Representative Jennifer Dailey-Provost proposes the following substitute bill:


1     
RETAIL TOBACCO AMENDMENTS

2     
2020 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Jennifer Dailey-Provost

5     
Senate Sponsor: Evan J. Vickers

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions relating to the sale of certain tobacco products.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     amends the definition of a retail tobacco specialty business to include any retailer
14     that sells a flavored electronic cigarette product;
15          ▸     repeals preemption of certain local ordinances relating to tobacco products;
16          ▸     authorizes regulation and testing of manufacturer sealed electronic cigarette
17     substances;
18          ▸     requires a tobacco retailer to maintain certain records;
19          ▸     allows a political subdivision or a state agency to adopt an ordinance, regulation, or
20     rule affecting the sale of certain electronic cigarette products;
21          ▸     prohibits a manufacturer, wholesaler, or retailer from providing certain discounts or
22     giveaways for tobacco products; and
23          ▸     makes technical changes.
24     Money Appropriated in this Bill:
25          None
26     Other Special Clauses:
27          This bill provides a coordination clause.
28     Utah Code Sections Affected:
29     AMENDS:
30          10-8-41.6, as last amended by Laws of Utah 2018, Chapter 231
31          17-50-333, as last amended by Laws of Utah 2018, Chapter 231
32          26-57-103, as enacted by Laws of Utah 2015, Chapter 132
33          76-10-105.1 (Superseded 07/01/20), as last amended by Laws of Utah 2018, Chapter
34     231
35          76-10-105.1 (Effective 07/01/20), as last amended by Laws of Utah 2019, Chapter 232
36          76-10-111, as last amended by Laws of Utah 2010, Chapter 114
37          76-10-112, as enacted by Laws of Utah 1989, Chapter 193
38     ENACTS:
39          26-62-206, Utah Code Annotated 1953
40     Utah Code Sections Affected by Coordination Clause:
41          10-8-41.6, as last amended by Laws of Utah 2018, Chapter 231
42          17-50-333, as last amended by Laws of Utah 2018, Chapter 231
43     

44     Be it enacted by the Legislature of the state of Utah:
45          Section 1. Section 10-8-41.6 is amended to read:
46          10-8-41.6. Regulation of retail tobacco specialty business.
47          (1) As used in this section:
48          (a) "Community location" means:
49          (i) a public or private kindergarten, elementary, middle, junior high, or high school;
50          (ii) a licensed child-care facility or preschool;
51          (iii) a trade or technical school;
52          (iv) a church;
53          (v) a public library;
54          (vi) a public playground;
55          (vii) a public park;
56          (viii) a youth center or other space used primarily for youth oriented activities;
57          (ix) a public recreational facility;
58          (x) a public arcade; or
59          (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
60          (b) "Department" means the Department of Health, created in Section 26-1-4.
61          (c) "Electronic cigarette product" means the same as that term is defined in Section
62     59-14-802.
63          (d) (i) "Flavored electronic cigarette product" means an electronic cigarette product
64     that has a taste or smell that is distinguishable by an ordinary consumer either before or during
65     use or consumption of the electronic cigarette product.
66          (ii) "Flavored electronic cigarette product" includes an electronic cigarette product that
67     has a taste or smell of any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic
68     beverage, herb, mint, menthol, or spice.
69          (iii) "Flavored electronic cigarette product" does not include an electronic cigarette
70     product that has a taste or smell of only tobacco.
71          [(c)] (e) "Local health department" means the same as that term is defined in Section
72     26A-1-102.
73          [(d)] (f) "Permittee" means a person licensed under this section to conduct business as
74     a retail tobacco specialty business.
75          [(e)] (g) "Retail tobacco specialty business" means a commercial establishment in
76     which:
77          (i) the sale of tobacco products accounts for more than 35% of the total quarterly gross
78     receipts for the establishment;
79          (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
80     storage of tobacco products;
81          (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
82     tobacco products; [or]
83          (iv) the retail space features a self-service display for tobacco products[.]; or
84          (v) any flavored electronic cigarette product is sold.
