First Substitute H.B. 314

Senator Curtis S. Bramble proposes the following substitute bill:

1 CONSUMER PROTECTION REVISIONS
2 2004 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: John Dougall
5
6 LONG TITLE
7 General Description:
8 This bill enacts the Radio Frequency Identification Tag Control Act within the
9 Commerce and Trade Code.
10 Highlighted Provisions:
11 This bill:
12 . defines terms;
13 . requires a person who manufactures, distributes, or sells a product with a radio
14 frequency identification tag to provide notice that meets certain criteria; and
15 . provides a civil cause of action for a violation.
16 Monies Appropriated in this Bill:
17 None
18 Other Special Clauses:
19 This bill takes effect on July 1, 2005.
20 Utah Code Sections Affected:
21 ENACTS:
22 13-39-101, Utah Code Annotated 1953
23 13-39-102, Utah Code Annotated 1953
24 13-39-201, Utah Code Annotated 1953
25 13-39-301, Utah Code Annotated 1953

26
27 Be it enacted by the Legislature of the state of Utah:
28 Section 1. Section 13-39-101 is enacted to read:
29 CHAPTER 39. RADIO FREQUENCY IDENTIFICATION TAG CONTROL ACT
30 Part 1. General Provisions
31 13-39-101. Title.
32 This chapter is known as the "Radio Frequency Identification Tag Control Act."
33 Section 2. Section 13-39-102 is enacted to read:
34 13-39-102. Definitions.
35 As used in this chapter:
36 (1) "Distributor" means a person that distributes products for retail sale.
37 (2) (a) "Electronically tagged retail product" means a retail product that contains a
38 radio frequency identification tag:
39 (i) on or within the retail product; or
40 (ii) on or within the packaging of the retail product.
41 (b) "Electronically tagged retail product" does not include livestock or other animals.
42 (3) "Manufacturer" means a person engaged in the business of manufacturing and
43 distributing products for retail sale.
44 (4) "Radio frequency identification tag" means a tag:
45 (a) designed to wirelessly transmit a unique electronic product code; and
46 (b) comprised of:
47 (i) an antenna or coil;
48 (ii) a transceiver with decoder; and
49 (iii) a transponder electronically programmed with a unique electronic product code.
50 (5) "Retail" means the sale of products for purposes other than resale.
51 (6) "Retailer" means a person that sells products directly to a consumer.
52 (7) "Unique electronic product code" means a number or identifier:
53 (a) developed for retail inventory control and management;
54 (b) that is stored and transmitted electronically; and
55 (c) that uniquely identifies an individual retail product item.
56 Section 3. Section 13-39-201 is enacted to read:

57 Part 2. Requirements
58 13-39-201. Disclosure requirements.
59 (1) A retailer shall comply with Subsection (2) if:
60 (a) the retailer sells an electronically tagged retail product to a consumer; and
61 (b) the electronically tagged retail product described in Subsection (1)(a) contains a
62 radio frequency identification tag that is not disabled upon transfer of ownership of the
63 electronically tagged retail product to the consumer.
64 (2) A retailer described in Subsection (1) shall provide notice:
65 (a) (i) conspicuously on an electronically tagged retail product or the product
66 packaging for an electronically tagged retail product;
67 (ii) on the purchase receipt or sales order;
68 (iii) conspicuously posted on the premises, within the catalog, or on the Internet
69 website from which a consumer purchases an electronically tagged retail product; or
70 (iv) in any other manner determined by the retailer that is conspicuous to the consumer;
71 and
72 (b) informing the consumer that a radio frequency identification tag will remain active
73 after the consumer assumes ownership of the electronically tagged retail product.
74 (3) A manufacturer or distributor shall comply with Subsection (4) if the manufacturer
75 or distributor distributes an electronically tagged retail product that eventually will be sold by a
76 retailer to a consumer.
77 (4) A person described in Subsection (3) shall provide:
78 (a) for an electronically tagged retail product with a radio frequency identification tag
79 that may be disabled prior to the transfer of ownership from the retailer to the consumer,
80 information informing the retailer how to disable the radio frequency identification tag; or
81 (b) for an electronically tagged retail product with a radio frequency identification tag
82 that may not be disabled prior to the transfer of ownership from the retailer to the consumer,
83 information that will allow the retailer to comply with Subsection (2).
84 (5) A retailer does not violate this section if the retailer:
85 (a) sells an electronically tagged retail product to a consumer in violation of this
86 section; and
87 (b) allows the consumer to return the electronically tagged retail product for a full

88 refund of the purchase price.
89 (6) A retailer commits a single violation of this section with respect to electronically
90 tagged retail products:
91 (a) sold to the same consumer; and
92 (b) that are identical or substantially similar.
93 Section 4. Section 13-39-301 is enacted to read:
94 Part 3. Enforcement
95 13-39-301. Civil remedy.
96 (1) (a) A consumer who purchases an electronically tagged retail product may bring a
97 private right of action against a retailer who violates Section 13-39-201 .
98 (b) In each action under this Subsection (1), a consumer may recover:
99 (i) $500 for each violation; and
100 (ii) costs.
101 (2) (a) A retailer who sells an electronically tagged retail product may bring a private
102 right of action against a manufacturer or distributor whose violation of Section 13-39-201
103 causes the retailer to violate Section 13-39-201 .
104 (b) In each action under this Subsection (2), a retailer may recover:
105 (i) actual damages; and
106 (ii) costs and reasonable attorney fees.
107 (3) (a) A distributor who distributes an electronically tagged retail product may bring a
108 private right of action against a manufacturer or distributor whose violation of Section
109 13-39-201 results in a retailer violating Section 13-39-201 .
110 (b) In each action under this Subsection (3), a distributor may recover:
111 (i) actual damages; and
112 (ii) costs and reasonable attorney fees.
113 (4) A person may not bring a class action under this chapter.
114 Section 5. Effective date.
115 This bill takes effect on July 1, 2005.