Regulatory Reform & Economic Development Subcommittee — Meeting Packet, January 11, 2024
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- 2024 01 11 3236 Regulatory Reform Economic Development Subcommittee Meeting Packets Fn Rrs
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- 2024 01 11 3236 Regulatory Reform Economic Development Subcommittee Meeting Packets Fn Rrs 1 11 24
Summary
The meeting packet of the Florida House of Representatives Commerce Committee's Regulatory Reform & Economic Development Subcommittee for its Thursday, January 11, 2024 meeting in Webster Hall, chaired by Tyler Sirois. The agenda lists HB 1 Social Media Use for Minors, HB 3 Online Access to Materials Harmful to Minors, HB 849 Veterinary Practices, HB 1377 and HB 1491 on public records of Department of Legal Affairs investigations, and a PCS for HB 433 on employment regulations. The packet opens with the House staff analysis of HB 1, which describes the bill's requirement that social media platforms prohibit children under the age of 16 from creating accounts and use independent third-party age verification. The packet closes with the text of the PCS for HB 433, including limits on local government heat exposure requirements and an effective date of July 1, 2024.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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Regulatory Reform & Economic
Development Subcommittee
Thursday, January 11, 2023
11:00 AM - 1:00 PM
Webster Hall (212 Knott)
Meeting Packet
Paul Renner Tyler Sirois
Speaker Chair
The Florida House of Representatives
Commerce Committee
Regulatory Reform & Economic Development Subcommittee
Paul Renner Tyler Sirois
Speaker Chair
Meeting Agenda
Thursday, January 11, 2024
11:00 am – 1:00 pm
Webster Hall (212 Knott)
I. Call to Order
II. Roll Call
III. Welcome and Opening Remarks
IV. Consideration of the following bill(s):
• HB 1 Social Media Use for Minors by Sirois
• HB 3 Online Access to Materials Harmful to Minors by Tramont
• HB 849 Veterinary Practices by Killebrew, Buchanan
• HB 1377 Pub. Rec./Investigations by the Department of Legal Affairs by Sirois
• HB 1491 Pub. Rec./Investigations by the Department of Legal Affairs by Tramont
V. Consideration of the following proposed committee substitute(s):
• PCS for HB 433 -- Employment Regulations
VI. Closing Remarks
VII. Adjournment
303 House Office Building, 402 South Monroe Street, Tallahassee, FL 32399-1300
(850) 717-4870
HB 1
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 1 Social Media Use for Minors
SPONSOR(S): Sirois and others
TIED BILLS: HB 1377 IDEN./SIM. BILLS: SB 1788
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development Wright Anstead
Subcommittee
2) Judiciary Committee
SUMMARY ANALYSIS
In 2023, an estimated 4.9 billion people worldwide used social media. Bipartisan groups, professional associations,
teachers and parents across the world have recently sounded the alarm about the dangers of social media use by
children. The U.S. Surgeon General and the American Psychological Association have issued advisories urging
action to protect children online.
Many experts have tied the increased use of social media in our society with the increase in rates of depression,
anxiety, and stress of adolescents. Studies also indicate that social media may trigger an array of negative emotions
in users that contribute to or worsen their depression symptoms.
The bill requires social media platforms to prohibit children under the age of 16 from creating an account and to
perform reasonable age verification methods to verify that the age of a person attempting to create an account is 16
years of age or older. The reasonable age verification method must be conducted by an independent third-party not
affiliated with the commercial entity, and any information used to verify age must be deleted after it is verified.
The bill requires a social media platform to do the following related to existing accounts belonging to a minor
younger than 16 years of age:
• Terminate any such account that it reasonably knows to be held by a minor younger than 16 years of age.
• Allow such an account holder or the confirmed parent or guardian to terminate the account.
• Permanently delete all personal information held by the social media platform relating to the terminated
account, unless there are legal requirements to maintain such information.
If the social media platform allows minors younger than 18 years of age to create an account on the platform, the bill
requires the platform to include a link on its Internet homepage or platform login page that contains:
• Disclosure of use of addictive designs, deceptive patterns, and manipulated images.
• Informative resources on suicide prevention, domestic violence, law enforcement, and bullying.
• A reporting mechanism related to bullying, harassment, and threats of violence or self-harm.
• Whether the platform collects or sells personal information of children and who it is sold to.
The bill does not apply to certain websites whose predominant function is:
• E-mail, Messaging, or Texts;
• Streaming services, News, Sports or Entertainment sites; and
• Online Shopping or Gaming.
The bill provides that, if a social media platform violates the requirements for minor users, it is an unfair and
deceptive trade practice actionable under Florida Deceptive and Unfair Trade Practice Act, solely by Department of
Legal Affairs. The bill also allows a private cause of action against a commercial entity that fails to prohibit or block a
minor from future access after a report of unauthorized or unlawful access.
The bill has no fiscal impact on local governments, and an indeterminate fiscal impact on state government.
The bill provides an effective date of July 1, 2024.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0001.RRS
DATE: 1/9/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Social Media Platforms
The term “social media” includes “forms of electronic communication (such as websites for social
networking and microblogging) through which users create online communities to share information,
ideas, videos, personal messages, and other content.” 1
In 2005, the year Facebook started, just 5% of American adults used social media platforms. By 2011,
that share had risen to half of all Americans, and by 2021, 72% of the public used some type of social
media. 2
Virtually all teens ages 13 to 17 use social media, with more than 1 in 3 reporting that they use it
“almost constantly.” While most U.S. social media platforms require users to be at least 13 years old,
nearly 40 percent of kids ages 8 to 12 use social media. 3
In less than a generation, social media has evolved from direct electronic information exchange, to a
virtual gathering place, retail platform, and marketing tool. What began as a desktop or laptop
experience shifted to mobile phones and tablets. With the advent of social media apps that could run on
smartphones, end users could take their communities with them wherever they went and use social
media at any time. 4
Some social media companies already prohibit kids under 13 from signing up to their platforms to
comply with federal requirements, but children may easily get around the bans, regardless of their
parents’ consent. 5 In fact, approximately 38% of children between the ages 8 to 12 and 84% of
teenagers between the ages of 13 and 18 are using social media. 6
Lawsuits Against Social Media Platforms
Evidence exists that social media platforms have intentionally created algorithms and other functions
deliberately designed to hold users' attention as long as possible, and tapping into psychological biases
and vulnerabilities relating to our desire for validation and fear of rejection. The platforms continue to do
so even though they are aware that too much passive use of social media, can be unhealthy. 7
1
Meriam-Webster, Dictionary, Definition, Social Media, https://www.merriam-webster.com/dictionary/social%20media (last visited
Jan. 8, 2024).
2
Pew Research Center, Social Media Fact Sheet, (Apr. 7, 2021), https://www.pewresearch.org/internet/fact-sheet/social-media/ (last
visited Jan. 8, 2024).
3
The Annie E. Casey Foundation, Social Media's Concerning Effect on Teen Mental Health, (Aug. 10, 2023),
https://www.aecf.org/blog/social-medias-concerning-effect-on-teen-mental-
health#:~:text=Numerous%20studies%20show%20that%20higher,poor%20body%20image%2C%20eating%20disorder (last visited
January 8, 2024).
4
Maryville University, The Evolution of Social Media: How Did It Begin, and Where Could It Go Next?, (May 28, 2020),
https://online.maryville.edu/blog/evolution-social-media/ (last visited Jan. 8, 2024).
5
Barbara Ortutay, Car seats and baby formula are regulated. Is social media next?, The Associated Press, May, 23, 2023,
https://apnews.com/article/surgeon-general-kids-social-media-teens-tiktok-instagram-443530d9baa3f91386bf9fbfb313bbaf (last
visited Jan. 9, 2024).
6
Shiv Sudhakar, Age 13 and younger is 'too early' for kids to be on social media, surgeon general admits, Fox News, Feb. 10, 2023,
https://www.foxnews.com/lifestyle/age-13-too-early-kids-social-media-surgeon-general (last visited Jan. 9, 2024).
7
Kraut R, Patterson M, Lundmark V, Kiesler S, Mukophadhyay T, Scherlis W., Internet paradox: a social technology that reduces
social involvement and psychological well-being?, Am Psychol., Sept. 1998, https://pubmed.ncbi.nlm.nih.gov/9841579/ (last visited
Jan. 8, 2024)
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On October 24, 2023, a group of 41 states and the District of Columbia, including Florida, filed suit
against Meta, 8 the parent company of Facebook, Instagram, WhatsApp, and Messenger, contending
that the company knowingly used features on its platforms to cause children to use them compulsively,
even as the company said that its social media sites were safe for young people. 9 The complaint
alleges that Meta took actions which qualify as a deceptive or unfair trade practice and which violate
the federal Children’s Online Privacy Protection Act. 10
The compliant states that “Meta has harnessed powerful and unprecedented technologies to entice,
engage and ultimately ensnare youth and teens. It’s motive is profit, and in seeking to maximize its
financial gains, Meta has repeatedly mislead the public about the substantial dangers of its social
media platforms” and Meta “has concealed the ways in which these platforms exploit and manipulate its
most vulnerable consumers: teenagers and children.” 11
Regarding the motivation for the suit, Florida Attorney General Ashley Moody stated that “Meta has
gone unchecked for too long, and our children are suffering the consequences of these unlawful
practices…I took action to stop Meta from targeting minors with addictive features to keep them online
for hours, collecting their data and other unlawful actions that harm teens’ mental health,” 12 and "It’s no
surprise to parents that children cannot stay off their phones. This has been shown to be very addictive
to children across the United States. It’s caused mental health problems and sleep problems." 13
Additionally, New York Attorney General Letitia James stated “Meta has profited from children’s pain by
intentionally designing its platforms with manipulative features that make children addicted to their
platforms while lowering their self-esteem….Social media companies, including Meta, have contributed
to a national youth mental health crisis and they must be held accountable.” 14
Effects of Social Media on Children
Social media has become an important aspect of a minor’s digital interactions, as they use it for
entertainment and communication purposes. 15 Adolescents are constantly in touch with their peers via
social media accounts. However, social media has the potential to have both positive and negative
effects on their health. 16
Children can see many benefits from using social media, including: 17
• Enhanced communication skills,
• Enhanced social connections,
• Making new friends and meaningful connections,
• Exchanging ideas and digital photos,
8
State of Florida v. Meta Platforms, Inc., Instagram, LLC, Case No. 8:23-cv-02412 (M.D. Fla.); State of Arizona, et al. v Meta
Platforms, Inc., Instagram LLC, Meta Payments, Inc., et al, Case No. 4:23-cv-05448 (N.D. Cal.). The cases have merged, and are still
pending.
9
State of Arizona, et al. v Meta, Id; Matt Richtel, Is Social Media Addictive? Here’s What the Science Say,. New York Times, Oct. 25,
2023, https://www.nytimes.com/2023/10/25/health/social-media-addiction.html (last visited Jan. 8, 2024).
10
Id.
11
Id.
12
Office of Attorney General Ashley, ATTORNEY GENERAL MOODY TAKES LEGAL ACTION AGAINST META TO
PROTECT CHILDREN, Oct. 24, 2023, https://www.myfloridalegal.com/newsrelease/attorney-general-moody-takes-legal-action-
against-meta-protect-children (last visited Jan. 9, 2024).
13
Craig Patrick, Florida among states suing Meta, claiming Facebook and Instagram are addicting to children, AOL,
https://www.aol.com/news/florida-among-states-suing-meta-224317028.html (last visited Jan. 9, 2024).
14
Amanda Bronstad, State AGs Sue Meta: Social Media 'Unsafe and Addictive' to Youth, ALM|Law.com,
https://www.law.com/therecorder/2023/10/24/state-ags-sue-meta-social-media-unsafe-and-addictive-to-
youth/?slreturn=20240009113225 (last visited Jan. 9, 2024).
15
Andrea Irmer & Florian Schmiedek, Associations between youth’s daily social media use and well-being are mediated by upward
comparisons, Communications Psychology, (Aug. 22, 2023), https://www.nature.com/articles/s44271-023-00013-0#citeas (last visited
Jan. 8, 2024).
16
Maya Dollarhide, Social Media: Definition, Effects, and List of Top Apps, Investopedia.com,
https://www.investopedia.com/terms/s/social-media.asp (last visited Jan. 6, 2024).
17
Id.
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• Developing a new interest, and experimenting with new forms of self-expression,
• Learning basic social and technical skills,
• Feelings of Inclusion,
• Interacting across geographic barriers, and
• Humor.
Common risks from using social media include: 18
• Depression,
• Increased stress,
• Social withdrawal,
• Anxiety,
• Poor body image,
• Loneliness,
• Low self-esteem,
• Exposure to harmful or inappropriate content,
• Exposure to dangerous people,
• Cyberbullying, 19
• Sexting,
• Oversharing personal or private information,
• Exposure to excessive advertisements,
• Identity theft or being hacked,
• Interference with sleep, exercise, homework, or family activities,
• Drama,
• Social pressure,
• Suicidal thoughts or suicide,
• Negative influence on cognitive ability, and
• Negative school performance.
Children use social media to find community, 20 but their mental health may be negatively affected.
Deterioration in mental health is one of the side effects stemming from social media overuse. The link
between social-media use, depression, and loneliness has been causally linked or proven by
psychologists showing that an increase in use causes a decrease in well-being.
In May 2023, U.S. Surgeon General Dr. Vivek Murthy released an advisory to call attention to the
effects of social media on youth mental health. The Advisory noted that at crucial periods of adolescent
brain development, social media use is predictive of decreases in life satisfaction, as well as additional
concerns around body image, sleep issues, and much more. 21 He has also concluded that 13 years old
is “too early” for children to use social media, despite most social media companies allowing 13-year-
olds to use their platforms. In early adolescence, kids are still “developing their identity, their sense of
self.” 22
Other experts agree. David Greenfield, a psychologist, said the platforms lure users with powerful
tactics. One is “intermittent reinforcement,” which creates the idea that a user could get a reward at any
18
Loyola Medicine, Social Media Safety for Kids and Teens, https://www.loyolamedicine.org/about-us/blog/social-media-safety-kids-
teens, (last visited Jan. 6, 2024); Is social media bad for mental health and wellbeing? Exploring the perspectives of adolescents.
O'Reilly M, Dogra N, Whiteman N, Hughes J, Eruyar S, Reilly P. Clin Child Psychol Psychiatry. 2018;23:601–613.
19
Research shows that victims of cyberbullying are more likely to use alcohol and drugs and skip school than other students. They
also are more likely to receive poor grades and experience low self esteem and health problems. In extreme situations, cyberbullying
has led to suicide. Fisher BW, Gardella JH, Teurbe-Tolon AR, Peer cybervictimization among adolescents and the associated
internalizing and externalizing problems: a meta-analysis.. J Youth Adolesc., Jul. 22, 2016,
https://pubmed.ncbi.nlm.nih.gov/27447707/ (last visited Jan. 8, 2024).
20
Pew Research Center, Teens’ Social Media Habits and Experiences, https://www.pewresearch.org/internet/2018/11/28/teens-social-
media-habits-and-experiences/, (last visited Jan. 6, 2024).
21
"Social Media and Youth Mental Health," The US Surgeon General's Advisory, May 2023.
22
Lauraine Langreo, EducationWeek, Surgeon General: Kids Under 14 Should Not Use Social Media, Feb. 2, 2023,
https://www.edweek.org/leadership/surgeon-general-kids-under-14-should-not-use-social-media/2023/02 (last visited Jan. 6, 2024).
STORAGE NAME: h0001.RRS PAGE: 4
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time, but when the reward comes is unpredictable. Adults are susceptible, but young people are
particularly at risk, because the brain regions that are involved in resisting temptation and reward are
not nearly as developed in children and teenagers as in adults. 23
Examples of studies and reports that have shown the dangers of social media use by children include:
• One study conducted by social media and psychology scholars found a link between social
media use and poor mental health, especially among girls. The study demonstrated that girls
experience a consistent and substantial association between mental health and social media,
and such associations were stronger than links between mental health and binge drinking,
sexual assault, obesity, and hard drug use. 24
o Dr. Jean Twenge, a generational trends scholar, saw the beginning of a mental health
crisis starting in 2012 when reviewing mental health metrics that showed rates of
depression, anxiety and loneliness were rising, which she points out coincides with the
fast rise in use of smartphones in 2012 and all the social media that comes along with
them. 25
• Another study found that social media use causes children to be more sensitive to anticipating
social risks: While children generally become more attuned to social interactions as they enter
adolescence, those who are frequent, early social media users become particularly sensitive to
anticipating social risks and rewards from their peers. 26
o The researchers found that “habitual” social media users, or those who checked their
social feeds 15 times a day or more, responded quicker and more intensely to perceived
good or bad emotions from peers, compared to students who checked once a day or
less. 27
• A recent report by the Wall Street Journal outlined internal Meta research showing that
Instagram conducted online surveys, diary studies, focus groups, and large-scale
questionnaires, which showed that 32 percent of teenage girls reported that Instagram made
them have a worse body image. Of research participants who experienced suicidal thoughts, 13
percent of British teens and 6 percent of American teens directly linked their interest in suicide
to Instagram. 28
• Several studies have also tied the advent of the smartphone, where the majority of children are
accessing social media, to increased rates of depression especially among girls. 29 Since 2019,
rates of depression especially among young girls has skyrocketed. In 2021, more than 40
percent of high school students reported depressive symptoms, with girls reporting even higher
rates of poor mental health and suicidal thoughts, according to data from the U.S. Centers for
Disease Control and Prevention (CDC). 30
o According to the CDC, nearly one in three high school girls considered suicide in 2021, a
60 percent increase since 2011, teen depression doubled between 2010 and 2019, and
23
Matt Richtel, New York Times, Is Social Media Addictive? Here’s What the Science Says. (Oct. 25, 2023),
https://www.nytimes.com/2023/10/25/health/social-media-addiction.html (last visited Jan. 8, 2024).
24
Haidt, J., Rausch, Z., & Twenge, J., Social Media and Mental Health: A Collaborative Review, New York University,
https://jonathanhaidt.com/reviews/ (last visited Jan. 8, 2024).
25
Michaeleen Doucleff, The truth about teens, social media and the mental health crisis, NPR Health Shots, Apr. 25, 2023,
https://www.npr.org/sections/health-shots/2023/04/25/1171773181/social-media-teens-mental-health (last visited Jan. 8, 2024).
26
Sarah D. Sparks, Preteens’’ Social Media Habits Could Be Changing Their Brains, Education Week, Jan. 6, 2023,
https://www.edweek.org/leadership/preteens-social-media-habits-could-be-changing-their-brains/2023/01 (last visited Jan. 6, 2024);
Maria T. Maza, BS; Kara A. Fox, MA; Seh-Joo Kwon, BS; et al, Association of Habitual Checking Behaviors on Social Media With
Longitudinal Functional Brain Development, JAMA Pediatrics, (Jan. 3, 2023),
https://jamanetwork.com/journals/jamapediatrics/article-abstract/2799812 (last visited Jan. 6, 2024).
27
Maria T. Maza, supra note 26.
28
Taylor Hatmaker, Facebook knows Instagram harms teens. Now, its plan to open the app to kids looks worse than ever,
TechCrunch.com, https://techcrunch.com/2021/09/16/facebook-instagram-for-kids-mosseri-wsj-teen-girls/ (last visited Jan. 6, 2024).
29
Nesi J, Prinstein MJ., Using social media for social comparison and feedback-seeking: gender and popularity moderate
associations with depressive symptoms. J Abnorm Child Psychol., Nov. 2015, https://pubmed.ncbi.nlm.nih.gov/25899879/ (last visited
Jan. 8, 2024).
30
Fardouly J, Vartanian LR, Social media and body image concerns: current research and future directions, Curr. Opin. Psychol.,
2016, https://www.sciencedirect.com/science/article/abs/pii/S2352250X15002249 (last visited Jan. 8, 2024).
STORAGE NAME: h0001.RRS PAGE: 5
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emergency room admissions for self-harm among 10- to 14-year-old girls tripled
between 2009 and 2015. 31
• A study on the effects of social media use on mental health during adolescent development
indicates that there are two windows of time when children are most sensitive to detrimental
effects of social media, and when higher estimated social media use predicts a decrease in life
satisfaction ratings a year later. For girls, the windows occur at ages 11 through 13, and 19; and
for boys, the windows occur at ages 14 through 15, and 19. 32
Based on these studies and scientific research, many experts have called for the regulation of social
media and specifically regulation of the use of social media by children. Dr. Mary Alvord, a member of
the American Psychological Association social media advisory panel, states that just because social
media is here to stay, doesn’t “mean we have to accept its dangers. Just as we decide when kids are
old enough to drive, and we teach them to be good drivers, we can establish guidelines and teach
children to use social media safely.” 33
Safety Measures and Parental Controls
Providing children with information on ways to more safely use social media may decrease the harm
they experience. Having conversations about social media, its benefits, and its risks, may help promote
positive social media usage. 34 Parental controls may also help protect children from inappropriate
content, cyberbullying and other online safety issues. 35 Examples of parental controls include blocking
websites, filtering content, imposing limits on screen time, allowing parents to monitor online activity,
location tracking, and disabling Wi-Fi. 36
However, two studies at the University of Central Florida found that parental control apps may actually
be counterproductive, harming the trust between a parent and child and reducing the child’s ability to
respond to online threats. In one of the studies, children found the apps overly restrictive and prevented
them from doing everyday tasks, such as homework assignments. Additionally, a researcher stated that
“parental involvement and direct supervision were both associated with fewer peer problems and less
online victimization for teens, but neither of these factors correlated with the use of parental control
apps.” 37
Social Media and Addictive Designs and Deceptive Patterns
In general, addictive designs or deceptive patterns, also called dark patterns, are deceptive user
experiences that take advantage of how people habitually use websites to get people to do something
they may not normally do, such as impulse purchasing, giving away personal information, or spending
excessive time on a website. 38 Examples include autoplay, when a video website automatically plays
31
Centers for Disease Control and Prevention, U.S. Teen Girls Experiencing Increased Sadness and Violence (Feb. 13, 2023),
https://www.cdc.gov/media/releases/2023/p0213-yrbs.html (last visited Jan. 8, 2024)
32
Kirsten Weir, Social media brings benefits and risks to teens. Here’s how psychology can help identify a path forward, American
Psychological Association (Sep. 1, 2023), https://www.apa.org/monitor/2023/09/protecting-teens-on-social-
media#:~:text=During%20those%20windows%E2%80%94around%2011,1649%2C%202022). (last visited Jan. 8, 2023).
33
Kirsten Weir, supra note 32.
34
WebMD Editorial Contributors, How to Talk to Your Kids About Social Media, WebMD.com,
https://www.webmd.com/parenting/how-to-talk-to-kids-about-social-media (last visited Jan. 6, 2024).
35
Internetmatters.org, Parental Controls, https://www.internetmatters.org/parental-controls/ (last visited Jan. 6, 2024).
36
Caroline Knorr, Commonsensemedia.org, Parents’ Ultimate Guide to Parental Controls,
https://www.commonsensemedia.org/articles/parents-ultimate-guide-to-parental-controls (last visited Jan. 6, 2024).
37
Barbara Abney and Zenaida Kotala, Apps to Keep Children Safe Online May be Counterproductive, UCF Today, Apr. 2, 2018,
https://www.ucf.edu/news/apps-keep-children-safe-online-may-counterproductive/ (last visited Jan. 9, 2024).
38
Brad Bartlett, Dark Design Patterns: Teach Kids to Recognise Them, Kidslox, Feb. 7, 2023, https://kidslox.com/guide-to/dark-
design-patterns (last visited Jan. 6, 2024).
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new videos in succession as a default setting; 39 and infinite scroll, when a website allows users to scroll
endlessly through content, rather than clicking through pages. 40
In 2022, the Federal Trade Commission (FTC) issued a report outlining the ways that companies are
increasingly using dark patterns to manipulate consumers into buying products or giving up their
privacy. 41 Common dark pattern tactics include:
• Disguising Ads, which includes advertisements designed to look like independent, editorial
content; comparison shopping sites that claim to be neutral but really rank companies based on
compensation; and countdown timers designed to make consumers believe they only have a
limited time to purchase a product or service when the offer is not actually time-limited.
• Making it difficult to cancel subscriptions or charges, which involves tricking someone into
paying for goods or services without consent.
• Burying key terms and junk fees, which involves hiding or obscuring material information from
consumers that consumers don’t see before making a purchase.
• Tricking consumers into sharing data, which involves falsely giving consumers choices about
privacy settings or sharing data, and instead steer consumers toward the option that gives away
the most personal information. 42
Recently, FTC has filed complaints against several companies for using dark patterns as a deceptive
trade practice. 43 For example, the FTC has taken action against Twitter (now X), alleging it deceptively
used account security information to sell targeted advertisements. 44 Additionally, the FTC filed a
complaint against Amazon, alleging use of dark patterns to deceive users into subscribing to a premium
service. 45 Both cases are still pending.
Age Verification Mechanisms
There are several ways that Internet companies verify, or attempt to verify, age. Options include
using: 46
• Government identity documents, which generally requires the user to submit a government
document or a third party to the company for review.
• Phone records, which generally checks the user’s phone for parental controls.
• Credit score databases, which generally requires the user to enter identifying information, which
is then confirmed through a credit check agency.
• Biometric age estimation, which generally requires a facial analysis to estimate age.
• Credit cards, which generally requires to supply credit card information for validation.
39
Rene Otto, Autoplay and infinite scroll, Medium, https://rene-otto.medium.com/autoplay-and-infinite-scroll-
8607abe52bb7#:~:text=nobody%20asked%20for%20autoplay%20video,%3A%20stealing%20your%20attention%20back.%E2%80%
9D (last visited Jan. 6, 2024).
40
Erin Rupp, The Infinite Scroll: Why It’s So Addictive and How to Break Free, Freedom.to, Feb. 28, 2022, The Infinite Scroll: Why
It’s So Addictive and How to Break Free - Freedom Matters (last visited Jan. 6, 2024).
41
Federal Trade Commission, FTC Report Shows Rise in Sophisticated Dark Patterns Designed to Trick and Trap Consumers, Sep.
15, 2022, https://www.ftc.gov/news-events/news/press-releases/2022/09/ftc-report-shows-rise-sophisticated-dark-patterns-designed-
trick-trap-consumers (last visited Jan. 9, 2024).
42
Id.
43
Frank Gorman, Benjamin Chapin, Reade Jacob, and Julia May, FTC Targets “Dark Patterns” in Actions Against Amazon and
Publishers Clearing House, WilmerHale, https://www.wilmerhale.com/insights/client-alerts/20230814-ftc-targets-dark-patterns-in-
actions-against-amazon-and-publishers-clearing-house (last visited Jan. 6, 2024).
44
Federal Trade Commission, FTC Charges Twitter with Deceptively Using Account Security Data to Sell Targeted Ads, May 25,
2022, https://www.ftc.gov/news-events/news/press-releases/2022/05/ftc-charges-twitter-deceptively-using-account-security-data-sell-
targeted-ads (last visited Jan. 9, 2024).
45
Federal Trade Commission, FTC Takes Action Against Amazon for Enrolling Consumers in Amazon Prime Without Consent and
Sabotaging Their Attempts to Cancel, Jun. 21, 2023, https://www.ftc.gov/news-events/news/press-releases/2023/06/ftc-takes-action-
against-amazon-enrolling-consumers-amazon-prime-without-consent-sabotaging-their (last visited Jan. 6, 2024).
46
The Age Verification Providers Association, How do you check age online?, https://avpassociation.com/avmethods/ (last visited
Jan. 7, 2024).
STORAGE NAME: h0001.RRS PAGE: 7
DATE: 1/9/2024
• Open banking, which generally requires the user to log into their own online banking system,
and give approval for date of birth data to be supplied to a bank-approved third party age
verification provider.
• Algorithmic profiling, which generally assesses the likely age of a user based on their online
behavior.
• Self-declaration, which generally requires the user to tick a box or self-enter a birthdate.
• Zero knowledge proofs, which generally enables users to upload identity documents to privacy
servers and securely share encrypted, anonymous “proofs” of age to a company, through a
process called hashing, without actually transmitting the identity documents to the company. 47
Many industries are required to use age verification methods, including for:
• Using tobacco, 48
• Engaging in gambling, 49
• Consuming alcohol, 50 and
• Purchasing firearms. 51
When verifying age online, people usually share personal information, including:
• Full name and location.
• Email or phone number (when using two-factor authorization).
• Home address.
Some social media platforms ask for age identifying information to create an account, but such
information is not always verified. For example, Facebook requires new users to self-report a birthdate
to confirm age of at least 13 years old. However, Meta is currently testing new ways to age verify,
including through the use of biometrics and online interviews. 52
Additionally, adult websites in the United States generally use a checkbox for a user to confirm they are
at least 18 years of age. Recently, however, several states and the United Kingdom passed laws to
require adult websites to use age verification measures to block adult content from being accessed by
minors. 53
Identity theft is a potential risk when users reveal this information, and websites can collect the
information revealed through age verification processes and combine it with other data for targeted
advertisements or sharing that data with third parties. 54
However, there are numerous minimally invasive verification techniques that do not require sharing any
age verification information at all with social media platforms. For instance, a trusted third party could
verify age and provide a QR code or similar device to the social media platform, establishing age
47
Bessie Liu, Aleo blockchain adds zPass, a ZK protocol for verifying identities, Blockworks, https://blockworks.co/news/zk-
decentralized-identity-verification (last visited Jan. 6, 2024).
