1
2
3
4
5
6 Cosponsors:
7 Patrice M. Arent
8 Melissa G. Ballard
9 Joel K. Briscoe
10 Susan Duckworth
11 Steve Eliason
12 Suzanne Harrison
13 Sandra Hollins
14 Eric K. Hutchings
Marsha Judkins
Brian S. King
Karen Kwan
Carol Spackman Moss
Derrin R. Owens
Lee B. Perry
Stephanie Pitcher
Marie H. Poulson
Paul Ray
Angela Romero
Lawanna Shurtliff
Andrew Stoddard
Norman K. Thurston
Steve Waldrip
Elizabeth Weight
Mark A. Wheatley
Logan Wilde
Mike Winder
15
16 LONG TITLE
17 General Description:
18 This bill amends provisions relating to the sale of certain tobacco products.
19 Highlighted Provisions:
20 This bill:
21 ▸ defines terms;
22 ▸ amends the definition of a retail tobacco specialty business to include any retailer
23 that sells a flavored electronic cigarette product;
24 ▸ authorizes regulation and testing of manufacturer sealed electronic cigarette
25 substances;
26 ▸ requires a tobacco retailer to maintain certain records;
27 ▸ prohibits a manufacturer, wholesaler, or retailer from providing certain discounts or
28 giveaways for tobacco products; and
29 ▸ makes technical changes.
30 Money Appropriated in this Bill:
31 None
32 Other Special Clauses:
33 This bill provides a coordination clause.
34 Utah Code Sections Affected:
35 AMENDS:
36 10-8-41.6, as last amended by Laws of Utah 2018, Chapter 231
37 17-50-333, as last amended by Laws of Utah 2018, Chapter 231
38 26-57-103, as enacted by Laws of Utah 2015, Chapter 132
39 76-10-111, as last amended by Laws of Utah 2010, Chapter 114
40 76-10-112, as enacted by Laws of Utah 1989, Chapter 193
41 ENACTS:
42 26-62-206, Utah Code Annotated 1953
43 Utah Code Sections Affected by Coordination Clause:
44 10-8-41.6, as last amended by Laws of Utah 2018, Chapter 231
45 17-50-333, as last amended by Laws of Utah 2018, Chapter 231
46
47 Be it enacted by the Legislature of the state of Utah:
48 Section 1. Section 10-8-41.6 is amended to read:
49 10-8-41.6. Regulation of retail tobacco specialty business.
50 (1) As used in this section:
51 (a) "Community location" means:
52 (i) a public or private kindergarten, elementary, middle, junior high, or high school;
53 (ii) a licensed child-care facility or preschool;
54 (iii) a trade or technical school;
55 (iv) a church;
56 (v) a public library;
57 (vi) a public playground;
58 (vii) a public park;
59 (viii) a youth center or other space used primarily for youth oriented activities;
60 (ix) a public recreational facility;
61 (x) a public arcade; or
62 (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
63 (b) "Department" means the Department of Health, created in Section 26-1-4.
64 (c) "Electronic cigarette product" means the same as that term is defined in Section
65 59-14-802.
66 (d) (i) "Flavored electronic cigarette product" means an electronic cigarette product
67 that has a taste or smell that is distinguishable by an ordinary consumer either before or during
68 use or consumption of the electronic cigarette product.
69 (ii) "Flavored electronic cigarette product" includes an electronic cigarette product that
70 has a taste or smell of any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic
71 beverage, herb, mint, or spice.
72 (iii) "Flavored electronic cigarette product" does not include an electronic cigarette
73 product that:
74 (A) has a taste or smell of only tobacco or menthol; or
75 (B) has received a modified risk tobacco product order from the United States Food
76 and Drug Administration under 21 U.S.C. Sec. 387k(g).
77 [
78 26A-1-102.
79 [
80 a retail tobacco specialty business.
81 [
82 which:
83 (i) the sale of tobacco products accounts for more than 35% of the total quarterly gross
84 receipts for the establishment;
85 (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
86 storage of tobacco products;
87 (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
88 tobacco products; [
89 (iv) the retail space features a self-service display for tobacco products[
90 (v) any flavored electronic cigarette product is sold.
91 [
92 76-10-105.1.
