H.B. 112

1

REGULATION OF ELECTRONIC CIGARETTES
2 2014 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Paul Ray
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill amends the Utah Health Code and the Utah Criminal Code to modify and add
10 provisions related to electronic cigarettes.
11 Highlighted Provisions:
12 This bill:
13 . prohibits a person from selling or manufacturing electronic cigarettes or electronic
14 cigarette substances without a license from the Department of Health;
15 . prohibits a person from selling or manufacturing electronic cigarettes or electronic
16 cigarette substances that contain nicotine that is not pharmaceutical-grade nicotine;
17 . prohibits a person from advertising that electronic cigarettes or electronic cigarette
18 substances help an individual stop using tobacco or a product containing tobacco;
19 . directs the Department of Health to issue licenses to manufacture or sell electronic
20 cigarettes under certain conditions;
21 . provides that the Department of Health can revoke a person's license to sell
22 electronic cigarettes if the person sells an electronic cigarette or an electronic
23 cigarette substance to an individual who is less than 19 years of age;
24 . prohibits a business owner from allowing a minor to use an electronic cigarette in
25 the business;
26 . prohibits an individual who is less than 19 years of age from buying, attempting to
27 buy, or possessing an electronic cigarette product; and

28 . makes technical and conforming amendments.
29 Money Appropriated in this Bill:
30 None
31 Other Special Clauses:
32 None
33 Utah Code Sections Affected:
34 AMENDS:
35 26-42-102 , as enacted by Laws of Utah 1998, Chapter 319
36 26-42-103 , as last amended by Laws of Utah 2011, Chapter 96
37 76-10-101 , as last amended by Laws of Utah 2010, Chapter 114
38 76-10-103 , as enacted by Laws of Utah 1973, Chapter 196
39 76-10-104 , as last amended by Laws of Utah 2010, Chapter 114
40 76-10-105 , as last amended by Laws of Utah 2010, Chapter 114
41 76-10-105.1 , as last amended by Laws of Utah 2010, Chapter 114
42 76-10-111 , as last amended by Laws of Utah 2010, Chapter 114
43 77-39-101 , as last amended by Laws of Utah 2010, Chapters 114 and 276
44 ENACTS:
45 26-55-101 , Utah Code Annotated 1953
46 26-55-102 , Utah Code Annotated 1953
47 26-55-103 , Utah Code Annotated 1953
48 26-55-104 , Utah Code Annotated 1953
49
50 Be it enacted by the Legislature of the state of Utah:
51 Section 1. Section 26-42-102 is amended to read:
52 26-42-102. Definitions.
53 As used in this chapter:
54 (1) "Commission" means the Utah State Tax Commission.
55 (2) "Electronic cigarette product" is as defined in Section 26-55-102 .
56 [(2)] (3) "Employee" means an employee of a licensee.
57 [(3)] (4) "Enforcing agency" means the state Department of Health, or any local health
58 department enforcing the provisions of this chapter.

59 (5) "License" [to sell tobacco" or "license"] means a license issued under:
60 (a) [under] Section 59-14-201 to sell cigarettes at retail; [or]
61 (b) [under] Section 59-14-301 to sell tobacco products at retail[.]; or
62 (c) Section 26-55-103 to sell electronic cigarette products.
63 [(4)] (6) "Licensee" means a person licensed under:
64 (a) [under] Section 59-14-201 to sell cigarettes at retail; [or]
65 (b) [under] Section 59-14-301 to sell tobacco products at retail[.]; or
66 (c) Section 26-55-104 to sell electronic cigarette products.
67 (7) "Licensing agency" means:
68 (a) for a license to sell cigarettes at retail under Section 59-14-201 or a license to sell
69 tobacco products at retail under Section 59-14-301 , the commission; or
70 (b) for a license to sell electronic cigarette products under Section 26-55-104 , the
71 department.
72 [(6)] (8) "Tobacco" means cigarettes or tobacco products as defined in Section
73 59-14-102 .
74 Section 2. Section 26-42-103 is amended to read:
75 26-42-103. Violations and penalties -- Imposition by enforcing agency and tax
76 commission.
77 (1) If, following an investigation or issuance of a citation or information under Section
78 77-39-101 , an enforcing agency determines under Section 26-42-104 that a licensee or any
79 employee has sold tobacco or an electronic cigarette product to a person younger than 19 years
80 of age, as prohibited by Section 76-10-104 , the enforcing agency may impose upon the licensee
81 the following administrative penalties:
82 (a) upon the first violation, a penalty of not more than $300;
83 (b) upon a second violation at the same retail location, and within 12 months of the
84 first violation, a penalty of not more than $750; and
85 (c) upon a third or subsequent violation at the same retail location and within 12
86 months of the first violation, a penalty of not more than $1,000.
87 (2) The enforcing agency shall notify the [commission] licensing agency in writing of
88 any order or order of default finding a violation of Subsection (1) which is a third or fourth
89 violation.

