Tag: Florida

Florida Passes First Disposables Registry

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Florida’s governor, Ron DeSantis, has signed legislation intended to crack down on the sale of unauthorized vapes that the state deems attractive to children.
The new law (HB 1007), however, only targets disposable vaping products not authorized by the U.S. Food and Drug Administration. The rules will be enforced beginning Oct. 1.
Unlike other state registry lists, Florida is the first state in the nation to include a carve-out for refillable pod systems and open-system vaping products, as well as bottled e-liquids.
Florida Smoke Free Association president and vape shop owner Nick Orlando was the driving force behind getting the open system exemption.
In its original form, the bill would have prohibited sales of any vape products that had not yet received FDA approval, according to media reports.
The law now directs the state’s Department of Legal Affairs to develop and maintain a directory listing all single-use nicotine vapes it deems attractive to minors. The department must make the list publicly available on Jan. 1, 2025, and regularly update it.
Once a product is added to the list, retailers and wholesalers in Florida have 60 days to sell or remove it from their inventory. Any products left in circulation will be subject to seizure and destruction.
Beginning March 1, 2025, manufacturers that sell prohibited products in the state will face a $1,000 daily fine for each such product until it’s removed from the market. This stricture will also apply to retailers, wholesalers and distributors that ship products into Florida.
Any person who sells a nicotine product, including vapes, to someone under 21 for a third or subsequent time will face a third-degree felony charge, punishable by up to $5,000 in fines and five years in prison.
April 29, 2024
Florida Sues Juul

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Florida’s attorney general, Ashley Moody, has filed a lawsuit against Juul Labs, alleging that the company improperly marketed its products to children and offered misleading information about its products’ nicotine content, reports WUSF.
The suit was filed in Hillsborough County Circuit Court. It seeks civil penalties and an injunction to prevent Juul “targeting children through their marketing and product design and from deceiving consumers with respect to the nicotine concentration.”
“Juul relentlessly marketed to underage users with launch parties, advertisements using trendy-looking and young models, social media posts and free samples,” the lawsuit states. “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.”
Juul responded to the lawsuit, stating that “it is disappointing to see the Florida attorney general direct her state’s resources to suing Juul Labs.”
Juul’s response sets out “a few facts that should be understood,” including that “Florida’s attorney general initially led the negotiations between the state attorneys general and Juul Labs. For reasons that have not been explained to the public, she ultimately decided not to participate in a settlement to which 48 states and territories are now party to. Had she done so, like all those other jurisdictions, Florida would have its share of millions of dollars to help combat underage use and develop cessation programs. Instead, the Florida attorney general has now embarked on a drawn-out, expensive and uncertain legal process.”
“Second,” the response continued, “Florida today suffers from the highest sales in the nation of illicit and potentially harmful disposable products emanating from China. These products are not in compliance with the [U.S. Food and Drug Administration’s] regulatory regime and, in many cases, are flagrantly targeting the state’s children. By contrast, over the past four years, Juul Labs has taken meaningful steps, including ceasing distribution of nontobacco, nonmenthol 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 percent.”
The response went on to allege that “Florida has the highest sales of these mostly foreign-made products in the United States, with over 60 percent of vapor sales dominated by disposables whose companies often disregard responsible practices with inappropriate flavor names and questionable marketing. Over the past months, we have been engaged with the attorney general’s office to help create a best-in-class program to combat illicit products. Even though Juul Labs plans to fight this case vigorously, the company remains ready to help Florida stem the tide of the proliferation of Chinese-made disposable products that have found what amounts to be a safe haven for foreign-made illegal vapor products.”
October 5, 2023
Smokers on Miami Beach Could Face Jail

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Cigarette smokers in Miami Beach could face up to 60 days in jail if caught repeatedly smoking on the city’s beaches and public parks. The new law went into effect on Jan. 1.
Vaping products, cigars and unfiltered cigarettes are still permitted.
Police officers will be issuing $100 civil fines to first offenders and $200 fines to second offenders within a 12-month period.
Police officers will be able to arrest repeat offenders at their discretion. The maximum punishment is a $500 fine and 60 days in jail, according to Local10News.
Governor Ron DeSantis made the ban possible when he signed a law in June that allowed local officials to regulate cigarette smoking at public beaches and parks.
The only Miami Beach commissioner who voted against the measure was Ricky Arriola, who said it will distract police officers from public safety.
“We shouldn’t be enforcing a law like this,” Arriola said.
January 4, 2023
ITG Liable for Florida Settlement Payments

