Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 118 Fourth Substitute (2020GS)

Sponsor

Rep. Dailey-Provost, J.

Final action

House/ filed 3/12/2020

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• defines terms;
• amends the definition of a retail tobacco specialty business to include any retailer that sells a flavored tobacco product;
• requires a tobacco retailer to maintain certain records;
• prohibits a manufacturer, wholesaler, or retailer from providing certain discounts or giveaways for tobacco products; and
• makes technical changes.

Every vote on this bill

Bill text

RETAIL TOBACCO SPECIALTY BUSINESS AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Jennifer Dailey-Provost
Senate Sponsor: 
 Evan J. Vickers
LONG TITLE
General Description:
This bill amends provisions relating to the sale of certain tobacco products.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ amends the definition of a retail tobacco specialty business to include any retailer
that sells a flavored tobacco product;
▸ requires a tobacco retailer to maintain certain records;
▸ prohibits a manufacturer, wholesaler, or retailer from providing certain discounts or
giveaways for tobacco products; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
10-8-41.6
, as last amended by Laws of Utah 2018, Chapter 231
17-50-333
, as last amended by Laws of Utah 2018, Chapter 231
76-10-111
, as last amended by Laws of Utah 2010, Chapter 114
76-10-112
, as enacted by Laws of Utah 1989, Chapter 193
ENACTS:
26-62-206
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
10-8-41.6
 is amended to read:
10-8-41.6.
Regulation of retail tobacco specialty business.
(1) As used in this section:
(a) "Community location" means:
(i) a public or private kindergarten, elementary, middle, junior high, or high school;
(ii) a licensed child-care facility or preschool;
(iii) a trade or technical school;
(iv) a church;
(v) a public library;
(vi) a public playground;
(vii) a public park;
(viii) a youth center or other space used primarily for youth oriented activities;
(ix) a public recreational facility;
(x) a public arcade; or
(xi) for a new license issued on or after July 1, 2018, a homeless shelter.
(b) "Department" means the Department of Health, created in Section 
26-1-4
.
(c) (i) "Flavored tobacco product" means a tobacco product that has a taste or smell
that is distinguishable by an ordinary consumer either before or during use or consumption of
the tobacco product.
(ii) "Flavored tobacco product" includes a tobacco product that has a taste or smell of
any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, menthol, or
spice.
(iii) "Flavored tobacco product" does not include a tobacco product that:
(A) has a taste or smell of only tobacco; or
(B) has a taste or smell of only menthol and is not an electronic cigarette product as
that term is defined in Section 
59-14-802
.
[
(c)
] 
(d)
 "Local health department" means the same as that term is defined in Section
26A-1-102
.
[
(d)
] 
(e)
 "Permittee" means a person licensed under this section to conduct business as
a retail tobacco specialty business.
[
(e)
] 
(f)
 "Retail tobacco specialty business" means a commercial establishment in
which:
(i) the sale of tobacco products accounts for more than 35% of the total quarterly gross
receipts for the establishment;
(ii) 20% or more of the public retail floor space is allocated to the offer, display, or
storage of tobacco products;
(iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
tobacco products; or
(iv) the retail space features a self-service display for tobacco products[
.
]
; or
(v) any flavored tobacco product is sold.
[
(f)
] 
(g)
 "Self-service display" means the same as that term is defined in Section
76-10-105.1
.
[
(g)
] 
(h)
 "Tobacco product" means:
(i) any cigar, cigarette, or electronic cigarette, as those terms are defined in Section
76-10-101
;
(ii) a tobacco product, as that term is defined in Section 
59-14-102
, including:
(A) chewing tobacco; or
(B) any substitute for a tobacco product, including flavoring or additives to tobacco;
and
(iii) tobacco paraphernalia, as that term is defined in Section 
76-10-104.1
.
(2) The regulation of a retail tobacco specialty business is an exercise of the police
powers of the state, and through delegation, to other governmental entities.
(3) (a) A person may not operate a retail tobacco specialty business in a municipality
unless the person obtains a license from the municipality in which the retail tobacco specialty
business is located.
(b) A municipality may only issue a retail tobacco specialty business license to a
person if the person complies with the provisions of Subsections (4) and (5).
(4) (a) Except as provided in Subsection (7), a municipality may not issue a license for
a person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
business is located within:
(i) 1,000 feet of a community location;
(ii) 600 feet of another retail tobacco specialty business; or
(iii) 600 feet from property used or zoned for:
(A) agriculture use; or
(B) residential use.
(b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
to intervening structures or zoning districts.
(5) (a) Except as provided in Subsection (5)(b), beginning July 1, 2018, a municipality
may not issue or renew a license for a person to conduct business as a retail tobacco specialty
business until the person provides the municipality with proof that the retail tobacco specialty
business has:
(i) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
62, Tobacco Retail Permit, by the local health department having jurisdiction over the area in
which the retail tobacco specialty business is located; and
(ii) a valid license to sell tobacco products from the State Tax Commission.
(b) A person that was licensed to conduct business as a retail tobacco specialty
business in a municipality before July 1, 2018, shall obtain a permit from a local health
department under Title 26, Chapter 62, Tobacco Retail Permit, on or before January 1, 2019.
(6) (a) Nothing in this section:
(i) requires a municipality to issue a retail tobacco specialty business license; or
(ii) prohibits a municipality from adopting more restrictive requirements on a person
seeking a license or renewal of a license to conduct business as a retail tobacco specialty
business.
(b) A municipality may suspend or revoke a retail tobacco specialty business license
issued under this section:
(i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
Part 16, Pattern of Unlawful Activity Act;
(ii) if a licensee violates the regulations restricting the sale and distribution of
cigarettes and smokeless tobacco to protect children and adolescents issued by the United
States Food and Drug Administration, 21 C.F.R. Part 1140;
(iii) upon the recommendation of the department or a local health department under
Title 26, Chapter 62, Tobacco Retail Permit; or
(iv) under any other provision of state law or local ordinance.
(7) (a) In accordance with Subsection (7)(b), a retail tobacco specialty business that has
a business license and is operating in a municipality in accordance with all applicable laws
except for the requirement in Subsection (4), on or before December 31, 2015, is exempt from
Subsection (4).
(b) A retail tobacco specialty business may maintain an exemption under Subsection
(7)(a) if:
(i) the retail tobacco specialty business license is renewed continuously without lapse
or permanent revocation;
(ii) the retail tobacco specialty business does not close for business or otherwise
suspend the sale of tobacco products for more than 60 consecutive days;
(iii) the retail tobacco specialty business does not substantially change the business
premises or business operation; and
(iv) the retail tobacco specialty business maintains the right to operate under the terms
of other applicable laws, including:
(A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
(B) zoning ordinances;
(C) building codes; and
(D) the requirements of a retail tobacco specialty business license issued before
December 31, 2015.
Section 2. Section 
17-50-333
 is amended to read:
17-50-333.
Regulation of retail tobacco specialty business.
(1) As used in this section:
(a) "Community location" means:
(i) a public or private kindergarten, elementary, middle, junior high, or high school;
(ii) a licensed child-care facility or preschool;
(iii) a trade or technical school;
(iv) a church;
(v) a public library;
(vi) a public playground;
(vii) a public park;
(viii) a youth center or other space used primarily for youth oriented activities;
(ix) a public recreational facility;
(x) a public arcade; or
(xi) for a new license issued on or after July 1, 2018, a homeless shelter.
(b) "Department" means the Department of Health, created in Section 
26-1-4
.
(c) (i) "Flavored tobacco product" means a tobacco product that has a taste or smell
that is distinguishable by an ordinary consumer either before or during use or consumption of
the tobacco product.
(ii) "Flavored tobacco product" includes a tobacco product that has a taste or smell of
any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, menthol, or
spice.
(iii) "Flavored tobacco product" does not include a tobacco product that:
(A) has a taste or smell of only tobacco; or
(B) has a taste or smell of only menthol and is not an electronic cigarette product as
that term is defined in Section 
59-14-802
.
[
(c)
] 
(d)
 "Licensee" means a person licensed under this section to conduct business as a
retail tobacco specialty business.
[
(d)
] 
(e)
 "Local health department" means the same as that term is defined in Section
26A-1-102
.
[
(e)
] 
(f)
 "Retail tobacco specialty business" means a commercial establishment in
which:
(i) the sale of tobacco products accounts for more than 35% of the total quarterly gross
receipts for the establishment;
(ii) 20% or more of the public retail floor space is allocated to the offer, display, or
storage of tobacco products;
(iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
tobacco products; [
or
]
