Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 415 Fifth Substitute (2015GS)

Sponsor

Rep. Ray, P.

Final action

Governor Signed 3/24/2015

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• requires a person to obtain a license in order to sell or distribute an electronic cigarette product;
• provides criminal penalties for a person that sells an electronic cigarette without a license; and
• gives the Department of Health the authority to determine product quality, nicotine content, packaging, and labeling standards for an electronic cigarette substance.

Every vote on this bill

Bill text

REGULATION OF ELECTRONIC CIGARETTES
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Paul Ray
Senate Sponsor: 
Curtis S. Bramble
LONG TITLE
General Description:
This bill enacts and amends provisions related to electronic cigarette products.
Highlighted Provisions:
This bill:
▸ requires a person to obtain a license in order to sell or distribute an electronic
cigarette product;
▸ provides criminal penalties for a person that sells an electronic cigarette without a
license; and
▸ gives the Department of Health the authority to determine product quality, nicotine
content, packaging, and labeling standards for an electronic cigarette substance.
Money Appropriated in this Bill:
None
Other Special Clauses:
This bill provides a special effective date.
This bill provides a coordination clause.
Utah Code Sections Affected:
AMENDS:
26-42-102
, as enacted by Laws of Utah 1998, Chapter 319
26-42-103
, as last amended by Laws of Utah 2011, Chapter 96
26-42-107
, as enacted by Laws of Utah 1998, Chapter 319
76-10-101
, as last amended by Laws of Utah 2010, Chapter 114
76-10-105.1
, as last amended by Laws of Utah 2010, Chapter 114
ENACTS:
26-57-101
, Utah Code Annotated 1953
26-57-102
, Utah Code Annotated 1953
26-57-103
, Utah Code Annotated 1953
59-14-801
, Utah Code Annotated 1953
59-14-802
, Utah Code Annotated 1953
59-14-803
, Utah Code Annotated 1953
Utah Code Sections Affected by Coordination Clause:
76-10-101
, as last amended by Laws of Utah 2010, Chapter 114
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
26-42-102
 is amended to read:
26-42-102.
Definitions.
As used in this chapter:
(1) "Commission" means the Utah State Tax Commission.
(2) "Employee" means an employee of a licensee.
(3) "Enforcing agency" means the state Department of Health, or any local health
department enforcing the provisions of this chapter.
(4) "Licensee" means a person licensed:
(a) under Section 
59-14-201
 to sell cigarettes at retail; [
or
]
(b) under Section 
59-14-301
 to sell tobacco products at retail[
.
]
; or
(c) under Section 
59-14-803
 to sell an electronic cigarette product.
(5) "License to sell tobacco" or "license" means a license issued:
(a) under Section 
59-14-201
 to sell cigarettes at retail; [
or
]
(b) under Section 
59-14-301
 to sell tobacco products at retail[
.
]
; or
(c) under Section 
59-14-803
 to sell an electronic cigarette product.
(6) "Tobacco" means
 [
cigarettes or tobacco products
]
:
(a) a cigarette or a tobacco product,
 as defined in Section 
59-14-102
[
.
]
; or
(b) an electronic cigarette product, as defined in Section 
59-14-802
.
Section 2. Section 
26-42-103
 is amended to read:
26-42-103.
Violations and penalties -- Imposition by enforcing agency and tax
commission.
(1) If, following an investigation or issuance of a citation or information under Section
77-39-101
, an enforcing agency determines under Section 
26-42-104
 that a licensee or any
employee has sold tobacco to a person younger than 19 years of age, as prohibited by Section
76-10-104
, the enforcing agency may impose upon the licensee the following administrative
penalties:
(a) upon the first violation, a penalty of not more than $300;
(b) upon a second violation at the same retail location, and within 12 months of the
first violation, a penalty of not more than $750; and
(c) upon a third or subsequent violation at the same retail location and within 12
months of the first violation, a penalty of not more than $1,000.
(2) The enforcing agency shall notify the commission in writing of any order or order
of default finding a violation of Subsection (1) which is a third or fourth violation.