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ITG Brands assumed liability for tobacco settlement payments to Florida when it acquired four Reynolds American brands in 2015, a Delaware judge ruled, according to AP. As a result, ITG must compensate Reynolds American Inc. for losses incurred.
ITG bought the Kool, Winston, Salem and Maverick brands in 2014. Before the sale closed, R.J. Reynolds Tobacco Co. was making payments under a preexisting settlement agreement to reimburse Florida for smoking-related healthcare costs. After the deal closed, Reynolds stopped making payments for the four brands.
The purchase agreement required that ITG use reasonable best efforts to join the Florida settlement and make payments to the state for the brands it acquired from Reynolds. However, ITG has not joined the settlement agreement or made any payments.
Florida sued Reynolds and ITG, which ended with a judgment requiring Reynolds to continue paying on the settlement agreement unless and until ITG joins the agreement.
“That judgment on Reynolds amounts to over $170 million to date and tens of millions of dollars more each year into perpetuity,” noted Vice Chancellor Lori Will. The “unambiguous terms” of the asset purchase agreement support Reynolds’ arguments that ITG agreed to assume the liability imposed by the Florida judgment and must indemnify Reynolds, she concluded.
October 4, 2022
Florida Top Court Limits Punitive Damages

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A 1999 law that limits punitive damages applies to plaintiffs in Engle progeny cases who died after that year, even though the class action was filed years before, Florida’s Supreme Court ruled on Nov. 18, according to Legal Newsline.
The verdict followed a case brought by Valton Sheffield, who was diagnosed with lung cancer and passed away in 2007. Sheffield’s widow recovered $5 million in punitive damages. Now, she will go back to the trial court for a new trial on punitive damages.
Sheffield’s widow argued that in 1994, when her husband was diagnosed, he had fully mature causes of action that were pursued by the Engle class and then by her, so the 1999 amendments didn’t apply to her.
“We disagree,” Florida Supreme Court Chief Justice Charles Canady wrote. “Because our caselaw establishes that wrongful death actions are distinct from personal injury actions and that there can be no wrongful death ‘cause of action’ absent a death, we conclude that the causes of action here arose when Mr. Sheffield passed away in 2007 and are thus plainly governed by the 1999 amendments.”
Filed in the 1990s, the Engle class action netted a huge verdict, but it was struck down in 2006. However, the liability findings against the tobacco companies were preserved as individuals were allowed to pursue their own cases afterward, as long as they filed by 2007.

December 6, 2021
Smoker Awarded $6 Million in Engle Progeny Case

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A jury in Jacksonville, Florida, USA, awarded a former smoker with lung disease $6 million in a case against R.J. Reynolds Tobacco Co., reports The Florida Times-Union.
The case is part of a crop of lawsuits filed after the Florida Supreme Court decertified a large class action, known as Engle, in 2006 and required smokers to sue individually for injuries that appeared between 1990 and 1996. The recent suit is unusual because it is uncommon for plaintiffs in those cases to be still alive.
“Many Engle case victims do not live to see case verdicts such as this one, so it’s gratifying that in this instance Mrs. Wydra is indeed here to experience justice served,” said Rod Smith, Partner, Avera & Smith, which helped secure the award, in a statement.
Born in 1947, Kathleen Wydra became a regular smoker while in high school in the early 1960s and smoked up to two packs of cigarettes per day. She quit smoking in 1998, following a diagnosis of COPD in the mid-1990s.
Jurors decided that Kathleen Wydra had been negligent in smoking and bore 35 percent of the fault for her injuries, but that R.J. Reynolds carried the other 65 percent of the blame.
They set the price of those injuries at $1.5 million for suffering, disability and harm already incurred, plus another $1.5 million for suffering still ahead of her.
They also found that R.J. Reynolds agreed to conceal information about smoking’s harmful effects or its addictive nature, and said the company should pay punitive damages, which accounted for the other $3 million judgment.
November 22, 2021
Florida Supreme Court Asked to Revisit Engle