85          [(f)] (h) "Self-service display" means the same as that term is defined in Section
86     76-10-105.1.
87          [(g)] (i) "Tobacco product" means:
88          (i) any cigar, cigarette, or electronic cigarette, as those terms are defined in Section
89     76-10-101;
90          (ii) a tobacco product, as that term is defined in Section 59-14-102, including:
91          (A) chewing tobacco; or
92          (B) any substitute for a tobacco product, including flavoring or additives to tobacco;
93     and
94          (iii) tobacco paraphernalia, as that term is defined in Section 76-10-104.1.
95          (2) The regulation of a retail tobacco specialty business is an exercise of the police
96     powers of the state, and through delegation, to other governmental entities.
97          (3) (a) A person may not operate a retail tobacco specialty business in a municipality
98     unless the person obtains a license from the municipality in which the retail tobacco specialty
99     business is located.
100          (b) A municipality may only issue a retail tobacco specialty business license to a
101     person if the person complies with the provisions of Subsections (4) and (5).
102          (4) (a) Except as provided in Subsection (7), a municipality may not issue a license for
103     a person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
104     business is located within:
105          (i) 1,000 feet of a community location;
106          (ii) 600 feet of another retail tobacco specialty business; or
107          (iii) 600 feet from property used or zoned for:
108          (A) agriculture use; or
109          (B) residential use.
110          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
111     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
112     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
113     to intervening structures or zoning districts.
114          (5) (a) Except as provided in Subsection (5)(b), beginning July 1, 2018, a municipality
115     may not issue or renew a license for a person to conduct business as a retail tobacco specialty
116     business until the person provides the municipality with proof that the retail tobacco specialty
117     business has:
118          (i) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
119     62, Tobacco Retail Permit, by the local health department having jurisdiction over the area in
120     which the retail tobacco specialty business is located; and
121          (ii) a valid license to sell tobacco products from the State Tax Commission.
122          (b) A person that was licensed to conduct business as a retail tobacco specialty
123     business in a municipality before July 1, 2018, shall obtain a permit from a local health
124     department under Title 26, Chapter 62, Tobacco Retail Permit, on or before January 1, 2019.
125          (6) (a) Nothing in this section:
126          (i) requires a municipality to issue a retail tobacco specialty business license; or
127          (ii) prohibits a municipality from adopting more restrictive requirements on a person
128     seeking a license or renewal of a license to conduct business as a retail tobacco specialty
129     business.
130          (b) A municipality may suspend or revoke a retail tobacco specialty business license
131     issued under this section:
132          (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
133     Part 16, Pattern of Unlawful Activity Act;
134          (ii) if a licensee violates the regulations restricting the sale and distribution of
135     cigarettes and smokeless tobacco to protect children and adolescents issued by the United
136     States Food and Drug Administration, 21 C.F.R. Part 1140;
137          (iii) upon the recommendation of the department or a local health department under
138     Title 26, Chapter 62, Tobacco Retail Permit; or
139          (iv) under any other provision of state law or local ordinance.
140          (7) (a) In accordance with Subsection (7)(b), a retail tobacco specialty business that has
141     a business license and is operating in a municipality in accordance with all applicable laws
142     except for the requirement in Subsection (4), on or before December 31, 2015, is exempt from
143     Subsection (4).
144          (b) A retail tobacco specialty business may maintain an exemption under Subsection
145     (7)(a) if:
146          (i) the retail tobacco specialty business license is renewed continuously without lapse
147     or permanent revocation;
148          (ii) the retail tobacco specialty business does not close for business or otherwise
149     suspend the sale of tobacco products for more than 60 consecutive days;
150          (iii) the retail tobacco specialty business does not substantially change the business
151     premises or business operation; and
152          (iv) the retail tobacco specialty business maintains the right to operate under the terms
153     of other applicable laws, including:
154          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
155          (B) zoning ordinances;
156          (C) building codes; and
157          (D) the requirements of a retail tobacco specialty business license issued before
158     December 31, 2015.
159          Section 2. Section 17-50-333 is amended to read:
160          17-50-333. Regulation of retail tobacco specialty business.