93 [
94 (i) any cigar, cigarette, or electronic cigarette, as those terms are defined in Section
95 76-10-101;
96 (ii) a tobacco product, as that term is defined in Section 59-14-102, including:
97 (A) chewing tobacco; or
98 (B) any substitute for a tobacco product, including flavoring or additives to tobacco;
99 and
100 (iii) tobacco paraphernalia, as that term is defined in Section 76-10-104.1.
101 (2) The regulation of a retail tobacco specialty business is an exercise of the police
102 powers of the state, and through delegation, to other governmental entities.
103 (3) (a) A person may not operate a retail tobacco specialty business in a municipality
104 unless the person obtains a license from the municipality in which the retail tobacco specialty
105 business is located.
106 (b) A municipality may only issue a retail tobacco specialty business license to a
107 person if the person complies with the provisions of Subsections (4) and (5).
108 (4) (a) Except as provided in Subsection (7), a municipality may not issue a license for
109 a person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
110 business is located within:
111 (i) 1,000 feet of a community location;
112 (ii) 600 feet of another retail tobacco specialty business; or
113 (iii) 600 feet from property used or zoned for:
114 (A) agriculture use; or
115 (B) residential use.
116 (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
117 a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
118 property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
119 to intervening structures or zoning districts.
120 (5) (a) Except as provided in Subsection (5)(b), beginning July 1, 2018, a municipality
121 may not issue or renew a license for a person to conduct business as a retail tobacco specialty
122 business until the person provides the municipality with proof that the retail tobacco specialty
123 business has:
124 (i) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
125 62, Tobacco Retail Permit, by the local health department having jurisdiction over the area in
126 which the retail tobacco specialty business is located; and
127 (ii) a valid license to sell tobacco products from the State Tax Commission.
128 (b) A person that was licensed to conduct business as a retail tobacco specialty
129 business in a municipality before July 1, 2018, shall obtain a permit from a local health
130 department under Title 26, Chapter 62, Tobacco Retail Permit, on or before January 1, 2019.
131 (6) (a) Nothing in this section:
132 (i) requires a municipality to issue a retail tobacco specialty business license; or
133 (ii) prohibits a municipality from adopting more restrictive requirements on a person
134 seeking a license or renewal of a license to conduct business as a retail tobacco specialty
135 business.
136 (b) A municipality may suspend or revoke a retail tobacco specialty business license
137 issued under this section:
138 (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
139 Part 16, Pattern of Unlawful Activity Act;
140 (ii) if a licensee violates the regulations restricting the sale and distribution of
141 cigarettes and smokeless tobacco to protect children and adolescents issued by the United
142 States Food and Drug Administration, 21 C.F.R. Part 1140;
143 (iii) upon the recommendation of the department or a local health department under
144 Title 26, Chapter 62, Tobacco Retail Permit; or
145 (iv) under any other provision of state law or local ordinance.
146 (7) (a) In accordance with Subsection (7)(b), a retail tobacco specialty business that has
147 a business license and is operating in a municipality in accordance with all applicable laws
148 except for the requirement in Subsection (4), on or before December 31, 2015, is exempt from
149 Subsection (4).
150 (b) A retail tobacco specialty business may maintain an exemption under Subsection
151 (7)(a) if:
152 (i) the retail tobacco specialty business license is renewed continuously without lapse
153 or permanent revocation;
154 (ii) the retail tobacco specialty business does not close for business or otherwise
155 suspend the sale of tobacco products for more than 60 consecutive days;
156 (iii) the retail tobacco specialty business does not substantially change the business
157 premises or business operation; and
158 (iv) the retail tobacco specialty business maintains the right to operate under the terms
159 of other applicable laws, including:
160 (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
161 (B) zoning ordinances;
162 (C) building codes; and
163 (D) the requirements of a retail tobacco specialty business license issued before
164 December 31, 2015.
165 Section 2. Section 17-50-333 is amended to read:
166 17-50-333. Regulation of retail tobacco specialty business.
167 (1) As used in this section:
168 (a) "Community location" means:
169 (i) a public or private kindergarten, elementary, middle, junior high, or high school;
170 (ii) a licensed child-care facility or preschool;
171 (iii) a trade or technical school;
172 (iv) a church;
173 (v) a public library;
174 (vi) a public playground;
175 (vii) a public park;
176 (viii) a youth center or other space used primarily for youth oriented activities;
177 (ix) a public recreational facility;
178 (x) a public arcade; or
179 (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
180 (b) "Department" means the Department of Health, created in Section 26-1-4.