(iv) the retail space features a self-service display for tobacco products[
.
]
; or
(v) any flavored tobacco product is sold.
[
(f)
] 
(g)
 "Self-service display" means the same as that term is defined in Section
76-10-105.1
.
[
(g)
] 
(h)
 "Tobacco product" means:
(i) any cigar, cigarette, or electronic cigarette as those terms are defined in Section
76-10-101
;
(ii) a tobacco product as that term is defined in Section 
59-14-102
, including:
(A) chewing tobacco; or
(B) any substitute for a tobacco product, including flavoring or additives to tobacco;
and
(iii) tobacco paraphernalia as that term is defined in Section 
76-10-104.1
.
(2) The regulation of a retail tobacco specialty business is an exercise of the police
powers of the state, and through delegation, to other governmental entities.
(3) (a) A person may not operate a retail tobacco specialty business in a county unless
the person obtains a license from the county in which the retail tobacco specialty business is
located.
(b) A county may only issue a retail tobacco specialty business license to a person if
the person complies with the provisions of Subsections (4) and (5).
(4) (a) Except as provided in Subsection (7), a county may not issue a license for a
person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
business is located within:
(i) 1,000 feet of a community location;
(ii) 600 feet of another retail tobacco specialty business; or
(iii) 600 feet from property used or zoned for:
(A) agriculture use; or
(B) residential use.
(b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
to intervening structures or zoning districts.
(5) (a) Except as provided in Subsection (5)(b), beginning July 1, 2018, a county may
not issue or renew a license for a person to conduct business as a retail tobacco specialty
business until the person provides the county with proof that the retail tobacco specialty
business has:
(i) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
62, Tobacco Retail Permit, by the local health department having jurisdiction over the area in
which the retail tobacco specialty business is located; and
(ii) a valid license to sell tobacco products from the State Tax Commission.
(b) A person that was licensed to conduct business as a retail tobacco specialty
business in a county before July 1, 2018, shall obtain a permit from a local health department
under Title 26, Chapter 62, Tobacco Retail Permit, on or before January 1, 2019.
(6) (a) Nothing in this section:
(i) requires a county to issue a retail tobacco specialty business license; or
(ii) prohibits a county from adopting more restrictive requirements on a person seeking
a license or renewal of a license to conduct business as a retail tobacco specialty business.
(b) A county may suspend or revoke a retail tobacco specialty business license issued
under this section:
(i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
Part 16, Pattern of Unlawful Activity Act;
(ii) if a licensee violates the regulations restricting the sale and distribution of
cigarettes and smokeless tobacco to protect children and adolescents issued by the United
States Food and Drug Administration, 21 C.F.R. Part 1140;
(iii) upon the recommendation of the department or a local health department under
Title 26, Chapter 62, Tobacco Retail Permit; or
(iv) under any other provision of state law or local ordinance.
(7) (a) In accordance with Subsection (7)(b), a retail tobacco specialty business that has
a business license and is operating in a county in accordance with all applicable laws except for
the requirement in Subsection (4), on or before December 31, 2015, is exempt from Subsection
(4).
(b) A retail tobacco specialty business may maintain an exemption under Subsection
(7)(a) if:
(i) the retail tobacco specialty business license is renewed continuously without lapse
or permanent revocation;
(ii) the retail tobacco specialty business does not close for business or otherwise
suspend the sale of tobacco products for more than 60 consecutive days;
(iii) the retail tobacco specialty business does not substantially change the business
premises or business operation; and
(iv) the retail tobacco specialty business maintains the right to operate under the terms
of other applicable laws, including:
(A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
(B) zoning ordinances;
(C) building codes; and
(D) the requirements of a retail tobacco specialty business license issued before
December 31, 2015.
Section 3. Section 
26-62-206
 is enacted to read:
 26-62-206.
Permit requirements for the sale of tobacco products.
(1) A tobacco retailer shall:
(a) for each sale of a tobacco product, provide the customer with an itemized receipt
that shows:
(i) the name of the tobacco product;
(ii) the amount charged for each tobacco product; and
(iii) the time and date of the sale; and
(b) maintain an itemized transaction log for each sale of a tobacco product that shows:
(i) the name of the tobacco product;
(ii) the amount charged for the tobacco product; and
(iii) the date and time of the sale.