161          (1) As used in this section:
162          (a) "Community location" means:
163          (i) a public or private kindergarten, elementary, middle, junior high, or high school;
164          (ii) a licensed child-care facility or preschool;
165          (iii) a trade or technical school;
166          (iv) a church;
167          (v) a public library;
168          (vi) a public playground;
169          (vii) a public park;
170          (viii) a youth center or other space used primarily for youth oriented activities;
171          (ix) a public recreational facility;
172          (x) a public arcade; or
173          (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
174          (b) "Department" means the Department of Health, created in Section 26-1-4.
175          (c) "Electronic cigarette product" means the same as that term is defined in Section
176     59-14-802.
177          (d) (i) "Flavored electronic cigarette product" means an electronic cigarette product
178     that has a taste or smell that is distinguishable by an ordinary consumer either before or during
179     use or consumption of the electronic cigarette product.
180          (ii) "Flavored electronic cigarette product" includes an electronic cigarette product that
181     has a taste or smell of any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic
182     beverage, herb, mint, menthol, or spice.
183          (iii) "Flavored electronic cigarette product" does not include an electronic cigarette
184     product that has a taste or smell of only electronic cigarette.
185          [(c)] (e) "Licensee" means a person licensed under this section to conduct business as a
186     retail tobacco specialty business.
187          [(d)] (f) "Local health department" means the same as that term is defined in Section
188     26A-1-102.
189          [(e)] (g) "Retail tobacco specialty business" means a commercial establishment in
190     which:
191          (i) the sale of tobacco products accounts for more than 35% of the total quarterly gross
192     receipts for the establishment;
193          (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
194     storage of tobacco products;
195          (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
196     tobacco products; [or]
197          (iv) the retail space features a self-service display for tobacco products[.]; or
198          (v) any flavored electronic cigarette product is sold.
199          [(f)] (h) "Self-service display" means the same as that term is defined in Section
200     76-10-105.1.
201          [(g)] (i) "Tobacco product" means:
202          (i) any cigar, cigarette, or electronic cigarette as those terms are defined in Section
203     76-10-101;
204          (ii) a tobacco product as that term is defined in Section 59-14-102, including:
205          (A) chewing tobacco; or
206          (B) any substitute for a tobacco product, including flavoring or additives to tobacco;
207     and
208          (iii) tobacco paraphernalia as that term is defined in Section 76-10-104.1.
209          (2) The regulation of a retail tobacco specialty business is an exercise of the police
210     powers of the state, and through delegation, to other governmental entities.
211          (3) (a) A person may not operate a retail tobacco specialty business in a county unless
212     the person obtains a license from the county in which the retail tobacco specialty business is
213     located.
214          (b) A county may only issue a retail tobacco specialty business license to a person if
215     the person complies with the provisions of Subsections (4) and (5).
216          (4) (a) Except as provided in Subsection (7), a county may not issue a license for a
217     person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
218     business is located within:
219          (i) 1,000 feet of a community location;
220          (ii) 600 feet of another retail tobacco specialty business; or
221          (iii) 600 feet from property used or zoned for:
222          (A) agriculture use; or
223          (B) residential use.
224          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
225     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
226     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
227     to intervening structures or zoning districts.
228          (5) (a) Except as provided in Subsection (5)(b), beginning July 1, 2018, a county may
229     not issue or renew a license for a person to conduct business as a retail tobacco specialty
230     business until the person provides the county with proof that the retail tobacco specialty
231     business has:
232          (i) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
233     62, Tobacco Retail Permit, by the local health department having jurisdiction over the area in
234     which the retail tobacco specialty business is located; and
235          (ii) a valid license to sell tobacco products from the State Tax Commission.
