H.B. 419
LEGISLATIVE GENERAL COUNSEL
6 Approved for Filing: D.M. Cheung 6
6 02-08-23 11:45 AM 6
H.B. 419
1 TOBACCO REGULATI ON AMENDMENTS
2 2023 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Jennifer Dailey-Provost
5 Senate Sponsor: ____________
6
7LONG TITLE
8General Description:
9 This bill relates to the regulation of tobacco products, electronic cigarette products, and
10nicotine products.
11Highlighted Provisions:
12 This bill:
13 <amends definitions;
14 <changes certain penalties for violating a regulation regarding tobacco products,
15electronic cigarette products, or nicotine products;
16 <adds a hazardous waste disposal fee for electronic cigarette products; and
17 <enacts new requirements and restrictions on the sale of tobacco products, electronic
18cigarette products, and nicotine products.
19Money Appropriated in this Bill:
20 None
21Other Special Clauses:
22 None
23Utah Code Sections Affected:
24AMENDS:
25 26-62-102, as last amended by Laws of Utah 2020, Chapters 302, 347
26 26-62-203, as enacted by Laws of Utah 2018, Chapter 231
27 26-62-206, as enacted by Laws of Utah 2020, Chapter 347
*HB0419* H.B. 419 02-08-23 11:45 AM
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28 26-62-301, as last amended by Laws of Utah 2020, Chapter 347
29 26-62-304, as last amended by Laws of Utah 2022, Chapter 274
30 76-10-114, as last amended by Laws of Utah 2021, First Special Session, Chapter 12
31 77-39-101, as last amended by Laws of Utah 2021, Chapter 291
32
33Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 26-62-102 is amended to read:
35 26-62-102. Definitions.
36 As used in this chapter:
37 (1) "Community location" means the same as that term is defined:
38 (a) as it relates to a municipality, in Section 10-8-41.6; and
39 (b) as it relates to a county, in Section 17-50-333.
40 (2) "Electronic cigarette product" means the same as that term is defined in Section
4176-10-101.
42 (3) "Employee" means an employee of a tobacco retailer.
43 (4) "Enforcing agency" means the state Department of Health and Human Services, or
44any local health department enforcing the provisions of this chapter.
45 (5) "General tobacco retailer" means a tobacco retailer that is not a retail tobacco
46specialty business.
47 (6) "Local health department" means the same as that term is defined in Section
4826A-1-102.
49 (7) "Nicotine product" means the same as that term is defined in Section 76-10-101.
50 (8) "Owner" means a person holding a 20% ownership interest in the business that is
51required to obtain a permit under this chapter.
52 (9) "Permit" means a tobacco retail permit issued under this chapter.
53 (10) (a) "Proof of age" means:
54 (i) a valid identification card issued under Title 53, Chapter 3, Part 8, Identification
55Card Act;
56 (ii) a valid identification that:
57 (A) is substantially similar to an identification card issued under Title 53, Chapter 3,
58Part 8, Identification Card Act; 02-08-23 11:45 AM H.B. 419
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59 (B) is issued in accordance with the laws of a state other than Utah in which the
60identification is issued;
61 (C) includes date of birth; and
62 (D) has a picture affixed;
63 (iii) a valid driver license certificate that is issued under Title 53, Chapter 3, Uniform
64Driver License Act, or in accordance with the laws of the state in which the valid driver license
65is issued;
66 (iv) a valid United States military identification card that:
67 (A) includes date of birth; and
68 (B) has a picture affixed; or
69 (v) a valid passport.
70 (b) "Proof of age" does not include a valid driving privilege card issued in accordance
71with Section 53-3-207.
72 (11) "Retail tobacco specialty business" means the same as that term is defined:
73 (a) as it relates to a municipality, in Section 10-8-41.6; and
74 (b) as it relates to a county, in Section 17-50-333.
75 (12) "Tax commission license" means a license issued by the State Tax Commission
76under:
77 (a) Section 59-14-201 to sell a cigarette at retail;
78 (b) Section 59-14-301 to sell a tobacco product at retail; or
79 (c) Section 59-14-803 to sell an electronic cigarette product or a nicotine product.
