HOUSE BILL NO. 357

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H0357......................................................by STATE AFFAIRS
CIGARETTES - DELIVERY SALES - Amends and adds to existing law to provide
requirements for delivery sales of cigarettes, including verification of
age requirements and disclosure of taxation requirements; to provide
registration and reporting requirements for businesses; and to provide
enforcement for sales of tobacco products over the phone or internet.
                                                                        
03/10    House intro - 1st rdg - to printing
03/11    Rpt prt - to St Aff
03/13    Rpt out - rec d/p - to 2nd rdg
03/14    2nd rdg - to 3rd rdg
03/17    3rd rdg - PASSED - 64-3-3
      AYES -- Barraclough, Bauer, Bedke, Bell, Bieter, Black, Block, Boe,
      Bolz, Bradford, Campbell, Cannon, Clark, Collins, Cuddy, Deal,
      Denney, Douglas, Eberle, Edmunson, Ellsworth, Eskridge, Field(18),
      Field(23), Gagner, Garrett, Harwood, Henbest, Jaquet, Jones, Kellogg,
      Kulczyk, Lake, Langford, Langhorst, Martinez, McGeachin, Meyer,
      Miller, Mitchell, Moyle, Naccarato, Nielsen, Raybould, Ridinger,
      Ring, Ringo, Roberts, Robison, Rydalch, Sali, Sayler, Schaefer,
      Shepherd, Shirley, Skippen, Smith(24), Smylie, Snodgrass, Stevenson,
      Tilman, Trail, Wood, Mr. Speaker
      NAYS -- Barrett, Crow, McKague
      Absent and excused -- Andersen, Smith(30), Wills
    Floor Sponsors - Ellsworth & Edmunson
    Title apvd - to Senate
03/19    Senate intro - 1st rdg - to St Aff
03/25    Rpt out - rec d/p - to 2nd rdg
03/26    2nd rdg - to 3rd rdg
03/31    3rd rdg - PASSED - 34-0-1
      AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett(Roberts),
      Burtenshaw, Calabretta, Cameron, Compton, Darrington, Davis, Gannon,
      Geddes, Goedde, Hill, Ingram, Kennedy, Keough, Little, Lodge,
      Malepeai, Marley, McKenzie, Noble, Noh, Pearce, Richardson,
      Schroeder, Sorensen, Stegner, Stennett, Sweet, Werk, Williams
      NAYS -- None
      Absent and excused -- McWilliams
    Floor Sponsor - Sorensen
    Title apvd - to House
04/01    To enrol
04/02    Rpt enrol - Sp signed
04/03    Pres signed
04/04    To Governor
04/08    Governor signed
         Session Law Chapter 273
         Effective: 07/01/03

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 357
                                                                        
                                 BY STATE AFFAIRS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO SALES OF CIGARETTES; AMENDING  SECTION  39-5702,  IDAHO  CODE,  TO
  3        DEFINE  ADDITIONAL TERMS; AMENDING SECTION 39-5710, IDAHO CODE, TO PROVIDE
  4        DUTIES OF THE ATTORNEY GENERAL IN  THE  CONDUCT  OF  ENFORCEMENT  ACTIONS;
  5        AMENDING CHAPTER 57, TITLE 39, IDAHO CODE, BY THE ADDITION OF NEW SECTIONS
  6        39-5714,  39-5715,  39-5716,  39-5717  AND 39-5718, IDAHO CODE, TO PROVIDE
  7        REQUIREMENTS FOR DELIVERY SALES, TO PROVIDE AGE VERIFICATION REQUIREMENTS,
  8        TO PROVIDE DISCLOSURE REQUIREMENTS, TO PROVIDE SHIPPING  REQUIREMENTS  AND
  9        TO PROVIDE REGISTRATION AND REPORTING REQUIREMENTS.
                                                                        
 10    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 11        SECTION  1.  That  Section 39-5702, Idaho Code, be, and the same is hereby
 12    amended to read as follows:
                                                                        
 13        39-5702.  DEFINITIONS. The terms used in this chapter are defined as  fol-
 14    lows:
 15        (1)  "Business" means any company, partnership, firm, sole proprietorship,
 16    association,  corporation, organization, or other legal entity, or a represen-
 17    tative of the foregoing entities.
 18        (2)  "Delivery sale" means to distribute tobacco products to a consumer in
 19    a state where either: (a) the individual submits the order for  such  sale  by
 20    means of a telephonic or other method of voice transmission, data transfer via
 21    computer  networks,  including the internet and other online services, or fac-
 22    simile, or the mails; or (b) the tobacco products are delivered by use of  the
 23    mails or a delivery service.
 24        (3)  "Delivery  service" means any person who is engaged in the commercial
 25    delivery of letters, packages or other containers.
 26        (4)  "Department" means the state department of health and welfare or  its
 27    duly authorized representative.
 28        (35)  "Distribute"  means  to give, deliver, sell, offer to give, offer to
 29    deliver, offer to sell or cause any person to do the same or hire  any  person
 30    to do the same.
 31        (46)  "Minor" means a person under eighteen (18) years of age.
 32        (57)  "Permit"  means  a  permit  issued by the department for the sale or
 33    distribution of tobacco products.
 34        (68)  "Permittee" means the holder of a valid permit for the sale or  dis-
 35    tribution of tobacco products.
 36        (79)  "Photographic  identification"  means  state, district, territorial,
 37    possession, provincial,  national  or  other  equivalent  government  driver's
 38    license,  identification  card or military card, in all cases bearing a photo-
 39    graph and a date of birth, or a valid passport.
 40        (810) "Random unannounced inspection" means an inspection of  retail  out-
 41    lets  by  a  law  enforcement agency or by the department, with or without the
 42    assistance of a minor, to monitor compliance of this chapter.
 43        (911) "Seller" means  the  person  who  physically  sells  or  distributes
                                                                        