48
S. 569.14, F.S. Additionally, the U.S. Food and Drug Administration (FDA) recommends using independent, third-party age- and
identity-verification services that compare customer information against third-party data sources for online sellers of tobacco. FDA,
Enforcement Priorities for Electronic Nicotine Delivery Systems (ENDS) and Other Deemed Products on the Market Without
Premarket Authorization (Revised), p. 7, April 2020, https://www.fda.gov/media/133880/download (last visited Jan. 9, 2024).
49
S. 551.113(1), F.S.; S. 849.0931(10), F.S.
50
S. 84
51
S. 790.065, F.S.
52
Meta, Introducing New Ways to Verify Age on Instagram, Jun. 23, 2022, https://about.fb.com/news/2022/06/new-ways-to-verify-
age-on-instagram/ (last visited Jan. 9, 2024).
53
Masha Borak, UK introduces Online Safety Bill mandating age verification, Oct. 27, 2023,
https://www.biometricupdate.com/202310/uk-introduces-online-safety-bill-mandating-age-
verification#:~:text=The%20United%20Kingdom%20has%20finally,checking%20measures%2C%20including%20biometric%20tech
nology. (last visited Jan. 9, 2024); Dmytro Sashchuk, Age verification regulations in the United States of America, Veriff, (Nov. 15,
2023), https://www.veriff.com/fraud/learn/age-verification-legalization-in-the-united-states-of-america (last visted Jan. 7, 2024).
54
John Reynolds, Don’t risk identity fraud just to play that video game — do this instead, Aleo, https://aleo.org/post/dont-risk-
identity-fraud-to-play-that-video-
game/#:~:text=The%20risks%20of%20today's%20age,public%20records%2C%20or%20ID%20scans) (last visited Jan. 7, 2024).
STORAGE NAME: h0001.RRS PAGE: 8
DATE: 1/9/2024
without the platform even seeing the age verification documents or even the user’s identity. 55 Experts
argue that age verification systems have progressed considerably from a generation ago. 56
Age fabrication is a widespread issue. For example, underage customers in the United States
consumed 11.73% of all alcoholic drinks sold in the U.S. market in 2016, and 49.8% of tobacco and
vape shops in California failed to check the ID of underage decoys in 2018. 57
Florida’s Social Media Laws for Children
Requirements for Social Media and Phones in Schools
In 2023, the Legislature passed a law 58 that requires students in grades 6 through 12 to receive
instruction on the social, emotional, and physical effects of social media. The instructional materials
must be available online, and district school boards must notify parents of the material’s availability. 59
The law also prohibits students from using wireless communications devices at school during
instructional time, except when expressly directed by a teacher solely for educational purposes and
requires a teacher to designate an area for wireless communications devices during instructional
time. 60
Protection of Children in Online Spaces Act (PCOSA)
In 2023, the Legislature passed PCOSA, 61 which provides that any online service, product, game, or
feature likely to be predominantly accessed by children under 18 years of age may not, except
under certain situations: 62
• Process personal information of or profile a child.
• Collect, sell, share, or retain personal information or geolocation of a child.
• Use a child’s personal information for any unstated reason.
• Use dark patterns to obtain more information of a child than necessary.
• Use collected information to estimate age for any other reason.
Social Media Use by Children - Laws in Other States
In March 2023, Utah became the first state to adopt laws regulating kids’ access to social media. 63 This
legislative action was rapidly followed by several states, including Arkansas, Louisiana, Ohio, and
Texas, with numerous others contemplating similar measures. 64
According to the Utah law, effective March 1, 2024, a social media company must: 65
• Verify the age of a Utah resident seeking to maintain or open an account,
• Get parental consent before minors under 18 can open or maintain their current account, and
55
The Federalist Society, Age Verification for Social Media: A Constitutional and Reasonable Regulation (Aug. 7, 2023),
https://fedsoc.org/commentary/fedsoc-blog/age-verification-for-social-media-a-constitutional-and-reasonable-regulation (last visited
Jan. 8, 2024).
56
Broadband Breakfast, Improved Age Verification Allows States to Consider Restricting Social Media, Nov. 20, 2023, Improved Age
Verification Allows States to Consider Restricting Social Media – Broadband Breakfast (last visited Jan. 9, 2023).
57
Persona, Age verification system: How to add it into your business, https://withpersona.com/blog/incorporate-age-verification-into-
business (last visited Jan. 9, 2024).
58
Ch. 2023-36, L.O.F.
59
S. 1003.42(2)(o)5.a., F.S.
60
S. 1006.07(2)(f), F.S.
61
Ch. 2023-201, L.O.F.
62
S. 501.1735, F.S.
63
Ch. 498, Laws of Utah 2023.
64
Act No. 441, 2023 La. Acts; Tex. H.B. 18 (2023); 2023 Ark. Acts 689; Ohio House Bill 33 - 135th General Assembly.
65
Lisa M. Thomas, Snehal Desai, and Kathryn Smith, The Beehive State Joins the Buzz Around Minors and Social Media, The
National Law Review, Dec. 26, 2023, https://www.natlawreview.com/article/beehive-state-joins-buzz-around-minors-and-social-
media (last visited Jan. 7, 2024).
STORAGE NAME: h0001.RRS PAGE: 9
DATE: 1/9/2024
• Deny access to existing users who do not verify their age within 14 days of trying to access their
account.
Related to account limitations and parental controls, a social media company: 66
• Must give a minor’s parents or guardians access to all posts, messages, and responses.
• Cannot display advertising to minors.
• May not allow minors to engage in direct messaging to individuals outside their platform friend
group.
• Must prohibit minors from accessing their accounts between 10:30pm and 6:30am.
The law has recently been challenged on First Amendment grounds. 67 NetChoice, a tech industry
group, claims the provisions amount to a “unconditional attempt to regulate both minors’ and adults’
access to, and ability to engage in, protected expression.” The case is still pending. 68
However, similar cases challenging a similar law in Arkansas resulted in the law being preliminarily
enjoined, meaning it is not in effect, pending an appeal. 69 The court found that the law placed too high a
burden on adults and children attempting to access protected content, and was impermissibly vague as
to whom the bill applies. 70
Child-Focused Online Privacy Laws
Children’s Online Privacy Protection Act (COPPA)
COPPA 71 and its related rules, is a federal law that regulates websites’ collection and use of children’s
information. The operator of a website or online service that is directed to children, or that has actual
knowledge that it collects children’s personal information (covered entities), must comply with
requirements regarding data collection and use, privacy policy notifications, and data security.
A covered entity may not collect personal information from a child under the age of 13 without the
prior, verifiable consent of his or her parent. 72
COPPA requires covered entities to: 73
• Give parents direct notice of their privacy policies, including a description of their data collection
and sharing practices;
• Post a clear link to their privacy policies on their home page and at each area of their website
where they collect personal information from children;
• Institute procedures to protect the personal information that they hold;
• Ensure that any third party with which they share collected personal information implements the
same protection procedures; and
• Delete children’s personal information after the purpose for its retention has been fulfilled.
Violations of COPPA are deemed an unfair or deceptive act or practice and may therefore be federally
prosecuted by the FTC. COPPA also authorizes state attorneys general to enforce violations that affect
66
Id.
67
NetChoice, LLC v. Reyes, D. Utah, Case No. 2:23-cv-00911.
68
Mack Degeurin, Tech trade group sues over ‘unconstitutional’ Utah teen social media curfew law, Popular Science,
https://www.popsci.com/technology/lawsuit-utah-teen-social-media-
curfew/#:~:text=NetChoice%2C%20in%20a%20suit%20filed,age%20verification%20requirement%2C%20which%20NetChoice (last
visited Jan. 8, 2024).
69
NetChoice v. Griffin, 2023 WL 5660155 (W.D. Ark. 2023).
70
Id.
71
16 C.F.R. pt. 312.
72
15 U.S.C. ss. 6502(a)-(b).
73
See, Federal Trade Commission, General Questions About the COPPA Rule: What is the Children’s Online Privacy Protection
Rule?, https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions-0 (last visited Jan. 6,
2024).
STORAGE NAME: h0001.RRS PAGE: 10
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residents of their states. There is no criminal prosecution or private right of action provided for under
COPPA. 74
In 2019, Google and its subsidiary YouTube, agreed to pay a $170 million settlement for lawsuits from
the FTC and New York for violations of COPPA for collected personal information from children without
consent. Specifically, it was alleged that YouTube tracked persistent identifiers, commonly known as
cookies, from viewers of child-directed channels, without first notifying parents and getting their
consent. YouTube earned millions of dollars by using the identifiers, to deliver targeted ads to viewers
of these channels. 75
California Age-Appropriate Design Code Act
In 2022, California passed a combination social media and data privacy law that prohibits social media
platforms from showing children advertising. California adopted the California Age-Appropriate Design
Code Act (CAADCA) 76 legislation modelled on the United Kingdom’s Age Appropriate Design Code, 77
which requires online platforms to adhere to strict default privacy and safety settings that protect the
best interest of children. 78 CAADCA covers children under 18 years of age and will be effective July 1,
2024. 79
CAADCA requires certain businesses that provide an online service, product, or feature that is likely to
be accessed by children to comply with several new requirements and restrictions, including: 80
• Prohibitions on using any personal information that it knows or should know is materially
detrimental to a child’s physical or mental health and/or wellbeing; and
• Prohibitions on obscuring user interface features to deliberately defeat consent or manipulate
children into providing unnecessary personal information, or using dark patterns.
The law has recently been challenged on several grounds, including on the First Amendment and
Supremacy Clause, and has been preliminarily enjoined. 81 A similar law has since been adopted in
Utah. 82
European Union - Social Media and Data Privacy Laws for Children
In 2015, the European Union (E.U.) passed a law to require member states to require parental consent
for a child to access social media. The E.U. mandates that at a minimum, such parental consent
requirements must apply to children 13 years old and younger, and may apply to children up to 16 and
younger. 83
In 2023, the E.U. passed the Digital Services Act, which currently applies to 19 of the largest Internet
companies, including Meta, Apple, TikTok, and Google. The law, in part, requires such companies to
74
Id.
75
Federal Trade Commission, Google and YouTube Will Pay Record $170 Million for Alleged Violations of Children’s Privacy Law,
Sep. 4, 2019, https://www.ftc.gov/news-events/news/press-releases/2019/09/google-youtube-will-pay-record-170-million-alleged-
violations-childrens-privacy-law (last visited Jan. 9, 2024).
76
Cal. Civil Code § 1798.99.28-.35.
77
5Rights Foundation, California follows UK lead as child data protection law is passed, https://5rightsfoundation.com/in-
action/california-follows-uk-lead-as-child-data-protection-law-is-passed.html (last visited Jan. 7, 2024).
78
Office of Governor Gavin Newsome, Governor Newsom Signs First-in-Nation Bill Protecting Children’s Online Data and Privacy,
https://www.gov.ca.gov/2022/09/15/governor-newsom-signs-first-in-nation-bill-protecting-childrens-online-data-and-privacy/ (last
visited Jan. 7, 2024).
79
Cal. Civil Code § 1798.99.28-.35
80
Briana Kelly, Nelson Mullins Riley & Scarborough LLP, State of California Passes Bill to Protect Children Online, Jan. 26, 2023,
https://www.lexology.com/library/detail.aspx?g=e4c49600-b850-4d8f-a68a-117acf89972f (last visited Jan. 7, 2024).
81
NetChoice, LLC v. Bonta, 2023 WL 6135551(N.D. Cal 2023).
82
Ch. 477, Laws of Utah 2023.
83
Diana Graber, Europeans Teach Us a Lesson About Banning Teens From Social Media, HuffPost, Dec. 21, 2015,
https://www.huffpost.com/entry/europeans-teach-us-a-less_b_8854802 (last visited Jan. 6, 2024).
STORAGE NAME: h0001.RRS PAGE: 11
DATE: 1/9/2024
prevent harmful content from spreading on their platforms and share certain internal data with
regulators and associated researchers. 84
The law, which became effective January 1, 2024, compels such tech companies to set up new policies
and procedures to remove flagged hate speech, terrorist propaganda, and other material defined as
illegal by countries within the E.U. 85
Florida Deceptive and Unfair Trade Practices Act (FDUTPA)
FDUTPA is a consumer and business protection measure that prohibits unfair methods of competition,
unconscionable acts or practices, and unfair or deceptive acts or practices in trade or commerce. 86
FDUTPA was modeled after the Federal Trade Commission (FTC) Act. 87
The Department of Legal Affairs (DLA) or the Office of the State Attorney (SAO) may bring actions on
behalf of consumers or governmental entities when it is a matter of public interest. 88 The SAO may
enforce violations of FDUTPA if the violations take place within its jurisdiction. The DLA has
enforcement authority when the violation is multi-jurisdictional, the state attorney defers to the DLA in
writing, or the state attorney fails to act within 90 days after a written complaint is filed. 89 In certain
circumstances, consumers may also file suit through private actions. 90
The DLA and the SAO have powers to investigate FDUTPA claims, which include: 91
• Administering oaths and affirmations;
• Subpoenaing witnesses or matter; and
• Collecting evidence.
The DLA and the State Attorney, as enforcing authorities, may seek the following remedies:
• Declaratory judgments;
• Injunctive relief;
• Actual damages on behalf of consumers and businesses;
• Cease and desist orders; and
• Civil penalties of up to $10,000 per willful violation. 92
FDUTPA may not be applied to certain entities in certain circumstances, including: 93
• Any person or activity regulated under laws administered by the Office of Insurance Regulation
or the Department of Financial Services; or
• Banks, credit unions, and savings and loan associations regulated by the Office of Financial
Regulation or federal agencies.
84
Martin Coulter, Big Tech braces for EU Digital Services Act regulations, Reuters (Aug. 24, 2023),
https://www.reuters.com/technology/big-tech-braces-roll-out-eus-digital-services-act-2023-08-24/ (last visited Jan. 6, 2024).
85
Adam Satariano, E.U. Takes Aim at Social Media’s Harms With Landmark New Law, The New York Times, Apr. 22, 2022,
https://www.nytimes.com/2022/04/22/technology/european-union-social-media-law.html (last visited Jan. 6, 2024).
86
Ch. 73-124, L.O.F.; s. 501.202, F.S.
87
D. Matthew Allen, et. al., The Federal Character of Florida’s Deceptive and Unfair Trade Practices Act, 65 U. MIAMI L. REV.
1083 (Summer 2011).
88
S. 501.207(1)(c) and (2), F.S.; see s. 501.203(2), F.S. (defining “enforcing authority” and referring to the office of the state attorney
if a violation occurs in or affects the judicial circuit under the office’s jurisdiction; or the Department of Legal Affairs if the violation
occurs in more than one circuit; or if the office of the state attorney defers to the department in writing; or fails to act within a
specified period); see also David J. Federbush, FDUTPA for Civil Antitrust: Additional Conduct, Party, and Geographic Coverage;
State Actions for Consumer Restitution, 76 FLORIDA BAR JOURNAL 52, Dec. 2002 (analyzing the merits of FDUPTA and the potential
for deterrence of anticompetitive conduct in Florida), available at
http://www.floridabar.org/divcom/jn/jnjournal01.nsf/c0d731e03de9828d852574580042ae7a/99aa165b7d8ac8a485256c8300791ec1!O
penDocument&Highlight=0,business,Division* (last visited on Jan. 6, 2024).
89
S. 501.203(2), F.S.
90
S. 501.211, F.S.
91
S. 501.206(1), F.S.
92
Ss. 501.207(1), 501.208, and 501.2075, F.S. Civil Penalties are deposited into general revenue. Enforcing authorities may also
request attorney fees and costs of investigation or litigation. S. 501.2105, F.S.
93
S. 501.212(4), F.S.
STORAGE NAME: h0001.RRS PAGE: 12
DATE: 1/9/2024
Effect of Proposed Changes
The bill provides the following definitions:
• "Account holder" means a resident of this state who has or opens an account or creates
a profile or other form of identification to use or access a social media platform.
• "Reasonable age verification method" means any commercially reasonable method
regularly used by government agencies or businesses for the purpose of age and
identity verification.
• "Social media platform:"
o Means an online forum offered by an entity that has the ability to track the activity
of an account holder or user, if the online forum allows the account holder or user
to do all of the following:
Create or use a profile, account, or other form of identification.
Upload content or view the content or activity of other account holders.
Interact with or track other account holders or users.
The bill requires a social media platform to prohibit a minor who is younger than 16 years of age from
creating a new account on the social media platform.
The bill requires a social media platform to use a reasonable age verification method to verify the age
of each account holder on the social media platform at the time a new account is created. If the age is
not verified, the account must be denied. Such reasonable age verification method must be conducted
by an independent, third-party not affiliated with the social media platform.
Any personal identifying information used to verify age may not be:
• Retained by the third party or social media platform once the age has been verified.
• Used for any other purpose.
The bill requires a social media platform to do the following related to existing accounts belonging to a
minor younger than 16 years of age:
o Terminate any such account that is reasonably known by the social media platform to be
held by a minor younger than 16 years of age.
The social media platform must provide a minimum of 90 days for an account
holder to dispute such termination by verifying age.
o Allow such an account holder to request to terminate the account.
Such termination must be effective within 5 business days after such request.
o Allow the confirmed parent or guardian of such an account holder to request the minor's
account be terminated.
Such termination must be effective within 10 business days after such request.
o Permanently delete all personal information held by the social media platform relating to
the terminated account, unless there are legal requirements to maintain such
information.
If the social media platform allows minors younger than 18 years of age to create an account on the
platform, the bill requires the platform to include a clearly labeled, conspicuous, and readily accessible
link on its Internet homepage or platform login page that:
• Discloses the following social media platform policies in a manner that is clearly, concisely,
prominently, and understandably written using language suited to the age of users who are
younger than 18 years of age likely to routinely access the platform without unrelated,
confusing, or contradictory materials:
o The content moderation policies of the social media platform.
o Whether the social media platform uses or allows the use of addictive design or
deceptive pattern features, including autoplay or infinite scroll.
o Whether the social media platform allows manipulated photographs or digital images to
be shared on the platform.
STORAGE NAME: h0001.RRS PAGE: 13
DATE: 1/9/2024
o Whether the social media platform considers the best interests of platform users who are
younger than 18 years of age when designing, developing, and providing services.
o The methodology the social media platform uses to consider the best interests of
platform users who are younger than 18 years of age.
o The policies and protections the social media platform uses to protect platform users
who are younger than 18 years of age against harmful behaviors, such as bullying,
harassment, and threats of violence or self-harm.
o Whether the social media platform collects or sells personal information of platform
users who are younger than 18 years of age. If such personal information is collected,
the platform must disclose the type of personal information collected and the purpose of
such collection. If such personal information is sold, the platform must disclose to whom
the information is sold.
• Provides clear access to the following:
o Zip code-based references to local resources for law enforcement, suicide prevention,
and domestic violence prevention services.
o Reporting mechanisms related to harmful behaviors, such as bullying, harassment, and
threats of violence or self-harm.
• At the time of log in, and before obtaining access to the platform, requires platform users who
are younger than 18 years of age to read and accept a disclaimer which must be in substantially
the following form:
This application may be harmful to your mental health and may use design features
that have addictive qualities or present unverified information or that may be
manipulated by [insert platform name] or others for your viewing. This application
may also collect your personal data to further manipulate your viewable content
and may share your personal data with others.
The bill does not apply to online services, websites, or applications where the predominant or exclusive
function is:
• Electronic mail.
• Direct messaging consisting of text, photos, or videos that are sent between devices by
electronic means where messages are shared between the sender and the recipient
only, visible to the sender and the recipient, and are not posted publicly.
• A streaming service that provides only licensed media in a continuous flow from the
service, website, or application to the end user and does not obtain a license to the
media from a user or account holder by agreement to its terms of service.
• News, sports, entertainment, or other content that is preselected by the provider and not
user generated, and any chat, comment, or interactive functionality that is provided
incidental to, directly related to, or dependent upon provision of the content.
• Online shopping or e-commerce, if the interaction with other users or account holders is
generally limited to the ability to upload a post and comment on reviews or display lists
or collections of goods for sale or wish lists, or other functions that are focused on online
shopping or e-commerce rather than interaction between users or account holders.
• Interactive gaming, virtual gaming, or an online service, that allows the creation and
uploading of content for the purpose of interactive gaming, edutainment, or associated
entertainment, and the communication related to that content.
• Photo editing that has an associated photo hosting service, if the interaction with other
users or account holders is generally limited to liking or commenting.
• A professional creative network for showcasing and discovering artistic content, if the
content is required to be non-pornographic.
• Single-purpose community groups for public safety if the interaction with other users or
account holders is generally limited to that single purpose and the community group has
guidelines or policies against illegal content.
• To provide career development opportunities, including professional networking, job
skills, learning certifications, and job posting and application services.
• Business to business software.
STORAGE NAME: h0001.RRS PAGE: 14
DATE: 1/9/2024
• A teleconferencing or videoconferencing service that allows reception and transmission
of audio and video signals for real time communication.
• Shared document collaboration.
• Cloud computing services, which may include cloud storage and shared document
collaboration.
• To provide access to or interacting with data visualization platforms, libraries, or hubs.
• To permit comments on a digital news website, if the news content is posted only by the
provider of the digital news website.
• To provide or obtain technical support for a platform, product, or service.
• Academic, scholarly, or genealogical research where the majority of the content that is
posted or created is posted or created by the provider of the online service, website, or
application and the ability to chat, comment, or interact with other users is directly
related to the provider's content.
• A classified ad service that only permits the sale of goods and prohibits the solicitation of
personal services or that is used by and under the direction of an educational entity,
including:
o A learning management system;
o A student engagement program; and
o A subject or skill-specific program.
The bill provides that, if a social media platform violates the requirements for minor users, it is an unfair
and deceptive trade practice actionable under FDUTPA solely by DLA. 94 In addition to other FDUTPA
remedies, DLA may collect a civil penalty of up to $50,000 per violation.
The bill allows a private cause of action against a social media platform that fails to terminate an
existing account within the required time after being notified to do so by the minor account holder or a
confirmed parent or guardian. The social media platform is liable to such Florida minor for such access,
including up to $10,000 in damages, court costs and reasonable attorney fees. Such an action must be
brought within 1 year after the violation.
The bill requires that any action brought pursuant to the bill may only be brought on behalf of a Florida
minor, and does not preclude any other available remedy at law or equity against social media
platforms.
The bill allows DLA to adopt rules to implement the bill.
The bill provides an effective date of July 1, 2024.
B. SECTION DIRECTORY:
Section 1: Creates s. 501.1736, F.S.; provides requirements for social media platforms that
allow access and creation of accounts by minors; provides causes of action and
penalties.
Section 2: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
There may be an increase in civil penalties collected by DLA.
94
Unlike under general FDUTPA actions, DLA is not prohibited from bringing an action against a social media platform that is also a:
• Person or activity regulated under laws administered by OIR or DFS; and
• Bank, credit union, and savings and loan association regulated by OFR or federal agencies.
STORAGE NAME: h0001.RRS PAGE: 15
DATE: 1/9/2024
2. Expenditures:
There may be an increase of regulatory costs to DLA from enforcing the bill.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Social media platforms will need to implement new procedures for age verification, including using third
party verification services; create certain disclosures of their practices; and gather reference
information.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
Age verification for social media platforms is a complex issue that raises several constitutional
concerns. The language in the bill may implicate consideration of a number of constitutional
protections.
First Amendment Right to Freedom of Speech
Constitutional challenges to age verification laws may raise several issues. Many of the questions
regarding the constitutionality of age verification laws may concern whether such laws are sufficiently
narrow to avoid inhibiting more speech than necessary. The degree of tailoring required may vary
depending on whether a given law is content based or content neutral. In both circumstances a law’s
constitutionality would depend on several factors, including the:
• Strength of the government’s interest,
• Amount of protected speech that the law directly or indirectly restricts, and
• Availability of less speech-restrictive alternatives. 95
Content-neutral regulations on free speech are legitimate if they advance important governmental
interests that are not related to suppression of free speech, and do not substantially burden more
speech than necessary to further those interests. 96
95
Holmes, Eric N. (2023, August 17), Online Age Verification (Part III): Select Constitutional Issues (CRS Report No. LSB11022),
https://crsreports.congress.gov/product/pdf/LSB/LSB11022 (last visited Jan. 9, 2024).
96
Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180,189 (U.S. 1997).
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However, the U.S. Supreme Court typically regards content-based laws 97 as presumptively
unconstitutional. 98 To determine whether a content based law passes constitutional muster, courts
generally apply a legal standard called strict scrutiny, under which the government must show that
the law is the “least restrictive means” of advancing a “compelling” governmental interest. 99
In general, the U.S. Supreme Court has held that requiring adults to prove their age to access certain
content is an unconstitutional, content-based limit on free speech, when there are less restrictive
means to curb access to minors, such as filters and parental controls. 100
However, according to Justice O’Connor’s Reno dissent, because technology was insufficient for
ensuring that minors could be excluded while still providing adults full access to protected content,
the age verification provision was viewed as ultimately unconstitutional; but, also in her dissent, she
allowed for potentially permitting a law in the future when such technology was feasible. 101
Currently, there are numerous minimally invasive verification techniques that do not require sharing
any age verification information at all with social media platforms. 102 Experts argue that age
verification systems have progressed considerably from a generation ago when the U.S. Supreme
Court held that age verification methods often failed at that task and were too burdensome for law
abiding adults. 103
State Authority to Regulate to Protect Minors
The U.S. Supreme Court has determined that the state has a "compelling interest in protecting the
physical and psychological well-being of minors," which "extends to shielding minors from the
influence of literature that is not obscene by adult standards." 104 In doing so, however, the means
must be narrowly tailored to achieve that end so as not to unnecessarily deny adults access to
material which is constitutionally protected indecent material. 105
Contracts
Article I, Section 10 of the United States Constitution prohibits a state from passing any law impairing
the obligation of contracts. Article I, Section 10 of the Florida Constitution also prohibits the passage
of laws impairing the obligation of contracts.
Supremacy Clause
Article VI, Paragraph 2 of the United States Constitution, commonly referred to as the Supremacy
Clause, establishes that the federal constitution, and federal law generally, take precedence over
state laws and constitutions. The Supremacy Clause also prohibits states from interfering with the
federal government's exercise of its constitutional powers and from assuming any functions that are
97
Those that regulate speech by discriminating against certain content through its text (i.e., “on its face”) or through a discriminatory
purpose.
98
Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
99
Sable Comm’s v. F.C.C, 492 U.S. 115 (1989).
100
Reno v. Am. C. L. Union, 521 U.S. 844, 886 (1997); Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004); Ronald
Kahn, Reno v. American Civil Liberties Union (1997), Free Speech Center at Middle Tennessee State University, Dec. 15, 2023, Reno
v. Am. C. L. Union (1997) - The Free Speech Center (mtsu.edu) (last visited Jan. 7, 2024).
101
Reno, 521 U.S. 844, at 886 (O’Connor concurring in part and dissenting in part); (The court also considered overbreadth and
vagueness arguments, and determined that the CDA was too broad and vague).
102
The Federalist Society, Age Verification for Social Media: A Constitutional and Reasonable Regulation (Aug. 7, 2023),
https://fedsoc.org/commentary/fedsoc-blog/age-verification-for-social-media-a-constitutional-and-reasonable-regulation (last visited
Jan. 8, 2024).
103
Broadband Breakfast, Improved Age Verification Allows States to Consider Restricting Social Media, Nov. 20, 2023, Improved
Age Verification Allows States to Consider Restricting Social Media – Broadband Breakfast (last visited Jan. 9, 2023); Reno v. Am. C.
L. Union, 521 U.S. 844, 886 (1997); Ashcroft, 542 U.S. 656.
104
Sable Commc’s of California, Inc. vs. F.C.C. , 492 U.S. 115, 126 (1989).
105
Ashcroft, 542 U.S. 656; Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st DCA 2004). But see, Erznoznik v. City of Jacksonville, 422
U.S. 205 (1975) (Determining regulation overly broad.)
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exclusively entrusted to the federal government. It does not, however, allow the federal government
to review or veto state laws before they take effect. 106
Section 230 of the federal Communications Decency Act (CDA), 107 in part, specifies that “[n]o
provider ... of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider” 108 and specifically prohibits all
inconsistent causes of action and liability imposed under any State or local law. 109
B. RULE-MAKING AUTHORITY:
The bill provides DLA with rulemaking authority to promulgate rules to enforce the bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
106
Cornell Law School, Legal Information Institute, Supremacy Clause, https://www.law.cornell.edu/wex/supremacy_clause (last
visited Feb. 23, 2021).
107
Force, 934 F.3d at 63 (quoting Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2d Cir. 2015) (quoting Zeran v. Am. Online,
Inc., 129 F.3d 327, 330 (4th Cir. 1997)).
108
47 U.S.C. § 230(c)(1).
109
47 U.S.C. § 230(e).
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 1 2024
1 A bill to be entitled
2 An act relating to social media use for minors;
3 creating s. 501.1736, F.S.; providing definitions;
4 requiring social media platforms to prohibit certain
5 minors from creating new accounts, to terminate
6 certain accounts and provide additional options for
7 termination of such accounts, to use reasonable age
8 verification methods to verify the ages of account
9 holders, and to disclose specified policies and
10 provide specified resources, measures, and
11 disclaimers; authorizing the Department of Legal
12 Affairs to bring actions for violations under the
13 Florida Deceptive and Unfair Trade Practices Act;
14 providing penalties; providing for private causes of
15 actions; providing that certain social media platforms
16 are subject to the jurisdiction of state courts;
17 providing construction; authorizing the department to
18 adopt rules; providing an effective date.