(2) The itemized transaction log described in Subsection (1)(b) shall be:
(a) maintained for at least two years from the date of the sale of the tobacco product;
and
(b) made available to an enforcing agency or peace officer at the request of the
enforcing agency or peace officer.
Section 4. Section 
76-10-111
 is amended to read:
76-10-111.
Prohibition of gift or free distribution of smokeless tobacco or
electronic cigarettes -- Exceptions.
(1) The Legislature finds that:
(a) smokeless tobacco, or chewing tobacco, is harmful to the health of individuals who
use those products because research indicates that they may cause mouth or oral cancers;
(b) the use of smokeless tobacco among juveniles in this state is increasing rapidly;
(c) the use of electronic cigarettes may lead to unhealthy behavior such as the use of
tobacco products; and
(d) it is necessary to restrict the gift of the products described in this Subsection (1) in
the interest of the health of the citizens of this state.
(2) 
(a)
 Except as provided in Subsection (3), it is unlawful for a manufacturer,
wholesaler, and retailer to
:
(i)
 give or distribute without charge any smokeless tobacco, chewing tobacco, or
electronic cigarette in this state[
.
]
;
(ii) except as provided in Subsection (2)(b), sell, offer for sale, or furnish any
smokeless tobacco, chewing tobacco, or electronic cigarette at less than 90% of the cost of the
product to the manufacturer, wholesaler, or retailer; or
(iii) give, distribute, sell, offer for sale, or furnish any smokeless tobacco, chewing
tobacco, or electronic cigarette for free or at a lower price because the purchaser makes another
purchase.
(b) The price that a manufacturer, wholesaler, or retailer may charge under Subsection
(2)(a)(ii) does not include a discount for:
(i) a manufacturer coupon:
(A) that is surrendered to the tobacco retailer at the time of sale; and
(B) for which the manufacturer will reimburse the wholesaler or retailer for the full
amount of the discount described in the manufacturer coupon and provided to the purchaser;
(ii) a rebate that will be paid to the manufacturer, wholesaler, or retailer for the full
amount of the rebate provided to the purchaser; or
(iii) a promotional fund that will be paid to the manufacturer, wholesaler, or retailer for
the full amount of the promotional fund provided to the purchaser.
(c)
 Any person who violates this section is guilty of a class C misdemeanor for the first
offense, and is guilty of a class B misdemeanor for any subsequent offense.
(3) [
(a)
] Smokeless tobacco, chewing tobacco, or an electronic cigarette may be
distributed to adults without charge at professional conventions where the general public is
excluded.
[
(b) Subsection (2) does not apply to a retailer, manufacturer, or distributor who gives
smokeless tobacco, chewing tobacco, or an electronic cigarette to a person of legal age upon
the person's purchase of another tobacco product or electronic cigarette.
]
Section 5. Section 
76-10-112
 is amended to read:
76-10-112.
Prohibition of distribution of cigarettes or other tobacco products --
Exceptions.
(1) 
(a)
 Except as provided in Subsection [
(2)
] 
(3)
, it is unlawful for a manufacturer,
wholesaler, or retailer to
:
(i)
 give or distribute cigarettes or other tobacco products in this state without charge[
.
]
;
(ii) except as provided in Subsection (2)(b), sell, offer for sale, or furnish any
smokeless tobacco, chewing tobacco, or electronic cigarette at less than the cost of the product
to the manufacturer, wholesaler, or retailer; or
(iii) give, distribute, sell, offer for sale, or furnish any smokeless tobacco, chewing
tobacco, or electronic cigarette for free or at a lower price because the purchaser makes another
purchase.
(b) The price that a manufacturer, wholesaler, or retailer may charge under Subsection
(2)(a)(ii) does not include a discount for:
(i) a manufacturer coupon:
(A) that is surrendered to the tobacco retailer at the time of sale; and
(B) for which the manufacturer will reimburse the wholesaler or retailer for the full
amount of the discount described in the manufacturer coupon and provided to the purchaser;
(ii) a rebate that will be paid to the manufacturer, wholesaler, or retailer for the full
amount of the rebate provided to the purchaser; or
(iii) a promotional fund that will be paid to the manufacturer, wholesaler, or retailer for
the full amount of the promotional fund provided to the purchaser.
(2)
 Any person who violates this [
subsection
] 
section
 is guilty of a class C
misdemeanor for the first offense and a class B misdemeanor for any subsequent offense.
[
(2)
] 
(3)
 Cigarettes and other tobacco products may be distributed to adults without
charge at professional conventions where the general public is excluded.
[
(3) The prohibition described in Subsection (1) does not apply to retailers,
manufacturers, or distributors who give cigarettes or other tobacco products to persons of legal
age upon their purchase of cigarettes or other tobacco products.
]