(3) The commission, upon receipt of the written notification under Subsection (2), shall
take action under Section 
59-14-203.5
 or 
59-14-301.5
 against the license to sell tobacco:
(a) by suspending the licensee's license to sell tobacco at that location for not more
than 30 days, upon receipt of notification of a third violation under Subsection (1)(c); and
(b) by revoking the license to sell tobacco at that location held by the licensee,
including any license under suspension, upon receipt of notification of a fourth violation under
Subsection (1)(c).
(4) When the commission revokes a license under Subsection (3)(b), the commission
may not issue to the licensee, or to the business entity using the license that is revoked, a
license under Section 
59-14-202
 [
or
]
,
59-14-301
, or 
59-14-803
 to sell tobacco at the location
for which the license was issued for one year after:
(a) the day on which the time for filing an appeal of the revocation ends; or
(b) if the revocation is appealed, the day on which the decision to uphold the
revocation becomes final.
(5) This section does not prevent any bona fide purchaser of the business, who is not a
sole proprietor, director, corporate officer, or partner or other holder of significant interest in
the entity selling the business, from immediately applying for and obtaining a license to sell
tobacco.
Section 3. Section 
26-42-107
 is amended to read:
26-42-107.
Allocation of civil penalties.
Civil monetary penalties collected under this chapter shall be allocated as follows:
(1) if a local health department conducts an adjudicative proceeding under Section
26-42-104
, the penalty shall be paid to the treasurer of the county in which the violation was
committed, and transferred to:
(a) the local health department if it conducts a civil hearing under Section 
26-42-104
alone; or
(b) in equal portions to the local health department and the other agencies that
participated in the hearing process;
(2) if the state Department of Health conducts a civil hearing under Section 
26-42-104
,
the penalty shall be deposited in the state's General Fund, and may be appropriated by the
Legislature to the state Department of Health for use in enforcement of this chapter; and
(3) if the civil penalty involves suspension or revocation of a license to sell tobacco
under Section 
59-14-203.5
 [
or
]
,
59-14-301.5
, or 
59-14-803
, half of the penalty shall be paid to
the commission, and the other half shall be allocated under Subsection (1) or (2), as
appropriate.
Section 4. Section 
26-57-101
 is enacted to read:
CHAPTER 57. ELECTRONIC CIGARETTE REGULATION ACT
 26-57-101.
Title.
This chapter is known as the "Electronic Cigarette Regulation Act."
Section 5. Section 
26-57-102
 is enacted to read:
 26-57-102.
Definitions.
As used in this chapter:
(1) "Cigarette" means the same as that term is defined in Section 
59-14-102
.
(2) "Electronic cigarette" means the same as that term is defined in Section 
59-14-802
.
(3) "Electronic cigarette product" means an electronic cigarette or an electronic
cigarette substance.
(4) "Electronic cigarette substance" means the same as that term is defined in Section
59-14-802
.
(5) "Manufacture" includes:
(a) to cast, construct, or make electronic cigarettes; or
(b) to blend, make, process, or prepare an electronic cigarette substance.
(6) "Manufacturer sealed electronic cigarette substance" means an electronic cigarette
substance that is sold in a container that:
(a) is pre-filled by the electronic cigarette substance manufacturer; and
(b) the electronic cigarette manufacturer does not intend for a consumer to open.
Section 6. Section 
26-57-103
 is enacted to read:
 26-57-103.
Electronic cigarette products -- Labeling -- Manufacturing and quality
control standards -- Advertising.
(1) The department shall, in consultation with a local health department, as defined in
Section 
26A-1-102
, and with input from members of the public, establish, no later than January
1, 2016, by rule made in accordance with Title 63G, Chapter 3, Utah Administrative
Rulemaking Act, standards for electronic cigarette substance:
(a) labeling;
(b) nicotine content;
(c) packaging; and
(d) product quality.
(2) The standards established by the department under Subsection (1) do not apply to a
manufacturer sealed electronic cigarette substance.
(3) Beginning on July 1, 2016, a person may not sell an electronic cigarette substance
unless the electronic cigarette substance complies with the standards established by the
department under Subsection (1).
(4) (a) Beginning on July 1, 2016, a local health department may not enact a rule or
regulation regarding electronic cigarette substance labeling, nicotine content, packaging, or
product quality that is not identical to the standards established by the department under
Subsection (1).