236          (b) A person that was licensed to conduct business as a retail tobacco specialty
237     business in a county before July 1, 2018, shall obtain a permit from a local health department
238     under Title 26, Chapter 62, Tobacco Retail Permit, on or before January 1, 2019.
239          (6) (a) Nothing in this section:
240          (i) requires a county to issue a retail tobacco specialty business license; or
241          (ii) prohibits a county from adopting more restrictive requirements on a person seeking
242     a license or renewal of a license to conduct business as a retail tobacco specialty business.
243          (b) A county may suspend or revoke a retail tobacco specialty business license issued
244     under this section:
245          (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
246     Part 16, Pattern of Unlawful Activity Act;
247          (ii) if a licensee violates the regulations restricting the sale and distribution of
248     cigarettes and smokeless tobacco to protect children and adolescents issued by the United
249     States Food and Drug Administration, 21 C.F.R. Part 1140;
250          (iii) upon the recommendation of the department or a local health department under
251     Title 26, Chapter 62, Tobacco Retail Permit; or
252          (iv) under any other provision of state law or local ordinance.
253          (7) (a) In accordance with Subsection (7)(b), a retail tobacco specialty business that has
254     a business license and is operating in a county in accordance with all applicable laws except for
255     the requirement in Subsection (4), on or before December 31, 2015, is exempt from Subsection
256     (4).
257          (b) A retail tobacco specialty business may maintain an exemption under Subsection
258     (7)(a) if:
259          (i) the retail tobacco specialty business license is renewed continuously without lapse
260     or permanent revocation;
261          (ii) the retail tobacco specialty business does not close for business or otherwise
262     suspend the sale of tobacco products for more than 60 consecutive days;
263          (iii) the retail tobacco specialty business does not substantially change the business
264     premises or business operation; and
265          (iv) the retail tobacco specialty business maintains the right to operate under the terms
266     of other applicable laws, including:
267          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
268          (B) zoning ordinances;
269          (C) building codes; and
270          (D) the requirements of a retail tobacco specialty business license issued before
271     December 31, 2015.
272          Section 3. Section 26-57-103 is amended to read:
273          26-57-103. Electronic cigarette products -- Labeling -- Manufacturing and
274     quality control standards -- Advertising.
275          (1) The department shall, in consultation with a local health department, as defined in
276     Section 26A-1-102, and with input from members of the public, establish, no later than January
277     1, 2016, by rule made in accordance with Title 63G, Chapter 3, Utah Administrative
278     Rulemaking Act, standards for electronic cigarette substance:
279          (a) labeling;
280          (b) nicotine content;
281          (c) packaging; and
282          (d) product quality.
283          [(2) The standards established by the department under Subsection (1) do not apply to a
284     manufacturer sealed electronic cigarette substance.]
285          (2) On or before January 1, 2021, the department shall, in consultation with a local
286     health department, as defined in Section 26A-1-102, and with input from members of the
287     public, establish by rule made in accordance with Title 63G, Chapter 3, Utah Administrative
288     Rulemaking Act, standards for manufacturer sealed electronic cigarette substance:
289          (a) labeling;
290          (b) nicotine content;
291          (c) packaging; and
292          (d) product quality.
293          (3) (a) Beginning on July 1, 2016, a person may not sell an electronic cigarette
294     substance unless the electronic cigarette substance complies with the standards established by
295     the department under Subsection (1).
296          (b) Beginning July 1, 2021, a person may not sell a manufacturer sealed electronic
297     cigarette substance unless the manufacturer sealed electronic cigarette substance complies with
298     the standards established by the department under Subsection (2).
299          (4) (a) Beginning on July 1, 2016, a local health department may not enact a rule or
300     regulation regarding electronic cigarette substance labeling, nicotine content, packaging, or
301     product quality that is not [identical to] at least as stringent as the standards established by the
302     department under [Subsection (1)] Subsections (1) and (2).