19
20 Be It Enacted by the Legislature of the State of Florida:
21
22 Section 1. Section 501.1736, Florida Statutes, is created
23 to read:
24 501.1736 Social media use for minors.—
25 (1) As used in this section, the term:
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26 (a) "Account holder" means a resident of this state who
27 has or opens an account or creates a profile or other form o f
28 identification to use or access a social media platform.
29 (b) "Department" means the Department of Legal Affairs.
30 (c) "Reasonable age verification method" means any
31 commercially reasonable method regularly used by government
32 agencies or businesses for the purpose of age and identity
33 verification.
34 (d) "Social media platform:"
35 1. Means an online forum offered by an entity that has the
36 ability to track the activity of an account holder or user, if
37 the online forum allows the account holder or user to do all of
38 the following:
39 a. Create or use a profile, account, or other form of
40 identification.
41 b. Upload content or view the content or activity of other
42 account holders.
43 c. Interact with or track other account holders or users.
44 2. Does not include an online service, website, or
45 application where the predominant or exclusive function is:
46 a. Electronic mail.
47 b. Direct messaging consisting of text, photos, or videos
48 that are sent between devices by electronic means where messages
49 are shared between the sender and the recipient only, visible to
50 the sender and the recipient, and are not posted publicly.
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51 c. A streaming service that provides only licensed media
52 in a continuous flow from the service, website, or application
53 to the end user and does not obtain a license to the media from
54 a user or account holder by agreement to its terms of service.
55 d. News, sports, entertainment, or other content that is
56 preselected by the provider and not user generated, and any
57 chat, comment, or interactive functionality that is provided
58 incidental to, directly related to, or dependent upon provision
59 of the content.
60 e. Online shopping or e-commerce, if the interaction with
61 other users or account holders is generally limited to the
62 ability to upload a post and comment on reviews or display lists
63 or collections of goods for sale or wish lists, or other
64 functions that are focused on online shopping or e-commerce
65 rather than interaction between users or account holders.
66 f. Interactive gaming, virtual gaming, or an online
67 service, that allows the creation and uploading of content for
68 the purpose of interactive gaming, edutainment, or associated
69 entertainment, and the communication related to that content.
70 g. Photo editing that has an associated photo hosting
71 service, if the interaction with other users or account holders
72 is generally limited to liking or commenting.
73 h. A professional creative network for showcasing and
74 discovering artistic content, if the content is required to be
75 non-pornographic.
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76 i. Single-purpose community groups for public safety if
77 the interaction with other users or account holders is generally
78 limited to that single purpose and the community group has
79 guidelines or policies against illegal content.
80 j. To provide career development opportunities, including
81 professional networking, job skills, learning certifications,
82 and job posting and application services.
83 k. Business to business software.
84 l. A teleconferencing or videoconferencing service that
85 allows reception and transmission of audio and video signals for
86 real time communication.
87 m. Shared document collaboration.
88 n. Cloud computing services, which may include cloud
89 storage and shared document collaboration.
90 o. To provide access to or interacting with data
91 visualization platforms, libraries, or hubs.
92 p. To permit comments on a digital news website, if the
93 news content is posted only by the provider of the digital news
94 website.
95 q. To provide or obtain technical support for a platform,
96 product, or service.
97 r. Academic, scholarly, or genealogical research where the
98 majority of the content that is posted or created is posted or
99 created by the provider of the online service, website, or
100 application and the ability to chat, comment, or interact with
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101 other users is directly related to the provider's content.
102 s. A classified ad service that only permits the sale of
103 goods and prohibits the solicitation of personal services or
104 that is used by and under the direction of an educational
105 entity, including:
106 (I) A learning management system;
107 (II) A student engagement program; and
108 (III) A subject or skill-specific program.
109 (2) A social media platform shall do all of the following:
110 (a) Prohibit a minor who is younger than 16 years of age
111 from creating a new account on the social media platform.
112 (b)1. Use reasonable age verification methods to verify
113 the age of each account holder on the social media platform at
114 the time a new account is created. If an account holder fails to
115 verify his or her age, the social media platform mu st deny the
116 account. The reasonable age verification method must be
117 conducted by an independent, third-party not affiliated with the
118 social media platform.
119 2. Personal identifying information used to verify age may
120 not be retained once the age of an account holder or a person
121 seeking an account has been verified. Any personal identifying
122 information collected to verify age may not be used for any
123 other purpose.
124 (c) For existing accounts:
125 1. Terminate any account that is reasonably known by the
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126 social media platform to be held by a minor younger than 16
127 years of age and provide a minimum of 90 days for an account
128 holder to dispute such termination by verifying his or her age.
129 2. Allow an account holder younger than 16 years of age to
130 request to terminate the account. Termination must be effective
131 within 5 business days after such request.
132 3. Allow the confirmed parent or guardian of an account
133 holder younger than 16 years of age to request the minor's
134 account be terminated. Termination must be effective within 10
135 business days after such request.
136 4. Permanently delete all personal information held by the
137 social media platform relating to the terminated account, unless
138 there are legal requirements to maintain such information.
139 (d) If the social media platform allows minors younger
140 than 18 years of age to create an account on the platform, the
141 platform must include a clearly labeled, conspicuous, and
142 readily accessible link on its Internet homepage or platform
143 login page that:
144 1. Discloses the following social media platform policies
145 in a manner that is clearly, concisely, prominently, and
146 understandably written using language suited to the age of users
147 who are younger than 18 years of age likely to routinely access
148 the platform without unrelated, confusing, or contradictory
149 materials:
150 a. The content moderation policies the social media
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151 platform uses for content on the platform.
152 b. Whether the social media platform uses or allows the
153 use of addictive design or deceptive pattern features, inclu ding
154 autoplay or infinite scroll.
155 c. Whether the social media platform allows manipulated
156 photographs or digital images to be shared on the platform.
157 d. Whether the social media platform considers the best
158 interests of platform users who are younger than 18 years of age
159 when designing, developing, and providing services.
160 e. The methodology the social media platform uses to
161 consider the best interests of platform users who are younger
162 than 18 years of age when designing, developing, and providing
163 services.
164 f. The policies and protections the social media platform
165 uses to protect platform users who are younger than 18 years of
166 age against harmful behaviors, such as bullying, harassment, and
167 threats of violence or self-harm.
168 g. Whether the social media platform collects or sells
169 personal information of platform users who are younger than 18
170 years of age, including personal identifiers, biometrics, and
171 geolocation data. If such personal information is collected, the
172 platform must disclose the type of personal information
173 collected and the purpose of such collection. If such personal
174 information is sold, the platform must disclose to whom the
175 information is sold.
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176 2. Provides clear access to the following:
177 a. Zip code-based references to local resources for law
178 enforcement, suicide prevention, and domestic violence
179 prevention services.
180 b. Reporting mechanisms related to harmful behaviors, such
181 as bullying, harassment, and threats of violence or self -harm.
182 3. At the time of log in, and before obtaining access to
183 the platform, requires platform users who are younger than 18
184 years of age to read and accept a disclaimer which must be in
185 substantially the following form:
186
187 This application may be harmful to your mental health
188 and may use design features that have addictive
189 qualities or present unverified information or that
190 may be manipulated by [insert platform name] or others
191 for your viewing. This application may also collect
192 your personal data to further manipulate your viewable
193 content and may share your personal data with others.
194
195 (3) Any violation of subsection (2) is an unfair and
196 deceptive trade practice actionable under part II of this
197 chapter solely by the department against a social media
198 platform. If the department has reason to believe that a social
199 media platform is in violation of subsection (2), the
200 department, as the enforcing authority, may bring an action
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201 against such platform for an unfair or deceptive act or
202 practice. For the purpose of bringing an action pursuant to this
203 section, ss. 501.211 and 501.212 do not apply. In addition to
204 other remedies under part II of this chapter, the department may
205 collect a civil penalty of up to $50,000 per violation.
206 (4)(a) A social media platform that violates subparagraph
207 (2)(c)2. or subparagraph (2)(c)3. for failing to terminate an
208 account within the required time after being notified to do so
209 by the minor account holder or a confirmed parent or guardian is
210 liable to such Florida minor for such access, including court
211 costs and reasonable attorney fees as ordered by the court.
212 Claimants may be awarded up to $10,000 in damages.
213 (b) A civil action for a claim under this subsection must
214 be brought within 1 year after the violation.
215 (5) Any action brought under subsection (3) or subsection
216 (4) may only be brought on behalf of a Florida minor.
217 (6) For purposes of bringing an action in accordance with
218 subsections (3) and (4), a social media platform that allows a
219 Florida minor younger than 16 years of age to create an account
220 on such platform is considered to be both engaged in substantial
221 and not isolated activities within this state and operating,
222 conducting, engaging in, or carrying on a business, and doing
223 business in this state and is therefore subject to the
224 jurisdiction of the courts of this state.
225 (7) This section does not preclude any other available
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226 remedy at law or equity.
227 (8) The department may adopt rules to implement this
228 section.
229 Section 2. This act shall take effect July 1, 2024.
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 3 Online Access to Materials Harmful to Minors
SPONSOR(S): Tramont and others
TIED BILLS: HB 1491 IDEN./SIM. BILLS: SB 1792
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development Wright Anstead
Subcommittee
2) Judiciary Committee
SUMMARY ANALYSIS
Internet usage and mobile technology have become mainstream, especially among teens and young adults, which
has expanded the creation and dissemination of pornography. The majority of Americans, including minors, are
exposed to pornography online regularly, and 56 percent of American high school students have viewed
pornography in the last year.
Adolescents who view pornography:
• Tend to have sexually permissive views, have more sexual partners in their lifetime, and are more likely to
have engaged in certain sexual acts;
• Tend to display more aggression, have more traditional gender role attitudes, and view women as sex
objects;
• Report feeling insecure about their ability to perform sexually or the way they look; and
• Tend to reduce their pornography use as their self-confidence increases or their relationships with family
and friends improve.
Several states, including Louisiana, Utah, Arkansas, Mississippi, Montana, North Carolina, Texas, and Virginia,
have recently passed legislation to require websites that host obscenity or material harmful to minors to verify the
age of a visitor and block access to minors.
The bill requires a commercial entity that knowingly and intentionally publishes or distributes a substantial portion of
material harmful to minors on a website or application to prohibit access to such material by any person younger
than 18 years of age.
The bill requires such a commercial entity to perform reasonable age verification methods to verify that the age of a
person attempting to access the material is 18 years of age or older. The reasonable age verification method must
be conducted by an independent third-party not affiliated with the commercial entity, and any information used to
verify age must be deleted when the age is verified.
Such a commercial entity must provide an easily accessible link or function on its homepage, landing page, or age
verification page to allow a minor user or the confirmed parent or guardian of the minor user to report unauthorized
or unlawful access. Within 5 days after such report, the commercial entity must prohibit or block future access by the
minor.
The bill provides that, if a commercial entity violates the requirements for minor users, it is an unfair and deceptive
trade practice actionable under Florida Deceptive and Unfair Trade Practice Act, solely by Department of Legal
Affairs. The bill also allows a private cause of action against a commercial entity that fails to prohibit or block a minor
from future access to material harmful to minors after a report of unauthorized or unlawful access.
The bill has no fiscal impact on local governments, and an indeterminate fiscal impact on state government.
The bill provides an effective date of July 1, 2024.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0003.RRS
DATE: 1/9/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Effects of Harmful Content on Children
Internet usage and mobile technology has become mainstream, especially among teens and young
adults. 1
“Because the Internet is not subject to regulations, it has emerged as a vehicle for circulation of
pornography. Pornographic images are available for consumption in the privacy of one’s home via the
Internet rather than in public adult bookstores or movie theaters. Therefore, the accessibility,
affordability, and anonymity have attracted a wider audience. Research in the United States has shown
that 66% of men and 41% of women consume pornography on a monthly basis. An estimated 50% of
all Internet traffic is related to sex. These percentages illustrate that pornography is no longer an issue
of minority populations but a mass phenomenon that influences our society.” 2
Many come across pornography on the internet who are not seeking it, and others seek it out. 3 Adult
websites Xvideos and Pornhub are among the most visited in the United States, receiving an average
of 693.5 million and 639.6 million monthly visitors, respectively. Of the top 20 most visited websites,
four are classified as pornographic. 4
Twenty-seven percent of young adults first view pornography before the onset of puberty, 70 percent of
teens accidentally stumble upon pornography online, 5 and teens may have experienced an increase in
unwanted exposure to pornographic content online. 6 A sample of American high school students in
2021 found that 56 percent viewed pornography in 2020. 7
Research suggests that adolescents who view pornography tend to have more sexually permissive
attitudes, have more sexual partners in their lifetime, and are more likely to have engaged in certain
sexual acts. 8 Similarly, adolescents who viewed pornography tended to display more aggression, have
1
Eric W. Owens et al., The Impact of Internet Pornography on Adolescents: A Review of the Research, 19(1-2) SEXUAL ADDICTION &
COMPULSIVITY 99, 99-100 (2012); See also PEW RESEARCH CENTER, Teens, Social Media & Technology Overview 2015:
Smartphones Facilitate Shifts in Communication Landscape for Teens, http://www.pewinternet.org/2015/04/09/teens-social-media-
technology-2015/ (last visited Jan. 7, 2024).
2
Simone Kuhn, PhD, and Jurgen Gallinat, PhD, Brain Structure and Functional Connectivity Associated With Pornography
Consumption, The Brain on Porn, JAMA Psychiatry, JAMA Network, (July 2014),
https://jamanetwork.com/journals/jamapsychiatry/fullarticle/1874574
3
Josh McDowell Ministry, THE PORN PHENOMENON: THE IMPACT OF PORNOGRAPHY IN THE DIGITAL AGE (2016), research summary
available at https://www.barna.com/research/porn-in-the-digital-age-new-research-reveals-10-trends/ (last visited Jan. 7, 2024).
4
Joel Khalil, These are the most popular websites right now - and they might just surprise you (October 2023 edition), TechRadar,
https://www.techradar.com/news/porn-sites-attract-more-visitors-than-netflix-and-amazon-youll-never-guess-how-many (last visited
Jan. 8, 2024).
5
KAISER FAMILY FOUNDATION, Generation Rx.com: How Young People Use the Internet for Health Information, December 2001, at
12, available at https://kaiserfamilyfoundation.files.wordpress.com/2001/11/3202-genrx-report.pdf.
6
Kimberly J. Mitchell et al., Trends in Youth Reports of Sexual Solicitations, Harassment and Unwanted Exposure to Pornography on
the Internet, 40 JOURNAL OF ADOLESCENT HEALTH 116, 124 (2007), available at: http://unh.edu/ccrc/pdf/CV135.pdf (last visited Jan.
7, 2023).
7
Amanda Giordano, What to Know About Adolescent Pornography Exposure, Psychology Today (Feb. 27, 2022),
https://www.psychologytoday.com/us/blog/understanding-addiction/202202/what-know-about-adolescent-pornography-exposure (last
visited Jan. 7, 2024).
8
Debra K. Braun-Corville & Mary Rojas, Exposure to Sexually Explicit Web Sites and Adolescent Sexual Attitudes and Behaviors,
45(2) J ADOLESCENT HEALTH 153, 156-162 (2009). See also Jane D. Brown & Kelly L. L’Engles, X-Rated: Sexual Attitudes and
Behaviors Associated with U.S. Early Adolescents’ Exposure to Sexually Explicit Media, 36 COMM. RSCH. 129-151 (2009). Contra.
Marie-Therese Luder et al., Associations between Online Pornography and Sexual Behavior among Adolescents: Myth or Reality?,
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DATE: 1/9/2024
more traditional gender role attitudes, and view women as sex objects. 9 Due to the correlational nature
of these findings, researchers were unable to determine if these characteristics were precursors to
pornography use or a consequence of it; 10 however, they were able to identify pornography use as a
strong exacerbating factor in individuals who have preexisting markers for sexual aggression. 11
Adolescents who view pornography report feeling insecure about their ability to perform sexually or how
they look, and tend to decrease their pornography use as their self-confidence increases or they
develop positive relationships with friends and family. 12
Studies have shown that problematic or excessive pornography use actually changes the reward
circuitry in people’s brains leading to a loss of self-control, which can lead to addiction. 13
Eight states have recently passed laws to require websites with pornography to verify the age of a
visitor and block access to minors. 14 Those states include Louisiana, Utah, Arkansas, Mississippi,
Montana, North Carolina, Texas, and Virginia. The personal story of pop-singer Billie Eilish inspired the
law in Louisiana which blocks access to pornography for minors. Eilish reported that she watched a lot
of porn when about 11 years old. Ellish believes that the pornography had a drastic effect on her brain
and feels “incredibly devastated that I was exposed to so much porn.” 15 The author of the bill, a sex
addiction therapist, said “I just thought how courageous it was. … It just sort of re-emphasized to me
what a problem this is, especially for our children.” 16
Obscenity
While most pornography is not legally obscene and is protected by the First Amendment, it is well
established that obscenity 17 is not protected by the First and Fourteenth Amendments and is subject to
limited regulation under the police power of states. 18 The U.S. Supreme Court developed the test for
40(5) ARCHIVES OF SEXUAL BEHAVIOR 1027-1035 (2011) (finding that pornography use had no association with early sexual imitation
or risky sexual behaviors).
9
Eileen M. Alexy et al., Pornography as a Risk Marker for an Aggressive Pattern of Behavior among Sexually Reactive Children and
Adolescents, 14(6) J AM. PSYCHIATRIC NURSES ASS’N 442, 450 (2009). See also Elisabet Haggstrom-Nordin et al., Experiences of and
Attitudes towards Pornography among a Group of Swedish High School Students, 14 EURO. J CONTRACEPTION AND REPRODUCTIVE
HEALTH CARE 277, 277-284 (2009).
10
Owens, Supra note 1, at 107.
11
Michelle L. Ybarra & Kimberly J. Mitchell, X-Rated Material and Perpetration of Sexually Aggressive Behavior Among Children
and Adolescents: Is There a Link?, 8 CyberPsychology and Behavior 473, 473-486 (2011). See generally, Paul J. Wright, A Meta-
Analysis of Pornography Consumption and Actual Acts of Sexual Aggression in General Population Studies, 66(1) J COMM 183-205
(2016).
12
Lotta Lofgren-Martenson & Sven-Axel Mason, Lust, Love, and Life: A Qualitative Study of Swedish Adolescents’ Perceptions and
Experiences with Pornography 47 J SEX RSCH. 568, 575 (2010).
13
Simone Kuhn & Jurgen Gallinat, Brain Structure and Functional Connectivity Associated with Pornography Consumption, 71(7)
JAMA PSYCHIATRY 827, 827-834, available at
https://jamanetwork.com/journals/jamapsychiatry/fullarticle/1874574?utm_source=Silverchair%20Information%20Systems&utm_me
dium=email&utm_campaign=JAMAPsychiatry:OnlineFirst05/28/2014#Discussion (last visited Jan. 7, 2024).
14
Dmytro Sashchuk, Age verification regulations in the United States of America, Veriff, (Nov. 15, 2023),
https://www.veriff.com/fraud/learn/age-verification-legalization-in-the-united-states-of-america (last visted Jan. 7, 2024); Los Angeles
Blade, Pornhub blocks access as new age verification laws take effect, Jan. 7, 2024,
https://www.losangelesblade.com/2024/01/07/pornhub-blocks-access-as-new-age-verification-laws-take-effect/ (last visited Jan. 7,
2024).
15
The Guardian, Billie Eilish says watching porn as a child ‘destroyed my brain’, (Dec. 14, 2021)
https://www.theguardian.com/music/2021/dec/15/billie-eilish-says-watching-porn-gave-her-nightmares-and-destroyed-my-
brain#:~:text=%E2%80%9CI%20think%20it%20really%20destroyed,was%20so%20violent%20and%20abusive.
16
Marc Novicoff, A Simple Law Is Doing the Impossible. It’s Making the Online Porn Industry Retreat., Politico Magazine, Aug. 8,
2024, https://www.politico.com/news/magazine/2023/08/08/age-law-online-porn-00110148 (last visited Jan. 8, 2024).
17
To be obscene, pornography must, at a minimum, "depict or describe patently offensive 'hard core' sexual conduct." Miller v.
California, 413 U.S. 15, 27 (1973).
18
Johnson v. State, 351 So. 2d 10, 11 (Fla. 1977); See also, FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (Audience, medium,
time of day, and method of transmission are relevant factors.).
STORAGE NAME: h0003.RRS PAGE: 3
DATE: 1/9/2024
determining whether material is obscene in United States v. Miller. 19 Florida uses the Miller test to
define obscene material, which refers to the status of material that:
• The average person, applying contemporary community standards, would find appeals to the
prurient interest;
• Depicts or describes, in a patently offensive way, sexual conduct; and
• Taken as a whole, lacks serious literary, artistic, political, or scientific value. 20
The Florida Supreme Court has determined that the applicable community standard to be used in
determining obscenity is the local county standard, explaining that such a standard “permits
maximum protection of materials acceptable in cosmopolitan areas while not forcing more conservative
areas to accept public depiction of conduct they find obscene.” 21
Florida Definition of Material Harmful to Minors
For the purposes of ch. 847, F.S., material which is “harmful to minors” is defined as any reproduction,
imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or
form, depicting nudity, sexual conduct, or sexual excitement when it:
• Predominantly appeals to a prurient, shameful, or morbid interest;
• Is patently offensive to prevailing standards in the adult community as a whole with respect to
what is suitable material or conduct for minors; and
• Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.
The Florida Supreme Court has found that images in the aid of legitimate scientific or educational
purposes, such as a depiction of Michelangelo's David transmitted for an art history class, and an
illustration of human genitalia intended for a sex education or biology class, are not materials harmful to
minors. 22
Laws Related to Material Harmful to Minors
There are several federal laws that prohibit access or distribution of harmful or obscene material to a
minor:
• Schools and libraries that receive discounts for Internet access or internal connections through
an E-rate program must:
o “Certify that they block or filter Internet access” to (a) obscene pictures, (b) child
pornography, and (c) harmful to minors on computers accessed by minors, and
o Implement an Internet safety policy. 23
• It is a crime to knowingly use a misleading domain name on the Internet with the intent to
deceive a minor into viewing material that is harmful to minors. 24
• It a crime to knowingly embed words or digital images into the source code of a website with the
intent to deceive a minor into viewing material that is harmful to minors. 25
• It is a crime to knowingly make any commercial purpose Internet communication that includes
any material harmful to minors available to any minor. 26
Additionally, in Florida, it is a crime for any person to knowingly transmit or believe that he or she was
transmitting an image, information, or data that is harmful to minors via an electronic device, to a
specific individual known by the defendant to be a minor. 27
19
Miller, 413 U.S. 15.
20
S. 847.001(12), F.S.
21
Johnson, 351 So. 2d at 11.
22
Simmons v. State, 944 So. 2d 317, 329 (Fla. 2006).
23
Federal Communications Commission, Children’s Internet Protection Act (CIPA),
https://www.fcc.gov/consumers/guides/childrens-Internet-protection-act (last visited Jan. 7, 2024).
24
The definition of “harmful to minors parallel the Miller test for obscenity, as applied to minors. 18 U.S.C. § 2252B
25
18 U.S.C. § 2252C
26
47 U.S.C. § 231
27
S. 847.0138, F.S.
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DATE: 1/9/2024
Age Verification
Constitutionality of Age Verification
The 1996 Communications Decency Act (CDA) was designed “to protect minors from ‘indecent’ and
‘patently offensive’ communications on the Internet” by prohibiting “the knowing transmission of
obscene or indecent messages,” and allowed websites to defend themselves by either making good
faith efforts to restrict such communications to adults, or implementing age verification measures. 28
In Reno v. American Civil Liberties Union, 29 the U.S. Supreme Court held that the provision of the CDA
prohibiting the transmission of indecent messages 30 is an unconstitutional, content-based restriction of
First Amendment free speech rights. The U.S. Supreme Court also held that requiring adults to prove
their age to access certain content is an unconstitutional limit on free speech, when there are less
restrictive means to curb access to minors, such as filters and parental controls. 31
However, in Justice O’Connor’s partial dissent, she found that since technology was insufficient for
ensuring that minors could be excluded while still providing adults full access to protected content, the
CDA was unconstitutional. Justice O’Connor allowed for potentially permitting such a law in the future
as technology advances. 32
Age Verification Laws
Several states, including Louisiana, Utah, Arkansas, Mississippi, Montana, North Carolina, Texas, and
Virginia, have recently passed legislation to require websites that host obscenity or material harmful to
minors to verify the age of a visitor and block access to minors. 33
For example, Utah requires a commercial entity that knowingly and intentionally publishes or distributes
material harmful to minors on the Internet from a website that contains a substantial portion of such
material to perform reasonable age verification methods to verify the age of an individual attempting to
access the material. Other aspects of the law include:
• A commercial entity who violates this provision is liable for damages resulting from a minor's
accessing the material, including court costs and reasonable attorney fees. 34
• There is no state enforcement mechanism.
Some of these state laws have recently been challenged on First Amendment grounds. 35 The law in
Texas has been enjoined, but the suits challenging the laws in Utah and Louisiana have been
dismissed for lack of jurisdiction, as the laws rely on private enforcement, not state enforcement. There
may be additional challenges after a private suit is filed.
Unlike past legislative efforts to curb online pornography by declaring the websites a danger to public
health, the recent laws have had a demonstrated effect against such websites. Pornhub, a large
pornography website, gets more global users than Amazon or Netflix. In 2019, the last year Pornhub
28
Ronald Kahn, Reno v. American Civil Liberties Union (1997), Free Speech Center at Middle Tennessee State University (Dec. 15,
2023), Reno v. American Civil Liberties Union (1997) - The Free Speech Center (mtsu.edu) (last visited Jan. 7, 2024).
29
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
30
It is still illegal to transmit obscene messages to minors. United States Department of Justice, Obscenity,
https://www.justice.gov/criminal/criminal-
ceos/obscenity#:~:text=Federal%20law%20strictly%20prohibits%20the,is%20punishable%20under%20federal%20law (last visited
Jan. 9, 2024).
31
Reno, 521 U.S. 844; Ronald Kahn, supra note 28.
32
Id.
33
Sashchuk, supra note 15; Los Angeles Blade, supra note 15.
34
Utah Code Annotated § 78B-3-1002.
35
See Free Speech Coalition Inc. v. LeBlanc, No. 2:23-cv-2123 (E.D. La.); 35 Free Speech Coalition, Inc. v. Anderson, 2023 WL
4899509 (D. Utah 2023); Free Speech Coalition, Inc. v. Colmenero, 2023 WL 5655712 (W.D. Texas 2023); Christopher Brown, Porn
Industry Group Loses Challenge to Louisiana Age-Check Law, Bloomberg Law, https://news.bloomberglaw.com/privacy-and-data-
security/porn-industry-group-loses-challenge-to-louisiana-age-check-law (last visited Jan. 7, 2024).
STORAGE NAME: h0003.RRS PAGE: 5
DATE: 1/9/2024
released its data, the site was visited 42 billion times, or 115 million times each day. 36 In response to
these bills, Pornhub has ceased access to users in Montana, North Carolina, Utah, Arkansas,
Mississippi, and Virginia, via geoblocking. 37
Age Verification Mechanisms
There are several ways that Internet companies verify, or attempt to verify, age. Options include
using: 38
• Government identity documents, which generally requires the user to submit a government
document or a third party to the company for review.
• Phone records, which generally checks the user’s phone for parental controls.
• Credit score databases, which generally requires the user to enter identifying information, which
is then confirmed through a credit check agency.
• Biometric age estimation, which generally requires a facial analysis to estimate age.
• Credit cards, which generally requires to supply credit card information for validation.
• Open banking, which generally requires the user to log into their own online banking system,
and give approval for date of birth data to be supplied to a bank-approved third party age
verification provider.
• Algorithmic profiling, which generally assesses the likely age of a user based on their online
behavior.
• Self-declaration, which generally requires the user to tick a box or self-enter a birthdate.
• Zero knowledge proofs, which generally enables users to upload identity documents to private
servers and securely share encrypted, anonymous “proofs” of age to a company, through a
process called hashing, without actually transmitting the identity documents to the company. 39
Many industries are required to use age verification methods, including for:
• Using tobacco, 40
• Engaging in gambling, 41
• Consuming alcohol, 42 and
• Purchasing firearms. 43
When verifying age online, people usually share personal information, including:
• Full name and location.
• Email or phone number (when using two-factor authorization).
• Home address.
Some social media platforms ask for age identifying information to create an account, but such
information is not always verified. For example, Facebook requires new users to self-report a birthdate
36
Marc Novicoff, A Simple Law Is Doing the Impossible. It’s Making the Online Porn Industry Retreat., Politico Magazine, Aug. 8,
2024, https://www.politico.com/news/magazine/2023/08/08/age-law-online-porn-00110148 (last visited Jan. 8, 2024).