(b) Except as provided in Subsection (4)(c), a local health department may enact a rule
or regulation regarding electronic cigarette substance manufacturing.
(c) A local health department may not enact a rule or regulation regarding a
manufacturer sealed electronic cigarette substance.
(5) Beginning on July 1, 2016, a person may not advertise an electronic cigarette
product:
(a) as a tobacco cessation device;
(b) if the person is not licensed to sell an electronic cigarette product under Section
59-14-803
; or
(c) during a period of time when the person's license to sell an electronic cigarette
product under Section 
59-14-803
 has been suspended or revoked.
Section 7. Section 
59-14-801
 is enacted to read:
Part 8. Electronic Cigarette Licensing Act
 59-14-801.
Title.
This part is known as the "Electronic Cigarette Licensing Act."
Section 8. Section 
59-14-802
 is enacted to read:
 59-14-802.
Definitions.
As used in this part:
(1) "Cigarette" means the same as that term is defined in Section 
59-14-102
.
(2) (a) "Electronic cigarette" means:
(i) an electronic device used to deliver or capable of delivering vapor containing
nicotine to an individual's respiratory system;
(ii) a component of the device described in Subsection (2)(a)(i); or
(iii) an accessory sold in the same package as the device described in Subsection
(2)(a)(i).
(b) "Electronic cigarette" includes an e-cigarette as defined in Section 
26-38-2
.
(3) "Electronic cigarette product" means an electronic cigarette or an electronic
cigarette substance.
(4) "Electronic cigarette substance" means any substance, including liquid containing
nicotine, used or intended for use in an electronic cigarette.
(5) "Enforcing agency" means the Department of Health, a county health department,
or a local health department, when enforcing:
(i) Title 26, Chapter 42, Civil Penalties for Tobacco Sales to Underage Persons; or
(ii) Title 26, Chapter 57, Electronic Cigarette Regulation Act.
(6) "Licensee" means a person that holds a valid license to sell electronic cigarette
products.
(7) "License to sell an electronic cigarette product" means a license issued by the
commission under Subsection 
59-14-803
(3).
Section 9. Section 
59-14-803
 is enacted to read:
 59-14-803.
License to sell electronic cigarette products.
(1) Except as provided in Subsection (2), a person may not sell, offer to sell, or
distribute an electronic cigarette product in Utah without first obtaining a license to sell an
electronic cigarette product from the commission under this section.
(2) A person that holds a valid license to sell cigarettes under Section 
59-14-201
, or a
person that holds a valid license to sell tobacco products under Section 
59-14-301
, may,
without obtaining a separate license to sell an electronic cigarette product under this part, sell,
offer to sell, or distribute an electronic cigarette product in Utah in accordance with this part.
(3) Except as provided in Subsection (6), the commission shall issue a license to sell an
electronic cigarette product to a person that:
(a) submits an application, on a form created by the commission, that includes:
(i) the person's name;
(ii) the address of the facility where the person will sell an electronic cigarette product;
and
(iii) any other information the commission requires to implement this chapter; and
(b) pays a fee:
(i) in the amount of $30; or
(ii) if renewing the person's license, in the amount of $20.
(4) A license described in Subsection (3) is:
(a) valid only at one fixed business address;
(b) valid for three years;
(c) valid only for a physical location; and
(d) renewable if a licensee meets the criteria for licensing described in Subsection (3).
(5) The commission shall, after notifying a licensee, revoke a license described in
Subsection (3) if an enforcing agency determines the licensee has violated a provision of:
(a) Title 26, Chapter 42, Civil Penalties for Tobacco Sales to Underage Persons; or
(b) Title 26, Chapter 57, Electronic Cigarette Regulation Act.
(6) If the commission revokes a person's license to sell an electronic cigarette product
under Subsection (5), the commission may not issue a license to sell an electronic cigarette
product, a license to sell cigarettes under Section 
59-14-201
, or a license to sell tobacco under
Section 
59-14-301
 to the person until one year after:
(a) the day on which the time for filing an appeal of the revocation ends, as determined
by the enforcing agency; or
(b) if the person appeals the enforcing agency's decision to revoke the license to sell an
electronic cigarette product, the day on which the enforcing agency's decision to uphold the
revocation is final.