303          (b) [Except as provided in Subsection (4)(c), a] A local health department may enact a
304     rule or regulation regarding electronic cigarette substance manufacturing.
305          [(c) A local health department may not enact a rule or regulation regarding a
306     manufacturer sealed electronic cigarette substance.]
307          (5) Beginning on July 1, 2016, a person may not advertise an electronic cigarette
308     product:
309          (a) as a tobacco cessation device;
310          (b) if the person is not licensed to sell an electronic cigarette product under Section
311     59-14-803; or
312          (c) during a period of time when the person's license to sell an electronic cigarette
313     product under Section 59-14-803 has been suspended or revoked.
314          Section 4. Section 26-62-206 is enacted to read:
315          26-62-206. Permit requirements for the sale of tobacco products.
316          (1) A tobacco retailer shall:
317          (a) for each sale of a tobacco product, provide the customer with an itemized receipt
318     for each sale of a tobacco product that separately identifies:
319          (i) the name of the tobacco product;
320          (ii) the amount charged for each tobacco product; and
321          (iii) the time and date of the sale; and
322          (b) maintain an itemized transaction log for each sale of a tobacco product that
323     separately identifies:
324          (i) the name of the tobacco product;
325          (ii) the amount charged for each tobacco product; and
326          (iii) the date and time of the sale.
327          (2) The itemized transaction log described in Subsection (1)(b) shall be:
328          (a) maintained for at least one year from the date of each transaction in the itemized
329     transaction log; and
330          (b) made available to an enforcing agency or peace officer at the request of the
331     enforcing agency or peace officer that is no less restrictive than the provisions in this part.
332          Section 5. Section 76-10-105.1 (Superseded 07/01/20) is amended to read:
333          76-10-105.1 (Superseded 07/01/20). Requirement of direct, face-to-face sale of
334     cigarettes, tobacco, and electronic cigarettes -- Minors not allowed in tobacco specialty
335     shop -- Penalties.
336          (1) As used in this section:
337          (a) "Cigarette" means the same as that term is defined in Section 59-14-102.
338          (b) (i) "Face-to-face exchange" means a transaction made in person between an
339     individual and a retailer or retailer's employee.
340          (ii) "Face-to-face exchange" does not include a sale through a:
341          (A) vending machine; or
342          (B) self-service display.
343          (c) (i) "Flavored electronic cigarette" means an electronic cigarette that has a taste or
344     smell that is distinguishable by an ordinary consumer either before or during use or
345     consumption of the electronic cigarette.
346          (ii) "Flavored electronic cigarette" includes an electronic cigarette that has a taste or
347     smell of any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb,
348     menthol, or spice.
349          (iii) "Flavored electronic cigarette" does not include an electronic cigarette that has a
350     taste or smell of only tobacco.
351          [(c)] (d) "Retailer" means a person who:
352          (i) sells a cigarette, tobacco, or an electronic cigarette to an individual for personal
353     consumption; or
354          (ii) operates a facility with a vending machine that sells a cigarette, tobacco, or an
355     electronic cigarette.
356          [(d)] (e) "Self-service display" means a display of a cigarette, tobacco, or an electronic
357     cigarette to which the public has access without the intervention of a retailer or retailer's
358     employee.
359          [(e)] (f) "Tobacco" means any product, except a cigarette, made of or containing
360     tobacco.
361          [(f)] (g) "Tobacco specialty shop" means a "retail tobacco specialty business" as that
362     term is defined:
363          (i) as it relates to a municipality, in Section 10-8-41.6; and
364          (ii) as it relates to a county, in Section 17-50-333.
365          (2) Except as provided in Subsection (3), a retailer may sell a cigarette, tobacco, or an
366     electronic cigarette only in a face-to-face exchange.