90 (3) The [commission] licensing agency, upon receipt of the written notification under
91 Subsection (2), shall take action under Section 59-14-203.5 [or], 59-14-301.5 , or 26-55-104
92 against the license [to sell tobacco]:
93 (a) by suspending the licensee's license [to sell tobacco] at that location for not more
94 than 30 days, upon receipt of notification of a third violation under Subsection (1)(c); and
95 (b) by revoking the license [to sell tobacco] at that location held by the licensee,
96 including any license under suspension, upon receipt of notification of a fourth violation under
97 Subsection (1)(c).
98 (4) When the [commission] licensing agency revokes a license under Subsection (3)(b),
99 the [commission] licensing agency may not issue to the licensee, or to the business entity using
100 the license that is revoked, a license under Section 59-14-202 [or], 59-14-301 [to sell tobacco],
101 or 26-55-105 at the location for which the license was issued for one year after:
102 (a) the day on which the time for filing an appeal of the revocation ends; or
103 (b) if the revocation is appealed, the day on which the decision to uphold the
104 revocation becomes final.
105 (5) This section does not prevent any bona fide purchaser of the business, who is not a
106 sole proprietor, director, corporate officer, or partner or other holder of significant interest in
107 the entity selling the business, from immediately applying for and obtaining a license to sell
108 tobacco.
109 Section 3. Section 26-55-101 is enacted to read:
110 CHAPTER 55. ELECTRONIC CIGARETTE REGULATION ACT
111 26-55-101. Title.
112 This chapter is known as the "Electronic Cigarette Regulation Act."
113 Section 4. Section 26-55-102 is enacted to read:
114 26-55-102. Definitions.
115 As used in this chapter:
116 (1) "Cigarette" is as defined in Section 59-14-102 .
117 (2) "Electronic cigarette" means:
118 (a) any device, other than a cigar, cigarette, pipe, hookah, or other heated or lighted
119 tobacco product, used to or intended to deliver vapor containing nicotine to an individual's
120 respiratory system; or

121 (b) any component of or accessory intended for use with the device described in
122 Subsection (2)(a).
123 (3) "Electronic cigarette product" means an electronic cigarette or an electronic
124 cigarette substance.
125 (4) "Electronic cigarette substance" means any substance, including liquid containing
126 nicotine, used or intended for use in an electronic cigarette.
127 (5) "Licensee" means a person licensed under Subsection 26-55-104 (1) or (2).
128 (6) "License to manufacture electronic cigarette products" means a license issued by
129 the department under Subsection 26-55-104 (1).
130 (7) "License to sell electronic cigarette products" means a license issued by the
131 department under Subsection 26-55-104 (2).
132 (8) "Manufacture" includes:
133 (a) to cast, construct, or make electronic cigarettes; or
134 (b) to blend, make, process, or prepare an electronic cigarette substance.
135 (9) "Pharmaceutical-grade nicotine" means nicotine that meets the specifications of the
136 United States Pharmacopeia.
137 Section 5. Section 26-55-103 is enacted to read:
138 26-55-103. Electronic cigarettes -- Prohibition on sale or manufacturing without a
139 license -- Low-grade nicotine -- Advertising.
140 (1) A person may not:
141 (a) manufacture an electronic cigarette product in Utah without first obtaining a license
142 to manufacture electronic cigarette products from the Department of Health under Section
143 26-55-104 ; or
144 (b) sell, offer to sell, or distribute an electronic cigarette product in Utah without first
145 obtaining a license to sell electronic cigarette products from the Department of Health as under
146 Section 26-52-104 .
147 (2) A person may not sell, offer to sell, distribute, or manufacture an electronic
148 cigarette product in Utah that contains nicotine that is not pharmaceutical-grade nicotine.
149 (3) A person may not advertise that an electronic cigarette product helps an individual
150 stop using tobacco or a product containing tobacco.
151 Section 6. Section 26-55-104 is enacted to read:

152 26-55-104. Electronic cigarette licenses -- Manufacture and sale.
153 (1) The department shall issue a license to manufacture electronic cigarette products to
154 a person who:
155 (a) submits an application, on a form created by the department, that includes:
156 (i) the person's name;
157 (ii) the address of the facility where the person will manufacture electronic cigarette
158 products; and
159 (iii) any other information the department requires to implement this chapter; and
160 (b) pays a fee in an amount established by the department under Subsection (6).
161 (2) The department shall issue a license to sell electronic cigarette products to a person
162 who:
163 (a) submits an application, on a form created by the department, that includes:
164 (i) the person's name;
165 (ii) the address of the facility where the person will sell electronic cigarette products;
166 and
167 (iii) any other information the department requires to implement this chapter; and
168 (b) pays a fee in an amount established by the department under Subsection (6) or
169 submits proof that the person is licensed under Section 59-14-202 .
170 (3) A license described in Subsection (1) or (2) is:
171 (a) valid only at one business address;
172 (b) valid for three years; and
173 (c) renewable if a licensee meets the criteria for licensing under Subsection (1) or (2).
174 (4) The department may, after notifying a licensee and holding a hearing, revoke a
175 license described in Subsection (1) or (2) if the licensee:
176 (a) violates the provisions of this chapter; or
177 (b) violates Section 26-42-103 .
178 (5) The department shall make rules in accordance with Title 63G, Chapter 3, Utah
179 Administrative Rulemaking Act, to establish:
180 (a) the form of the applications described in Subsections (1)(a) and (2)(a);
181 (b) the information a person must provide in the applications described in Subsections
182 (1)(a) and (2)(a); and

183 (c) operating standards for a person licensed under Subsection (1) and for a person
184 licensed under Subsection (2).
185 (6) The department shall, in accordance with Section 63J-1-504 , establish the amount
186 of the fees described in Subsections (1)(b) and (2)(b).
187 (7) The department shall maintain a list of all licensees.
188 Section 7. Section 76-10-101 is amended to read:
189 76-10-101. Definitions.
190 As used in this part:
191 (1) "Cigar" means a product that contains nicotine, is intended to be burned under
192 ordinary conditions of use, and consists of any roll of tobacco wrapped in leaf tobacco, or in
193 any substance containing tobacco, other than any roll of tobacco that is a cigarette as described
194 in Subsection (2).
195 (2) "Cigarette" means a product that contains nicotine, is intended to be burned under
196 ordinary conditions of use, and consists of:
197 (a) any roll of tobacco wrapped in paper or in any substance not containing tobacco; or
198 (b) any roll of tobacco wrapped in any substance containing tobacco which, because of
199 its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to
200 be offered to, or purchased by, consumers as a cigarette described in Subsection (2)(a).
201 (3) "Electronic cigarette product" [means any device, other than a cigarette or cigar,
202 intended to deliver vapor containing nicotine into a person's respiratory system] is as defined in
203 Section 26-55-101 .
204 (4) "Place of business" includes:
205 (a) a shop;
206 (b) a store;
207 (c) a factory;
208 (d) a public garage;
209 (e) an office;
210 (f) a theater;
211 (g) a recreation hall;
212 (h) a dance hall;
213 (i) a poolroom;