80 (13) "Tobacco product" means:
81 (a) a tobacco product as defined in Section 76-10-101; or
82 (b) tobacco paraphernalia as defined in Section 76-10-101.
83 (14) "Tobacco retailer" means [a person that is required to obtain a tax commission
84license.]:
85 (a) a retailer as defined in Section 59-14-102;
86 (b) a person who offers to sell, displays, or advertises a cigarette, an electronic
87cigarette, or a nicotine product to a consumer in the state; and
88 (c) a person who sells, offers to sell, distributes, displays, or advertises a tobacco
89product to a consumer in the state. H.B. 419 02-08-23 11:45 AM
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90 Section 2. Section 26-62-203 is amended to read:
91 26-62-203. Permit term and fees.
92 (1) (a) The term of a permit issued under this chapter to a retail tobacco specialty
93business is one year.
94 (b) The term of a permit issued under this chapter to a general tobacco retailer is two
95years.
96 (2) (a) A local health department may not issue a permit under this chapter until the
97applicant has paid [a permit fee] to the local health department:
98 (i) a permit fee of:
99 [(i)] (A) $30 for a new permit;
100 [(ii)] (B) $20 for a permit renewal; or
101 [(iii)] (C) $30 for reinstatement of a permit that has been revoked, suspended, or
102allowed to expire[.]; and
103 (ii) an electronic cigarette product hazardous waste disposal fee of $25.
104 (b) A local health department that collects fees under Subsection (2)(a)(i) shall use the
105fees to administer the permit requirements under this chapter.
106 (c) In addition to the fee described in Subsection (2)(a), a local health department may
107establish and collect a fee to perform a plan review for a retail tobacco specialty business
108permit.
109 (d) A local health department shall transfer fees paid under Subsection (2)(a)(ii) to the
110Department of Environmental Quality for use by that department's Division of Environmental
111Response and Remediation to administer hazardous waste disposal requirements for electronic
112cigarette products and nicotine products.
113 (3) A permit holder may apply for a renewal of a permit no earlier than 30 days before
114the day on which the permit expires.
115 (4) A tobacco retailer that fails to renew a permit before the permit expires may apply
116to reinstate the permit by submitting to the local health department:
117 (a) the information required in Subsection 26-62-202(3) and, if applicable, Subsection
11826-62-202(4);
119 (b) the fee for the reinstatement of a permit; and
120 (c) a signed affidavit affirming that the tobacco retailer has not violated the 02-08-23 11:45 AM H.B. 419
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121prohibitions in Subsection 26-62-201(1)(b) after the permit expired.
122 Section 3. Section 26-62-206 is amended to read:
123 26-62-206. Requirements for the sale of tobacco product, electronic cigarette
124product, or nicotine product.
125 (1) A tobacco retailer shall:
126 (a) provide the customer with an itemized receipt for each sale of a tobacco product, an
127electronic cigarette product, or a nicotine product that separately identifies:
128 (i) the name of the tobacco product, the electronic cigarette product, or the nicotine
129product;
130 (ii) the amount charged for each tobacco product, electronic cigarette product, or
131nicotine product; and
132 (iii) the date and time of the sale; and
133 (b) maintain an itemized transaction log for each sale of a tobacco product, an
134electronic cigarette product, or a nicotine product that separately identifies:
135 (i) the name of the tobacco product, the electronic cigarette product, or the nicotine
136product;
137 (ii) the amount charged for each tobacco product, electronic cigarette product, or
138nicotine product; and
139 (iii) the date and time of the sale.
140 (2) A tobacco retailer may not sell, give, provide, or furnish a tobacco product, an
141electronic cigarette product, or a nicotine product to an individual who is younger than 21 years
142old.
143 (3) The itemized transaction log described in Subsection (1)(b) shall be:
144 (a) maintained for at least one year after the date of each transaction in the itemized
145transaction log;
146 (b) made available to an enforcing agency or a peace officer at the request of the
147enforcing agency or the peace officer; and
148 (c) in addition to any documentation required under Section 59-1-1406 and Subsection
14959-14-805(2).