367          (3) The face-to-face sale requirement in Subsection (2) does not apply to:
368          (a) a mail-order, telephone, or Internet sale made in compliance with Section
369     59-14-509;
370          (b) a sale from a vending machine or self-service display that is located in an area of a
371     retailer's facility:
372          (i) that is distinct and separate from the rest of the facility; and
373          (ii) where the retailer only allows an individual who complies with Subsection (4) to be
374     present; or
375          (c) a sale at a tobacco specialty shop.
376          (4) An individual who is less than 19 years old may not enter or be present at a tobacco
377     specialty shop unless the individual is:
378          (a) accompanied by a parent or legal guardian;
379          (b) present at the tobacco shop for a bona fide commercial purpose other than to
380     purchase a cigarette, tobacco, or an electronic cigarette; or
381          (c) 18 years old or older and an active duty member of the United States Armed Forces,
382     as demonstrated by a valid, government-issued military identification card.
383          (5) A parent or legal guardian who accompanies, under Subsection (4)(a), an individual
384     into an area described in Subsection (3)(b), or into a tobacco specialty shop, may not allow the
385     individual to purchase a cigarette, tobacco, or an electronic cigarette.
386          (6) A violation of Subsection (2) or (4) is a:
387          (a) class C misdemeanor on the first offense;
388          (b) class B misdemeanor on the second offense; and
389          (c) class A misdemeanor on the third and all subsequent offenses.
390          (7) An individual who violates Subsection (5) is guilty of providing tobacco to a minor
391     under Section 76-10-104.
392          (8) (a) [Any] An ordinance, regulation, or rule adopted by the governing body of a
393     political subdivision of the state or by a state agency that affects the sale, placement, or display
394     of cigarettes, tobacco, or electronic cigarettes that is not essentially identical to [the provisions
395     of] this section and Section 76-10-102 is superseded.
396          (b) Subsection (8)(a) does not apply to:
397          (i) the adoption or enforcement of a land use ordinance by a municipal or county
398     government[.]; and
399          (ii) an ordinance, regulation, or rule relating to the sale, placement of a flavored
400     electronic cigarette.
401          Section 6. Section 76-10-105.1 (Effective 07/01/20) is amended to read:
402          76-10-105.1 (Effective 07/01/20). Requirement of direct, face-to-face sale of
403     cigarettes, tobacco, and electronic cigarettes -- Minors not allowed in tobacco specialty
404     shop -- Penalties.
405          (1) As used in this section:
406          (a) "Cigarette" means the same as that term is defined in Section 59-14-102.
407          (b) (i) "Face-to-face exchange" means a transaction made in person between an
408     individual and a retailer or retailer's employee.
409          (ii) "Face-to-face exchange" does not include a sale through a:
410          (A) vending machine; or
411          (B) self-service display.
412          (c) (i) "Flavored electronic cigarette" means an electronic cigarette that has a taste or
413     smell that is distinguishable by an ordinary consumer either before or during use or
414     consumption of the electronic cigarette.
415          (ii) "Flavored electronic cigarette" includes an electronic cigarette that has a taste or
416     smell of any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb,
417     menthol, or spice.
418          (iii) "Flavored electronic cigarette" does not include an electronic cigarette that has a
419     taste or smell of only tobacco.
420          [(c)] (d) "Retailer" means a person who:
421          (i) sells a cigarette, tobacco, or an electronic cigarette to an individual for personal
422     consumption; or
423          (ii) operates a facility with a vending machine that sells a cigarette, tobacco, or an
424     electronic cigarette.
425          [(d)] (e) "Self-service display" means a display of a cigarette, tobacco, or an electronic
426     cigarette to which the public has access without the intervention of a retailer or retailer's
427     employee.
428          [(e)] (f) "Tobacco" means any product, except a cigarette, made of or containing
429     tobacco.
430          [(f)] (g) "Tobacco specialty shop" means a "retail tobacco specialty business" as that
431     term is defined:
432          (i) as it relates to a municipality, in Section 10-8-41.6; and
433          (ii) as it relates to a county, in Section 17-50-333.