37
Wes Davis, Pornhub blocks North Carolina and Montana as porn regulation spreads, The Verge,
https://www.theverge.com/2024/1/2/24022539/pornhub-blocked-montana-north-carolina-age-verification-law-protest (last visited Jan.
8, 2024).
38
The Age Verification Providers Association, How do you check age online?, https://avpassociation.com/avmethods/ (last visited
Jan. 7, 2024).
39
Bessie Liu, Aleo blockchain adds zPass, a ZK protocol for verifying identities, Blockworks, https://blockworks.co/news/zk-
decentralized-identity-verification (last visited Jan. 6, 2024).
40
S. 569.14, F.S. Additionally, the U.S. Food and Drug Administration (FDA) recommends using independent, third-party age- and
identity-verification services that compare customer information against third-party data sources for online sellers of tobacco. FDA,
Enforcement Priorities for Electronic Nicotine Delivery Systems (ENDS) and Other Deemed Products on the Market Without
Premarket Authorization (Revised), p. 7, April 2020, https://www.fda.gov/media/133880/download (last visited Jan. 9, 2024).
41
S. 551.113(1), F.S.; S. 849.0931(10), F.S.
42
S. 84
43
S. 790.065, F.S.
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DATE: 1/9/2024
to confirm age of at least 13 years old. However, Meta is currently testing new ways to age verify,
including through the use of biometrics and online interviews. 44
Additionally, adult websites in the United States generally use a checkbox for a user to confirm they are
at least 18 years of age. Recently, however, several states and the United Kingdom passed laws to
require adult websites to use age verification measures to block adult content from being accessed by
minors. 45
Identity theft is a potential risk when users reveal this information, and websites can collect the
information revealed through age verification processes and combine it with other data for targeted
advertisements or sharing that data with third parties. 46
However, there are numerous minimally invasive verification techniques that do not require sharing any
age verification information at all with social media platforms. 47 Age verification systems have
progressed considerably from a generation ago, when the Supreme Court held that age-verification
methods often failed at that task and were too burdensome for law abiding adults. 48
Age fabrication is a widespread issue. For example, underage customers in the United States
consumed 11.73% of all alcoholic drinks sold in the U.S. market in 2016, and 49.8% of tobacco and
vape shops in California failed to check the ID of underage decoys in 2018. 49
Florida Deceptive and Unfair Trade Practices Act
FDUTPA is a consumer and business protection measure that prohibits unfair methods of competition,
unconscionable acts or practices, and unfair or deceptive acts or practices in trade or commerce. 50
FDUTPA was modeled after the Federal Trade Commission (FTC) Act. 51
The Department of Legal Affairs (DLA) or the Office of the State Attorney (SAO) may bring actions on
behalf of consumers or governmental entities when it is a matter of public interest. 52 The SAO may
enforce violations of FDUTPA if the violations take place within its jurisdiction. The DLA has
enforcement authority when the violation is multi-jurisdictional, the state attorney defers to the DLA in
44
Meta, Introducing New Ways to Verify Age on Instagram, Jun. 23, 2022, https://about.fb.com/news/2022/06/new-ways-to-verify-
age-on-instagram/ (last visited Jan. 9, 2024).
45
Masha Borak, UK introduces Online Safety Bill mandating age verification, Oct. 27, 2023,
https://www.biometricupdate.com/202310/uk-introduces-online-safety-bill-mandating-age-
verification#:~:text=The%20United%20Kingdom%20has%20finally,checking%20measures%2C%20including%20biometric%20tech
nology. (last visited Jan. 9, 2024); Dmytro Sashchuk, Age verification regulations in the United States of America, Veriff, (Nov. 15,
2023), https://www.veriff.com/fraud/learn/age-verification-legalization-in-the-united-states-of-america (last visted Jan. 7, 2024).
46
John Reynolds, Don’t risk identity fraud just to play that video game — do this instead, Aleo, https://aleo.org/post/dont-risk-
identity-fraud-to-play-that-video-
game/#:~:text=The%20risks%20of%20today's%20age,public%20records%2C%20or%20ID%20scans) (last visited Jan. 7, 2024).
47
The Federalist Society, Age Verification for Social Media: A Constitutional and Reasonable Regulation (Aug. 7, 2023),
https://fedsoc.org/commentary/fedsoc-blog/age-verification-for-social-media-a-constitutional-and-reasonable-regulation (last visited
Jan. 8, 2024).
48
Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004).
49
Persona, Age verification system: How to add it into your business, https://withpersona.com/blog/incorporate-age-verification-into-
business (last visited Jan. 9, 2024).
50
Ch. 73-124, L.O.F.; s. 501.202, F.S.
51
D. Matthew Allen, et. al., The Federal Character of Florida’s Deceptive and Unfair Trade Practices Act, 65 U. MIAMI L. REV.
1083, (Summer 2011).
52
S. 501.207(1)(c) and (2), F.S.; see s. 501.203(2), F.S. (defining “enforcing authority” and referring to the office of the state attorney
if a violation occurs in or affects the judicial circuit under the office’s jurisdiction; or the Department of Legal Affairs if the violation
occurs in more than one circuit; or if the office of the state attorney defers to the department in writing; or fails to act within a
specified period); see also David J. Federbush, FDUTPA for Civil Antitrust: Additional Conduct, Party, and Geographic Coverage;
State Actions for Consumer Restitution, 76 FLORIDA BAR JOURNAL 52, Dec. 2002 (analyzing the merits of FDUPTA and the potential
for deterrence of anticompetitive conduct in Florida), available at
http://www.floridabar.org/divcom/jn/jnjournal01.nsf/c0d731e03de9828d852574580042ae7a/99aa165b7d8ac8a485256c8300791ec1!O
penDocument&Highlight=0,business,Division* (last visited on Jan. 6, 2024).
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writing, or the state attorney fails to act within 90 days after a written complaint is filed. 53 In certain
circumstances, consumers may also file suit through private actions. 54
The DLA and the SAO have powers to investigate FDUTPA claims, which include:
• Administering oaths and affirmations;
• Subpoenaing witnesses or matter; and
• Collecting evidence. 55
The DLA and the State Attorney, as enforcing authorities, may seek the following remedies:
• Declaratory judgments;
• Injunctive relief;
• Actual damages on behalf of consumers and businesses;
• Cease and desist orders; and
• Civil penalties of up to $10,000 per willful violation. 56
FDUTPA may not be applied to certain entities in certain circumstances, including:
• Any person or activity regulated under laws administered by the Office of Insurance Regulation
or the Department of Financial Services; or
• Banks, credit unions, and savings and loan associations regulated by the Office of Financial
Regulation or federal agencies. 57
Effect of the Bill
The bill provides the following definitions:
• "Commercial entity" includes a corporation, limited liability company, partnership, limited
partnership, sole proprietorship, and any other legally recognized entity.
• "Distribute" means to issue, sell, give, provide, deliver, transfer, transmute, circulate, or
disseminate by any means.
• "Material harmful to minors" means any material that:
o The average person applying contemporary community standards would find, taken as a
whole, appeals to the prurient interest;
o Depicts or describes, in a patently offensive way, sexual conduct; 58 and
o When taken as a whole, lacks serious literary, artistic, political, or scientific value for
minors.
• "News-gathering organization" means any of the following:
o A newspaper, news publication, or news source, printed or published online or on a
mobile platform, engaged in reporting current news and matters of public interest, and
includes an employee who can provide documentation of such employment.
o A radio broadcast station, television broadcast station, cable television operator, or wire
service, and includes an employee who can provide documentation of such
employment.
• "Publish" means to communicate or make information available to another person or entity on a
publicly available website or application.
• "Reasonable age verification methods" means any commercially reasonable method regularly
used by government agencies or businesses for the purpose of age and identity verification.
• "Substantial portion" means more than 33.3 percent of total material on a website or application.
53
S. 501.203(2), F.S.
54
S. 501.211, F.S.
55
S. 501.206(1), F.S.
56
Ss. 501.207(1), 501.208, and 501.2075, F.S. Civil Penalties are deposited into general revenue. Enforcing authorities may also
request attorney fees and costs of investigation or litigation. S. 501.2105, F.S.
57
S. 501.212(4), F.S.
58
As defined in s. 847.001(19), F.S.
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DATE: 1/9/2024
The bill requires a commercial entity that knowingly and intentionally publishes or distributes a
substantial portion of material harmful to minors on a website or application to prohibit access to such
material by any person younger than 18 years of age.
The bill requires such a commercial entity to perform reasonable age verification methods to verify that
the age of a person attempting to access the material is 18 years of age or older. The reasonable age
verification method must be conducted by an independent third-party not affiliated with the commercial
entity.
Any personal identifying information used to verify age may not be:
• Retained by the third party or social media platform once the age has been verified.
• Used for any other purpose.
Such a commercial entity must provide an easily accessible link or function on its homepage, landing
page, or age verification page to allow a minor user or the confirmed parent or guardian of the minor
user to report unauthorized or unlawful access. Within 5 days after such report, the commercial entity
must prohibit or block future access by the minor.
The bill does not apply to:
• A bona fide news or public interest broadcast, website video, report, or event and does not
affect the rights of a news-gathering organization.
• An Internet service provider or its affiliates or subsidiaries, a search engine, or a cloud service
provider, to the extent the it is not responsible for the creation of the material harmful to minors.
The bill provides that, if a commercial entity violates the requirements for minor users, it is an unfair and
deceptive trade practice actionable under FDUTPA solely by DLA. 59 In addition to other FDUTPA
remedies, DLA may collect a civil penalty of up to $50,000 per violation.
The bill allows a private cause of action against a commercial entity that fails to prohibit or block a
minor from future access to material harmful to minors after a report of unauthorized or unlawful
access. The social media platform is liable to such Florida minor for such access, including up to
$10,000 in damages, court costs and reasonable attorney fees. Such an action must be brought within
1 year after the violation.
The bill requires that any action brought pursuant to the bill may only be brought on behalf of a Florida
minor, and does not preclude any other available remedy at law or equity against such commercial
entity.
The bill allows DLA to adopt rules to implement the bill.
The bill provides an effective date of July 1, 2024.
B. SECTION DIRECTORY:
Section 1: Creates s. 501.1737, F.S.; requiring certain commercial entities who have materials
harmful to minors on their website to verify the age of users and block access by minors
under 18; providing remedies.
Section 2: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
59
DLA is not prohibited from bringing an action against:
• Any person or activity regulated under laws administered by OIR or DFS; and
• Banks, credit unions, and savings and loan associations regulated by OFR or federal agencies.
STORAGE NAME: h0003.RRS PAGE: 9
DATE: 1/9/2024
1. Revenues:
There may be an increase in civil penalties collected by DLA.
2. Expenditures:
There may be an increase of regulatory costs to DLA from enforcing the bill.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Certain commercial entities will need to implement new procedures for age verification, including using
third party verification services, which depending on whether they currently use such services, they
may incur additional expenses.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
Age verification to view certain harmful content is a complex issue that raises several constitutional
concerns. The language in the bill may implicate consideration of a number of constitutional
protections.
First Amendment Right to Freedom of Speech
Constitutional challenges to age verification laws may raise several issues. Many of the questions
regarding the constitutionality of age verification laws may concern whether such laws are sufficiently
narrow to avoid inhibiting more speech than necessary. The degree of tailoring required may vary
depending on whether a given law is content based or content neutral. In both circumstances a law’s
constitutionality would depend on several factors, including the:
• Strength of the government’s interest,
• Amount of protected speech that the law directly or indirectly restricts, and
• Availability of less speech-restrictive alternatives. 60
Content-neutral regulations on free speech are legitimate if they advance important governmental
interests that are not related to suppression of free speech, and do not substantially burden more
speech than necessary to further those interests. 61
60
Holmes, Eric N. (2023, August 17), Online Age Verification (Part III): Select Constitutional Issues (CRS Report No. LSB11022),
https://crsreports.congress.gov/product/pdf/LSB/LSB11022 (last visited Jan. 9, 2024).
61
Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180,189 (U.S. 1997).
STORAGE NAME: h0003.RRS PAGE: 10
DATE: 1/9/2024
However, the U.S. Supreme Court typically regards content-based laws 62 as presumptively
unconstitutional. 63 To determine whether a content based law passes constitutional muster, courts
generally apply a legal standard called strict scrutiny, under which the government must show that
the law is the “least restrictive means” of advancing a “compelling” governmental interest. 64
In general, the U.S. Supreme Court has held that requiring adults to prove their age to access certain
content is an unconstitutional, content-based limit on free speech, when there are less restrictive
means to curb access to minors, such as filters and parental controls. 65
However, in Justice O’Connor’s Reno dissent, the age verification requirements were labeled as a
zoning law, creating separate “adult zones” on the Internet. Because technology was insufficient for
ensuring that minors could be excluded while still providing adults full access to protected content, it
was viewed as ultimately unconstitutional, but the dissent allowed for potentially permitting a law in
the future when Internet zoning was technologically feasible. 66
State Authority to Regulate to Protect Minors
The U.S. Supreme Court has determined that the state has a "compelling interest in protecting the
physical and psychological well-being of minors," which "extends to shielding minors from the
influence of literature that is not obscene by adult standards." 67 In doing so, however, the means
must be narrowly tailored to achieve that end so as not to unnecessarily deny adults access to
material which is constitutionally protected indecent material. 68
Contracts
Article I, Section 10 of the United States Constitution prohibits a state from passing any law impairing
the obligation of contracts. Article I, Section 10 of the Florida Constitution also prohibits the passage
of laws impairing the obligation of contracts.
Supremacy Clause
Article VI, Paragraph 2 of the United States Constitution, commonly referred to as the Supremacy
Clause, establishes that the federal constitution, and federal law generally, take precedence over
state laws and constitutions. The Supremacy Clause also prohibits states from interfering with the
federal government's exercise of its constitutional powers and from assuming any functions that are
exclusively entrusted to the federal government. It does not, however, allow the federal government
to review or veto state laws before they take effect. 69
Section 230 of the federal Communications Decency Act (CDA), 70 in part, specifies that “[n]o
provider ... of an interactive computer service shall be treated as the publisher or speaker of any
62
Those that regulate speech by discriminating against certain content through its text (i.e., “on its face”) or through a discriminatory
purpose.
63
Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
64
Sable Comm’s v. F.C.C, 492 U.S. 115 (1989).
65
Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004); Ronald Kahn, Reno v. American Civil Liberties Union (1997),
Free Speech Center at Middle Tennessee State University, Dec. 15, 2023, Reno v. Am. C. L. Union (1997) - The Free Speech Center
(mtsu.edu) (last visited Jan. 7, 2024).
66
Reno v. Am. C. L. Union, 521 U.S. 844, 886 (1997) (O’Connor concurring in part and dissenting in part); (The court also
considered overbreadth and vagueness arguments, and determined that the CDA was too broad and vague).
67
Sable Commc’s of California, Inc. vs. F.C.C. , 492 U.S. 115, 126 (1989).
68
Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004); Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st DCA 2004). But
see, Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) (Determining regulation overly broad.)
69
Cornell Law School, Legal Information Institute, Supremacy Clause, https://www.law.cornell.edu/wex/supremacy_clause (last
visited Feb. 23, 2021).
70
Force, 934 F.3d at 63 (quoting Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2d Cir. 2015) (quoting Zeran v. Am. Online,
Inc., 129 F.3d 327, 330 (4th Cir. 1997)).
STORAGE NAME: h0003.RRS PAGE: 11
DATE: 1/9/2024
information provided by another information content provider” 71 and specifically prohibits all
inconsistent causes of action and liability imposed under any State or local law. 72
B. RULE-MAKING AUTHORITY:
The bill provides DLA with rulemaking authority to promulgate rules to enforce the bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
71
47 U.S.C. § 230(c)(1).
72
47 U.S.C. § 230(e).
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 3 2024
1 A bill to be entitled
2 An act relating to online access to materials harmful
3 to minors; creating s. 501.1737, F.S.; providing
4 definitions; requiring a commercial entity that
5 publishes or distributes material harmful to minors on
6 a website or application that contains a substantial
7 portion of such material to perform reasonable age
8 verification methods, prevent access to such material
9 by minors, and provide methods for reporting
10 unauthorized or unlawful access; prohibiting the
11 retention of certain personal identifying information;
12 providing applicability and construction; authorizing
13 the Department of Legal Affairs to bring an action for
14 violations under the Florida Deceptive and Unfair
15 Trade Practices Act; providing civil penalties;
16 providing for private causes of action; providing that
17 certain commercial entities are subject to the
18 jurisdiction of state courts; providing construction;
19 authorizing the department to adopt rules; providing
20 an effective date.
21
22 Be It Enacted by the Legislature of the State of Florida:
23
24 Section 1. Section 501.1737, Florida Statutes, is created
25 to read:
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HB 3 2024
26 501.1737 Age verification for online access to materials
27 harmful to minors.—
28 (1) As used in this section, the term:
29 (a) "Commercial entity" includes a corporation, limited
30 liability company, partnership, limited partnership, sole
31 proprietorship, and any other legally recognized entity.
32 (b) "Department" means the Department of Legal Affairs.
33 (c) "Distribute" means to issue, sell, give, provide,
34 deliver, transfer, transmute, circulate, or disseminate by any
35 means.
36 (d) "Material harmful to minors" means any material that:
37 1. The average person applying contemporary community
38 standards would find, taken as a whole, appeals to the prurient
39 interest;
40 2. Depicts or describes, in a patently offensive way,
41 sexual conduct as specifically defined in s. 847.001(19); and
42 3. When taken as a whole, lacks serious literary,
43 artistic, political, or scientific value for minors.
44 (e) "News-gathering organization" means any of the
45 following:
46 1. A newspaper, news publication, or news source, printed
47 or published online or on a mobile platform, engaged in
48 reporting current news and matters of public interest, a nd
49 includes an employee who can provide documentation of such
50 employment.
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51 2. A radio broadcast station, television broadcast
52 station, cable television operator, or wire service, and
53 includes an employee who can provide documentation of such
54 employment.
55 (f) "Publish" means to communicate or make information
56 available to another person or entity on a publicly available
57 website or application.
58 (g) "Reasonable age verification methods" means any
59 commercially reasonable method regularly used by government
60 agencies or businesses for the purpose of age and identity
61 verification.
62 (h) "Substantial portion" means more than 33.3 percent of
63 total material on a website or application.
64 (2) A commercial entity that knowingly and intentionally
65 publishes or distributes material harmful to minors on a website
66 or application, if the website or application contains a
67 substantial portion of material harmful to minors, must:
68 (a) Perform reasonable age verification methods to verify
69 the age of a person attempting to access the material is 18
70 years of age or older and prevent access to the material by a
71 person younger than 18 years of age. The reasonable age
72 verification method must be conducted by an independent third -
73 party not affiliated with the commercial entity.
74 (b) Provide an easily accessible link or function on its
75 homepage, landing page, or age verification page to allow a
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76 minor user or the confirmed parent or guardian of a minor user
77 to report unauthorized or unlawful access. Within 5 days after
78 such report, the commercial entity must prohibit or block future
79 access by such minor.
80 (3) A commercial entity or third party that performs
81 reasonable age verification methods may not retain any personal
82 identifying information of the person seeking online access to
83 material harmful to minors any longer than is reasonably
84 necessary to verify the age of the person. Any personal
85 identifying information collected for age verification may not
86 be used for any other purpose.
87 (4)(a) This section does not apply to any bona fi de news
88 or public interest broadcast, website video, report, or event
89 and does not affect the rights of a news-gathering organization.
90 (b) An Internet service provider or its affiliates or
91 subsidiaries, a search engine, or a cloud service provider does
92 not violate this section solely for providing access or
93 connection to or from a website or other information or content
94 on the Internet or a facility, system, or network not under the
95 provider's control, including transmission, downloading,
96 intermediate storage, or access software, to the extent the
97 provider is not responsible for the creation of the content of
98 the communication which constitutes material harmful to minors.
99 (5)(a) Any violation of subsection (2) or subsection (3)
100 is an unfair and deceptive trade practice actionable under part
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101 II of this chapter solely by the department on behalf of a
102 Florida minor against a commercial entity. If the department has
103 reason to believe that a commercial entity is in violation of
104 subsection (2) or subsection (3), the department, as the
105 enforcing authority, may bring an action against the commercial
106 entity for an unfair or deceptive act or practice. For the
107 purpose of bringing an action pursuant to this section, ss.
108 501.211 and 501.212 do not apply. In addition to any other
109 remedy under part II of this chapter, the department may collect
110 a civil penalty of up to $50,000 per violation of this section.
111 (b) A commercial entity that violates subsection (2) for
112 failing to prohibit or block a minor from future access to
113 material harmful to minors after a report of unauthorized or
114 unlawful access is liable to the minor for such access,
115 including court costs and reasonable attorney fees as ordered by
116 the court. Claimants may be awarded up to $10,000 in damages. A
117 civil action for a claim under this paragraph must be brought
118 within 1 year after the violation.
119 (c) Any action under this subsection may only be brought
120 on behalf of or by a Florida minor.
121 (6) For purposes of bringing an action under subsection
122 (5), a commercial entity that publishes or distributes material
123 harmful to minors on a website or application, if the website or
124 application contains a substantial portion of material harmful
125 to minors and such website or application is available to be
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126 accessed in Florida, is considered to be both engaged in
127 substantial and not isolated activities within this state and
128 operating, conducting, engaging in, or carrying on a business
129 and doing business in this state, and is therefore subject to
130 the jurisdiction of the courts of this state.
131 (7) This section does not preclude any other available
132 remedy at law or equity.
133 (8) The department may adopt rules to implement t his
134 section.
135 Section 2. This act shall take effect July 1, 2024.
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REGULATORY REFORM AND ECONOMIC DEVELOPMENT SUBCOMMITTEE
HB 3 by Rep. Tramont
Online Access to Materials Harmful to Minors
AMENDMENT SUMMARY
January 11, 2024
Amendment 1 by Rep. Tramont (line 34):
• Corrects two technical errors – a misspelled word and a grammatical error.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 3 (2024)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Regulatory Reform &
2 Economic Development Subcommittee
3 Representative Tramont offered the following:
4
5 Amendment
6 Remove lines 34-54 and insert:
7 deliver, transfer, transmit, circulate, or disseminate by any
8 means.
9 (d) "Material harmful to minors" means any material that:
10 1. The average person applying contemporary community
11 standards would find, taken as a whole, appeals to the prurient
12 interest;
13 2. Depicts or describes, in a patently offensive way,
14 sexual conduct as specifically defined in s. 847.001(19); and
15 3. When taken as a whole, lacks serious literary,
16 artistic, political, or scientific value for minors.
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Page 1 of 2
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 3 (2024)
Amendment No. 1
17 (e) "News-gathering organization" means any of the
18 following:
19 1. A newspaper, news publication, or news source, printed
20 or published online or on a mobile platform, engaged in
21 reporting current news and matters of public interest, and an
22 employee thereof who can provide documentation of such
23 employment.
24 2. A radio broadcast station, television broadcast
25 station, cable television operator, or wire service, and an
26 employee thereof who can provide documentation of such
27 employment.
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HB 849
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 849 Veterinary Practices
SPONSOR(S): Killebrew and others
TIED BILLS: IDEN./SIM. BILLS: SB 1040, SB 1162
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development Thompson Anstead
Subcommittee
2) Commerce Committee
SUMMARY ANALYSIS
In Florida, the practice of “veterinary medicine” means the diagnosis of medical conditions of animals, and the
prescribing or administering of medicine and treatment to animals for the prevention, cure, or relief of a wound,
fracture, bodily injury, or disease. Veterinarians are regulated by the Board of Veterinary Medicine (Board) in
the Department of Business and Professional Regulation (DBPR) pursuant to ch. 474, F.S., relating to
veterinary medical practice (practice act). The purpose of the practice act is to ensure that every veterinarian
practicing in this state meets minimum requirements for safe practice to protect public health and safety.
Current law defines a “veterinarian/client/patient relationship” (VCPR) as one in which a veterinarian has
assumed responsibility for making medical judgments about the health of an animal and its need for medical
treatment. Veterinarians are permitted to prescribe drugs in the course of veterinary practice; however, the
veterinarian must be either personally acquainted with the keeping and caring of the animal and have recently
seen the animal, or have made medically appropriate and timely visits to the premises where the animal is kept
before prescribing drugs in the course of practice.
The use of electronic communications to facilitate patient health care (telehealth) is not addressed in the
practice act and is not specifically prohibited or authorized in Florida. However, medical doctors may practice
telehealth in Florida and may establish a patient relationship with a patient evaluation via telehealth under
certain circumstances.
The bill creates an act cited as the Providing Equity in Telehealth Services (PETS) Act, which establishes a
framework for the practice of veterinary telehealth as follows:
• Authorizes a veterinarian practicing veterinary telehealth to order, prescribe, or make available
medicinal drugs or drugs as defined in s. 465.003, F.S., the Florida Pharmacy Act.
• Limits a veterinarian’s authority to use telehealth to prescribe a controlled substance listed in Schedule
II of s. 893.03, F.S.
• Allows veterinarians who are personally acquainted with the caring or keeping of an animal or group of
animals for food-producing animal operations, who have recently seen the animals or made medically
appropriate and timely visits to practice veterinary telehealth for these animals.
• Specifies that only Florida licensed veterinarians may practice veterinary telehealth, and grants the
Board jurisdiction over the practice of veterinary telehealth.
• Allows an animal control authority under the “indirect supervision” of a veterinarian to administer rabies
vaccinations.
The bill is not expected to have a fiscal impact on state or local government, and may have a positive fiscal
impact on the private sector.
The bill provides an effective date of July 1, 2024.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0849.RRS
DATE: 1/9/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Practice of Veterinary Medicine
The Board of Veterinary Medicine (Board) in the Department of Business and Professional Regulation
(DBPR) implements the provisions of ch. 474, F.S., relating to veterinary medical practice (practice
act). The purpose of the practice act is to ensure that every veterinarian practicing in this state meets
minimum requirements for safe practices to protect public health and safety. 1
A “veterinarian” is a health care practitioner licensed by the Board to engage in the practice of
veterinary medicine in Florida 2 and they are subject to disciplinary action from the Board for various
violations of the practice act. 3
The practice of “veterinary medicine” is the diagnosis of medical conditions of animals, and the
prescribing or administering of medicine and treatment to animals for the prevention, cure, or relief of a
wound, fracture, bodily injury, or disease, or holding oneself out as performing any of these functions. 4
Veterinary medicine includes, with respect to animals: 5
• Surgery;
• Acupuncture;
• Obstetrics;
• Dentistry;
• Physical therapy;
• Radiology;
• Theriogenology (reproductive medicine); 6 and
• Other branches or specialties of veterinary medicine.
The practice act does not apply to the following categories of persons:
• Veterinary aides, nurses, laboratory technicians, preceptors, 7 or other employees of a licensed
veterinarian, who administer medication or provide help or support under the responsible
supervision 8 of a licensed veterinarian;
• Certain non-Florida licensed veterinarians who are consulting upon request of a Florida-licensed
veterinarian on the treatment of a specific animal or on the treatment on a specific case of the
animals of a single owner.
• Faculty veterinarians when they have assigned teaching duties at accredited 9 institutions;
1
S. 474.201, F.S.
2
S. 474.202(11), F.S.
3
Ss. 474.213 & 474.214, F.S.
4
See s. 474.202(9), F.S. Also included is the determination of the health, fitness, or soundness of an animal, and the performance of
any manual procedure for the diagnosis or treatment of pregnancy or fertility or infertility of animals.
5
See s. 474.202(13), F.S. S. 474.202(1), F.S., defines “animal” as “any mammal other than a human being or any bird, amphibian,
fish, or reptile, wild or domestic, living or dead.”
6
Theriogenology is a branch of veterinary medicine concerned with veterinary obstetrics and with the diseases and physiology of
animal reproductive systems. See https://www.merriam-webster.com/medical/theriogenology (last visited Jan. 5, 2024).
7
A preceptor is a skilled practitioner or faculty member who directs, teaches, supervises, and evaluates students in a clinical setting to
allow practical experience with patients. See also https://www.merriam-webster.com/dictionary/preceptor#medicalDictionary (last
visited Jan. 56, 2024).
8
The term “responsible supervision” is defined in s. 474.202(10), F.S., as the “control, direction, and regulation by a licensed doctor
of veterinary medicine of the duties involving veterinary services” delegated to unlicensed personnel.
9
Ss. 474.203(1) and (2), F.S., provide that accreditation of a school or college must be granted by the American Veterinary Medical
Association (AVMA) Council on Education, or the AVMA Commission for Foreign Veterinary Graduates.
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• Certain graduated intern/resident veterinarians of accredited institutions;
• Certain students in a school or college of veterinary medicine who perform assigned duties by
an instructor or work as preceptors;
• Certain doctors of veterinary medicine employed by a state agency or the United States
Government;
• Persons or their employees caring for the persons’ own animals, as well as certain part-time or
temporary employees, or independent contractors, who are hired by an owner to help with herd
management and animal husbandry tasks; and
• Certain entities or persons 10 that conduct experiments and scientific research on animals as
part of the development of pharmaceuticals, biologicals, serums, or treatment methods of
treatment or techniques to diagnose or treatment of human ailments, or in the study and
development of methods and techniques applicable to the practice of veterinary medicine. 11
Any permanent or mobile establishment where a licensed veterinarian practices must have a premises
permit issued by DBPR. 12 Each person to whom a veterinary license or premises permit is issued must
conspicuously display such document in her or his office, place of business, or place of employment in
a permanent or mobile veterinary establishment or clinic. 13
By virtue of accepting a license to practice veterinary medicine in Florida, a veterinarian consents to:
• Render a handwriting sample to an agent of the department and, further, to have waived any
objections to its use as evidence against her or him.