(7) If the commission revokes a person's license under Subsection (5), the commission
shall also revoke the person's license to sell cigarettes under Section 
59-14-201
, if any, and the
person's license to sell tobacco under Section 
59-14-301
, if any.
(8) The commission may make rules in accordance with Title 63G, Chapter 3, Utah
Administrative Rulemaking Act, to establish the additional information described in
Subsection (3)(a)(iii) that a person must provide in the application described in Subsection
(3)(a).
(9) It is a class B misdemeanor for a person to violate Subsection (1).
Section 10. Section 
76-10-101
 is amended to read:
76-10-101.
Definitions.
As used in this part:
(1) "Cigar" means a product that contains nicotine, is intended to be burned under
ordinary conditions of use, and consists of any roll of tobacco wrapped in leaf tobacco, or in
any substance containing tobacco, other than any roll of tobacco that is a cigarette as described
in Subsection (2).
(2) "Cigarette" means a product that contains nicotine, is intended to be burned under
ordinary conditions of use, and consists of:
(a) any roll of tobacco wrapped in paper or in any substance not containing tobacco; or
(b) any roll of tobacco wrapped in any substance containing tobacco which, because of
its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to
be offered to, or purchased by, consumers as a cigarette described in Subsection (2)(a).
(3) "Electronic cigarette" means [
any device, other than a cigarette or cigar, intended to
deliver vapor containing nicotine into a person's respiratory system
] 
an electronic cigarette
product, as defined in Section 
59-14-802
.
(4) "Place of business" includes:
(a) a shop;
(b) a store;
(c) a factory;
(d) a public garage;
(e) an office;
(f) a theater;
(g) a recreation hall;
(h) a dance hall;
(i) a poolroom;
(j) a café;
(k) a cafeteria;
(l) a cabaret;
(m) a restaurant;
(n) a hotel;
(o) a lodging house;
(p) a streetcar;
(q) a bus;
(r) an interurban or railway passenger coach;
(s) a waiting room; and
(t) any other place of business.
(5) "Smoking" means the possession of any lighted cigar, cigarette, pipe, or other
lighted smoking equipment.
Section 11. Section 
76-10-105.1
 is amended to read:
76-10-105.1.
Requirement of direct, face-to-face sale of tobacco products and
electronic cigarettes -- Supremacy clause -- Penalties.
(1) As used in this section:
(a) "Cigarette tobacco" means a product that consists of loose tobacco that contains or
delivers nicotine and is intended for use by a consumer in a cigarette.
(b) "Pipe tobacco" means a product that consists of loose tobacco that contains or
delivers nicotine and is intended to be smoked by a consumer in a pipe.
(c) "Retailer" means a person who sells cigarettes, electronic cigarettes, cigars,
cigarette tobacco, pipe tobacco, or smokeless tobacco to individuals for personal consumption
or who operates a facility where a vending machine or a self-service display is permitted under
Subsection (3)(b).
(d) "Self-service display" means a display of cigarettes, electronic cigarettes, cigars,
cigarette tobacco, pipe tobacco, or smokeless tobacco products to which the public has access
without the intervention of a retail employee.
(e) "Smokeless tobacco" means a product that consists of cut, ground, powdered, or
leaf tobacco that contains nicotine and that is intended to be placed in the oral cavity.
(2) (a) Except as provided in Subsection (3), a retailer may sell cigarettes, [
electronic
cigarettes
] 
an electronic cigarette
, cigars, cigarette tobacco, pipe tobacco, and smokeless
tobacco only in a direct, face-to-face exchange between:
(i) an employee of the retailer; and
(ii) the purchaser.
(b) Examples of methods that are not permitted include vending machines and
self-service displays.
(c) Subsections (2)(a) and (b) do not prohibit the use or display of locked cabinets
containing cigarettes, [
electronic cigarettes
] 
an electronic cigarette
, cigars, cigarette tobacco,
pipe tobacco, or smokeless tobacco if the locked cabinets are accessible only to the retailer or
the retailer's employees.