214 (j) a café;
215 (k) a cafeteria;
216 (l) a cabaret;
217 (m) a restaurant;
218 (n) a hotel;
219 (o) a lodging house;
220 (p) a streetcar;
221 (q) a bus;
222 (r) an interurban or railway passenger coach;
223 (s) a waiting room; and
224 (t) any other place of business.
225 (5) "Smoking" means the possession of any lighted cigar, cigarette, pipe, or other
226 lighted smoking equipment.
227 Section 8. Section 76-10-103 is amended to read:
228 76-10-103. Permitting minors to use tobacco or an electronic cigarette product in
229 place of business.
230 It is a class C misdemeanor for the proprietor of any place of business to knowingly
231 permit [persons under age 19 to frequent a place of business while they are using tobacco] an
232 individual who is less than 19 years of age to smoke or use an electronic cigarette in the place
233 of business.
234 Section 9. Section 76-10-104 is amended to read:
235 76-10-104. Providing a cigar, cigarette, electronic cigarette, or tobacco to a minor
236 -- Penalties.
237 (1) Any person who knowingly, intentionally, recklessly, or with criminal negligence
238 provides any cigar, cigarette, electronic cigarette product, or tobacco in any form, to any person
239 under 19 years of age, is guilty of a class C misdemeanor on the first offense, a class B
240 misdemeanor on the second offense, and a class A misdemeanor on subsequent offenses.
241 (2) For purposes of this section "provides":
242 (a) includes selling, giving, furnishing, sending, or causing to be sent; and
243 (b) does not include the acts of the United States Postal Service or other common
244 carrier when engaged in the business of transporting and delivering packages for others or the

245 acts of a person, whether compensated or not, who transports or delivers a package for another
246 person without any reason to know of the package's content.
247 Section 10. Section 76-10-105 is amended to read:
248 76-10-105. Buying or possessing a cigar, cigarette, electronic cigarette, or tobacco
249 by a minor -- Penalty -- Compliance officer authority -- Juvenile court jurisdiction.
250 (1) Any [18 year old person] individual who is 18 years of age who buys or attempts to
251 buy, accepts, or has in the [person's] individual's possession any cigar, cigarette, electronic
252 cigarette product, or tobacco in any form is guilty of a class C misdemeanor and subject to:
253 (a) a minimum fine or penalty of $60; and
254 (b) participation in a court-approved tobacco education program, which may include a
255 participation fee.
256 (2) Any [person under the age of 18] individual who is less than 18 years of age who
257 buys or attempts to buy, accepts, or has in the [person's] individual's possession any cigar,
258 cigarette, electronic cigarette product, or tobacco in any form is subject to the jurisdiction of
259 the Juvenile Court and:
260 (a) a minimum fine or penalty of $60; and
261 (b) participation in a court-approved tobacco education program, which may include a
262 participation fee.
263 (3) A compliance officer appointed by a board of education under Section 53A-3-402
264 may issue citations for violations of this section committed on school property. Cited
265 violations shall be reported to the appropriate juvenile court.
266 Section 11. Section 76-10-105.1 is amended to read:
267 76-10-105.1. Requirement of direct, face-to-face sale of tobacco products and
268 electronic cigarettes -- Supremacy clause -- Penalties.
269 (1) As used in this section:
270 (a) "Cigarette tobacco" means a product that consists of loose tobacco that contains or
271 delivers nicotine and is intended for use by a consumer in a cigarette.
272 (b) "Pipe tobacco" means a product that consists of loose tobacco that contains or
273 delivers nicotine and is intended to be smoked by a consumer in a pipe.
274 (c) "Retailer" means a person who sells cigarettes, electronic cigarettes, cigars,
275 cigarette tobacco, pipe tobacco, or smokeless tobacco to individuals for personal consumption