• Waive the confidentiality and authorize the preparation and release of medical reports
pertaining to the mental or physical condition of the licensee when the department has reason
to believe that a violation of this chapter has occurred and when the department issues an
order, based on the need for additional information, to produce such medical reports for the time
period relevant to the complaint. 14
For Fiscal Year 2021-2022, there were 12,360 actively licensed veterinarians in Florida. DBPR
received 568 complaints, which resulted in 26 disciplinary actions. 15
Veterinarian/Client/Patient Relationship
The practice act defines a “patient” as any animal for which the veterinarian practices veterinary
medicine. 16
The practice act defines a “veterinarian/client/patient relationship” (VCPR) as one in which a
veterinarian has assumed responsibility for making medical judgments about the health of an animal
and its need for medical treatment. 17
Veterinarians are permitted to prescribe drugs in the course of veterinary practice, but may be
disciplined by the Board for certain related violations, including ordering, prescribing, or making
available medicinal drugs or drugs 18 or controlled substances 19 for use other than for the specific
treatment of animal patients for which there is a documented VCPR and without:
10
See s. 474.203(6), F.S., which states that the exemption applies to “[s]tate agencies, accredited schools, institutions, foundations,
business corporations or associations, physicians licensed to practice medicine and surgery in all its branches, graduate doctors of
veterinary medicine, or persons under the direct supervision thereof ....”
11
See s. 474.203, F.S.
12
S. 474.215(1), F.S.
13
S. 474.216, F.S.
14
S. 474.2185, F.S.
15
Department of Business and Professional Regulation, Division of Professions Annual Report Fiscal Year 2021-2022,
http://www.myfloridalicense.com/DBPR/os/documents/Division%20Annual%20Report%20FY%2021-22.pdf (last visited Jan. 5,
2024).
16
S. 474.202(8), F.S.
17
S. 474.202(12), F.S.
18
S. 465.003(8), F.S.
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• Having sufficient knowledge of the animal to initiate at least a general or preliminary diagnosis
of the medical condition of the animal, which means that the veterinarian is personally
acquainted with the keeping and caring of the animal and has recently seen the animal or has
made medically appropriate and timely visits to the premises where the animal is kept;
• Being available to provide for follow-up care and treatment in case of adverse reactions or
failure of the regimen of therapy; and
• Maintaining records which document patient visits, diagnosis, treatment, and other relevant
information required under the practice act. 20
Veterinary Telemedicine
The use of electronic communications to facilitate patient health care (veterinary telemedicine) is not
addressed in the practice act and is not specifically prohibited or authorized for practitioners of
veterinary medicine in Florida. 21
According to research conducted by the American Veterinary Medical Association (AVMA), almost one-
third of all pets in the U.S. do not regularly see a veterinarian. 22 The reasons for this include cost of
veterinary care, logistical obstacles, and a shortage of licensed veterinarians. 23
Veterinary telemedicine has been found to “help pet owners avoid additional expenses related to
unnecessary time off work or transportation and may provide cost-effective options. Telemedicine can
also address problems with bringing pets to clinics that may be faced by many pet owners, such as
seniors, disabled individuals, those without transportation, and owners of fearful, large, or potentially
aggressive pets.” 24
“Interest in veterinary telemedicine has grown significantly in recent years, driven in part by a critical
shortage of veterinary professionals in the workforce and boosted by COVID-19 pandemic emergency
orders that temporarily suspended legal barriers to veterinary telemedicine.” 25
Expanding access to veterinary telemedicine may alleviate some of these problems, including, “industry
problems with workforce shortages of veterinary professionals, increased caseloads, and limited work-
life balance.” 26
In the human health setting, a 50 state survey conducted by the AVMA found that “all states allow a
physician to establish a relationship with a new patient over telemedicine.” 27 However, the same
approach does not appear to exist with veterinary medicine.
Opponents of veterinary telemedicine argue that animals cannot articulate symptoms like humans,
making physical examinations necessary to diagnose animal ailments. However, it has been found that
“while animals cannot verbally communicate, they provide behavioral signals, which can potentially be
more informative than seeing an animal in an unfamiliar place where the animal is not behaving as it
19
S. 893.02(4), F.S.
20
S. 474.214(1)(y)., F.S.
21
R. 64B8-9.0141, F.A.C. Currently, medical doctors may practice telemedicine in Florida in a patient relationship with a patient
evaluation, under certain circumstances.
22
Malinda Larkin, New, Old Challenges Beg for Radical Change in Veterinary Profession, JAVMA News (Dec. 3, 2020),
https://www.avma.org/javma-news/2020-12-15/new-old-challenges-beg-radical-change-veterinary-profession (last visited Jan. 9,
2024).
23
The Veterinary Care Accessibility Project, Veterinary Care Accessibility Score, https://www.accesstovetcare.org/ (last visited Jan.
9, 2024).
24
Camille DeClementi, Jennifer Hobgood, and Diana Ferguson, IN THE CARDS: BETTING ON VETERINARY TELEMEDICINE
LEGAL REFORM, Florida Bar Journal, (Dec. 2022), https://www.floridabar.org/the-florida-bar-journal/in-the-cards-betting-on-
veterinary-telemedicine-legal-reform/ (last visited Jan. 9, 2024).
25
Id.
26
Id.
27
American Medical Association, 50-State Survey: Establishment of a Patient-Physician Relationship Via Telemedicine,
https://www.ama-assn.org/system/files/2018-10/ama-chart-telemedicine-patient-physician-relationship.pdf (last visited Jan. 9, 2024).
STORAGE NAME: h0849.RRS PAGE: 4
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customarily would. In a clinic setting, dogs and cats may become extremely fearful and withdrawn, and,
in a situation that they perceive as threatening, animals may mask their pain as a survival
mechanism.” 28
Historically, physicians resisted expansion of telemedicine in human medicine for similar reasons. By
the 1990s, resistance in the medical community had largely subsided. 29
Veterinary Telemedicine During the Pandemic
On March 24, 2020, the U.S. Food and Drug Administration (FDA) announced that it would temporarily
suspend enforcement of certain prescription limitations in order to allow veterinarians to better utilize
telemedicine to address animal health needs during the COVID-19 pandemic. Specifically, the FDA
provided guidance related to suspending the enforcement of the animal examination and premises visit
VCPR requirements relevant to FDA regulations governing Extra-label Drug Use in Animals 30 and
Veterinary Feed Directive Drugs. 31 This allowed veterinarians to prescribe or authorize the use of
drugs without direct examination or making visits to patients, in an effort to limit human-to-human
interaction and potential spread of COVID-19 in the community. 32
According to the FDA, veterinarians are licensed by their state veterinary licensing board and must
meet the requirements of the licensing board to practice in that state. FDA regulates the devices and
drugs that veterinarians use, and the conditions under which veterinarians may prescribe drugs for
extra-label uses. When an approved drug is used in a manner other than what is stated on the label, it
is an extra-label use. This is commonly called an “off-label” use because the drug is used in a way that
is “off the label.” 33
On March 27, 2020, DBPR issued emergency order EO 2020-04, which suspended any restriction of
ch. 474, F.S., or ch. 61G-18, F.A.C., which would prohibit an active Florida-licensed veterinarian from
practicing telemedicine on a patient. The order specified that attending veterinarians must be
comfortable assessing the patient remotely and feel able to exercise good clinical judgment to assist
the patient. 34
The FDA withdrew its temporary guidance suspending the enforcement of the animal examination and
premises visit VCPR requirements on February 21, 2023. 35
DBPR’s emergency order allowing Florida-licensed veterinarians to practice telemedicine ended with
the expiration of Florida’s COVID-19 state of emergency (EO 20-52) on Saturday June 26, 2021. 36
Veterinary Telemedicine in Other States
The use of telemedicine by veterinarians varies by state. Some states allow telemedicine to be used at
28
Mark Epstein, et al., 2015 AAHA/AAFP Pain Management Guidelines for Dogs and Cats, American Animal Hospital Association
(2015), https://www.aaha.org/globalassets/02-guidelines/pain-
management/2015_aaha_aafp_pain_management_guidelines_for_dogs_and_cats.pdf (Iast visited Jan. 9, 2024).
29
Mary Ann Liebert, History of Telemedicine 15-16 (NY 2009).
30
21 C.F.R. part 530.
31
21 C.F.R. s. 558.6.
32
U.S. Food and Drug Administration, Coronavirus (COVID-19) Update: FDA Helps Facilitate Veterinary Telemedicine During
Pandemic, https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-helps-facilitate-veterinary-
telemedicine-during-pandemic (last visited Jan. 5, 2024).
33
.S. Food and Drug Administration, What FDA Does and Does Not Regulate, https://www.fda.gov/animal-veterinary/animal-health-
literacy/what-fda-does-and-does-not-regulate#top (last visited Jan. 5, 2024).
34
Department of Business and Professional Regulation, Emergency Order EO 2020-04, Mar. 27, 2020,
http://www.myfloridalicense.com/dbpr/os/documents/EO_2020-04.pdf (last visited Jan. 5, 2024).
35
87 C.F.R. 78111.
36
On March 9, 2020, Governor DeSantis issued Executive Order 20-52 which declared a state of emergency for the entire state due to
COVID-19. The Executive Order was extended several times. Executive Order 21-94 extended the state of emergency for sixty days
from April 27, 2021. The sixtieth day was Saturday June 26, 2021, and the order was not renewed by the Governor.
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the veterinarian’s discretion, others allow it after the establishment of a VCPR, some do not allow it at
all, and others limit telemedicine for purposes of prescribing medication or controlled substances.
According to the Veterinary Virtual Care Association, state laws relating to veterinary telemedicine
generally fall within the following categories: 25 states and the District of Columbia require the provider
to have “seen” or become “acquainted with” the animal; 10 states require a physical examination for a
VCPR; 5 states allow telemedicine to create a VCPR; 1 state allows telemedicine to create a VCPR
except for prescriptions; 1 state does not reference and therefore does not define or use the term
VCPR; and 9 states expressly prohibit using telemedicine to establish a VCPR. 37
Virginia allows veterinarians to practice telemedicine. In addition, it allows a veterinarian who performs
or has performed an appropriate examination of a patient to prescribe certain controlled substances to
a patient via the practice of telemedicine. The Virginia Board of Veterinary Medicine adopted guidance
effective September 17, 2020, for telehealth in the practice of veterinary medicine, which indicates that:
“Using telehealth technologies in veterinary practice is considered a method of service
delivery. The current, applicable regulations apply to all methods of service delivery,
including telehealth. The licensee is responsible for using professional judgment to
determine if the type of service can be delivered via telehealth at the same standard of care
as in-person service.” 38
The Idaho Board of Veterinary Medicine provides the following guidance on telehealth:
“The veterinarian must employ sound profession judgment to determine whether using
Telehealth is appropriate in particular circumstances each and every time animal care is
provided and only provide medical advice or treatment via Telehealth to the extent that it is
possible without a hands on examination. A veterinarian using Telehealth must take
appropriate steps to obtain Informed Consent, establish the VCPR and conduct all
appropriate evaluations and history of the patient consistent with traditional standards of
care for the particular patient presentation. As such, some situations and patient
presentations are appropriate for the utilization of Telehealth as a component of, or in lieu
of, hands on medical care, while others are not.” 39
The state of Oklahoma only allows a veterinarian to prescribe drugs via telemedicine under the
following conditions:
“The veterinarian assumes responsibility for making medical judgments regarding the
health of the animal based on a current thorough medical knowledge of the animal, such
knowledge is gained by recently seeing or being personally acquainted with the keeping
and care of the animal to the extent necessary to properly make appropriate medical
decisions.” 40
The state of Washington only allows telemedicine after a VCPR has been established:
“The veterinarian shall not establish a veterinary-client-patient relationship solely by
telephonic or other electronic means. However, once established, a veterinary-client-patient
relationship may be maintained between medically necessary examinations via telephone
or other types of consultations.” 41
37
Veterinary Virtual Care Association, Veterinary Telemedicine Regulatory Map, https://vvca.org/telemedicine-map/ (last visited Jan.
5, 2024).
38
Virginia Board of Veterinary Medicine, Guidance for Telehealth in the Practice of Veterinary Medicine, Guidance Document: 150-
25, https://www.dhp.virginia.gov/media/dhpweb/docs/vet/guidance/150-25.pdf (last visited Jan. 5, 2024).
39
Idaho Board of Veterinary Medicine, Policy Number 2018-02 Telemedicine (Oct. 15, 2021), https://dopl.idaho.gov/wp-
content/uploads/2023/07/Telemed-Policy-6-8-18-with-Revision-10-15-21.pdf (last visited Jan. 5, 2024).
40
Oklahoma State Board of Veterinary Medical Examiners, Veterinarian-Client-Patient-Relationship-VCPR,
https://www.okvetboard.com/veterinarian-faq/95-board-telemedicine-telehealth-position-statement (last visited Mar. 6, 2023).
41
Wash. Rev. Code § 246-933-200(2).
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Michigan recently repealed the need for an in-person exam prior to practicing telemedicine. Effective
April 15, 2021, a veterinarian providing a “telehealth service” is required to have sufficient knowledge of
the animal patient by having recently examined the animal patient in person or obtained current
knowledge of the animal patient through the use of instrumentation and diagnostic equipment through
which images and medical records may be transmitted electronically, or have conducted medically
appropriate and timely visits to the premises where the group of animal patients is kept. 42
Telehealth for Medical Doctors
Current law broadly defines “telehealth” as the use of synchronous or asynchronous
telecommunications technology by a telehealth provider to provide health care services, including, but
not limited to: 43
• Assessment, diagnosis, consultation, treatment, and monitoring of a patient;
• Transfer of medical data;
• Patient and professional health-related education;
• Public health services; and
• Health administration.
Telehealth does not include e-mail messages, or facsimile transmission under Florida law. 44 No
express authority is needed to communicate using these methods.
Health care services may be provided via telehealth by a Florida-licensed health care practitioner, a
practitioner licensed under a multistate health care licensure compact of which Florida is a member, 45
or a registered out-of-state-health care provider. 46
Out-of-state telehealth providers must register biennially with the Department of Health (DOH) or the
applicable board to provide telehealth services, within the relevant scope of practice established by
Florida law and rule, to patients in this state. To register or renew registration as an out-of-state
telehealth provider, the health care professional must:
• Hold an active and unencumbered license, which is substantially similar to a license issued to a
Florida practitioner in the same profession, in a U.S. state or jurisdiction and
• Not have been subject to licensure disciplinary action during the five years before submission of
the registration application; 47
• Not be subject to a pending licensure disciplinary investigation or action;
• Not have had license revoked in any state or jurisdiction;
• Designate a registered agent in this state for the service of process;
• Maintain professional liability coverage or financial responsibility, which covers services
provided to patients not located in the provider’s home state, in the same amount as required for
Florida-licensed practitioners; 48 and
• Prominently display a link to the DOH website, described below, which provides public
information on registered telehealth providers. 49
42
Mich. Gen. R. 338.4901a.
43
S. 456.47(1)(a), F.S.
44
Id.
45
Florida is a member of the Nurse Licensure Compact. See s. 464.0095, F.S.
46
S. 456.47(4), F.S.
47
The bill requires DOH to consult the National Practitioner Data Bank to verify whether adverse information is available for the
registrant.
48
Florida law requires physicians, acupuncturists, chiropractic physicians, dentists, anesthesiologist assistants, advanced practice
registered nurses, and licensed midwives to demonstrate $100,000 per claim and an annual aggregate of $300,000 of professional
responsibility (see ss. 458.320 and 459.0085, F.S.; r. 64B1-12.001. F.A.C; r. 64B2-17.009, F.A.C.; 64B5-17.0105, F.A.C.; r. 64B8-
31.006 and 64B15-7.006, F.A.C.; r. 64B9-4.002, F.A.C.; and r. 64B24-7.013, F.A.C.; respectively). Podiatric physicians must
demonstrate professional responsibility in the amount of $100,000 (see r. 64B18-14.0072, F.A.C.).
49
S. 456.47(4), F.S.
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Telehealth Standards of Practice
Current law sets the standard of care for telehealth providers at the same level as the standard of care
for health care practitioners or health care providers providing in-person health care services to patients
in this state. This ensures that a patient receives the same standard of care irrespective of the modality
used by the health care professional to deliver the services. A patient receiving telehealth services may
be in any location at the time services are rendered and a telehealth provider may be in any location
when providing telehealth services to a patient. 50
Practitioners may perform a patient evaluation using telehealth. A practitioner using telehealth is not
required to research a patient’s medical history or conduct a physical examination of the patient before
providing telehealth services to the patient if the telehealth provider is capable of conducting a patient
evaluation in a manner consistent with the applicable standard of care sufficient to diagnose and treat
the patient when using telehealth.
Emergency Orders
On January 31, 2020, the U.S. Secretary of HHS issued a public health emergency. 51 On March 16,
2020, the DEA published a COVID-19 Information page on the Diversion Control Division website,
authorizing DEA-registered practitioners to issue prescriptions for all Schedule II-V controlled
substances to patients without first conducting an in-person medical evaluation, provided all of the
following conditions are met:
• The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual
course of his/her professional practice.
• The evaluation is conducted using an audio-visual, real-time, two-way interactive
communication system.
• The practitioner is acting in accordance with applicable federal and state law. 52
Controlled Substances – Florida Law
Chapter 893, F.S., sets forth the Florida Comprehensive Drug Abuse Prevention and Control Act. This
chapter classifies controlled substances into five schedules in order to regulate the manufacture,
distribution, preparation, and dispensing of the substances. The scheduling of substances in Florida
law is generally consistent with the federal scheduling of substances under 21 U.S.C. s. 812:
• A Schedule I substance has a high potential for abuse and no currently accepted medical use in
treatment in the United States and its use under medical supervision does not meet accepted
safety standards. Examples include heroin and lysergic acid diethylamide (LSD).
• A Schedule II substance has a high potential for abuse, a currently accepted but severely
restricted medical use in treatment in the United States, and abuse may lead to severe
psychological or physical dependence. Examples include cocaine and morphine.
• A Schedule III substance has a potential for abuse less than the substances contained in
Schedules I and II, a currently accepted medical use in treatment in the United States, and
abuse may lead to moderate or low physical dependence or high psychological dependence or,
in the case of anabolic steroids, may lead to physical damage. Examples include lysergic acid;
ketamine; and some anabolic steroids.
50
S. 456.47(2), F.S.
51
U.S. Department of Health & Human Services, Determination that a Public Health Emergency Exists, (Jan. 31, 2020)
https://aspr.hhs.gov/legal/PHE/Pages/2019-
nCoV.aspx#:~:text=Azar%20II%2C%20Secretary%20of%20Health,January%2027%2C%202020%2C%20nationwide. (last visited
Jan. 5, 2024).
52
U.S. Drug Enforcement Administration, DEA’s response to COVID-19, https://www.dea.gov/press-releases/2020/03/20/deas-
response-covid-19 (last visited Jan. 5, 2024); Letter from Thomas Prevoznik, Deputy Assistant Administrator, Diversion Control
Division, U.S. Department of Justice Drug Enforcement Administration, to DEA Qualifying Practitioners and Other Practitioners,
(Mar. 31, 2020) https://www.deadiversion.usdoj.gov/GDP/(DEA-DC-
022)(DEA068)%20DEA%20SAMHSA%20buprenorphine%20telemedicine%20%20(Final)%20+Esign.pdf (last visited Jan. 5, 2024).
STORAGE NAME: h0849.RRS PAGE: 8
DATE: 1/9/2024
• A Schedule IV substance has a low potential for abuse relative to the substances in
Schedule III, a currently accepted medical use in treatment in the United States, and abuse may
lead to limited physical or psychological dependence relative to the substances in Schedule III.
Examples include alprazolam, diazepam, and phenobarbital.
• A Schedule V substance has a low potential for abuse relative to the substances in
Schedule IV, a currently accepted medical use in treatment in the United States, and abuse
may lead to limited physical or psychological dependence relative to the substances in
Schedule IV. Examples include low dosage levels of codeine, certain stimulants, and certain
narcotic compounds.
Controlled Substances – Federal Law
The Federal Controlled Substances Act 53 also classifies controlled substances into schedules based on
the potential for abuse and whether there is a currently accepted medical use for the substance. The
Drug Enforcement Administration (DEA) is required to consider the following when determining where
to schedule a substance: 54
• The substance’s actual or relative potential for abuse;
• Scientific evidence of the substance’s pharmacological effect, if known;
• The state of current scientific knowledge regarding the substance;
• The substance’s history and current pattern of abuse;
• The scope, duration, and significance of abuse;
• What, if any, risk there is to public health;
• The substance’s psychic or physiological dependence liability; and
• Whether the substance is an immediate precursor of a substance already controlled.
Telehealth Prescribing of Controlled Substances
The FDA regulations governing Extralabel Drug Use in Animals and Veterinary Feed Directives, limited
in application to circumstances where a veterinarian is using a drug in a manner other than the purpose
for which it was approved or in feed directives, require a valid VCPR, which “can exist only when the
veterinarian has recently seen and is personally acquainted with the keeping and care of the animal(s)
by virtue of examination of the animal(s), and/or by medically appropriate and timely visits to the
premises where the animal(s) are kept.” 55
“However, the corresponding regulation in the Florida Administrative Code blocks veterinarians from
prescribing unless they have “recent contact” with the animal. 56 Since the Florida statute contains no
“recent contact” requirement for a VCPR or for prescribing, the Board may have exceeded its statutory
authority 57 to “carry out the provisions of” F.S. Ch. 474, Veterinary Medical Practice.” 58
Federal law specifically prohibits prescribing controlled substances via the Internet without an in-person
evaluation, but the Ryan Haight Online Pharmacy Consumer Protection Act (Haight Act), 59 signed into
law in October 2008 60 created a pathway for telehealth practitioners to dispense controlled substances
via telehealth.
53
21 U.S.C. s. 812.
54
21 U.S.C. s. 811(c).
55
21 C.F.R. §530.1 & §530.3(i)(3).
56
Rule 61G18-30.001 (2)(y), F.S.
57
S. 474.204(1), F.S.
58
Camille DeClementi, Jennifer Hobgood, and Diana Ferguson, IN THE CARDS: BETTING ON VETERINARY TELEMEDICINE
LEGAL REFORM, Florida Bar Journal, (Dec. 2022), https://www.floridabar.org/the-florida-bar-journal/in-the-cards-betting-on-
veterinary-telemedicine-legal-reform/ (last visited Jan. 9, 2024).
59
Ryan Haight Online Consumer Protection Act of 2008, Public Law 110-425 (H.R. 6353).
60
21 CFR s. 829, the in-person medical evaluation requires that the patient be in the physical presence of the provider without regard
to the presence or conduct of other professionals.
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The practitioner is still subject to the requirement that all controlled substance prescriptions be issued
for a legitimate purpose by a practitioner acting in the usual course of professional practice. But, once
an in-person evaluation of the patient has occurred, the practitioner may provide future
prescriptions for controlled substances for that patient using telehealth services. 61
Florida law currently prohibits a telehealth provider (human) from using telehealth services to prescribe
a controlled substance except when treating a psychiatric disorder, an inpatient at a licensed hospital, a
patient receiving hospice services, or a resident of a nursing home facility. 62
Prescription Drug Law for Veterinarians
In order to purchase, prescribe, administer or dispense controlled substances in Florida, veterinarians
must obtain a license from the U.S. Drug Enforcement Administration (DEA). Florida does not require
any additional licensure for veterinarians to purchase and prescribe controlled drugs. 63
The DEA is a division within the U.S. Department of Justice and reports to the U.S. Attorney General.
In consultation with the U.S. Secretary of the federal Department of Health and Human Services (HHS)
and others, the Attorney General oversees the listing of substances on five schedules (Classes I, II, III,
IV or V) of controlled agents as described in Title 21 United States Code (USC) of the Controlled
Substances Act. The central mission of the DEA is to enforce controlled substances laws and
regulations. 64
With respect to veterinarians and other health professionals, the major focus of the DEA is to prevent
illegal diversion of controlled prescription drugs for the purpose of illicit or non-medical uses. In order to
legally purchase, dispense or prescribe controlled prescription drugs, a veterinarian must be licensed
by the DEA. Prescription drugs that are regulated or controlled by the DEA include many important
drugs that are used routinely by veterinarians. DEA-controlled drugs are tightly controlled at all aspects
of manufacturing, distribution, ordering, storage, use and disposition. 65
While veterinarians are allowed to write prescriptions for controlled drugs, they cannot order controlled
drugs from their local pharmacy for “in-house” use nor for secondary re-sale. Like any other
prescription, controlled drug prescriptions must be written for a specific patient and cannot be for
general use. As a licensed DEA registrant, veterinarians are expected to create and maintain a system
that provides strong safeguards against theft or diversion of controlled drugs in their practice. 66
Two opioids are approved and marketed for use in animals, butorphanol and buprenorphine. Due to the
limited number of approved and marketed veterinary opioids, veterinarians who need to use opioids to
control pain in their patients generally use products approved for use in people. 67
Rabies Vaccinations
According to the World Health Organization, “rabies is a vaccine-preventable viral disease which
occurs in more than 150 countries and territories. Once clinical symptoms appear, rabies is virtually
100 percent fatal. In up to 99 percent of cases, domestic dogs are responsible for rabies virus
transmission to humans. Rabies can be prevented through vaccination of dogs and prevention of dog
bites.” 68
61
Id.
62
S. 456.47(2)(c), F.S.
63
Thomas Vickory, PhD, DEA REGULATION OF CONTROLLED DRUGS, https://www.vetfolio.com/learn/article/florida-drug-
laws-update-2013 (last visited Jan. 5, 2024).
64
Thomas, supra note 63.
65
Thomas, supra note 63.
66
Thomas, supra note 63.
67
U.S. FDA, The Opioid Epidemic: What Veterinarians Need to Know, https://www.fda.gov/animal-veterinary/resources-you/opioid-
epidemic-what-veterinarians-need-know (last visited Jan. 5, 2024).
68
World Health Organization, Rabies, Sep. 20, 2023, https://www.who.int/news-room/fact-sheets/detail/rabies (last visited Jan. 5,
2024).
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All dogs, cats, and ferrets four months of age or older must be vaccinated by a licensed veterinarian
against rabies with a vaccine that is licensed by the U.S. Department of Agriculture (USDA) for use in
those species. 69 The owner must have the animal revaccinated 12 months after the initial vaccination,
and subsequent vaccinations must conform to the vaccine manufacturer’s directions. The cost of
vaccination must be borne by the animal’s owner. Violations of this requirement are a civil infraction,
punishable by a penalty of up to $500. 70
A dog, cat, or ferret is exempt from vaccination against rabies if a licensed veterinarian has examined
the animal and has certified in writing that the vaccination would endanger the animal’s health because
of its age, infirmity, disability, illness, or other medical considerations. An exempt animal must be
vaccinated against rabies as soon as its health permits. 71
Upon vaccination, the licensed veterinarian is required to provide the animal’s owner and the animal
control authority with a rabies vaccination certificate. 72 The veterinarian who administers the rabies
vaccine to an animal as required under this section may affix his or her signature stamp in lieu of an
actual signature. 73
Currently, Florida law does not appear to allow anyone other than the veterinarian to administer the
rabies vaccine. The law allows certain vaccines, anesthesia and tranquilization to be administered by a
veterinary aide, nurse, laboratory technician, intern, or other employee of a licensed veterinarian while
under the “immediate supervision” of a licensed veterinarian. 74 In addition, the following tasks may be
performed without the licensed veterinarian on the premises:
• The administration of medication and treatment, excluding vaccinations, as directed by the
licensed veterinarian; and
• The obtaining of samples and the performance of those diagnostic tests, including radiographs,
directed by the licensed veterinarian. 75
The Board has recognized that the following diseases are communicable to humans and are of public
health significance, and as a result, only a veterinarian is authorized to immunize or treat an animal
for these diseases. The diseases include:
• Brucellosis.
• Tuberculosis.
• Rabies.
• Equine Encephalomyelitis. 76
Effect of the Bill
The bill allows licensed veterinarians to practice veterinary telehealth on a limited basis, and indirectly
supervise rabies vaccinations of impounded animals.
Regarding veterinary telemedicine, the bill:
• Allows a veterinarian who holds a current license to practice veterinary medicine in this state to
practice veterinary telehealth.
• Defines “telehealth” to have the same meaning as the human telehealth definition in s.
456.47(1), F.S.:
69
S. 828.30(1), F.S.
70
See s. 828.27(2), F.S
71
S. 828.30(2), F.S.
72
Each animal control authority and veterinarian shall use the “Rabies Vaccination Certificate” of the National Association of State
Public Health Veterinarians (NASPHV) or an equivalent form approved by the local government that contains all the information
required by the NASPHV Rabies Vaccination Certificate.
73
S. 828.30(3), F.S.
74
S. 474.202(5), F.S., defines “immediate supervision” or words of similar purport to mean a licensed doctor of veterinary medicine is
on the premises whenever veterinary services are being provided.