                                           2
                                                                        
  1    tobacco products.
  2        (102) "Tobacco  product" means any substance that contains tobacco includ-
  3    ing, but not limited to, cigarettes, cigars, pipes,  snuff,  smoking  tobacco,
  4    tobacco papers, or smokeless tobacco.
  5        (113) "Vending  machine" means any mechanical, electronic or other similar
  6    device which, upon the insertion of tokens, money or any other  form  of  pay-
  7    ment, dispenses tobacco products.
  8        (124) "Vendor  assisted sales" means any sale or distribution in which the
  9    customer has no access to the product except through  the  assistance  of  the
 10    seller.
 11        (135) "Without a permit" means a business that has failed to obtain a per-
 12    mit or a business whose permit is suspended or revoked.
                                                                        
 13        SECTION  2.  That  Section 39-5710, Idaho Code, be, and the same is hereby
 14    amended to read as follows:
                                                                        
 15        39-5710.  CONDUCT OF ENFORCEMENT ACTIONS. (1) It is the intent of the leg-
 16    islature that law enforcement agencies, the attorney general, and the  depart-
 17    ment  shall  enforce  this chapter and rules promulgated pursuant thereto in a
 18    manner that can reasonably be expected to significantly reduce the  extent  to
 19    which tobacco products are sold or distributed to minors.
 20        (2)  Law  enforcement agencies may conduct random, unannounced inspections
 21    at locations where tobacco products are sold or distributed to ensure  compli-
 22    ance  with  this  chapter.  A  copy of all citations issued under this chapter
 23    shall be submitted to the department.
 24        (3)  The department shall conduct at least  one  (1)  random,  unannounced
 25    inspection  per  year,  with the assistance of a minor, at all locations where
 26    tobacco products are sold or distributed at retail to ensure  compliance  with
 27    this  chapter.  Each  year  the  department  shall  conduct random unannounced
 28    inspections, with the assistance of a minor, equal to the number of permittees
 29    multiplied by the violation percentage rate reported  for  the  previous  year
 30    multiplied by a factor of ten (10). Local law enforcement agencies are encour-
 31    aged to contract with the department to perform these required inspections.
 32        (4)  Minors may assist with random, unannounced inspections with the writ-
 33    ten  consent  of a parent or legal guardian. When assisting with these inspec-
 34    tions, minors shall not provide  false  identification,  nor  make  any  false
 35    statement regarding their age.
 36        (5)  Citizens  may file a written complaint of noncompliance of this chap-
 37    ter with the department, or with a  law  enforcement  agency.  Permit  holders
 38    under 26 U.S.C. section 5712, may file written complaints relating to delivery
 39    sales to the department or the attorney general's offices. Complaints shall be
 40    investigated and the proper enforcement actions taken.
 41        (6)  Within  a reasonable time, not later than two (2) business days after
 42    an inspection has occurred, a representative of the business  inspected  shall
 43    be informed in writing of the results of the inspection.
 44        (7)  The  attorney general or his designee, or any person who holds a per-
 45    mit under 26 U.S.C. section 5712, may bring an action  in  district  court  in
 46    Idaho  to  prevent  or restrain violations of this chapter by any person or by
 47    any person controlling such person.
                                                                        
 48        SECTION 3.  That Chapter 57, Title 39, Idaho Code, be,  and  the  same  is
 49    hereby amended by the addition thereto of NEW SECTIONS, to be known and desig-
 50    nated  as Sections 39-5714, 39-5715, 39-5716, 39-5717 and 39-5718, Idaho Code,
 51    and to read as follows:
                                                                        
                                           3
                                                                        
  1        39-5714.  REQUIREMENTS FOR DELIVERY SALES. (1) No permittee shall  make  a
  2    delivery  sale of tobacco products to any individual who is under age eighteen
  3    (18) years in this state.
  4        (2)  Each permittee taking a delivery sale order shall  comply  with:  the
  5    age  verification  requirements  set forth in section 39-5715, Idaho Code; the
  6    disclosure and notice  requirements set forth in section 39-5716, Idaho  Code;
  7    the shipping requirements set forth in section 39-5717, Idaho Code; the regis-
  8    tration  and  reporting requirements set forth in section 39-5718, Idaho Code;
  9    all tax collection requirements provided by title  63,  Idaho  Code;  and  all
 10    other  laws  of  the  state  of Idaho generally applicable to sales of tobacco
 11    products that occur entirely within Idaho including, but not limited to, those
 12    laws imposing excise taxes, sales and use taxes, licensing  and  tax  stamping
 13    requirements and escrow or other payment obligations.
                                                                        