434          (2) Except as provided in Subsection (3), a retailer may sell a cigarette, tobacco, or an
435     electronic cigarette only in a face-to-face exchange.
436          (3) The face-to-face sale requirement in Subsection (2) does not apply to:
437          (a) a mail-order, telephone, or Internet sale made in compliance with Section
438     59-14-509;
439          (b) a sale from a vending machine or self-service display that is located in an area of a
440     retailer's facility:
441          (i) that is distinct and separate from the rest of the facility; and
442          (ii) where the retailer only allows an individual who complies with Subsection (4) to be
443     present; or
444          (c) a sale at a tobacco specialty shop.
445          (4) (a) An individual who is less than the age specified in Subsection (4)(b) may not
446     enter or be present at a tobacco specialty shop unless the individual is:
447          (i) accompanied by a parent or legal guardian;
448          (ii) present at the tobacco shop for a bona fide commercial purpose other than to
449     purchase a cigarette, tobacco, or an electronic cigarette; or
450          (iii) 18 years old or older and an active duty member of the United States Armed
451     Forces, as demonstrated by a valid, government-issued military identification card.
452          (b) For purposes of Subsection (4)(a), the individual is younger than:
453          (i) beginning July 1, 2020, and ending June 30, 2021, 20 years old; and
454          (ii) beginning July 1, 2021, 21 years old.
455          (5) A parent or legal guardian who accompanies, under Subsection (4)(a)(i), an
456     individual into an area described in Subsection (3)(b), or into a tobacco specialty shop, may not
457     allow the individual to purchase a cigarette, tobacco, or an electronic cigarette.
458          (6) A violation of Subsection (2) or (4) is a:
459          (a) class C misdemeanor on the first offense;
460          (b) class B misdemeanor on the second offense; and
461          (c) class A misdemeanor on the third and all subsequent offenses.
462          (7) An individual who violates Subsection (5) is guilty of providing tobacco to a minor
463     under Section 76-10-104.
464          (8) (a) An ordinance, regulation, or rule adopted by the governing body of a political
465     subdivision of the state or by a state agency that affects the sale, minimum age of sale,
466     placement, or display of cigarettes, tobacco, or electronic cigarettes that is not essentially
467     identical to this section and Section 76-10-102 is superseded.
468          (b) Subsection (8)(a) does not apply to:
469          (i) the adoption or enforcement of a land use ordinance by a municipal or county
470     government[.]; and
471          (ii) an ordinance, regulation, or rule relating to the sale, placement of a flavored
472     electronic cigarette.
473          Section 7. Section 76-10-111 is amended to read:
474          76-10-111. Prohibition of gift or free distribution of smokeless tobacco or
475     electronic cigarettes -- Exceptions.
476          (1) The Legislature finds that:
477          (a) smokeless tobacco, or chewing tobacco, is harmful to the health of individuals who
478     use those products because research indicates that they may cause mouth or oral cancers;
479          (b) the use of smokeless tobacco among juveniles in this state is increasing rapidly;
480          (c) the use of electronic cigarettes may lead to unhealthy behavior such as the use of
481     tobacco products; and
482          (d) it is necessary to restrict the gift of the products described in this Subsection (1) in
483     the interest of the health of the citizens of this state.
484          (2) (a) Except as provided in Subsection (3), it is unlawful for a manufacturer,
485     wholesaler, and retailer to:
486          (i) give or distribute without charge any smokeless tobacco, chewing tobacco, or
487     electronic cigarette in this state[.];
488          (ii) except as provided in Subsection (2)(b), sell, offer for sale, or furnish any
489     smokeless tobacco, chewing tobacco, or electronic cigarette at less than 90% of the cost of the
490     product to the manufacturer, wholesaler, or retailer; or
491          (iii) give, distribute, sell, offer for sale, or furnish any smokeless tobacco, chewing
492     tobacco, or electronic cigarette for free or at a lower price because the purchaser makes another
493     purchase.