150 Section 4. Section 26-62-301 is amended to read:
151 26-62-301. Permit violation. H.B. 419 02-08-23 11:45 AM
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152 A [person] tobacco retailer is in violation of the permit issued under this chapter if the
153[person] tobacco retailer violates:
154 (1) a provision of this chapter;
155 (2) a provision of licensing laws under Section 10-8-41.6 or Section 17-50-333;
156 (3) a provision of Title 76, Chapter 10, Part 1, Cigarettes and Tobacco and Psychotoxic
157Chemical Solvents;
158 (4) a provision of Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
159 (5) a regulation restricting the sale and distribution of cigarettes [and], smokeless
160tobacco, and covered tobacco products issued by the United States Food and Drug
161Administration under 21 C.F.R. Part 1140; or
162 (6) any other provision of state law or local ordinance regarding the sale, marketing, or
163distribution of a tobacco product, an electronic cigarette product, or a nicotine product.
164 Section 5. Section 26-62-304 is amended to read:
165 26-62-304. Hearing -- Evidence of criminal conviction.
166 (1) At a civil hearing conducted under Section 26-62-302, evidence of the final
167[criminal] conviction of a tobacco retailer or employee for violation of Section 76-10-114 at
168the same location and within the same time period as the location and time period alleged in
169the civil hearing for violation of this chapter for sale of a tobacco product, an electronic
170cigarette product, or a nicotine product to an individual under 21 years old is prima facie
171evidence of a violation of this chapter.
172 (2) If the tobacco retailer or employee is convicted of violating Section 76-10-114, the
173enforcing agency:
174 (a) shall assess an additional monetary penalty under this chapter for the same offense
175for which the conviction was obtained; and
176 (b) shall revoke or suspend a permit in accordance with Section 26-62-305.
177 Section 6. Section 76-10-114 is amended to read:
178 76-10-114. Unlawful sale of a tobacco product, electronic cigarette product, or
179nicotine product.
180 (1) As used in this section[: (a) "Compensatory service" means service or unpaid work
181performed by an employee, in lieu of the payment of a fine or imprisonment. (b) "Employee"],
182"employee" means an employee or an owner of a tobacco retailer. 02-08-23 11:45 AM H.B. 419
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183 (2) It is unlawful for an employee to [knowingly or intentionally sell or] sell, give,
184provide, or furnish a tobacco product, an electronic cigarette product, or a nicotine product in
185the course of business to an individual who is under 21 years old.
186 (3) An employee who violates this section is[:] guilty of an infraction and subject to a
187fine of $50.
188 [(a) on a first violation:]
189 [(i) guilty of an infraction; and]
190 [(ii) subject to:]
191 [(A) a fine not exceeding $1,000; or]
192 [(B) compensatory service;]
193 [(b) on any subsequent violation:]
194 [(i) guilty of a class C misdemeanor; and]
195 [(ii) subject to:]
196 [(A) a fine not exceeding $2,000; or]
197 [(B) compensatory service.]
198 (4) The enforcing agency shall issue the additional civil penalties described in Section
19926-62-305 against the tobacco retailer.
200 Section 7. Section 77-39-101 is amended to read:
201 77-39-101. Investigation of sales of alcohol, tobacco products, electronic cigarette
202products, and nicotine products to underage individuals.
203 (1) As used in this section:
204 (a) "Electronic cigarette product" means the same as that term is defined in Section
20576-10-101.
206 (b) "Nicotine product" means the same as that term is defined in Section 76-10-101.
207 (c) "Peace officer" means the same as the term is described in Section 53-13-109.
208 (d) "Tobacco product" means the same as that term is defined in Section 76-10-101.