 14        39-5715.  AGE  VERIFICATION  REQUIREMENTS. No permittee shall mail or ship
 15    tobacco products in connection with a delivery sale order unless, before mail-
 16    ing or shipping such tobacco products, the permittee  accepting  the  delivery
 17    sale  order  first obtains from the prospective customer a certification which
 18    includes proof of age that the purchaser is at least eighteen (18) years  old,
 19    the  credit  or debit card used for payment has been issued in the purchaser's
 20    name, and the address to which the cigarettes  are  being  shipped  match  the
 21    credit card company's address for the cardholder.
                                                                        
 22        39-5716.  DISCLOSURE  AND  NOTICE  REQUIREMENTS.  For all delivery sales a
 23    permittee shall post on any advertisement or website:
 24        (1)  The cautionary language for signs  under  section  39-5704(6),  Idaho
 25    Code;
 26        (2)  A prominent and clearly legible statement that consists of one (1) of
 27    the  warnings  set  forth in section 4(a)(1) of the federal cigarette labeling
 28    and advertising act (15 U.S.C. section  1333(a)(1))  rotated  on  a  quarterly
 29    basis;
 30        (3)  A  prominent  and  clearly legible statement that sales of cigarettes
 31    are taxable under chapter 25, title 63, Idaho Code, and an explanation of  how
 32    such tax has been, or is to be paid, with respect to such delivery sale.
                                                                        
 33        39-5717.  SHIPPING REQUIREMENTS. Each permittee who mails or ships tobacco
 34    products in connection with a delivery sale order shall include as part of the
 35    shipping documents a clear and conspicuous statement providing as follows:
 36        "TOBACCO  PRODUCTS: IDAHO LAW PROHIBITS SHIPPING TO INDIVIDUALS UNDER
 37        THE AGE OF EIGHTEEN YEARS, AND REQUIRES THE PAYMENT OF TAXES PURSUANT
 38        TO CHAPTER 25, TITLE 63, IDAHO CODE. PERSONS VIOLATING  THIS  MAY  BE
 39        CIVILLY AND CRIMINALLY LIABLE."
 40        Anyone  delivering  any  such  container  distributes  tobacco products as
 41    defined in section 39-5702(5), Idaho Code, and is subject  to  the  terms  and
 42    requirements of this chapter. If a permittee taking a delivery sale order also
 43    delivers  the  tobacco  products without using a third party delivery service,
 44    the permittee shall comply with all the requirements of vendor assisted  sales
 45    as defined in section 39-5702(14), Idaho Code.
                                                                        
 46        39-5718.  REGISTRATION  AND  REPORTING  REQUIREMENTS.  (1) Prior to making
 47    delivery sales or shipping tobacco products in connection with any such sales,
 48    every business shall obtain a permit from the department  and  file  with  the
 49    state  tax  commission a statement setting forth the seller's name, trade name
 50    and the address of the business's principal place of business  and  any  other
 51    place of business.
                                                                        
                                           4
                                                                        
  1        (2)  Not  later  than the tenth day of each calendar month, each permittee
  2    that has made a delivery sale or shipped or delivered tobacco products in con-
  3    nection with any  such sale during the previous calendar month shall file with
  4    the department and the state tax commission a memorandum  or  a  copy  of  the
  5    invoice which provides for each and every such delivery sale:
  6        (a)  The  name and address of the individual to whom the delivery sale was
  7        made;
  8        (b)  The brand or brands of the tobacco products that were  sold  in  such
  9        delivery sale; and
 10        (c)  The  quantity  of  tobacco  products  that were sold in such delivery
 11        sale.
 12        (3)  Any tobacco products sold or attempted to be sold in a delivery  sale
 13    that  does not meet the requirements of this chapter shall be forfeited to the
 14    state of Idaho.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE
                             RS 13148
Relating to direct delivery sales of tobacco products.  Over the
past several years, the State of Idaho has been a leader in
preventing youth access to tobacco products.  With the rise of
tobacco sales via the internet and other direct sales means, a
hole in existing Idaho law has surfaced. This legislation would
stop a delivery sale of tobacco products to any individual who is
under the legal minimum purchase age in Idaho.

This legislation would require delivery only to adults that are
verified to be of legal age.

The act further provides for enforcement against those who
violate the provisions of the act.
                          FISCAL IMPACT
None

Contact
Name: Rep. Julie Ellsworth 
      Rep. Clete Edmunson
Phone: 208/332-1000




STATEMENT OF PURPOSE/FISCAL NOTE              H 357