75
R. 61G18-17.005, F.A.C.
76
R. 61G18-17.006, F.A.C.
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o “the use of synchronous or asynchronous telecommunications technology by a
telehealth provider to provide health care services, including, but not limited to,
assessment, diagnosis, consultation, treatment, and monitoring of a patient; transfer of
medical data; patient and professional health-related education; public health services;
and health administration. The term does not include e-mail messages or facsimile
transmissions.”
• Gives the Board of Veterinary Medicine jurisdiction over a veterinarian practicing veterinary
telehealth, regardless of where the veterinarian's physical office is located.
• Deems the practice of veterinary to occur at the premises where the patient is located at the
time the veterinarian practices veterinary telehealth.
• Prohibits practicing veterinary telehealth unless it is within the context of a
veterinarian/client/patient relationship.
• Requires the practice of telehealth to be in a manner consistent with the scope of practice and
the prevailing professional standard of practice for a veterinarian who provides in-person
veterinary services to patients in this state.
• Authorizes veterinarians practicing telehealth to perform a patient evaluation, and specifies that
if a veterinarian practicing telehealth conducts a patient evaluation sufficient to diagnose and
treat the patient, the veterinarian is not required to research a patient's medical history or
conduct a physical examination of the patient before using veterinary telehealth to provide a
veterinary health care service to the patient.
• Requires veterinarians practicing telehealth to prescribe all drugs and medications in
accordance with all federal and state laws.
o Authorizes a veterinarian practicing veterinary telehealth to order, prescribe, or make
available medicinal drugs or drugs as defined in s. 465.003, F.S.
o Prohibits a veterinarian from using telehealth to prescribe a controlled substance listed in
Schedule II of s. 893.03, F.S.
• Authorizes veterinarians who are personally acquainted with the caring and keeping of an
animal or group of animals on food-producing animal operations on land classified as
agricultural pursuant to s. 193.461, F.S., who has recently seen the animal or group of animals
or has made medically appropriate and timely visits to the premises where the animal or group
of animals is kept to practice veterinary telehealth for animals on such operations.
Regarding rabies vaccinations, the bill:
• Allows an employee, an agent, or a contractor of a county or municipal animal control authority,
or sheriff, acting under the indirect supervision of a veterinarian, to administer rabies
vaccinations to impounded dogs, cats, and ferrets that will be transferred, rescued, fostered,
adopted, or reclaimed by the owner.
• Provides that the supervising veterinarian assumes responsibility for any person vaccinating
animals at his or her direction or under his or her direct or indirect supervision.
• Defines "indirect supervision," to mean the supervising veterinarian is required to be available
for consultation through telecommunications but is not required to be physically present during
such consultation.
• Authorizes veterinarians who supervise the administration of the rabies vaccination to affix his
or her signature stamp in lieu of an actual signature to the rabies vaccination certificate.
B. SECTION DIRECTORY:
Section 1: Creates s. 474.2021, F.S., relating to veterinary telehealth.
Section 2: Amends s. 474.2165, F.S., conforming provisions relating to ownership and control of
veterinary medical patient records; report or copies of records to be furnished.
Section 3: Amends s. 828.30, F.S., relating to rabies vaccination of dogs, cats, and ferrets.
Section 4: Amends s. 474.203, F.S., conforming provisions relating to exemptions.
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Section 5: Amends s. 767.16, F.S., conforming provisions relating to police canine or service dog;
exemption.
Section 6: Amends s. 828.29, F.S., conforming provisions relating to dogs and cats transported or
offered for sale; health requirements; consumer guarantee.
Section 7: Provides an effective date of July 1, 2024.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
Indeterminate. Animal control authorities will be able to administer rabies vaccinations of
impounded animals without a veterinarian having to be physically present. This may create a
savings for local animal control authorities to the extent they are incurring extra veterinary costs
associated with veterinarians being required to be onsite to administer rabies vaccinations.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Licensed veterinarians will be permitted to practice veterinary telehealth, including limited prescription
authority, thus giving them more flexibility in their practice. This will move them further toward equal
footing with licensed health care providers in the state who are already allowed to practice telehealth.
Animal owners may have greater access to veterinarians and may feel more comfortable, especially
during a state of emergency. Visitors and tourists with pets may be able to obtain veterinarian care
while on vacation in Florida without the need for locating and transporting their animal to a
veterinarian’s office.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
3. Other:
None.
B. RULE-MAKING AUTHORITY:
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DATE: 1/9/2024
Current law appears to grant the Board sufficient authority to adopt rules to implement the provisions of
this bill. 77
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
77
S. 474.206, F.S.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 849 2024
1 A bill to be entitled
2 An act relating to veterinary practices; creating s.
3 474.2021, F.S.; providing a short title; authorizing
4 licensed veterinarians to practice veterinary
5 telehealth in accordance with specified criteria;
6 specifying the powers of the Board of Veterinary
7 Medicine related to the practice of telehealth;
8 specifying the conditions under which a veterinarian
9 may practice veterinary telehealth; specifying the
10 drugs a veterinarian practicing telehealth may not
11 provide under specified circumstances; providing
12 specific authorizations for cases where a patient is a
13 food-producing species; amending s. 474.2165, F.S.;
14 conforming provisions to changes made by the act;
15 amending s. 828.30, F.S.; authorizing certain persons
16 to administer rabies vaccinations to certain animals
17 under indirect supervision of a veterinarian;
18 providing supervising veterinarian assumes
19 responsibility for specified people who provide
20 vaccinations; defining the term "indirect
21 supervision"; amending ss. 474.203, 767.16, and
22 828.29, F.S.; conforming provisions to changes made by
23 the act; providing an effective date.
24
25 Be It Enacted by the Legislature of the State of Florida:
Page 1 of 9
CODING: Words stricken are deletions; words underlined are additions.
hb0849-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 849 2024
26
27 Section 1. Section 474.2021, Florida Statutes, is created
28 to read:
29 474.2021 Veterinary telehealth.—
30 (1) This section may be cited as the "Providing Equity in
31 Telehealth Services Act."
32 (2) A veterinarian who holds a current license to practice
33 veterinary medicine in this state may practice veterinary
34 telehealth. For purposes of this section, the term "telehealth"
35 has the same meaning as in s. 456.47(1).
36 (3) The board has jurisdiction over a veterinarian
37 practicing veterinary telehealth, regardless of where the
38 veterinarian's physical office is located. The practice of
39 veterinary medicine is deemed to occur at the premises where the
40 patient is located at the time the veterinarian practices
41 veterinary telehealth.
42 (4) A veterinarian practicing veterinary telehealth:
43 (a) May not engage in the practice of veterinary
44 telehealth unless it is within the context of a
45 veterinarian/client/patient relationship;
46 (b) Must practice in a manner consistent with his or her
47 scope of practice and the prevailing professional standard o f
48 practice for a veterinarian who provides in-person veterinary
49 services to patients in this state;
50 (c) May use telehealth to perform a patient evaluation. If
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51 a veterinarian practicing telehealth conducts a patient
52 evaluation sufficient to diagnose and treat the patient, the
53 veterinarian is not required to research a patient's medical
54 history or conduct a physical examination of the patient before
55 using veterinary telehealth to provide a veterinary health care
56 service to the patient; and
57 (d) Must prescribe all drugs and medications in accordance
58 with all federal and state laws. A veterinarian practicing
59 veterinary telehealth may order, prescribe, or make available
60 medicinal drugs or drugs as defined in s. 465.003. A
61 veterinarian may not use telehealth to prescribe a controlled
62 substance listed in Schedule II of s. 893.03.
63 (5) A veterinarian personally acquainted with the caring
64 and keeping of an animal or group of animals on food-producing
65 animal operations on land classified as agricultural pursuant to
66 s. 193.461 who has recently seen the animal or group of animals
67 or has made medically appropriate and timely visits to the
68 premises where the animal or group of animals is kept may
69 practice veterinary telehealth for animals on such operations.
70 Section 2. Subsection (1) of section 474.2165, Florida
71 Statutes, is amended to read:
72 474.2165 Ownership and control of veterinary medical
73 patient records; report or copies of records to be furnished. —
74 (1) As used in this section, the term "records owner"
75 means any veterinarian who generates a medical record after
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76 making an a physical examination of, or administering treatment
77 or dispensing legend drugs to, any patient; any veterinarian to
78 whom records are transferred by a previous records owner; or any
79 veterinarian's employer, provided the employment contract or
80 agreement between the employer and the veterinarian designates
81 the employer as the records owner.
82 Section 3. Subsections (1) and (3) of section 828.30,
83 Florida Statutes, are amended to read:
84 828.30 Rabies vaccination of dogs, cats, and ferrets.—
85 (1)(a) All dogs, cats, and ferrets 4 months of age or
86 older must be vaccinated by a licensed veterinarian or a person
87 authorized under paragraph (b) against rabies with a vaccine
88 that is licensed by the United States Department of Agriculture
89 for use in those species.
90 (b) Acting under the indirect supervision of a
91 veterinarian, an employee, an agent, or a contractor of a county
92 or municipal animal control authority or sheriff may vaccinate
93 against rabies dogs, cats, and ferrets in the custody of an
94 animal control authority or a sheriff that will be transferred,
95 rescued, fostered, adopted, or reclaimed by the owner. The
96 supervising veterinarian assumes responsibility for any person
97 vaccinating animals at his or her direction or under his or her
98 direct or indirect supervision. As used in this paragraph, the
99 term "indirect supervision" means that the supervising
100 veterinarian is required to be available for consultation
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101 through telecommunications but is not required to be physically
102 present during such consultation.
103 (c) The owner of every dog, cat, and ferret shall have the
104 animal revaccinated 12 months after the initial vaccination.
105 Thereafter, the interval between vaccinations shall conform to
106 the vaccine manufacturer's directions. The cost of vaccination
107 must be borne by the animal's owner. Evidence of circulating
108 rabies virus neutralizing antibodies may shall not be used as a
109 substitute for current vaccination in managing rabies exposure
110 or determining the need for booster vaccinations.
111 (3) Upon vaccination against rabies, the licensed
112 veterinarian shall provide the animal's owner and the animal
113 control authority with a rabies vaccination certificate. Each
114 animal control authority and veterinarian shall use the "Rabies
115 Vaccination Certificate" of the National Association of State
116 Public Health Veterinarians (NASPHV) or an equivalent form
117 approved by the local government that contains all the
118 information required by the NASPHV Rabies Vaccination
119 Certificate. The veterinarian who administers the rabies
120 vaccination or who supervises the administration of the rabies
121 vaccination as provided in paragraph (1)(b) vaccine to an animal
122 as authorized required under this section may affix his or her
123 signature stamp in lieu of an actual signature.
124 Section 4. Paragraph (a) of subsection (5) of section
125 474.203, Florida Statutes, is amended to read:
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126 474.203 Exemptions.—This chapter does not apply to:
127 (5)(a) Any person, or the person's regular employee,
128 administering to the ills or injuries of her or his own animals,
129 including, but not limited to, castration, spaying, and
130 dehorning of herd animals, unless title is transferred or
131 employment provided for the purpose of circumventing this law.
132 This exemption does not apply to any person licensed as a
133 veterinarian in another state or foreign jurisdiction and
134 practicing temporarily in this state. However, except as
135 provided in s. 828.30, only a veterinarian may immunize or treat
136 an animal for diseases that are communicable to humans and that
137 are of public health significance.
138
139 For the purposes of chapters 465 and 893, persons exempt
140 pursuant to subsection (1), subsection (2), or subsection (4)
141 are deemed to be duly licensed practitioners authorized by the
142 laws of this state to prescribe drugs or medicinal supplies.
143 Section 5. Subsection (2) of section 767.16, Florida
144 Statutes, is amended to read:
145 767.16 Police canine or service dog; exemption.—
146 (2) Any dog used as a service dog for blind, hearing
147 impaired, or disabled persons that bites another animal or a
148 human is exempt from any quarantine requirement following such
149 bite if the dog has a current rabies vaccination that was
150 administered as provided in s. 828.30 by a licensed
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151 veterinarian.
152 Section 6. Paragraph (b) of subsection (1) and paragraph
153 (b) of subsection (2) of section 828.29, Florida Statutes, are
154 amended to read:
155 828.29 Dogs and cats transported or offered for sale;
156 health requirements; consumer guarantee.—
157 (1)
158 (b) For each dog offered for sale within the state, the
159 tests, vaccines, and anthelmintics required by this section must
160 be administered by or under the direction of a veterinarian,
161 licensed by the state and accredited by the United States
162 Department of Agriculture, who issues the official certificate
163 of veterinary inspection. The tests, vaccines, and anthelmintics
164 must be administered before the dog is offered for sale in the
165 state, unless the licensed, accredited veterinarian certifies on
166 the official certificate of veterinary inspection t hat to
167 inoculate or deworm the dog is not in the best medical interest
168 of the dog, in which case the vaccine or anthelmintic may not be
169 administered to that particular dog. Each dog must receive
170 vaccines and anthelmintics against the following diseases and
171 internal parasites:
172 1. Canine distemper.
173 2. Leptospirosis.
174 3. Bordetella (by intranasal inoculation or by an
175 alternative method of administration if deemed necessary by the
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176 attending veterinarian and noted on the health certificate,
177 which must be administered in this state once before sale).
178 4. Parainfluenza.
179 5. Hepatitis.
180 6. Canine parvo.
181 7. Rabies, provided the dog is over 3 months of age and
182 the inoculation is administered as provided in s. 828.30 by a
183 licensed veterinarian.
184 8. Roundworms.
185 9. Hookworms.
186
187 If the dog is under 4 months of age, the tests, vaccines, and
188 anthelmintics required by this section must be administered no
189 more than 21 days before sale within the state. If the dog is 4
190 months of age or older, the tests, vaccines, and anthelmintics
191 required by this section must be administered at or after 3
192 months of age, but no more than 1 year before sale within the
193 state.
194 (2)
195 (b) For each cat offered for sale within the state, the
196 tests, vaccines, and anthelmintics required by this section must
197 be administered by or under the direction of a veterinarian,
198 licensed by the state and accredited by the United States
199 Department of Agriculture, who issues the official certificate
200 of veterinary inspection. The tests, vaccines, and anthelmintics
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201 must be administered before the cat is offered for sale in the
202 state, unless the licensed, accredited veterinarian certifies on
203 the official certificate of veterinary inspection that to
204 inoculate or deworm the cat is not in the best medical interest
205 of the cat, in which case the vaccine or anthelmintic may not be
206 administered to that particular cat. Each cat must receive
207 vaccines and anthelmintics against the following diseases and
208 internal parasites:
209 1. Panleukopenia.
210 2. Feline viral rhinotracheitis.
211 3. Calici virus.
212 4. Rabies, if the cat is over 3 months of age and the
213 inoculation is administered as provided in s. 828.30 by a
214 licensed veterinarian.
215 5. Hookworms.
216 6. Roundworms.
217
218 If the cat is under 4 months of age, the tests, vaccines, and
219 anthelmintics required by this section must be administered no
220 more than 21 days before sale within the state. If the cat is 4
221 months of age or older, the tests, vaccines, and anthelmintics
222 required by this section must be administered at or after 3
223 months of age, but no more than 1 year before sale within the
224 state.
225 Section 7. This act shall take effect July 1, 2024.
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 1377 Pub. Rec./Investigations by the Department of Legal Affairs
SPONSOR(S): Sirois
TIED BILLS: HB 1 IDEN./SIM. BILLS: SB 1790
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development Wright Anstead
Subcommittee
2) State Affairs Committee
SUMMARY ANALYSIS
Generally, a social media platform is a computer-based technology that facilitates the sharing of ideas,
thoughts, and information through virtual networks and communities. Social media use by children can have
negative effects on their wellbeing, and studies have found a link between child social media use and poor
mental health.
To attempt to reduce such effects on kids, Utah, Arkansas, Louisiana, and Ohio recently enacted laws to
require social media platforms to verify user age and require parental consent for minors to have an account.
HB 1, to which this bill is linked, requires social media platforms to:
• Verify the age of a person wishing to open a new account,
• Prohibit minors under 16 years of age from creating a new account, and
• Implement certain Internet safety measures for minors under 18 years of age.
The Department of Legal Affairs (DLA), upon belief that any social media platform is in violation of HB 1’s
provisions, may bring an action under the Florida Unfair or Deceptive Trade Practices Act. A private cause of
action is permitted in certain limited circumstances.
This bill provides that all information received by DLA pursuant to a notification or investigation by DLA or a law
enforcement agency of a violation is confidential and exempt from public record requirements. The bill provides
that the information may be released by DLA during an active investigation only:
• In the furtherance of its official duties and responsibilities;
• For print, publication, or broadcast to notify the public of a data breach; or
• To another governmental entity in the furtherance of the receiving entity’s official duties and
responsibilities.
Once an investigation is completed, the following information remains confidential and exempt:
• All information to which another public records exemption applies;
• Personal information;
• A computer forensic report;
• Information that would otherwise reveal weaknesses in data security; and
• Information that would otherwise disclose proprietary information.
The bill provides that the public records exemption is subject to the Open Government Sunset Review Act and
will repeal on October 2, 2029, unless reviewed and saved from repeal through reenactment by the
Legislature.
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record or public meeting exemption.
The bill creates a public record exemption; thus, it requires a two-thirds vote for final passage.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1377.RRS
DATE: 1/9/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Public Records
Article I, s. 24(a) of the State Constitution sets forth the state’s public policy regarding access to
government records. This section guarantees every person a right to inspect or copy any public record
of the legislative, executive, and judicial branches of government. 1 The Legislature, however, may
provide by general law for the exemption of records from these requirements provided the exemption
passes by two-thirds vote of each chamber, states with specificity the public necessity justifying the
exemption, and is no broader than necessary to meet its public purpose. 2
Public policy regarding access to government records is also addressed by statute. Section 119.07(1),
F.S., guarantees every person a right to inspect and copy any state, county, or municipal record, unless
the record is exempt. 3 Furthermore, the Open Government Sunset Review Act 4 provides that a public
record exemption may be created or maintained only if it serves an identifiable public purpose that is
sufficiently compelling to override the strong public policy of open government and that cannot be
accomplished without the exemption. 5 An identifiable public purpose is served if the exemption meets
one of the following purposes:
• Allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption;
• Protects sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision; or
• Protects trade or business secrets. 6
The Open Government Sunset Review Act requires the automatic repeal of a newly created exemption
on October 2nd of the fifth year after creation or substantial amendment, unless the Legislature
reenacts the exemption. 7
Social Media and Kids
Generally, a social media platform is a computer-based technology that facilitates the sharing of ideas,
thoughts, and information through virtual networks and communities. Social media is Internet-based
and gives users quick electronic communication of content, such as personal information, videos, and
photos. Users engage with social media via a computer, tablet, or smartphone via web-based software
or applications. 8
1
Art. I, s. 24(a), Fla. Const.
2
Art. I, s. 24(c), Fla. Const.
3
A “public record exemption” means a provision of general law which provides that a specified record, or portion thereof, is not
subject to the access requirements of s. 119.07(1), F.S., or Art. I, s. 24 of the State Constitution. See s. 119.011(8), F.S.
4
S. 119.15, F.S.
5
S. 119.15(6)(b), F.S.
6
Id.
7
S. 119.15(3), F.S.
8
Maya Dollarhide, Social Media: Definition, Effects, and List of Top Apps, Investopedia.com,
https://www.investopedia.com/terms/s/social-media.asp (last visited Jan. 6, 2024).
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Social media use by children can have negative effects on their health. 9 Some potential safety risks of
social media use include:
• Exposure to harmful or inappropriate content;
• Exposure to dangerous people;
• Cyberbullying;
• Oversharing personal information;
• Exposure to excessive advertisements;
• Privacy concerns, including the collection of data about minors;
• Identity theft or being hacked; and
• Interference with sleep, exercise, homework, or family activities. 10
Additionally, a 2022 study conducted by social media and psychology scholars found a link between
social media use and poor mental health, especially among girls. 11 Such study demonstrated that girls
experience a consistent and substantial association between mental health and social media, and such
associations were stronger than links between mental health and binge drinking, sexual assault,
obesity, and hard drug use. 12
To attempt to reduce such effects on kids, Utah, Arkansas, Louisiana, and Ohio recently enacted laws
to require social media platforms to verify user age and require parental consent for minors to have an
account. 13
Department of Legal Affairs
The Office of the Attorney General, also known as the Department of Legal Affairs (DLA), provides a
wide variety of legal services, including defending the state in civil litigation cases, representing the
people of Florida in criminal appeals in state and federal courts, protecting rights of children,
consumers, and victims through its various protection programs, and investigating and litigating against
businesses that seek to limit competition and defraud taxpayers. 14
HB 1
HB 1, to which this bill is linked, requires social media platforms to:
• Verify the age of a person wishing to open a new account,
• Prohibit minors under 16 years of age from creating a new account, and
• Implement certain Internet safety measures for minors under 18 years of age.
DLA, upon belief that a social media platform is in violation of the bill, may bring an action under the
Florida Unfair or Deceptive Trade Practices Act. A private cause of action is permitted in certain limited
circumstances.
9
Mayo Clinic Staff, Teens and social media use: What's the impact?, Mayo Foundation for Medical Education and Research,
https://www.mayoclinic.org/healthy-lifestyle/tween-and-teen-health/in-depth/teens-and-social-media-use/art-20474437 (last visited
Jan. 6, 2024).
10
Loyola Medicine, Social Media Safety for Kids and Teens, https://www.loyolamedicine.org/about-us/blog/social-media-safety-kids-
teens, (last visited Jan. 6, 2024)
11
Jean Twenge, Jonathan Haidt, Jimmy Lozano, and Kevin Cummins, Specification curve analysis shows that social media use is
linked to poor mental health, especially among girls, 224 Acta Psychologica, (April 2022),
https://www.sciencedirect.com/science/article/pii/S0001691822000270 (last visited Jan. 6, 2024); Jean Twenge, et al, infra note 12.
12
Jean Twenge, et al, Social media is riskier for kids than ‘screen time’, The Washington Post, Feb. 16, 2022,
https://www.washingtonpost.com/opinions/2022/02/16/social-media-is-riskier-kids-than-screen-time/ (last visited Jan. 8, 2024).
13
Ch. 498, Laws of Utah 2023; Act No. 441, 2023 La. Acts; 2023 Ark. Acts 689; Ohio House Bill 33 - 135th General Assembly.
14
OPPAGA, Office of the Attorney General (Department of Legal Affairs),
https://oppaga.fl.gov/ProgramSummary/ProgramDetail?programNumber=1026 (last visited Mar. 31, 2023).
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Effect of Proposed Changes
The bill creates a public record exemption for all information received by DLA pursuant to a notification
or investigation by DLA or a law enforcement agency of a violation of certain statutory requirements.
Such information is made confidential and exempt 15 from public record requirements.
During an active investigation, information made confidential and exempt may be disclosed by DLA:
• In the furtherance of its official duties and responsibilities;
• For print, publication, or broadcast if DLA determines that such release would assist in notifying
the public or locating or identifying a person that DLA believes to be a victim of a data breach or
improper use or disposal of customer records, except that information made confidential and
exempt after an investigation may not be released in this manner; or
• To another governmental entity in the furtherance of the receiving entity’s official duties and
responsibilities.
Once an investigation is completed or once an investigation ceases to be active, the following
information received by DLA remains confidential and exempt:
• All information to which another public records exemption applies;
• Personal information;
• A computer forensic report;
• Information that would otherwise reveal weaknesses in a social media platform’s data security;
and
• Information that would otherwise disclose a social media platform’s proprietary information.
The bill defines the term "proprietary information" to mean information that:
• Is owned or controlled by the social media platform;
• Is intended to be private and is treated by the social media platform as private because
disclosure would harm the social media platform or its business operations;
• Has not been disclosed except as required by law or through a private agreement that provides
that the information will not be released to the public;
• Is not publicly available or otherwise readily ascertainable through proper means from another
source in the same configuration as received by DLA; and
• Includes trade secrets and competitive interests.
The bill provides a public necessity statement as required by article I, s. 24(c) of the Florida
Constitution. The public necessity statement provides that, if released, information received by DLA
pursuant to an investigation by DLA or a law enforcement agency could:
• Frustrate or thwart the investigation and impair the ability of DLA to perform assigned functions;
• Undo a specific statutory exemption protecting the information;
• Be used for the purpose of identity theft;
• Result in the identification of vulnerabilities; and
• Result in economic harm.
The bill provides that the public record exemption is subject to the Open Government Sunset Review
Act and will repeal on October 2, 2029, unless the Legislature reviews and reenacts the exemption by
that date.
The bill will become effective on the same date that HB 1 or similar legislation takes effect, if such
legislation is adopted in the same legislative session or an extension thereof and becomes a law.
15
There is a difference between records the Legislature designates exempt from public record requirements and those the Legislature
deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain circumstances.
See WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So.2d 1015 (Fla. 2004); City of
Rivera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So.2d 683, 687 (Fla. 5th DCA
1991). If the Legislature designates a record as confidential and exempt from public disclosure, such record may not be released by the
custodian of public records, to anyone other than the persons or entities specifically designated in statute. See Op. Att’y Gen. Fla.
(1985).
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DATE: 1/9/2024
B. SECTION DIRECTORY:
Section 1: Creates a public record exemption for investigations related to s. 501.1736, F.S.
Section 2: Provides a public necessity statement as required by the Florida Constitution.
Section 3: Provides an effective date of the same date that HB 1 or similar legislation takes effect, if
such legislation is adopted in the same legislative session or an extension thereof and
becomes law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have a minimal fiscal impact on DLA because agency staff responsible for complying with
public records requests may require training related to the creation of the public record exemption. DLA
could incur costs associated with redacting the confidential and exempt information prior to releasing a
record. The costs, however, would be absorbed by existing resources, as they are part of the day-to-
day responsibilities of agencies.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
Vote Requirement
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record or public meeting exemption.
The bill creates a public record exemption; thus, it requires a two-thirds vote for final passage.
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DATE: 1/9/2024
Public Necessity Statement
Article I, s. 24(c) of the Florida Constitution requires a public necessity statement for a newly created
or expanded public record or public meeting exemption. The bill creates a public record exemption;
thus, it includes a public necessity statement. The public necessity statement provides that, if
released, information received by DLA pursuant to an investigation could frustrate or thwart the
investigation and impair the ability of DLA to perform assigned functions, undo a specific statutory
exemption protecting the information, be used for the purpose of identity theft, result in the
identification of vulnerabilities, and result in economic harm.
Breadth of Exemption
Article I, s. 24(c) of the Florida Constitution requires a newly created or expanded public record or
public meeting exemption to be no broader than necessary to accomplish the stated purpose of the
law. The bill creates a public record exemption for sensitive investigative materials and personal
information, which does not appear to be broader than necessary to accomplish its purpose.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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DATE: 1/9/2024
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 1377 2024
1 A bill to be entitled
2 An act relating to public records; amending s.
3 501.1736, F.S.; providing an exemption from public
4 records requirements for information relating to
5 investigations by the Department of Legal Affairs and
6 law enforcement agencies of certain data privacy
7 violations; providing a definition; providing for
8 future legislative review and repeal of the exemption;
9 providing a statement of public necessity; providing a
10 contingent effective date.
11
12 Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1. Subsection (8) of section 501.1736, Florida
15 Statutes, as created by HB 1 or similar legislation, 2024
16 Regular Session, is renumbered as subsection (9) and a new
17 subsection (8) is added to that section to read:
18 501.1736 Social media use for minors.—
19 (8)(a) All information received by the department pursuant
20 to a notification of a violation under this section, or received
21 by the department pursuant to an investigation by the department
22 or a law enforcement agency of a violation of this section, is
23 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
24 of the State Constitution, until such time as the investigation
25 is completed or ceases to be active. This exemption shall be
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26 construed in conformity with s. 119.071(2)(c).
27 (b) During an active investigation, information made
28 confidential and exempt pursuant to paragraph (a) may be
29 disclosed by the department:
30 1. In the furtherance of its official duties and
31 responsibilities;
32 2. For print, publication, or broadcast if the department
33 determines that such release would assist in notifying the
34 public or locating or identifying a person that the department
35 believes to be a victim of a data breach or an improper use or
36 disposal of customer records, except that information made
37 confidential and exempt by paragraph (c) may not be released
38 pursuant to this subparagraph; or
39 3. To another governmental entity in the furtherance of
40 its official duties and responsibilities.
41 (c) Upon completion of an investigation or once an
42 investigation ceases to be active, the following information
43 received by the department shall remain confidential and exempt
44 from s. 119.07(1) and s. 24(a), Art. I of the State
45 Constitution:
46 1. All information to which another public records
47 exemption applies.
48 2. Personal information.
49 3. A computer forensic report.
50 4. Information that would otherwise reveal weaknesses in
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51 the data security of a social media platform.
52 5. Information that would disclose the proprietary
53 information of a social media platform.
54 (d) For purposes of this section, the term "proprietary
55 information" means information that:
56 1. Is owned or controlled by the social media platform.
57 2. Is intended to be private and is treated by the social
58 media platform as private because disclosure would harm the
59 social media platform or its business operations.
60 3. Has not been disclosed except as required by law or a
61 private agreement that provides that the information will not be
62 released to the public.
63 4. Is not publicly available or otherwise readily
64 ascertainable through proper means from another source in the
65 same configuration as received by the department.
66 5. Includes:
67 a. Trade secrets as defined in s. 688.002.
68 b. Competitive interests, the disclosure of which would
69 impair the competitive advantage of the social media platform
70 who is the subject of the information.