209 (2) (a) A peace officer may investigate the possible violation of:
210 (i) Section 32B-4-403 by requesting an individual under 21 years old to enter into and
211attempt to purchase or make a purchase of alcohol from a retail establishment; or
212 (ii) Section 76-10-114 by requesting an individual under 21 years old to enter into and
213attempt to purchase or make a purchase from a retail establishment of: H.B. 419 02-08-23 11:45 AM
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214 (A) a tobacco product;
215 (B) an electronic cigarette product; or
216 (C) a nicotine product.
217 (b) A peace officer who is present at the site of a proposed purchase shall direct,
218supervise, and monitor the individual requested to make the purchase.
219 (c) Immediately following a purchase or attempted purchase or as soon as practical the
220supervising peace officer shall inform the cashier and the proprietor or manager of the retail
221establishment that the attempted purchaser was under the legal age to purchase:
222 (i) alcohol; or
223 (ii) (A) a tobacco product;
224 (B) an electronic cigarette product; or
225 (C) a nicotine product.
226 (d) If a citation or information is issued, the citation or information shall be issued
227within seven days after the day on which the purchase occurs.
228 (3) (a) If an individual under 18 years old is requested to attempt a purchase, a written
229consent of that individual's parent or guardian shall be obtained before the individual
230participates in any attempted purchase.
231 (b) An individual requested by the peace officer to attempt a purchase may:
232 (i) be a trained volunteer; or
233 (ii) receive payment, but may not be paid based on the number of successful purchases
234of alcohol, tobacco products, electronic cigarette products, or nicotine products.
235 (4) The individual requested by the peace officer to attempt a purchase and anyone
236accompanying the individual attempting a purchase may use false identification in attempting
237the purchase if:
238 (a) the Department of Public Safety created in Section 53-1-103 provides the false
239identification;
240 (b) the false identification:
241 (i) accurately represents the individual's age; and
242 (ii) displays a current photo of the individual; and
243 (c) the peace officer maintains possession of the false identification at all times outside
244the attempt to purchase. 02-08-23 11:45 AM H.B. 419
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245 (5) An individual requested to attempt to purchase or make a purchase pursuant to this
246section is immune from prosecution, suit, or civil liability for the purchase of, attempted
247purchase of, or possession of alcohol, a tobacco product, an electronic cigarette product, or a
248nicotine product if a peace officer directs, supervises, and monitors the individual.
249 (6) (a) Except as provided in Subsection (6)(b), a purchase attempted under this section
250shall be conducted within a 12-month period:
251 (i) on a random basis at any one retail establishment location, not more often than four
252times for the attempted purchase of alcohol; and
253 (ii) a minimum of two times at a retail establishment that sells tobacco products,
254electronic cigarette products, or nicotine products for the attempted purchase of a tobacco
255product, an electronic cigarette product, or a nicotine product.
256 (b) This section does not prohibit an investigation or an attempt to purchase alcohol, a
257tobacco product, an electronic cigarette product, or a nicotine product under this section if:
258 (i) (A) there is reasonable suspicion to believe the retail establishment has sold alcohol,
259a tobacco product, an electronic cigarette product, or a nicotine product to an individual under
260[the age established by Section 32B-4-403 or 76-10-114] 21 years old; and
261 [(ii)] (B) the supervising peace officer makes a written record of the grounds for the
262reasonable suspicion[.]; or
263 (ii) within the past six months the retail establishment has been issued a citation under
264this section for selling alcohol, a tobacco product, an electronic cigarette product, or a nicotine
265product to an individual under 21 years old.
266 (7) (a) The peace officer exercising direction, supervision, and monitoring of the
267attempted purchase shall make a report of the attempted purchase, whether or not a purchase
268was made.
269 (b) The report required by this Subsection (7) shall include:
270 (i) the name of the supervising peace officer;
271 (ii) the name of the individual attempting the purchase;
272 (iii) a photograph of the individual attempting the purchase showing how that
273individual appeared at the time of the attempted purchase;
274 (iv) the name and description of the cashier or proprietor from whom the individual
275attempted the purchase; H.B. 419 02-08-23 11:45 AM
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276 (v) the name and address of the retail establishment; and
277 (vi) the date and time of the attempted purchase.