181 (c) "Electronic cigarette product" means the same as that term is defined in Section
182 59-14-802.
183 (d) (i) "Flavored electronic cigarette product" means an electronic cigarette product
184 that has a taste or smell that is distinguishable by an ordinary consumer either before or during
185 use or consumption of the electronic cigarette product.
186 (ii) "Flavored electronic cigarette product" includes an electronic cigarette product that
187 has a taste or smell of any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic
188 beverage, herb, mint, or spice.
189 (iii) "Flavored electronic cigarette product" does not include an electronic cigarette
190 product that:
191 (A) has a taste or smell of only tobacco or menthol; or
192 (B) has received a modified risk tobacco product order from the United States Food
193 and Drug Administration under 21 U.S.C. Sec. 387k(g).
194 [
195 retail tobacco specialty business.
196 [
197 26A-1-102.
198 [
199 which:
200 (i) the sale of tobacco products accounts for more than 35% of the total quarterly gross
201 receipts for the establishment;
202 (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
203 storage of tobacco products;
204 (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
205 tobacco products; [
206 (iv) the retail space features a self-service display for tobacco products[
207 (v) any flavored electronic cigarette product is sold.
208 [
209 76-10-105.1.
210 [
211 (i) any cigar, cigarette, or electronic cigarette as those terms are defined in Section
212 76-10-101;
213 (ii) a tobacco product as that term is defined in Section 59-14-102, including:
214 (A) chewing tobacco; or
215 (B) any substitute for a tobacco product, including flavoring or additives to tobacco;
216 and
217 (iii) tobacco paraphernalia as that term is defined in Section 76-10-104.1.
218 (2) The regulation of a retail tobacco specialty business is an exercise of the police
219 powers of the state, and through delegation, to other governmental entities.
220 (3) (a) A person may not operate a retail tobacco specialty business in a county unless
221 the person obtains a license from the county in which the retail tobacco specialty business is
222 located.
223 (b) A county may only issue a retail tobacco specialty business license to a person if
224 the person complies with the provisions of Subsections (4) and (5).
225 (4) (a) Except as provided in Subsection (7), a county may not issue a license for a
226 person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
227 business is located within:
228 (i) 1,000 feet of a community location;
229 (ii) 600 feet of another retail tobacco specialty business; or
230 (iii) 600 feet from property used or zoned for:
231 (A) agriculture use; or
232 (B) residential use.
233 (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
234 a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
235 property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
236 to intervening structures or zoning districts.
237 (5) (a) Except as provided in Subsection (5)(b), beginning July 1, 2018, a county may
238 not issue or renew a license for a person to conduct business as a retail tobacco specialty
239 business until the person provides the county with proof that the retail tobacco specialty
240 business has:
241 (i) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
242 62, Tobacco Retail Permit, by the local health department having jurisdiction over the area in
243 which the retail tobacco specialty business is located; and
244 (ii) a valid license to sell tobacco products from the State Tax Commission.
245 (b) A person that was licensed to conduct business as a retail tobacco specialty
246 business in a county before July 1, 2018, shall obtain a permit from a local health department
247 under Title 26, Chapter 62, Tobacco Retail Permit, on or before January 1, 2019.
248 (6) (a) Nothing in this section:
249 (i) requires a county to issue a retail tobacco specialty business license; or
250 (ii) prohibits a county from adopting more restrictive requirements on a person seeking
251 a license or renewal of a license to conduct business as a retail tobacco specialty business.
252 (b) A county may suspend or revoke a retail tobacco specialty business license issued
253 under this section:
254 (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
255 Part 16, Pattern of Unlawful Activity Act;
256 (ii) if a licensee violates the regulations restricting the sale and distribution of
257 cigarettes and smokeless tobacco to protect children and adolescents issued by the United
258 States Food and Drug Administration, 21 C.F.R. Part 1140;
259 (iii) upon the recommendation of the department or a local health department under
260 Title 26, Chapter 62, Tobacco Retail Permit; or
261 (iv) under any other provision of state law or local ordinance.
262 (7) (a) In accordance with Subsection (7)(b), a retail tobacco specialty business that has
263 a business license and is operating in a county in accordance with all applicable laws except for
264 the requirement in Subsection (4), on or before December 31, 2015, is exempt from Subsection
265 (4).