494          (b) The price that a manufacturer, wholesaler, or retailer may charge under Subsection
495     (2)(a)(ii) does not include a discount for:
496          (i) a manufacturer coupon:
497          (A) that is surrendered to the tobacco retailer at the time of sale; and
498          (B) for which the manufacturer will reimburse the wholesaler or retailer for the full
499     amount of the discount described in the manufacturer coupon and provided to the purchaser;
500          (ii) a rebate that will be paid to the manufacturer, wholesaler, or retailer for the full
501     amount of the rebate provided to the purchaser; or
502          (iii) a promotional fund that will be paid to the manufacturer, wholesaler, or retailer for
503     the full amount of the promotional fund provided to the purchaser.
504          (c) Any person who violates this section is guilty of a class C misdemeanor for the first
505     offense, and is guilty of a class B misdemeanor for any subsequent offense.
506          (3) [(a)] Smokeless tobacco, chewing tobacco, or an electronic cigarette may be
507     distributed to adults without charge at professional conventions where the general public is
508     excluded.
509          [(b) Subsection (2) does not apply to a retailer, manufacturer, or distributor who gives
510     smokeless tobacco, chewing tobacco, or an electronic cigarette to a person of legal age upon
511     the person's purchase of another tobacco product or electronic cigarette.]
512          Section 8. Section 76-10-112 is amended to read:
513          76-10-112. Prohibition of distribution of cigarettes or other tobacco products --
514     Exceptions.
515          (1) (a) Except as provided in Subsection [(2)] (3), it is unlawful for a manufacturer,
516     wholesaler, or retailer to:
517          (i) give or distribute cigarettes or other tobacco products in this state without charge[.];
518          (ii) except as provided in Subsection (2)(b), sell, offer for sale, or furnish any cigarettes
519     or other tobacco products at less than the cost of the product to the manufacturer, wholesaler,
520     or retailer; or
521          (iii) give, distribute, sell, offer for sale, or furnish any cigarettes or other tobacco
522     products for free or at a lower price because the purchaser makes another purchase.
523          (b) The price that a manufacturer, wholesaler, or retailer may charge under Subsection
524     (2)(a)(ii) does not include a discount for:
525          (i) a manufacturer coupon:
526          (A) that is surrendered to the tobacco retailer at the time of sale; and
527          (B) for which the manufacturer will reimburse the wholesaler or retailer for the full
528     amount of the discount described in the manufacturer coupon and provided to the purchaser;
529          (ii) a rebate that will be paid to the manufacturer, wholesaler, or retailer for the full
530     amount of the rebate provided to the purchaser; or
531          (iii) a promotional fund that will be paid to the manufacturer, wholesaler, or retailer for
532     the full amount of the promotional fund provided to the purchaser.
533          (2) Any person who violates this [subsection] section is guilty of a class C
534     misdemeanor for the first offense and a class B misdemeanor for any subsequent offense.
535          [(2)] (3) Cigarettes and other tobacco products may be distributed to adults without
536     charge at professional conventions where the general public is excluded.
537          [(3) The prohibition described in Subsection (1) does not apply to retailers,
538     manufacturers, or distributors who give cigarettes or other tobacco products to persons of legal
539     age upon their purchase of cigarettes or other tobacco products.]
540          Section 9. Coordinating H.B. 118 with S.B. 37 -- Technical amendments.
541          If this H.B. 118 and S.B. 37, Electronic Cigarette and Other Nicotine Product
542     Amendments, both pass and become law, it is the intent of the Legislature that the Office of
543     Legislative Research and General Counsel shall prepare the Utah Code database for publication
544     by amending:
545          (1) Subsection 10-8-41.6(1)(c) to read:
546          "(c) "Electronic cigarette product" means the same as that term is defined in Section
547     76-10-101."; and
548          (2) Subsection 17-50-333(1)(c) to read:
549          "(c) "Electronic cigarette product" means the same as that term is defined in Section
550     76-10-101."