Control of nicotine dispensing devices; grant of authority to Attorney General to create a directory of nicotine products attractive to minors.

(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.

(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. s. 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.