266 (b) A retail tobacco specialty business may maintain an exemption under Subsection
267 (7)(a) if:
268 (i) the retail tobacco specialty business license is renewed continuously without lapse
269 or permanent revocation;
270 (ii) the retail tobacco specialty business does not close for business or otherwise
271 suspend the sale of tobacco products for more than 60 consecutive days;
272 (iii) the retail tobacco specialty business does not substantially change the business
273 premises or business operation; and
274 (iv) the retail tobacco specialty business maintains the right to operate under the terms
275 of other applicable laws, including:
276 (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
277 (B) zoning ordinances;
278 (C) building codes; and
279 (D) the requirements of a retail tobacco specialty business license issued before
280 December 31, 2015.
281 Section 3. Section 26-57-103 is amended to read:
282 26-57-103. Electronic cigarette products -- Labeling -- Manufacturing and
283 quality control standards -- Advertising.
284 (1) The department shall, in consultation with a local health department, as defined in
285 Section 26A-1-102, and with input from members of the public, establish, no later than January
286 1, 2016, by rule made in accordance with Title 63G, Chapter 3, Utah Administrative
287 Rulemaking Act, standards for electronic cigarette substance:
288 (a) labeling;
289 (b) nicotine content;
290 (c) packaging; and
291 (d) product quality.
292 [
293
294 (2) On or before January 1, 2021, the department shall, in consultation with a local
295 health department, as defined in Section 26A-1-102, and with input from members of the
296 public, establish by rule made in accordance with Title 63G, Chapter 3, Utah Administrative
297 Rulemaking Act, standards for manufacturer sealed electronic cigarette substance:
298 (a) labeling;
299 (b) nicotine content;
300 (c) packaging; and
301 (d) product quality.
302 (3) (a) Beginning on July 1, 2016, a person may not sell an electronic cigarette
303 substance unless the electronic cigarette substance complies with the standards established by
304 the department under Subsection (1).
305 (b) Beginning July 1, 2021, a person may not sell a manufacturer sealed electronic
306 cigarette substance unless the manufacturer sealed electronic cigarette substance complies with
307 the standards established by the department under Subsection (2).
308 (4) (a) Beginning on July 1, 2016, a local health department may not enact a rule or
309 regulation regarding electronic cigarette substance labeling, nicotine content, packaging, or
310 product quality that is not identical to the standards established by the department under
311 [
312 (b) Except as provided in Subsection (4)(c), a local health department may enact a rule
313 or regulation regarding electronic cigarette substance manufacturing.
314 (c) A local health department may not enact a rule or regulation regarding a
315 manufacturer sealed electronic cigarette substance.
316 (5) Beginning on July 1, 2016, a person may not advertise an electronic cigarette
317 product:
318 (a) as a tobacco cessation device;
319 (b) if the person is not licensed to sell an electronic cigarette product under Section
320 59-14-803; or
321 (c) during a period of time when the person's license to sell an electronic cigarette
322 product under Section 59-14-803 has been suspended or revoked.
323 Section 4. Section 26-62-206 is enacted to read:
324 26-62-206. Permit requirements for the sale of tobacco products.
325 (1) A tobacco retailer shall:
326 (a) for each sale of a tobacco product, provide the customer with an itemized receipt
327 for each sale of a tobacco product that separately identifies:
328 (i) the name of the tobacco product;
329 (ii) the amount charged for each tobacco product; and
330 (iii) the time and date of the sale; and
331 (b) maintain an itemized transaction log for each sale of a tobacco product that
332 separately identifies:
333 (i) the name of the tobacco product;
334 (ii) the amount charged for each tobacco product; and
335 (iii) the date and time of the sale.
336 (2) The itemized transaction log described in Subsection (1)(b) shall be:
337 (a) maintained for at least one year from the date of each transaction in the itemized
338 transaction log; and
339 (b) made available to an enforcing agency or peace officer at the request of the
340 enforcing agency or peace officer that is no less restrictive than the provisions in this part.
341 Section 5. Section 76-10-111 is amended to read:
342 76-10-111. Prohibition of gift or free distribution of smokeless tobacco or
343 electronic cigarettes -- Exceptions.