(3) The following sales are permitted as exceptions to Subsection (2):
(a) mail-order sales, if the provisions of Section 
59-14-509
 are met;
(b) sales from vending machines, including vending machines that sell packaged,
single cigarettes or cigars, and self-service displays that are located in a separate and defined
area within a facility where the retailer ensures that no person younger than 19 years of age is
present, or permitted to enter, at any time, unless accompanied by a parent or legal guardian;
and
(c) sales by a retailer from a retail store which derives at least 80% of its revenue from
tobacco and tobacco related products and where the retailer ensures that no person younger
than 19 years of age is present, or permitted to enter at any time, unless accompanied by a
parent or legal guardian.
(4) Any ordinance, regulation, or rule adopted by the governing body of a political
subdivision of the state or by a state agency that affects the sale, placement, or display of
cigarettes, electronic cigarettes, cigars, cigarette tobacco, pipe tobacco, or smokeless tobacco
that is not essentially identical to the provisions of this section and Section 
76-10-102
 is
superseded.
(5) (a) A parent or legal guardian who accompanies a person younger than 19 years of
age into an area described in Subsection (3)(b) or into a retail store as described in Subsection
(3)(c) and permits the person younger than 19 years of age to purchase or otherwise take a
cigar, cigarette, [
electronic cigarette
] 
an electronic cigarette
, or tobacco in any form is guilty of
providing tobacco as provided for in Section 
76-10-104
 and the penalties provided for in that
section.
(b) Nothing in this section may be construed as permitting a person to provide tobacco
to a minor in violation of Section 
76-10-104
.
(6) Violation of Subsection (2) or (3) is a:
(a) class C misdemeanor on the first offense;
(b) class B misdemeanor on the second offense; and
(c) class A misdemeanor on the third and all subsequent offenses.
Section 12. 
Effective date.
This bill takes effect on July 1, 2015.
Section 13. 
 Coordinating H.B. 415 with H.B. 131 -- Substantive amendments.
If this H.B. 415 and H.B. 131, Tobacco Shop Amendments, both pass and become law,
it is the intent of the Legislature that, when the Office of Legislative Research and General
Counsel prepares the Utah Code database for publication:
(1) the amendments to Section 
76-10-101
 in this bill supersede the amendments to
Section 
76-10-101
 in H.B. 131; and
(2) Section 
76-10-105.1
 shall be amended to read:
"
76-10-105.1 Requirement of direct, face-to-face sale of cigarettes, tobacco, and
electronic cigarettes -- Minors not allowed in tobacco specialty shop -- Penalties.
(1) As used in this section:
[
(a) "Cigarette tobacco" means a product that consists of loose tobacco that contains or
delivers nicotine and is intended for use by a consumer in a cigarette.
]
[
(b) "Pipe tobacco" means a product that consists of loose tobacco that contains or
delivers nicotine and is intended to be smoked by a consumer in a pipe.
]
(a) "Cigarette" means the same as that term is defined in Section 
59-14-102
.
(b) (i) "Face-to-face exchange" means a transaction made in person between an
individual and a retailer or retailer's employee.
(ii) "Face-to-face exchange" does not include a sale through a:
(A) vending machine; or
(B) self-service display.
(c) "Retailer" means a person who [
sells cigarettes, electronic cigarettes, cigars,
cigarette tobacco, pipe tobacco, or smokeless tobacco to individuals for personal consumption
or who
]
:
(i) sells a cigarette, tobacco, or an electronic cigarette to an individual for personal
consumption; or
(ii)
 operates a facility [
where a vending machine or a self-service display is permitted
under Subsection (3)(b)
] 
with a vending machine that sells a cigarette, tobacco, or an electronic
cigarette
.
(d) "Self-service display" means a display of [
cigarettes, electronic cigarettes, cigars,
cigarette tobacco, pipe tobacco, or smokeless tobacco products
] 
a cigarette, tobacco, or an
electronic cigarette
 to which the public has access without the intervention of a [
retail
] 
retailer
or retailer's
 employee.
[
(e) "Smokeless tobacco" means a product that consists of cut, ground, powdered, or
leaf tobacco that contains nicotine and that is intended to be placed in the oral cavity.
]
(e) "Tobacco" means any product, except a cigarette, made of or containing tobacco.
(f) "Tobacco specialty shop" means a retailer with a physical location that derives at
least 80% of its total sales from the sale of cigarettes, tobacco, or electronic cigarettes.