71 (e) This section is subject to the Open Government Sunset
72 Review Act in accordance with s. 119.15 and shall stand repealed
73 on October 2, 2029, unless reviewed and saved from repeal
74 through reenactment by the Legislature.
75 Section 2. The Legislature finds that it is a public
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76 necessity that all information received by the Department of
77 Legal Affairs pursuant to a notification of a violation of s.
78 501.1736, Florida Statutes, or received by the department
79 pursuant to an investigation by the department or a law
80 enforcement agency of a violation of that section, be made
81 confidential and exempt from s. 119.07(1), Florida Statutes, and
82 s. 24(a), Article I of the State Constitution for the following
83 reasons:
84 (1) A notification of a violation of s. 501.1736, Florida
85 Statutes, may result in an investigation of such violation. The
86 premature release of such information could frustrate or thwart
87 the investigation and impair the ability of the department to
88 effectively and efficiently administer s. 501.1736, Florida
89 Statutes. In addition, release of such information before
90 completion of an active investigation could jeopardize the
91 ongoing investigation.
92 (2) Release of information to which another public records
93 exemption applies once an investigation is completed or ceases
94 to be active would undo the specific statutory exemption
95 protecting that information.
96 (3) An investigation of a violation of s. 501.1736,
97 Florida Statutes, is likely to result in the gathering of
98 sensitive personal information, including identification
99 numbers, unique identifiers, professional or employment -related
100 information, and personal financial information. Such
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101 information could be used for the purpose of identity theft. The
102 release of such information could subject possible victims of
103 data privacy violations to further harm.
104 (4) Notices received by the department and information
105 received during an investigation of a violation of s. 501.1736,
106 Florida Statutes, are likely to contain proprietary information.
107 Such information, including trade secrets, derives independent,
108 economic value, actual or potential, from being generally
109 unknown to, and not readily ascertainable by, other persons who
110 might obtain economic value from its disclosure or use. Allowing
111 public access to proprietary information, including a trade
112 secret, through a public records request could destroy the value
113 of the proprietary information and cause a financial loss to the
114 social media platform. Release of such information could give
115 business competitors an unfair advantage.
116 (5) Information received by the department may contain a
117 computer forensic report or information that could reveal
118 weaknesses in the data security of a social media platform. The
119 release of this information could result in the identification
120 of vulnerabilities in the cybersecurity system of the social
121 media platform and be used to harm the social media platform and
122 clients.
123 (6) The harm that may result from the release of
124 information received by the department pursuant to a
125 notification or investigation by the department or a law
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126 enforcement agency of a violation of s. 501.1736, Florida
127 Statutes, could impair the effective and efficient
128 administration of the investigation and thus, outweighs the
129 public benefit that may be derived from the disclosure of the
130 information.
131 Section 3. This act shall take effect on the same date
132 that HB 1 or similar legislation takes effect, if such
133 legislation is adopted in the same legislative session or an
134 extension thereof and becomes a law.
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HB 1491
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 1491 Pub. Rec./Investigations by the Department of Legal Affairs
SPONSOR(S): Tramont
TIED BILLS: HB 3 IDEN./SIM. BILLS: SB 1794
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development Wright Anstead
Subcommittee
2) State Affairs Committee
SUMMARY ANALYSIS
Internet usage and mobile technology have become mainstream, especially among teens and young adults, which
has expanded the creation and dissemination of pornography. The majority of Americans, including minors, are
exposed to pornography online regularly, and 56 percent of American high school students have viewed
pornography in the last year.
Adolescents who view pornography tend to report feeling insecure about their ability to perform sexually or the way
they look, display more aggression, and view women as sex objects.
HB 3, to which this bill is linked, requires a commercial entity that knowingly and intentionally publishes or distributes
a substantial portion of material harmful to minors on a website or application to:
• Prohibit access to such material by any person younger than 18 years of age, and
• Use reasonable age verification methods to verify that the age of a person attempting to access the material
is 18 years of age or older.
The Department of Legal Affairs (DLA), upon belief that any commercial entity is in violation of HB 3’s provisions,
may bring an action under the Florida Unfair or Deceptive Trade Practices Act. A private cause of action is permitted
in certain limited circumstances.
This bill provides that all information received by DLA pursuant to a notification or investigation by DLA or a law
enforcement agency of a violation is confidential and exempt from public record requirements. The bill provides that
the information may be released by DLA during an active investigation only:
• In the furtherance of its official duties and responsibilities;
• For print, publication, or broadcast to notify the public of a data breach; or
• To another governmental entity in the furtherance of the receiving entity’s official duties and responsibilities.
Once an investigation is completed, the following information remains confidential and exempt:
• All information to which another public records exemption applies;
• Personal information;
• A computer forensic report;
• Information that would otherwise reveal weaknesses in data security; and
• Information that would otherwise disclose proprietary information.
The bill provides that the public records exemption is subject to the Open Government Sunset Review Act and will
repeal on October 2, 2029, unless reviewed and saved from repeal through reenactment by the Legislature.
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record or public meeting exemption.
The bill creates a public record exemption; thus, it requires a two-thirds vote for final passage.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1491.RRS
DATE: 1/9/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Public Records
Article I, s. 24(a) of the State Constitution sets forth the state’s public policy regarding access to
government records. This section guarantees every person a right to inspect or copy any public record
of the legislative, executive, and judicial branches of government. 1 The Legislature, however, may
provide by general law for the exemption of records from these requirements provided the exemption
passes by two-thirds vote of each chamber, states with specificity the public necessity justifying the
exemption, and is no broader than necessary to meet its public purpose. 2
Public policy regarding access to government records is also addressed by statute. Section 119.07(1),
F.S., guarantees every person a right to inspect and copy any state, county, or municipal record, unless
the record is exempt. 3 Furthermore, the Open Government Sunset Review Act 4 provides that a public
record exemption may be created or maintained only if it serves an identifiable public purpose that is
sufficiently compelling to override the strong public policy of open government and that cannot be
accomplished without the exemption. 5 An identifiable public purpose is served if the exemption meets
one of the following purposes:
• Allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption;
• Protects sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision; or
• Protects trade or business secrets. 6
The Open Government Sunset Review Act requires the automatic repeal of a newly created exemption
on October 2nd of the fifth year after creation or substantial amendment, unless the Legislature
reenacts the exemption. 7
Effects of Harmful Content on Children
Internet usage and mobile technology has become mainstream, especially among teens and young
adults. 8 The majority of Americans come across pornography online and roughly half will seek it out. 9
Twenty-seven percent of young adults first view pornography before the onset of puberty, 10 70 percent
1
Art. I, s. 24(a), Fla. Const.
2
Art. I, s. 24(c), Fla. Const.
3
A “public record exemption” means a provision of general law which provides that a specified record, or portion thereof, is not
subject to the access requirements of s. 119.07(1), F.S., or Art. I, s. 24 of the State Constitution. See s. 119.011(8), F.S.
4
S. 119.15, F.S.
5
S. 119.15(6)(b), F.S.
6
Id.
7
S. 119.15(3), F.S.
8
Eric W. Owens et al., The Impact of Internet Pornography on Adolescents: A Review of the Research, 19(1-2) SEXUAL ADDICTION &
COMPULSIVITY 99, 99-100 (2012); See also PEW RESEARCH CENTER, Teens, Social Media & Technology Overview 2015:
Smartphones Facilitate Shifts in Communication Landscape for Teens, http://www.pewinternet.org/2015/04/09/teens-social-media-
technology-2015/ (last visited Jan. 7, 2024).
9
Josh McDowell Ministry, THE PORN PHENOMENON: THE IMPACT OF PORNOGRAPHY IN THE DIGITAL AGE (2016), research summary
available at https://www.barna.com/research/porn-in-the-digital-age-new-research-reveals-10-trends/ (last visited Jan. 7, 2024).
10
Id.
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DATE: 1/9/2024
of teens accidentally stumble upon pornography online, 11 and teens may have experienced an increase
in unwanted exposure to pornographic content online. 12 A sample of American high school students in
2021 found that 56 percent viewed pornography in the prior year. 13
Research suggests that adolescents who view pornography tend to have more sexually permissive
attitudes, have more sexual partners in their lifetime, and are more likely to engage in certain sexual
acts. 14 Similarly, adolescents who viewed pornography tended to display more aggression, have more
traditional gender role attitudes, and view women as sex objects. 15
Adolescents who view pornography report feeling insecure about their ability to perform sexually or how
they look, and tend to decrease their pornography use as their self-confidence increases or they
develop positive relationships with friends and family. 16
To attempt to reduce such effects on kids, Utah, Arkansas, Louisiana, and Ohio recently enacted laws
to require commercial entities that have a substantial amount of material harmful to minors on their
website to verify user age and prohibit access to minors under 18. 17
Department of Legal Affairs
The Office of the Attorney General, also known as the Department of Legal Affairs (DLA), provides a
wide variety of legal services, including defending the state in civil litigation cases, representing the
people of Florida in criminal appeals in state and federal courts, protecting rights of children,
consumers, and victims through its various protection programs, and investigating and litigating against
businesses that seek to limit competition and defraud taxpayers. 18
HB 3
HB 3, to which this bill is linked, requires commercial entities that knowingly and intentionally publishes
or distributes a substantial portion of material harmful to minors on a website or application to:
• Prohibit access to such material by any person younger than 18 years of age, and
• Use reasonable age verification methods to verify that the age of a person attempting to access
the material is 18 years of age or older.
11
KAISER FAMILY FOUNDATION, Generation Rx.com: How Young People Use the Internet for Health Information, December 2001, at
12, available at https://kaiserfamilyfoundation.files.wordpress.com/2001/11/3202-genrx-report.pdf.
12
Kimberly J. Mitchell et al., Trends in Youth Reports of Sexual Solicitations, Harassment and Unwanted Exposure to Pornography
on the Internet, 40 JOURNAL OF ADOLESCENT HEALTH 116, 124 (2007), available at: http://unh.edu/ccrc/pdf/CV135.pdf (last visited
Jan. 7, 2023).
13
Amanda Giordano, What to Know About Adolescent Pornography Exposure, Psychology Today, Feb. 27, 2022,
https://www.psychologytoday.com/us/blog/understanding-addiction/202202/what-know-about-adolescent-pornography-exposure (last
visited Jan. 7, 2024).
14
Debra K. Braun-Corville & Mary Rojas, Exposure to Sexually Explicit Web Sites and Adolescent Sexual Attitudes and Behaviors,
45(2) J ADOLESCENT HEALTH 153, 156-162 (2009). See also Jane D. Brown & Kelly L. L’Engles, X-Rated: Sexual Attitudes and
Behaviors Associated with U.S. Early Adolescents’ Exposure to Sexually Explicit Media, 36 COMM. RSCH. 129-151 (2009). Contra
Marie-Therese Luder et al., Associations between Online Pornography and Sexual Behavior among Adolescents: Myth or Reality?,
40(5) ARCHIVES OF SEXUAL BEHAVIOR 1027-1035 (2011) (finding that pornography use had no association with early sexual imitation
or risky sexual behaviors).
15
Eileen M. Alexy et al., Pornography as a Risk Marker for an Aggressive Pattern of Behavior among Sexually Reactive Children
and Adolescents, 14(6) J AM. PSYCHIATRIC NURSES ASS’N 442, 450 (2009). See also Elisabet Haggstrom-Nordin et al., Experiences of
and Attitudes towards Pornography among a Group of Swedish High School Students, 14 EURO. J CONTRACEPTION AND
REPRODUCTIVE HEALTH CARE 277, 277-284 (2009).
16
Lotta Lofgren-Martenson & Sven-Axel Mason, Lust, Love, and Life: A Qualitative Study of Swedish Adolescents’ Perceptions and
Experiences with Pornography 47 J SEX RSCH. 568, 575 (2010).
17
Ch. 498, Laws of Utah 2023; Act No. 441, 2023 La. Acts; 2023 Ark. Acts 689; Ohio House Bill 33 - 135th General Assembly.
18
OPPAGA, Office of the Attorney General (Department of Legal Affairs),
https://oppaga.fl.gov/ProgramSummary/ProgramDetail?programNumber=1026 (last visited Mar. 31, 2023).
STORAGE NAME: h1491.RRS PAGE: 3
DATE: 1/9/2024
The Department of Legal Affairs (DLA), upon belief that any online platform is in violation of HB 3’s
provisions, may bring an action under the Florida Unfair or Deceptive Trade Practices Act. A private
cause of action is permitted in certain limited circumstances.
Effect of Proposed Changes
The bill creates a public record exemption for all information received by DLA pursuant to a notification
or investigation by DLA or a law enforcement agency of a violation of certain statutory requirements.
Such information is made confidential and exempt 19 from public record requirements.
During an active investigation, information made confidential and exempt may be disclosed by DLA:
• In the furtherance of its official duties and responsibilities;
• For print, publication, or broadcast if DLA determines that such release would assist in notifying
the public or locating or identifying a person that DLA believes to be a victim of a data breach or
improper use or disposal of customer records, except that information made confidential and
exempt after an investigation may not be released in this manner; or
• To another governmental entity in the furtherance of the receiving entity’s official duties and
responsibilities.
Once an investigation is completed or once an investigation ceases to be active, the following
information received by DLA remains confidential and exempt:
• All information to which another public records exemption applies;
• Personal information;
• A computer forensic report;
• Information that would otherwise reveal weaknesses in an online platform’s data security; and
• Information that would otherwise disclose an online platform’s proprietary information.
The bill defines the term "proprietary information" to mean information that:
• Is owned or controlled by the online platform;
• Is intended to be private and is treated by the online platform as private because disclosure
would harm the online platform or its business operations;
• Has not been disclosed except as required by law or through a private agreement that provides
that the information will not be released to the public;
• Is not publicly available or otherwise readily ascertainable through proper means from another
source in the same configuration as received by DLA; and
• Includes trade secrets and competitive interests.
The bill provides a public necessity statement as required by article I, s. 24(c) of the Florida
Constitution. The public necessity statement provides that, if released, information received by DLA
pursuant to an investigation by DLA or a law enforcement agency could:
• Frustrate or thwart the investigation and impair the ability of DLA to perform assigned functions;
• Undo a specific statutory exemption protecting the information;
• Be used for the purpose of identity theft;
• Result in the identification of vulnerabilities; and
• Result in economic harm.
The bill provides that the public record exemption is subject to the Open Government Sunset Review
Act and will repeal on October 2, 2029, unless the Legislature reviews and reenacts the exemption by
that date.
19
There is a difference between records the Legislature designates exempt from public record requirements and those the Legislature
deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain circumstances.
See WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So.2d 1015 (Fla. 2004); City of
Rivera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So.2d 683, 687 (Fla. 5th DCA
1991). If the Legislature designates a record as confidential and exempt from public disclosure, such record may not be released by the
custodian of public records, to anyone other than the persons or entities specifically designated in statute. See Op. Att’y Gen. Fla.
(1985).
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The bill will become effective on the same date that HB 3 or similar legislation takes effect, if such
legislation is adopted in the same legislative session or an extension thereof and becomes a law.
B. SECTION DIRECTORY:
Section 1: Creates a public record exemption for investigations related to s. 501.1737, F.S.
Section 2: Provides a public necessity statement as required by the Florida Constitution.
Section 3: Provides an effective date of the same date that HB 3 or similar legislation takes effect, if
such legislation is adopted in the same legislative session or an extension thereof and
becomes law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have a minimal fiscal impact on DLA because agency staff responsible for complying with
public records requests may require training related to the creation of the public record exemption. DLA
could incur costs associated with redacting the confidential and exempt information prior to releasing a
record. The costs, however, would be absorbed by existing resources, as they are part of the day-to-
day responsibilities of agencies.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
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DATE: 1/9/2024
Vote Requirement
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record or public meeting exemption.
The bill creates a public record exemption; thus, it requires a two-thirds vote for final passage.
Public Necessity Statement
Article I, s. 24(c) of the Florida Constitution requires a public necessity statement for a newly created
or expanded public record or public meeting exemption. The bill creates a public record exemption;
thus, it includes a public necessity statement. The public necessity statement provides that, if
released, information received by DLA pursuant to an investigation could frustrate or thwart the
investigation and impair the ability of DLA to perform assigned functions, undo a specific statutory
exemption protecting the information, be used for the purpose of identity theft, result in the
identification of vulnerabilities, and result in economic harm.
Breadth of Exemption
Article I, s. 24(c) of the Florida Constitution requires a newly created or expanded public record or
public meeting exemption to be no broader than necessary to accomplish the stated purpose of the
law. The bill creates a public record exemption for sensitive investigative materials and personal
information, which does not appear to be broader than necessary to accomplish its purpose.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 1491 2024
1 A bill to be entitled
2 An act relating to public records; amending s.
3 501.1737, F.S.; providing an exemption from public
4 records requirements for information relating to
5 investigations by the Department of Legal Affairs and
6 law enforcement agencies of certain data privacy
7 violations; providing a definition; providing for
8 future legislative review and repeal of the exemption;
9 providing a statement of public necessity; providing a
10 contingent effective date.
11
12 Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1. Subsection (8) of section 501.1737, Florida
15 Statutes, as created by HB 3 or similar legislation, 2024
16 Regular Session, is renumbered as subsection (9), and a new
17 subsection (8) is added to that section, to read:
18 501.1737 Age verification for online access to materials
19 harmful to minors.—
20 (8)(a) All information received by the department pursuant
21 to a notification of a violation under this section, or recei ved
22 by the department pursuant to an investigation by the department
23 or a law enforcement agency of a violation of this section, is
24 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
25 of the State Constitution, until such time as the investigati on
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26 is completed or ceases to be active. This exemption shall be
27 construed in conformity with s. 119.071(2)(c).
28 (b) During an active investigation, information made
29 confidential and exempt pursuant to paragraph (a) may be
30 disclosed by the department:
31 1. In the furtherance of its official duties and
32 responsibilities;
33 2. For print, publication, or broadcast if the department
34 determines that such release would assist in notifying the
35 public or locating or identifying a person who the department
36 believes to be a victim of a data breach or an improper use or
37 disposal of customer records, except that information made
38 confidential and exempt by paragraph (c) may not be released
39 pursuant to this subparagraph; or
40 3. To another governmental entity in the furtherance of
41 its official duties and responsibilities.
42 (c) Upon completion of an investigation or once an
43 investigation ceases to be active, the following information
44 received by the department shall remain confidential and exempt
45 from s. 119.07(1) and s. 24(a), Art. I of the State
46 Constitution:
47 1. All information to which another public records
48 exemption applies.
49 2. Personal information.
50 3. A computer forensic report.
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51 4. Information that would otherwise reveal weaknesses in
52 the data security of an online platform.
53 5. Information that would disclose the proprietary
54 information of an online platform.
55 (d) For purposes of this subsection, the term "proprietary
56 information" means information that:
57 1. Is owned or controlled by the online platform.
58 2. Is intended to be private and is treated by the online
59 platform as private because disclosure would harm the online
60 platform or its business operations.
61 3. Has not been disclosed except as required by law or a
62 private agreement that provides that the information will not be
63 released to the public.
64 4. Is not publicly available or otherwise readily
65 ascertainable through proper means from another source in the
66 same configuration as received by the department.
67 5. Includes:
68 a. Trade secrets as defined in s. 688.002.
69 b. Competitive interests, the disclosure of which would
70 impair the competitive advantage of the online platform who is
71 the subject of the information.
72 (e) This subsection is subject to the Open Government
73 Sunset Review Act in accordance with s. 119.15 and shall stand
74 repealed on October 2, 2029, unless reviewed and saved from
75 repeal through reenactment by the Legislature.
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76 Section 2. The Legislature finds that it is a public
77 necessity that all information received by the Department of
78 Legal Affairs pursuant to a notification of a violation of s.
79 501.1737, Florida Statutes, or received by the department
80 pursuant to an investigation by the department or a law
81 enforcement agency of a violation of that section, be made
82 confidential and exempt from s. 119.07(1), Florida Statutes, and
83 s. 24(a), Article I of the State Constitution for the following
84 reasons:
85 (1) A notification of a violation of s. 501.1737, Florida
86 Statutes, may result in an investigation of such violation. The
87 premature release of such information could frustrate or thwart
88 the investigation and impair the ability of the department to
89 effectively and efficiently administer s. 501.1737, Florida
90 Statutes. In addition, release of such information before
91 completion of an active investigation could jeopardize the
92 ongoing investigation.
93 (2) Release of information to which another public records
94 exemption applies once an investigation is completed or ceases
95 to be active would undo the specific statutory exemption
96 protecting that information.
97 (3) An investigation of a violation of s. 501.1737,
98 Florida Statutes, is likely to result in the gathering of
99 sensitive personal information, including identification
100 numbers, unique identifiers, professional or employment -related
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101 information, and personal financial information. Such
102 information could be used for the purpose of identity theft. The
103 release of such information could subject possible victims of
104 data privacy violations to further harm.
105 (4) Notices received by the department and information
106 received during an investigation of a violation of s. 501.1737,
107 Florida Statutes, are likely to contain proprietary information.
108 Such information, including trade secrets, derives independent,
109 economic value, actual or potential, from being gener ally
110 unknown to, and not readily ascertainable by, other persons who
111 might obtain economic value from its disclosure or use. Allowing
112 public access to proprietary information, including a trade
113 secret, through a public records request could destroy the value
114 of the proprietary information and cause a financial loss to the
115 online platform. Release of such information could give business
116 competitors an unfair advantage.
117 (5) Information received by the department may contain a
118 computer forensic report or information that could reveal
119 weaknesses in the data security of an online platform. The
120 release of this information could result in the identification
121 of vulnerabilities in the cybersecurity system of the online
122 platform and be used to harm the online platform and clients.
123 (6) The harm that may result from the release of
124 information received by the department pursuant to a
125 notification or investigation by the department or a law
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126 enforcement agency of a violation of s. 501.1737, Florida
127 Statutes, could impair the effective and efficient
128 administration of the investigation and thus, outweighs the
129 public benefit that may be derived from the disclosure of the
130 information.
131 Section 3. This act shall take effect on the same date
132 that HB 3 or similar legislation takes effect, if such
133 legislation is adopted in the same legislative session or an
134 extension thereof and becomes a law.
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REGULATORY REFORM AND ECONOMIC DEVELOPMENT SUBCOMMITTEE
HB 1491 by Rep. Tramont
Pub. Rec./Investigations by the Department of Legal Affairs
AMENDMENT SUMMARY
January 11, 2024
Amendment 1 by Rep. Tramont (line 52):
• Replaces “online platform” with “commercial entity” throughout the bill, to conform with
the linked bill, HB 3.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1491 (2024)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Regulatory Reform &
2 Economic Development Subcommittee
3 Representative Tramont offered the following:
4
5 Amendment
6 Remove line 52 and insert:
7 the data security of the commercial entity.
8 Remove line 54 and insert:
9 information of the commercial entity.
10 Remove line 57 and insert:
11 1. Is owned or controlled by the commercial entity.
12 Remove lines 58-60 and insert:
13 2. Is intended to be private and is treated by the
14 commercial entity as private because disclosure would harm the
15 commercial entity or its business operations.
16 Remove line 70 and insert:
789065 - h1491-line 52.docx
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Page 1 of 2
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1491 (2024)
Amendment No. 1
17 impair the competitive advantage of the commercial entity who is
18 Remove line 115 and insert:
19 commercial entity. Release of such information could give
20 business
21 Remove line 119 and insert:
22 weaknesses in the data security of the commercial entity. The
23 Remove lines 121-122 and insert:
24 of vulnerabilities in the cybersecurity system of the commercial
25 entity and be used to harm the commercial entity and clients.
789065 - h1491-line 52.docx
Published On: 1/10/2024 5:27:27 PM
Page 2 of 2
PCS for HB 433
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCS for HB 433 Employment Regulations
SPONSOR(S): Regulatory Reform & Economic Development Subcommittee
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Regulatory Reform & Economic Thompson Anstead
Development Subcommittee
SUMMARY ANALYSIS
The federal Fair Labor Standards Act (FLSA) provides workers with minimum wage, overtime pay, record
keeping, and child labor protections for full and part-time workers in both the private sector and federal, state
and local employment. The FLSA allows states to expand the rights of employers and employees. In some
instances, Florida law provides stronger protections for employees than federal law, including protections
regarding discrimination based on marital status, minimum wage, and health coverage obligations for small
employers. Florida generally follows federal law on overtime pay and occupational health and safety.
The Florida Minimum Wage Act (Act), enacted in 2005, implements the minimum wage provisions in the State
Constitution.
Florida’s wage and employment benefits law preempts the establishment of a minimum wage to the state.
Thus, local governments cannot establish a minimum wage for private employers in their jurisdiction. Local
governments are also prohibited from requiring private employers to provide employment benefits not required
by state or federal law. However, local governments have limited authority to establish a minimum wage and to
require specific employment benefits for their own employees and those of their vendors or contrac tors.
The Occupational Safety and Health Act of 1970 (Act) is the federal labor law governing occupational health
and safety in the private sector and federal government. Currently, there are no specific federal or state laws
that provide heat exposure protections for outdoor workers.
The bill:
Prohibits local governments from preferring one contractor over another based on the wages or
employment benefits provided by the contractor.
Removes the ability of local governments to require a minimum wage for certain contracted employees
under the terms of a contract.
Expressly preempts the regulation of the terms and conditions of employment to the state.
Preempts the regulation of workplace heat exposure requirements to the state.
Clarifies that the preemption of workplace heat requirements does not limit the authority of a local
government to provide workplace heat exposure requirements for the employees of the local
government, and does not apply if compliance will prevent the local government from receiving federal
funds.
The bill does not appear to have a fiscal impact on state or local government.
The effective date of the bill is July 1, 2024.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Fair Labor Standards Act
The federal Fair Labor Standards Act (FLSA), enacted in 1938, provides covered workers with
minimum wage, overtime pay, and child labor protections. 1 In 1938, the FLSA established a minimum
wage of $.25 an hour. The current federal minimum wage rate is $7.25 an hour, which went into effect
July 24, 2009. The FLSA applies to employment within any state in the U.S., the District of Columbia or
any territory or possession of the U.S.2
The FLSA covers most private and public sector employees. However, certain employers and
employees are exempt from coverage, including: individuals with disabilities, youth workers, tipped
workers and executive, administrative and professional workers. The FLSA covers businesses if the
business has annual sales of at least $500,000. 3 It also covers certain individual employees if such
employee is engaged in interstate commerce.
Regardless of the dollar amount of revenues of a business, the FLSA applies to:4
Governments: Federal, state, or local government agencies.
Hospitals: Hospitals, or institutions primarily engaged in the care of the sick, the aged, or the
mentally ill or disabled who live on the premises. (It does not matter if the hospital or institution
is public or private or is operated for profit or not-for-profit.)
Schools: Pre-schools, elementary or secondary schools or institutions of higher learning (e.g.,
college), or a school for mentally or physically handicapped or gifted children. (It does not
matter if the school or institution is public or private or operated for profit or not-for-profit.)
The FLSA includes several exemptions from the federal minimum wage provisions, including: 5
Executive, administrative and professional employees;
Employees in certain seasonal amusement or recreational establishments, employees in certain
small newspapers, seamen employed on foreign vessels, employees engaged in fishing
operations, and employees engaged in newspaper delivery;
Farm workers employed by certain employers;
Casual babysitters and persons employed as companions for the elderly or infirm;
Border patrol agents 6; and
Baseball players who are compensated pursuant to a contract that provides for a weekly salary
for services performed during the league’s championship season at a rate that is not less than a
weekly salary equal to the minimum wage.
The FLSA was amended in 2014, related to border patrol agents, and again in 2018, to exempt minor
league baseball players who are paid at least $290 per week during the 2018 championship season
1 29 U.S.C. § 201-219 and 29 C.F.R. ch. V.
2 Congressional Research Service, CRS Report R42713, The Fair Labor Standards Act (FLSA): An Overview,
https://crsreports.congress.gov/product/pdf/R/R42713, (last visited Dec. 5, 2023). (The main FLSA provisions and accompanying
Department of Labor (DOL) regulations constitute what is commonly known as federal wage and hour laws and federal child labor
law.).
3 The size of an enterprise is measured by its “annual sales or business done.” Annual sales or business done includes all business
activities that can be measured in dollars. Thus, retailers are covered by the FLSA if their annual sales are at least $500,000. Owners
of rental properties are covered if they collect at least $500,000 annually in rent. 29 C.F.R.§§779.258-779.259.
4 U.S. Department of Labor, Fair Labor Standards Act Advisor, https://webapps.dol.gov/elaws/whd/flsa/scope/screen10.asp, (last
visited Dec. 5, 2023).
5 29 U.S.C. § 213. (It also includes separate exemptions from overtime pay.)
6 See Border Patrol Agent Pay Reform Act of 2014, S.1691, 113th Cong, (2014).
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from the federal minimum wage rate and overtime pay.7 These two amendments were the only
amendments made to the minimum wage exemptions provisions of the FLSA since Florida passed its
minimum wage law in 2005.8
The FLSA provides that if states enact worker protections, including minimum wage rates, that are
more protective of employees than what is provided by the FLSA, the state law applies. 9 Consequently,
no state law may weaken the worker protections in the FLSA. However, state laws that impose greater
worker protections will supersede those in the FLSA.10
Thirty states plus Washington DC, Guam, Puerto Rico, and the Virgin Islands provide a minimum wage
greater than the federal minimum wage. Thirteen states provide a minimum wage that is equal to the
federal minimum wage. Five states have not adopted a minimum wage and two states have a minimum
wage that is below the federal minimum wage.11 For those seven states, the federal minimum wage
applies, but only to those workers covered by the FLSA.