344 (1) The Legislature finds that:
345 (a) smokeless tobacco, or chewing tobacco, is harmful to the health of individuals who
346 use those products because research indicates that they may cause mouth or oral cancers;
347 (b) the use of smokeless tobacco among juveniles in this state is increasing rapidly;
348 (c) the use of electronic cigarettes may lead to unhealthy behavior such as the use of
349 tobacco products; and
350 (d) it is necessary to restrict the gift of the products described in this Subsection (1) in
351 the interest of the health of the citizens of this state.
352 (2) (a) Except as provided in Subsection (3), it is unlawful for a manufacturer,
353 wholesaler, and retailer to:
354 (i) give or distribute without charge any smokeless tobacco, chewing tobacco, or
355 electronic cigarette in this state[
356 (ii) except as provided in Subsection (2)(b), sell, offer for sale, or furnish any
357 smokeless tobacco, chewing tobacco, or electronic cigarette at less than 90% of the cost of the
358 product to the manufacturer, wholesaler, or retailer; or
359 (iii) give, distribute, sell, offer for sale, or furnish any smokeless tobacco, chewing
360 tobacco, or electronic cigarette for free or at a lower price because the recipient of the
361 electronic cigarette product makes another purchase.
362 (b) The price that a manufacturer, wholesaler, or retailer may charge under Subsection
363 (2)(a)(ii) does not include a discount for:
364 (i) a physical manufacturer coupon:
365 (A) that is surrendered to the wholesaler or retailer at the time of sale; and
366 (B) for which the manufacturer will reimburse the wholesaler or the retailer for the full
367 amount of the discount described in the manufacturer coupon and provided to the purchaser;
368 (ii) a rebate that will be paid to the manufacturer, the wholesaler, or the retailer for the
369 full amount of the rebate provided to the purchaser; or
370 (iii) a promotional fund that will be paid to the manufacturer, the wholesaler, or the
371 retailer for the full amount of the promotional fund provided to the purchaser.
372 (c) Any person who violates this section is guilty of a class C misdemeanor for the first
373 offense, and is guilty of a class B misdemeanor for any subsequent offense.
374 (3) [
375 distributed to adults without charge at professional conventions where the general public is
376 excluded.
377 [
378
379
380 Section 6. Section 76-10-112 is amended to read:
381 76-10-112. Prohibition of distribution of cigarettes or other tobacco products --
382 Exceptions.
383 (1) (a) Except as provided in Subsection [
384 wholesaler, or retailer to:
385 (i) give or distribute cigarettes or other tobacco products in this state without charge[
386 (ii) except as provided in Subsection (2)(b), sell, offer for sale, or furnish any cigarettes
387 or other tobacco products at less than the cost of the product to the manufacturer, wholesaler,
388 or retailer; or
389 (iii) give, distribute, sell, offer for sale, or furnish any cigarettes or other tobacco
390 products for free or at a lower price because the purchaser makes another purchase.
391 (b) The price that a manufacturer, wholesaler, or retailer may charge under Subsection
392 (2)(a)(ii) does not include a discount for:
393 (i) a manufacturer coupon:
394 (A) that is surrendered to the tobacco retailer at the time of sale; and
395 (B) for which the manufacturer will reimburse the wholesaler or retailer for the full
396 amount of the discount described in the manufacturer coupon and provided to the purchaser;
397 (ii) a rebate that will be paid to the manufacturer, wholesaler, or retailer for the full
398 amount of the rebate provided to the purchaser; or
399 (iii) a promotional fund that will be paid to the manufacturer, wholesaler, or retailer for
400 the full amount of the promotional fund provided to the purchaser.
401 (2) Any person who violates this [
402 misdemeanor for the first offense and a class B misdemeanor for any subsequent offense.
403 [
404 charge at professional conventions where the general public is excluded.
405 [
406
407
408 Section 7. Coordinating H.B. 118 with S.B. 37 -- Technical amendments.
409 If this H.B. 118 and S.B. 37, Electronic Cigarette and Other Nicotine Product
410 Amendments, both pass and become law, it is the intent of the Legislature that the Office of
411 Legislative Research and General Counsel shall prepare the Utah Code database for publication
412 by amending:
413 (1) Subsection 10-8-41.6(1)(c) to read:
414 "(c) "Electronic cigarette product" means the same as that term is defined in Section
415 76-10-101."; and
416 (2) Subsection 17-50-333(1)(c) to read:
417 "(c) "Electronic cigarette product" means the same as that term is defined in Section
418 76-10-101."