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The Florida Supreme Court will hear a case on June 2 that could make it harder to successfully sue cigarette makers, reports the Tampa Bay Times.
While the case focuses on an issue involving allegations that the tobacco industry conspired to conceal information about smoking, R.J. Reynolds Tobacco Co. and Philip Morris USA want to use the case to convince justices to reconsider the underlying 2006 decision that spurred roughly 8,000 “Engle progeny” cases, many of which are still tied up in court.
In 2019, a Florida appeals court overturned a $6.4 million award to the estate of John C. Price, who started smoking at age 12 and died at age 74 of chronic obstructive pulmonary disease. The appeals court objected to the way in which the jury had been instructed to weigh the evidence and ordered a new trial.
The ruling centered on a claim of conspiracy to conceal information about the dangers of smoking. The appeals court agree with R.J. Reynolds that the estate needed to show that Price relied to his “detriment” on a statement that concealed or omitted information.
While the outcome of the conspiracy issue could affect numerous Engle progeny cases, R.J. Reynolds and Philip Morris also have asked the Supreme Court to go beyond the appeals court ruling and revisit the 2006 decision. They have been backed by the Florida Justice Reform Institute, a group that lobbies the legislature and becomes involved in court cases to try to limit lawsuits.
The tobacco companies’ arguments come after a significant change at the Supreme Court since January 2019, when three liberal-leaning justices retired and were replaced by justices appointed by Republican Governor Ron DeSantis.
May 28, 2021
Law Firm: Florida Ruling a Cautionary Tale

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The recent Florida Supreme Court ruling that R.J. Reynolds must continue tobacco settlement payments to the state, despite having sold the cigarette brands in question, is a warning to settling parties that their agreements will be strictly construed, write Agustin Rodriguez and Dascher Pasco at Troutman Pepper.
This cautionary tale is important as state attorneys general and other regulators continue to resolve disputes via individual or multistate settlement agreements.
In December 2020, the Florida Supreme Court refused to take up R.J. Reynolds Tobacco Co.’s appeal of a ruling requiring the company to continue to make annual tobacco settlement payments to the state of Florida.
The court’s refusal to hear the case leaves in place, in perpetuity, Reynolds’ obligations to make payments under Florida’s 1997 tobacco settlement agreement on the volumes of certain cigarette brands that Reynolds sold to ITG Brands after its acquisition of Lorillard in 2015.
As a result, Reynolds’ parent company, British American Tobacco, took a $555 million charge and stands to owe more than $75 million per year in unanticipated settlement payments going forward.
A settlement agreement is a binding contract between the parties with effects that may very well impact future business decisions.
Agustin Rodriguez and Dascher Pasco
In their article, Rodriguez and Pasco explore the background of the case and the lessons that companies should draw from the episode.
“As demonstrated by the Reynolds case in Florida, a settlement agreement is a binding contract between the parties with effects that may very well impact future business decisions,” they write.
“In order to ensure future contracts have the desired effect, parties should not only carefully consider any past settlement’s requirements but also ensure that the later contracts clearly and adequately express the parties’ desired outcome.”
March 18, 2021
Florida Governor Vetoes Flavor Ban

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Florida Governor Ron DeSantis vetoed a bill to raise the age to buy tobacco products from 18 to 21 because it would have also banned the sale of flavored liquid nicotine products used in vaping.
DeSantis said that hundreds of thousands of Floridians vape as a lower risk alternative to smoking.
“This legislation would almost assuredly lead more people to resume smoking cigarettes and it would drive others to the hazardous black market,” DeSantis wrote, citing lung injury associated with black market products.
Federal law, he pointed out, already raised the age to buy tobacco to 21.
DeSantis said eliminating legal products for adults would not reduce youth vaping. He said it also would devastate small businesses that sell vapor products.
September 10, 2020
Court to Hear Arguments Over Disputed Florida Settlement Payments

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A U.S. appeals court will hear arguments today in a dispute about $100 million in payments related to a landmark legal settlement between the state of Florida and tobacco companies, reports Florida Politics.
R.J. Reynolds Tobacco Co. wants the 4th District Court of Appeal to overturn a ruling that said the company is responsible for making payments to the state related to the Salem, Winston, Kool and Maverick cigarette brands.
R.J. Reynolds was part of the 1997 settlement in which cigarette makers agreed to pay hundreds of millions of dollars a year to the state because of smoking-related health costs and, in exchange, received liability protections.
In 2015, Reynolds’ parent company sold the four brands to ITG Brands to gain regulatory approval for its acquisition of Lorillard Tobacco Co. As a result of the sale, R.J. Reynolds contends it is no longer responsible for making payments linked to the four brands.
A Palm Beach County circuit judge, however, ruled in 2017 that R.J. Reynolds remained responsible for the payments. Reynolds appealed that ruling, and its arguments will be heard today.
ITG Brands, which was not part of the 1997 legal settlement agreement, contends the appeals court should uphold the circuit judge’s ruling that R.J. Reynolds is responsible for the disputed payments.
June 9, 2020