(2) [
(a)
] Except as provided in Subsection (3), a retailer may sell [
cigarettes, electronic
cigarettes, cigars, cigarette tobacco, pipe tobacco, and smokeless tobacco only in a direct,
face-to-face exchange between:
] 
a cigarette, tobacco, or an electronic cigarette only in a
face-to-face exchange.
[
(i) an employee of the retailer; and
]
[
(ii) the purchaser.
]
[
(b) Examples of methods that are not permitted include vending machines and
self-service displays.
]
[
(c) Subsections (2)(a) and (b) do not prohibit the use or display of locked cabinets
containing cigarettes, electronic cigarettes, cigars, cigarette tobacco, pipe tobacco, or smokeless
tobacco if the locked cabinets are accessible only to the retailer or the retailer's employees.
]
[
(3) The following sales are permitted as exceptions to Subsection (2):
]
[
(a) mail-order sales, if the provisions of Section 
59-14-509
 are met;
]
[
(b) sales from vending machines, including vending machines that sell packaged,
single cigarettes or cigars, and self-service displays that are located in a separate and defined
area within a facility where the retailer ensures that no person younger than 19 years of age is
present, or permitted to enter, at any time, unless accompanied by a parent or legal guardian;
and
]
[
(c) sales by a retailer from a retail store which derives at least 80% of its revenue from
tobacco and tobacco related products and where the retailer ensures that no person younger
than 19 years of age is present, or permitted to enter at any time, unless accompanied by a
parent or legal guardian.
]
[
(4) Any ordinance, regulation, or rule adopted by the governing body of a political
subdivision of the state or by a state agency that affects the sale, placement, or display of
cigarettes, electronic cigarettes, cigars, cigarette tobacco, pipe tobacco, or smokeless tobacco
that is not essentially identical to the provisions of this section and Section 
76-10-102
 is
superseded.
]
[
(5) (a) A parent or legal guardian who accompanies a person younger than 19 years of
age into an area described in Subsection (3)(b) or into a retail store as described in Subsection
(3)(c) and permits the person younger than 19 years of age to purchase or otherwise take a
cigar, cigarette, electronic cigarette, or tobacco in any form is guilty of providing tobacco as
provided for in Section 
76-10-104
 and the penalties provided for in that section.
]
[
(b) Nothing in this section may be construed as permitting a person to provide tobacco
to a minor in violation of Section 
76-10-104
.
]
(3) The face-to-face sale requirement in Subsection (2) does not apply to:
(a) a mail-order, telephone, or Internet sale made in compliance with Section
59-14-509
;
(b) a sale from a vending machine or self-service display that is located in an area of a
retailer's facility:
(i) that is distinct and separate from the rest of the facility; and
(ii) where the retailer only allows an individual who complies with Subsection (4) to be
present; or
(c) a sale at a tobacco specialty shop.
(4) An individual who is less than 19 years old may not enter or be present at a tobacco
specialty shop unless the individual is:
(a) accompanied by a parent or legal guardian;
(b) present at the tobacco shop for a bona fide commercial purpose other than to
purchase a cigarette, tobacco, or an electronic cigarette; or
(c) 18 years old or older and an active duty member of the United States Armed Forces,
as demonstrated by a valid, government-issued military identification card.
(5) A parent or legal guardian who accompanies, under Subsection (4)(a), an individual
into an area described in Subsection (3)(b), or into a tobacco specialty shop, may not allow the
individual to purchase a cigarette, tobacco, or an electronic cigarette.
(6) [
Violation
] 
A violation
 of Subsection (2) or [
(3)
] 
(4)
 is a:
(a) class C misdemeanor on the first offense;
(b) class B misdemeanor on the second offense; and
(c) class A misdemeanor on the third and all subsequent offenses.
(7) An individual who violates Subsection (5) is guilty of providing tobacco to a minor
under Section 
76-10-104
.
(8) (a) Any ordinance, regulation, or rule adopted by the governing body of a political
subdivision of the state or by a state agency that affects the sale, placement, or display of
cigarettes, tobacco, or electronic cigarettes that is not essentially identical to the provisions of
this section and Section 
76-10-102
 is superseded.
(b) Subsection (8)(a) does not apply to the adoption or enforcement of a land use
ordinance by a municipal or county government.".