Article X, Section 24 of the Florida Constitution
On November 2, 2004, Floridians voted to amend the Florida Constitution by adding a minimum wage
provision (Section 24) that established the state minimum wage.12 Prior to this date Florida did not have
a law on minimum wage so the FLSA applied for covered workers. Section 24 provides the amount of
the minimum wage and the procedure for calculating increases in the minimum wage. 13
Florida voters again on November 3, 2020, voted to approve a constitutional amendment related to the
state’s minimum wage, Amendment 2, to gradually increase the state’s minimum wage to $15 an hour
by the year 2026.14 Pursuant to the passage of Amendment 2, on September 30, 2021, Florida’s
minimum wage increased to $10 per hour. Each year, thereafter, Florida’s minimum wage will increase
by $1 until the minimum wage reaches $15 per hour on September 30, 2026. 15 Beginning in 2027, the
minimum wage will be adjusted annually for inflation, as it had been done from 2004 - 2021.
Related to minimum wage, the Florida Constitution states, “All working Floridians are entitled to be paid
a minimum wage sufficient to provide a decent and healthy life, that protects their employers from
unfair low wage competition, and that does not force them to rely on taxpayer-funded public services.”16
7 See Levi Weaver, On Minor-League Pay, MLB’s Stance Doesn’t Line Up with the Facts, ATHLETIC (Apr. 4, 2018),
https://www.theathletic.com/293189/%202018/04/04/on-minor-league-pay-mlbs-stance-doesnt-line-up-with-the-facts// (last visited
Dec. 5, 2023). (When recounting salary scale per level of minor league baseball, the article notes “federally -recognized poverty line is
$12,140 per year for single-individual households.” According to the article, a not-insignificant percentage of minor league players are
able to subsidize their relatively meager monthly salaries by drawing upon the signing bonuses they received from their MLB c lubs
when first entering the professional ranks. These bonuses can range anywhere from $10,000 to several million dollars. “The top 64
picks [in the MLB draft] last year all received a bonus of over $1,000,000 before taxes, but roughly 40% of players signed for one-
time bonuses of $10,000 or less.”
8 S. 448.110, F.S., expressly references ss. 213 and 214 of the FLSA, which address minimum wage exemptions and employment
under special certificates, respectively. However, s. 214 has not been amended since 1989. (See Pub. L. 101–157, § 4(d), Nov. 17,
1989, 103 Stat. 941.)
9 29 U.S.C. §218.
10 Congressional Research Service, CRS Report R42713, The Fair Labor Standards Act (FLSA): An Overview, Updated March 2,
2023, https://crsreports.congress.gov/product/pdf/R/R42713, (last visited Dec. 5, 2023).
11 U.S. Department of Labor, Consolidated Minimum Wage Table, https://www.dol.gov/agencies/whd/mw-consolidated (last visited
Dec. 5, 2023).
12 Art. X, s. 24., Fla. Const.
13 Art. X, s. 24 (c), Fla. Const.
14 U.S. Department of State, Notice of Increase to State of Florida’s Minimum Wage, https://www.state.gov/wp-
content/uploads/2021/01/2021-01-29-Notice-FL-M inimu m-Wage-Increase.pdf (last visited Dec. 5, 2023).
15 Department of Economic Opportunity, Florida’s Minimum Wage, https://floridajobs.org/docs/default-source/business-growth-and-
partnerships/for-employers/posters-and-required-notices/2022-minimum-wage/2022-florida-minimu m-wage-
announcement.pdf?sfvrsn=961754b0_2 (last visited Dec. 5, 2023).
16 Art. X, s. 24 (a), Fla. Const.
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The Florida Constitution references the FLSA and specifically ties the meaning 17 of certain terms,
“Employer,” “Employee” and “Wage,” to have the meanings established under the FLSA and its
implementing regulations.18 It also indicates that that case law, administrative interpretations, and other
guiding standards developed under the federal FLSA must guide the construction of Florida’s
Constitution related to Section 24 and any implementing statutes or regulations. 19
Florida Minimum Wage Act
The Florida Minimum Wage Act (Act) was enacted in 2005 to implement the minimum wage provisions
in the State Constitution.20 The Act designates the Department of Commerce (DC) as the state agency
that implements the minimum wage requirements, establishes procedures with respect to civil actions
alleging violations, and provides that it is the exclusive remedy under state law for violations of Section
24.21
The Act provides that effective May 2, 2005, employers are required to pay employees a minimum
wage at an hourly rate of $6.15 for all hours worked in Florida. Only those individuals entitled to receive
the federal minimum wage under the FSLA and its implementing regulations are eligible to receive the
state minimum wage pursuant to the State Constitution and this statute. The provisions of ss. 213 and
214 of the federal Fair Labor Standards Act, as interpreted by applicable federal regulations and
implemented by the Secretary of Labor, are incorporated by reference. 22
As it relates to the federal minimum wage and the FLSA, the Act specifies that: 23
Only those individuals entitled to receive the federal minimum wage under the FSLA, as
amended, and its implementing regulations, are eligible to receive the state minimum wage; and
Provisions related to federal minimum wage exemptions in the FLSA are considered
incorporated in the Act.
Local Wage Ordinances
In Florida, the State Constitution authorizes counties to enact ordinances that are not inconsistent with
state law.24 The State Constitution also grants municipalities the power to enact ordinances on any
subject that state law may address, except:25
The subjects of annexation, merger, and exercise of extraterritorial power;
Any subject expressly prohibited by the State Constitution;
Any subject expressly preempted to state or county government by the State Constitution or by
law; or
Any subject preempted to a county under a county charter.
In 2003, the Legislature preempted the establishment of minimum wages to the state. 26 However, a
political subdivision (local government) 27 retains the authority to establish a minimum wage other than a
17 In re Advisory Opinion to the Atty. Gen. re Fla. Minimum Wage Amend., 880 So. 2d 636, 641–42 (Fla. 2004). (“The proposed
amendment does not state that it is adopting the FLSA's definition of the term “employee,” but provides that it is adopting the meaning
of the term “employee,” which is a much broader concept.”)
18 Art. X, s. 24(b), Fla. Const.
19 Art. X, s. 24(f), Fla. Const.
20 Ch. 2005-353, Laws of Fla., codified in s. 448.110, F.S.
21 S. 448.110(10), F.S. HB 5 (2023) renames the Department of Economic Opportunity as the Department of Co mmerce; SB 82
(2024), section 220, makes this conforming change in the Florida Minimum Wage Act.
22 S. 448.110(3), F.S.
23 S. 448.110(3), F.S.
24 S. 1(f) and (g), Art. VIII, Fla. Const.; see also s. 125.01, F.S.
25 S. 2(b), Art. VIII, Fla. Const.
26 S. 218.077(2), F.S. See s. 18(a) of the federal Fair Labor Standards Act of 1938, as amended, 29 U.S.C. s. 218:
No provision of [the Fair Labor Standards Act] or of any order thereunder shall excuse noncompliance with any Federal or Stat e law
or municipal ordinance establishing a minimum wage higher than the minimum wage established under [the federal act].
27 “Political subdivision” is defined to mean a county, municipality, department, commission, district, board, or other public b ody,
whether corporate or otherwise, created by or under state law. S. 218.077(1)(f), F.S.
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state or federal minimum wage or to provide employment benefits not otherwise required under state or
federal law for:28
Its employees;
The employees of an employer contracting to provide goods or services for the local
government, or for the employees of a subcontractor of such an employer, under the terms of a
contract with the local government; or
The employees of an employer receiving a direct tax abatement or subsidy from the local
governments, as a condition of the direct tax abatement or subsidy.
The preemption also does not apply to, “a domestic violence or sexual abuse ordinance, order, rule, or
policy adopted by a political subdivision.”29
The law contains an exception for situations where compliance would prevent a local government from
receiving federal funds. This allows compliance with the Davis-Bacon and related acts,30 which direct
the federal Department of Labor to determine fair wages for contractors and subcontractors working on
public buildings and public works. Florida law only allows non-compliance with regard to local minimum
wage alterations to the extent necessary to allow receipt of federal funds. 31
Additionally, local governments are prohibited from requiring an employer to provide employment
benefits 32 not required by state or federal law. “A political subdivision may not establish, mandate, or
otherwise require an employer to pay a minimum wage, other than a state or federal minimum wage, to
apply a state or federal minimum wage to wages exempt from a state or federal minimum wage, or to
provide employment benefits not otherwise required by state or federal law.”33
Despite these provisions, in 2016, the city of Miami Beach enacted a local ordinance establishing a
minimum hourly wage significantly exceeding the current Florida minimum wage. The ordinance
applied to all employers operating with the city. The ordinance, which was scheduled to take effect on
January 1, 2018, established both a local minimum wage of $10.31 an hour and annual increases to
$13.31 an hour effective January 2021. Subsequently, the ordinance was challenged on the grounds
that it was preempted by Florida’s wage and employment benefits law that preempts the establishment
of minimum wages to the state, and Florida’s Third District Court of Appeals struck down the ordinance.
The court held that the Florida Constitution authorizes the state legislature to preempt municipal
powers by statute. The court also rejected the city’s principal argument that Article X, Section 24 of the
Florida Constitution, raising the state minimum wage, made the statute unconstitutional. In 2018, the
Florida Supreme Court agreed to take up the case.34 However, in 2019, the Florida Supreme Court
issued an order that discharged jurisdiction over the case. As a result, the Third District’s decision
invalidating Miami Beach’s local wage ordinance appears to currently stand.35
Workplace Heat Exposure
28 S. 218.077(3)(a), F.S.
29 S. 218.077(3)(b), F.S.
30 See, e.g., 40 U.S.C. 3141 et seq. The Davis-Bacon Act is a federal law that regulates prevailing wage rates on public works projects.
The Act provides that all laborers and mechanics working on construction projects which are funded by the fe deral government shall
not be paid a wage less than prevailing wage, as specified by the U.S. Department of Labor, in the locality in which work is
performed.
31 S. 218.077(4), F.S.
32 “Employment benefits” is defined to mean anything of value that an employ ee may receive from an employer in addition to wages
and salary. The term includes, but is not limited to, health benefits; disability benefits; death benefits; group accidental death and
dismemberment benefits; paid or unpaid days off for holidays, sick leave, vacation, and personal necessity; retirement benefits; and
profit-sharing benefits. S. 218.077(1)(d), F.S.
33 S. 218.077(2), F.S. Federally authorized and recognized tribal governments, however, are not prohibited from requiring employ ment
benefits for a person employed within a territory over which the tribe has jurisdiction. S. 218.077(5), F.S.
34 City of Miami Beach v. Florida Retail Federation, Inc., 233 So.3d 1236 at 1238 (Fla. 3d DCA 2017) (declined for review February
5, 2019).
35 JDSUPRA, Can Cities Set a Local Minimum Wage? Florida Supreme Court Says No (Feb. 14, 2019),
https://www.jdsupra.com/legalnews/can-cities-set-a-local-minimu m-wage-67192/ (last visited Dec. 5, 2023).
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The Occupational Safety and Health Act of 1970 (Act) is the federal labor law governing occupational
health and safety in the private sector and federal government. 36 Under the Act, two federal agencies
are responsible for promoting occupational safety and health in the United States. The National
Institute for Occupational Safety and Health (NIOSH) conducts research and recommends occupational
safety and health standards.37 The Occupational Safety and Health Administration (OSHA) 38 is
responsible for the promulgation and enforcement of standards. 39
Currently, there are no specific laws in Florida that provide heat exposure protections for outdoor
workers. NIOSH and OSHA provide certain recommendations that employers provide heat exposure
protections.
In 2013, NIOSH published “Preventing Heat-related Illness or Death of Outdoor Workers.” This
recommended standard recommends that employers have a plan in place to prevent heat-related
illness. The plan should include hydration (drinking plenty of water), acclimatization (getting used to
weather conditions), and schedules that alternate work with rest. It recommends that employers should
also train workers about the hazards of working in hot environments.40
OSHA does not currently have any specific heat exposure standards. In the absence of a specific
standard, OSHA is authorized to enforce the “general duty clause” of the Act, which requires each
employer to provide a workplace that is free of “recognized hazards” causing or likely to cause “death
or serious physical harm” to its employees.41
In 2011, OSHA launched a heat illness prevention campaign that includes guidance to employers and
employees, a smartphone app that provides location-specific information on heat conditions and heat
exposure prevention and first aid, and educational materials such as posters and pamphlets in English,
Spanish, and other languages.42
On October 27, 2021, OSHA published an Advanced Notice of Proposed Rulemaking (ANPRM) for a
potential standard on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. 43 OSHA
solicited public comments on the ANPRM through January 26, 2022, and received over 1,000
comments on the ANPRM.
In March 2021, OSHA cited Valley Produce Harvesting and Hauling Company for a willful violation of
the general duty clause by exposing sugar cane harvesting employees in Florida to “excessive heat,
elevated temperature working conditions, direct sun radiation and thermal stress” while working
outdoors in September 2020. OSHA assessed the maximum allowable civil monetary penalty of
$136,532 for this violation, which was later reduced through an informal settlement with the employer to
$81,919.20. The citation provides, “the employer did not furnish employment and a place of
employment which were free from recognized hazards that were causing or likely to cause death or
serious physical harm to employees in that employees were exposed to excessive heat, elevated
temperature working conditions, direct sun radiation and thermal stress.”44
In April 2022, OSHA began a National Emphasis Program (NEP) of enforcement of the general duty
clause and compliance assistance to focus on indoor and outdoor heat exposure. The NEP expands on
OSHA’s ongoing heat-related illness prevention initiative and campaign by creating a targeted
enforcement component and reiterating its compliance assistance and outreach efforts. This approach
is intended to encourage early interventions by employers to prevent illnesses and deaths among
36 Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 STAT. 1590, 91st Cong. (Jan. 1, 2004).
37 29 U.S.C. § 671.
38 See Occupational Safety and Health Administration, About Osha, https://www.osha.gov/aboutosha (last visited Dec. 5, 2023).
39 29 U.S.C. § 655.
40 NIOSH 1986, 2008, 2010; OSHA-NIOSH 2011.
41 29 U.S.C. § 654.
42 Occupational Safety and Health Administration, Heat Illness Prevent ion, https://www.osha.gov/heat/ (last visited Dec. 5, 2023).
43 86 FR 59309.
44 Occupational Safety and Health Administration, Violation Detail,
https://www.osha.gov/ords/imis/establishment.violation_detail?id=1495595.015&citation_id=02001 (last visited Dec. 5, 2023).
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workers during high heat conditions, such as working outdoors in a local area experiencing a heat
wave, as announced by the National Weather Service. Early interventions include, but are not limited
to, implementing water, rest, shade, training, and acclimatization procedures for new or returning
employees.45
Local Heat Regulation
On November 11, 2023, the Miami-Dade County Board of County Commissioners considered a
proposal that would require construction and agriculture companies with five or more employees to
guarantee workers access to water and give them 10-minute breaks in the shade every two hours on
days when the heat index equals or exceeds 95 degrees Fahrenheit. The proposal would also require
employers to train workers to recognize the signs of heat illness, administer first aid and call for help in
an emergency. Enforcement includes a warning, fines of up to $2,000 per day per violation, and
debarment of contractors from county work for certain repeated violations and unpaid penalties.46
According to reports: 47
The proposal was deferred until March.
Some South Florida employers have expressed that they already provide such protections.
Miami-Dade County would have been the only local government in the nation to adopt such
requirements.
Preemption
A local government enactment may be inconsistent with state law if the:
Local enactment conflicts with state statutes; or
The Legislature has preempted the particular area of law that is the subject of the enactment.
Such state preemption precludes a local government from exercising authority in the preempted area. 48
Florida law recognizes two types of state preemption: express and implied. Express preemption
requires an express legislative statement of intent to preempt a specific area of law; it cannot be
implied or inferred.49 Implied preemption, on the other hand, exists where the legislative scheme is so
pervasive as to evidence an intent to preempt the particular area, and where strong public policy
reasons exist for finding such an area to be preempted by the legislature. 50 Courts determining the
validity of local government ordinances enacted in the face of state preemption, whether express or
implied, have found such ordinances to be null and void.51
Effect of Proposed Changes
Wage and Employment Benefits
The bill amends Florida’s wage and employment benefits law by providing that a political subdivision
may not:
“maintain a minimum wage, other than a state or federal minimum wage.”
“through its purchasing or contracting procedures seek to control or affect the wages or
employment benefits provided by its vendors, contractors, service providers, or other parties
doing business with the political subdivision.”
45 Occupational Safety and Health Administration, OSHA Instruction,
https://www.osha.gov/sites/default/files/enforcement/directives/CPL_03-00-024.pdf (last visited Dec. 5, 2023).
46 Miami-Dade Legislative Item, File Number: 231773.
47 Miami Herald, After industry pressure, Miami-Dade puts heat protections for outdoor workers on ice,
https://www.miamiherald.co m/news/local/environ ment/article281487003.ht ml (last visited Dec. 6, 2023).
48
Wolf, The Effectiveness of Home Rule: A Preemptions and Conflict Analysis, 83 Fla. B.J. 92 (June 2009), https://www.floridabar.org/the-florida-
bar-journal/the-effectiveness-of-home-rule-a-preemption-and-conflict-analysis/ (last visited M arch 20, 2023).
49
See City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County, 894 So. 2d 1011, 1018
(Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla. 2008).
50
Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880 (Fla. 2010).
51
See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So. 2d 504 (Fla. 3d DCA 2002).
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DATE: 12/8/2023
“through the use of evaluation factors, qualification of bidders, or otherwise, award preferences
on the basis of wages or employment benefits provided by its vendors, contractors, service
providers, or other parties doing business with the political subdivision.”
The bill removes the ability of local governments to require a minimum wage for certain contracted
employees under the terms of a contract.
The bill also removes the exception that allows political subdivisions to establish a minimum wage or
employment benefits not otherwise required under state or federal law for:
“the employees of an employer contracting to provide goods or services for the political
subdivision, or for the employees of a subcontractor of such an employer, under the terms of a
contract with the political subdivision.”
Regulation of Labor
The bill expressly preempts the regulation of the “terms and conditions” of employment to the state.
The bill provides that unless expressly authorized by special or general law, a county, municipality,
special district, or political subdivision of the state may not adopt or enforce an ordinance, order, rule,
or policy providing any “term or condition of employment” that exceeds or conflicts with the
requirements of federal or state law relating to any term or condition of employment. The bill provides
that an ordinance, order, rule, or policy that violates this provision is void and unenforceable.
This appears to limit local government from regulating employment in any way, including having certain
requirements for its own employees that are different from the state or federal law.
Workplace Heat Exposure Requirements
In addition to the blanket preemption in the bill for all conditions of employment, the bill preempts the
regulation of workplace heat exposure requirements to the state, and specifically indicates that the
provision applies retroactively. Specifically, the bill provides that any local law, ordinance, resolution,
regulation, rule, code, policy, or charter amendment adopted before, on, or after the effective date of
this act which conflicts with this provision is void and prohibited.
The bill requires the DC to adopt rules relating to workplace heat exposure requirements if OSHA has
not done so by July 1, 2028. The rules must be consistent with the standards of OSHA in effect at the
time the DC adopts its rules, and modified as necessary to reflect workplace heat exposure
considerations specific to this state. The Legislature must ratify such rules before they take effect.
The bill prohibits local governments from:
Mandating or otherwise imposing heat exposure requirements on an employer, an employee, a
contractor, or a subcontractor.
Considering or seeking information relating to a contractor's or subcontractor's heat exposure
requirements in any procurement for goods or services.
The bill provides that it does not:
Limit the authority of a local government to mandate or impose workplace heat exposure
requirements for the employees of the local government.
Apply if it is determined that compliance would prevent the distribution of federal funds to a local
government or would otherwise be inconsistent with federal requirements pertaining to receiving
federal funds, but only to the extent necessary to allow a local government to receive federal
funds or to eliminate the inconsistency with federal requirements.
The bill provides the following definitions:
“Contractor" means an employer contracting with, or seeking to contract with, a local
government to provide goods or services to, for the benefit of, or on behalf of the local
government.
STORAGE NAME: pcs0433.RRS PAGE: 8
DATE: 12/8/2023
"Employee" means a natural person, including a self-employed person, who receives any type
of compensation or remuneration for providing services to an employer.
"Employer" means a person who hires or contracts for the services of employees.
"Heat exposure requirement" means a standard mandated or otherwise imposed on employers,
employees, contractors, or subcontractors to control an employee's exposure to heat or sun, or
to otherwise address or moderate the effects of such exposure. The term includes, but is not
limited to, standards relating to all of the following:
o Employee monitoring and protection.
o Water consumption.
o Cooling measures.
o Acclimatization and recovery periods or practices.
o Posting or distributing notices or materials relating to heat exposure which inform
employees how to protect themselves from such exposure.
o Implementation and maintenance of heat exposure programs or training.
o Appropriate first-aid measures or emergency responses related to heat exposure.
o Protections for employees who report that they have experienced excessive heat
exposure.
o Reporting and recordkeeping requirements.
"Local government" means a county, municipality, department, commission, district, board, or
other public body, whether corporate or otherwise, created by or under state law.
"Subcontractor" has the same meaning as in s. 448.095(1), F.S., which includes a person or an
entity that provides labor, supplies, or services to or for a contractor or another subcontractor in
exchange for salary, wages, or other remuneration.
B. SECTION DIRECTORY:
Section 1: Amends s. 218.077, F.S., relating to wage and employment benefits requirements by
political subdivisions; restrictions.
Section 2: Creates s. 448.077, F.S., relating to regulation of labor preempted to state.
Section 3: Amends s. 448.106, F.S., relating to workplace heat exposure requirements;
preemption; rulemaking.
Section 4: Provides an effective date of July 1, 2024.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
STORAGE NAME: pcs0433.RRS PAGE: 9
DATE: 12/8/2023
The bill may have an indeterminate fiscal impact on the private sector to the extent that the
preemptions supersede local ordinances.
The bill may:
Prevent businesses from losing local government contracts based on wages or employment
benefits that they do not currently offer.
Allow businesses that contract with local governments to pay their employees as they see fit.
Prevent businesses from being required to provide costly terms and conditions of employment.
Prevent businesses from being required to provide costly workplace heat exposure protections.
Prevent workers from earning a wage that allows them to live in the area that they work.
Create a negative fiscal impact for employers who provide workers’ compensation insurance for
their employees.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill requires the DC to adopt rules relating to workplace heat exposure requirements if OSHA has
not done so by July 1, 2028.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
STORAGE NAME: pcs0433.RRS PAGE: 10
DATE: 12/8/2023
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
PCS for HB 433 2024
1 A bill to be entitled
2 An act relating to employment regulations; amending s.
3 218.077, F.S.; prohibiting political subdivisions from
4 maintaining a certain minimum wage; prohibiting
5 political subdivisions from controlling, affecting, or
6 awarding preferences relating to wages or employment
7 benefits of entities contracting with the political
8 subdivision; providing applicability; creating s.
9 448.077, F.S.; preempting regulation of the terms and
10 conditions of employment to the state; declaring void
11 any ordinance, order, rule, or policy that violates
12 this prohibition; creating s. 448.106, F.S.; providing
13 definitions; preempting the regulation of heat
14 exposure requirements in the workplace to the state;
15 providing that certain local laws, ordinances,
16 resolutions, regulations, rules, codes, policies, and
17 amendments are void and prohibited; requiring the
18 Department of Commerce to adopt rules relating to
19 workplace heat exposure requirements if the
20 Occupational Safety and Health Administration has not
21 done so by a date certain; providing requirements for
22 such rules; prohibiting local governments from
23 mandating or imposing certain requirements or seeking
24 information from certain persons relating to certain
25 requirements; providing construction and
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26 applicability; providing an effective date.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Subsection (2) and paragraph (a) of subsection
31 (3) of section 218.077, Florida Statutes, are amended to read:
32 218.077 Wage and employment benefits requirements by
33 political subdivisions; restrictions.—
34 (2)(a) Except as otherwise provided in subsection (3), a
35 political subdivision may not establish, mandate, maintain, or
36 otherwise require an employer to pay a minimum wage, other than
37 a state or federal minimum wage, to apply a state or federal
38 minimum wage to wages exempt from a state or federal minimum
39 wage, or to provide employment benefits not otherwise required
40 by state or federal law.
41 (b) A political subdivision may not through its purchasing
42 or contracting procedures seek to control or affect the wages or
43 employment benefits provided by its vendors, contractors,
44 service providers, or other parties doing business with the
45 political subdivision. A political subdivision may not through
46 the use of evaluation factors, qualification of bidders, or
47 otherwise, award preferences on the basis of wages or employment
48 benefits provided by its vendors, contractors, service
49 providers, or other parties doing business with the political
50 subdivision.
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51 (3) This section does not:
52 (a) Limit the authority of a political subdivision to
53 establish a minimum wage other than a state or federal minimum
54 wage or to provide employment benefits not otherwise required
55 under state or federal law:
56 1. For the employees of the political subdivision; or
57 2. For the employees of an employer contracting to provide
58 goods or services for the political subdivision, or for the
59 employees of a subcontractor of such an employer, under the
60 terms of a contract with the political subdivision; or
61 2.3. For the employees of an employer receiving a direct
62 tax abatement or subsidy from the political subdivision, as a
63 condition of the direct tax abatement or subsidy.
64 Section 2. Section 448.077, Florida Statutes, is created
65 to read:
66 448.077 Regulation of labor preempted to state.—
67 The regulation of the terms and conditions of employment is
68 expressly preempted to the state. Unless expressly authorized by
69 special or general law, a county, municipality, special
70 district, or political subdivision of the state may not adopt or
71 enforce an ordinance, order, rule, or policy providing any term
72 or condition of employment that exceeds or conflicts with the
73 requirements of federal or state law relating to any term or
74 condition of employment. An ordinance, order, rule, or policy
75 that violates this section is void and unenforceable.
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76 Section 3. Section 448.106, Florida Statutes, is created
77 to read:
78 448.106 Workplace heat exposure requirements; preemption;
79 rulemaking.—
80 (1) As used in this section, the term:
81 (a) "Contractor" means an employer contracting with, or
82 seeking to contract with, a local government to provide goods or
83 services to, for the benefit of, or on behalf of the local
84 government.
85 (b) "Employee" means a natural person, including a self -
86 employed person, who receives any type of compensation or
87 remuneration for providing services to an employer.
88 (c) "Employer" means a person who hires or contracts for
89 the services of employees.
90 (d) "Heat exposure requirement" means a standard mandated
91 or otherwise imposed on employers, employees, contractors, or
92 subcontractors to control an employee's exposure to heat or sun,
93 or to otherwise address or moderate the effects of such
94 exposure. The term includes, but is not limited to, standards
95 relating to all of the following:
96 1. Employee monitoring and protection.
97 2. Water consumption.
98 3. Cooling measures.
99 4. Acclimatization and recovery periods or practices.
100 5. Posting or distributing notices or materials relating
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101 to heat exposure which inform employees how to protect
102 themselves from such exposure.
103 6. Implementation and maintenance of heat exposure
104 programs or training.
105 7. Appropriate first-aid measures or emergency responses
106 related to heat exposure.
107 8. Protections for employees who report that they have
108 experienced excessive heat exposure.
109 9. Reporting and recordkeeping requirements.
110 (e) "Local government" means a county, municipality,
111 department, commission, district, board, or other public body,
112 whether corporate or otherwise, created by or under state law.
113 (f) "Subcontractor" has the same meaning as in s.
114 448.095(1).
115 (2)(a) The regulation of workplace heat exposure
116 requirements is preempted to the state. Any local law,
117 ordinance, resolution, regulation, rule, code, policy, or
118 charter amendment adopted before, on, or after the effective
119 date of this act which conflicts with this section is void and
120 prohibited.
121 (b) If the Occupational Safety and Health Administration
122 has not adopted by rule requirements regulating workplace heat
123 exposure by July 1, 2028, the Department of Commerce must adopt
124 by rule statewide workplace heat exposure requirements. Such
125 rules must be consistent with the standards of the Occupational
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126 Safety and Health Administration in effect at the time the
127 Department of Commerce adopts its rules, and modified as
128 necessary to reflect workplace heat exposure considerations
129 specific to this state. The Legislature must ratify such rules
130 before they take effect.
131 (3) Except as otherwise provided in this section, a local
132 government may not:
133 (a) Mandate or otherwise impose heat exposure requirements
134 on an employer, an employee, a contractor, or a subcontractor.
135 (b) Consider or seek information relating to a
136 contractor's or subcontractor's heat exposure requirements in
137 any procurement for goods or services.
138 (4) This section does not limit the authority of a local
139 government to mandate or impose workplace heat exposure
140 requirements for the employees of the local government.
141 (5) This section does not apply if it is determined that
142 compliance with this section will prevent the distribution of
143 federal funds to a local government or would otherwise be
144 inconsistent with federal requirements pertaining to receiving
145 federal funds, but only to the extent necessary to allow a local
146 government to receive federal funds or to eliminate the
147 inconsistency with federal requirements.
148 Section 4. This act shall take effect July 1, 2024.
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