276 or who operates a facility where a vending machine or a self-service display is permitted under
277 Subsection (3)(b).
278 (d) "Self-service display" means a display of cigarettes, electronic cigarettes, cigars,
279 cigarette tobacco, pipe tobacco, or smokeless tobacco products to which the public has access
280 without the intervention of a retail employee.
281 (e) "Smokeless tobacco" means a product that consists of cut, ground, powdered, or
282 leaf tobacco that contains nicotine and that is intended to be placed in the oral cavity.
283 (2) (a) Except as provided in Subsection (3), a retailer may sell cigarettes, electronic
284 [cigarettes] cigarette products, cigars, cigarette tobacco, pipe tobacco, and smokeless tobacco
285 only in a direct, face-to-face exchange between:
286 (i) an employee of the retailer; and
287 (ii) the purchaser.
288 (b) Examples of methods that are not permitted include vending machines and
289 self-service displays.
290 (c) Subsections (2)(a) and (b) do not prohibit the use or display of locked cabinets
291 containing cigarettes, electronic [cigarettes] cigarette products, cigars, cigarette tobacco, pipe
292 tobacco, or smokeless tobacco if the locked cabinets are accessible only to the retailer or the
293 retailer's employees.
294 (3) The following sales are permitted as exceptions to Subsection (2):
295 (a) mail-order sales of cigarettes, cigars, cigarette tobacco, pipe tobacco, and smokeless
296 tobacco, if the provisions of Section 59-14-509 are met;
297 (b) sales from vending machines, including vending machines that sell packaged,
298 single cigarettes or cigars, and self-service displays that are located in a separate and defined
299 area within a facility where the retailer ensures that no person younger than 19 years of age is
300 present, or permitted to enter, at any time, unless accompanied by a parent or legal guardian;
301 and
302 (c) sales by a retailer from a retail store which derives at least 80% of its revenue from
303 tobacco, [and] tobacco related products, and electronic cigarette products, and where the
304 retailer ensures that no person younger than 19 years of age is present, or permitted to enter at
305 any time, unless accompanied by a parent or legal guardian.
306 (4) Any ordinance, regulation, or rule adopted by the governing body of a political

307 subdivision of the state or by a state agency that affects the sale, placement, or display of
308 cigarettes, [electronic cigarettes,] cigars, cigarette tobacco, pipe tobacco, or smokeless tobacco
309 that is not essentially identical to the provisions of this section and Section 76-10-102 is
310 superseded.
311 (5) (a) A parent or legal guardian who accompanies a person younger than 19 years of
312 age into an area described in Subsection (3)(b) or into a retail store as described in Subsection
313 (3)(c) and permits the person younger than 19 years of age to purchase or otherwise take a
314 cigar, cigarette, electronic cigarette product, or tobacco in any form is guilty of providing
315 tobacco as provided for in Section 76-10-104 and the penalties provided for in that section.
316 (b) Nothing in this section may be construed as permitting a person to provide tobacco
317 to a minor in violation of Section 76-10-104 .
318 (6) Violation of Subsection (2) or (3) is a:
319 (a) class C misdemeanor on the first offense;
320 (b) class B misdemeanor on the second offense; and
321 (c) class A misdemeanor on the third and all subsequent offenses.
322 Section 12. Section 76-10-111 is amended to read:
323 76-10-111. Prohibition of gift or free distribution of smokeless tobacco or
324 electronic cigarette products -- Exceptions.
325 (1) The Legislature finds that:
326 (a) smokeless tobacco, or chewing tobacco, is harmful to the health of individuals who
327 use those products because research indicates that they may cause mouth or oral cancers;
328 (b) the use of smokeless tobacco among juveniles in this state is increasing rapidly;
329 (c) the use of electronic [cigarettes] cigarette products may lead to unhealthy behavior
330 such as the use of tobacco products; and
331 (d) it is necessary to restrict the gift of the products described in this Subsection (1) in
332 the interest of the health of the citizens of this state.
333 (2) Except as provided in Subsection (3), it is unlawful for a manufacturer, wholesaler,
334 and retailer to give or distribute without charge any smokeless tobacco, chewing tobacco, or
335 electronic cigarette product in this state. Any person who violates this section is guilty of a
336 class C misdemeanor for the first offense, and is guilty of a class B misdemeanor for any
337 subsequent offense.

