness.
SB 810 eliminates language in Florida Statute that created a separate category for “nicotine products and nicotine dispensing devices” tucked away in Chapter 877 – Miscellaneous Crimes, moving these products into Chapter 569 – Tobacco Products. Doing this accomplished two things: first, it would require all vape shops in Florida that do not sell traditional tobacco to obtain a dealer permit through the Division of Business and Professional Regulation, and 2) it would allow the Division of Alcoholic Beverages and Tobacco to conduct compliance checks in these retail outlets to make sure that these businesses are not selling their products to underage minors.
SB 810 also raises the age for the sale of all tobacco products, including the newly established categories, to 21. While this age has been established at the Federal level, the change is necessary at the state level to allow for local compliance checks. This will increase the number of compliance checks in Florida, which will contribute to a reduction in access to these products by Florida youth.
Finally, SB 810 includes language that would make the regulation of flavored tobacco products and vaping products identical to the FDA rules. If a flavored product has been approved by the FDA, then it is approved for sale in Florida; however, if a flavored product has been banned by the FDA, then it is also banned for sale in Florida.
Raising the age, enforcing that new rule, and eliminating flavored products that are appealing to children and teenagers will all help reduce the rates of tobacco use in our middle and high school populations ins Florida.
While electronic cigarettes and liquid nicotine were added to the definition of tobacco products in Florida, the legislature opted to create a separate category for these products in SB 810. This was done intentionally for one reason: by creating this separate category, free-standing vape shops will not have to pay the $50.00 Dealer Permit Fee that is required of traditional tobacco retailers.
Why, you ask? Because Florida recently changed the rules to require a super-majority in both the Florida House and Florida Senate to pass a new tax or fee. Requiring vape shops to obtain such a fee as a result of the product reclassification was viewed as “new” fee, and sponsor of SB 810 did not want to jeopardize the passage of the bill as a result of this issue surrounding the cost of the permit.
However, the secondary category will have other long-term consequences. Florida currently does not have an excise tax on vaping products and liquid nicotine, which keeps the cost of these products lower compared to other forms of recreational nicotine. Cheaper products are preferred by teenagers, who generally do not have a large disposable income, and increasing excise taxes on tobacco products has been a very successful strategy in reducing youth access and use. SB 810 does not prevent excise taxes on vaping devices and liquid nicotine; it just creates an additional hurdle to passing these user fees.
Lobbyists for the vaping industry worked hard to create the carve-out for their products. As a result of their efforts, the biggest champions for public health in Florida with respect to tobacco prevention (American Cancer Society, American Lung Association, American Heart Association) ultimately pulled their support for SB 810. In the final legislation, everybody got something that they wanted, nobody got everything that they wanted, and nobody was happy with the final product… the signs of a compromise.
However, in the aftermath of the passage of SB 810, lobbyists for the vaping industry have started a campaign to have Governor DeSantis veto the bill. In particular, the vaping industry is not happy with the provisions that would ban the sale of flavored products in Florida that are already banned by the FDA.
The industry continues to claim that the use of flavored products by youth is not their problem. In fact, it is their problem. The industry does not do enough to police itself, and middle and high school kids are the collateral damage. These flavored products are designed to be appealing to kids, because the industry knows that it cannot survive without targeting impulsive teenagers with a product that leads to long-term addiction. It is an ugly strategy by an ugly industry, and that is why regulations are necessary.
Our hope is that Governor DeSantis will sign SB 810 into law. It is not a perfect piece of legislation, but it will help reduce youth access to these addictive products in Florida while still allowing cities and counties to pass stronger licensing rules and regulations.