338 (3) (a) Smokeless tobacco, chewing tobacco, or an electronic cigarette product may be
339 distributed to adults without charge at professional conventions where the general public is
340 excluded.
341 (b) Subsection (2) does not apply to a retailer, manufacturer, or distributor who gives
342 smokeless tobacco, chewing tobacco, or an electronic cigarette product to a person of legal age
343 upon the person's purchase of another tobacco product or electronic cigarette product.
344 Section 13. Section 77-39-101 is amended to read:
345 77-39-101. Investigation of sales of alcohol, tobacco, and electronic cigarettes to
346 underage persons.
347 (1) As used in this section, "electronic cigarette product" is as defined in Section
348 [ 76-10-101 ] 26-55-102 .
349 (2) (a) A peace officer, as defined by Title 53, Chapter 13, Peace Officer
350 Classifications, may investigate the possible violation of:
351 (i) Section 32B-4-403 by requesting an individual under the age of 21 years to enter
352 into and attempt to purchase or make a purchase of alcohol from a retail establishment; or
353 (ii) Section 76-10-104 by requesting an individual under the age of 19 years to enter
354 into and attempt to purchase or make a purchase from a retail establishment of:
355 (A) a cigar;
356 (B) a cigarette;
357 (C) tobacco in any form; or
358 (D) an electronic cigarette product.
359 (b) A peace officer who is present at the site of a proposed purchase shall direct,
360 supervise, and monitor the individual requested to make the purchase.
361 (c) Immediately following a purchase or attempted purchase or as soon as practical the
362 supervising peace officer shall inform the cashier and the proprietor or manager of the retail
363 establishment that the attempted purchaser was under the legal age to purchase:
364 (i) alcohol; or
365 (ii) (A) a cigar;
366 (B) a cigarette;
367 (C) tobacco in any form; or
368 (D) an electronic cigarette product.

369 (d) If a citation or information is issued, it shall be issued within seven days of the
370 purchase.
371 (3) (a) If an individual under the age of 18 years old is requested to attempt a purchase,
372 a written consent of that individual's parent or guardian shall be obtained prior to that
373 individual participating in any attempted purchase.
374 (b) An individual requested by the peace officer to attempt a purchase may:
375 (i) be a trained volunteer; or
376 (ii) receive payment, but may not be paid based on the number of successful purchases
377 of alcohol, tobacco, or an electronic cigarette product.
378 (4) The individual requested by the peace officer to attempt a purchase and anyone
379 accompanying the individual attempting a purchase may not during the attempted purchase
380 misrepresent the age of the individual by false or misleading identification documentation in
381 attempting the purchase.
382 (5) An individual requested to attempt to purchase or make a purchase pursuant to this
383 section is immune from prosecution, suit, or civil liability for the purchase of, attempted
384 purchase of, or possession of alcohol, a cigar, a cigarette, tobacco in any form, or an electronic
385 cigarette product if a peace officer directs, supervises, and monitors the individual.
386 (6) (a) Except as provided in Subsection (6)(b), a purchase attempted under this section
387 shall be conducted:
388 (i) on a random basis; and
389 (ii) within a 12-month period at any one retail establishment location not more often
390 than:
391 (A) four times for the attempted purchase of:
392 (I) a cigar;
393 (II) a cigarette;
394 (III) tobacco in any form; or
395 (IV) an electronic cigarette product; and
396 (B) four times for the attempted purchase of alcohol.
397 (b) Nothing in this section shall prohibit an investigation under this section if:
398 (i) there is reasonable suspicion to believe the retail establishment has sold alcohol, a
399 cigar, a cigarette, tobacco in any form, or an electronic cigarette product to an individual under

400 the age established by Section 32B-4-403 or 76-10-104 ; and
401 (ii) the supervising peace officer makes a written record of the grounds for the
402 reasonable suspicion.
403 (7) (a) The peace officer exercising direction, supervision, and monitoring of the
404 attempted purchase shall make a report of the attempted purchase, whether or not a purchase
405 was made.
406 (b) The report required by this Subsection (7) shall include:
407 (i) the name of the supervising peace officer;
408 (ii) the name of the individual attempting the purchase;
409 (iii) a photograph of the individual attempting the purchase showing how that
410 individual appeared at the time of the attempted purchase;
411 (iv) the name and description of the cashier or proprietor from whom the individual
412 attempted the purchase;
413 (v) the name and address of the retail establishment; and
414 (vi) the date and time of the attempted purchase.




Legislative Review Note
as of 2-5-14 5:26 PM

Office of Legislative Research and General Counsel