2000 Legislation
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SENATE BILL NO. 1354 – Unused merchandise, certain, sale


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Daily Data Tracking History

S1354................................................by JUDICIARY AND RULES
UNUSED MERCHANDISE - SALE - Adds to existing law to provide the "Unused
Merchandise Ownership Protection Act"; to provide prohibited sales of
certain unused merchandise unless the seller has the manufacturer's
permission; to provide recordkeeping requirements and violations; and to
provide exemptions and penalties.
02/03    Senate intro - 1st rdg - to printing
02/04    Rpt prt - to Jud
02/14    Rpt out - rec d/p - to 2nd rdg
02/15    2nd rdg - to 3rd rdg
02/21    3rd rdg - PASSED - 34-0-1
      AYES--Andreason, Boatright, Branch, Bunderson, Burtenshaw, Cameron,
      Danielson, Darrington, Davis, Deide, Dunklin, Frasure, Geddes,
      Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lee, McLaughlin, Noh,
      Parry, Richardson, Riggs, Risch, Sandy, Schroeder, Sorensen, Stegner,
      Stennett, Thorne, Wheeler, Whitworth, Williams
      Absent and excused--Crow
    Floor Sponsor - King-Barrutia
    Title apvd - to House
02/22    House intro - 1st rdg - to Jud
03/10    Rpt out - rec d/p - to 2nd rdg
03/13    2nd rdg - to 3rd rdg
03/23    3rd rdg - PASSED - 63-0-7
      AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Boe, Bruneel,
      Callister, Campbell, Chase, Cheirrett, Clark, Crow, Denney,
      Ellsworth, Field(13), Field(20), Gagner, Geddes, Hadley, Hammond,
      Hansen(23), Hansen(29), Hornbeck, Jaquet, Jones, Judd, Kellogg,
      Kempton, Kendell, Kunz, Lake, Linford, Loertscher, Mader, Marley,
      McKague, Meyer, Montgomery, Mortensen, Moss, Moyle, Pearce, Pischner,
      Pomeroy, Reynolds, Ridinger, Ringo, Robison, Sali, Schaefer, Sellman,
      Shepherd, Smith, Smylie, Stevenson, Stoicheff, Stone, Taylor, Tilman,
      Trail, Wheeler, Zimmermann
      NAYS -- None
      Absent and excused -- Black, Cuddy, Deal, Gould, Henbest, Wood, Mr
    Floor Sponsor - Boe
    Title apvd - to Senate
03/24    To enrol
03/27    Rpt enrol - Pres signed - Sp signed
03/28    To Governor
03/31    Governor signed
         Session Law Chapter 130
         Effective: 07/01/00

Bill Text

  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-fifth Legislature                  Second Regular Session - 2000
                                       IN THE SENATE
                                    SENATE BILL NO. 1354
                              BY JUDICIARY AND RULES COMMITTEE
  1                                        AN ACT
  7        DATE.
  8    Be It Enacted by the Legislature of the State of Idaho:
  9        SECTION  1.  That  Chapter  24,  Title 18, Idaho Code, be, and the same is
 10    hereby amended by the addition thereto of NEW SECTIONS, to be known and desig-
 11    nated as Sections 18-2416 through 18-2421, Idaho Code, and to read as follows:
 12        18-2416.  SHORT TITLE. This act may be known and cited as the "Unused Mer-
 13    chandise Ownership Protection Act."
 14        18-2417.  DEFINITIONS. As used in the unused merchandise ownership protec-
 15    tion act:
 16        (1)  "Open market" may include a "swap meet," an "indoor swap meet"  or  a
 17    "flea  market"  and means an event at which two (2) or more persons offer per-
 18    sonal property for sale or exchange and either:
 19        (a)  A fee is charged for those persons  selling  or  exchanging  personal
 20        property or a fee is charged to the public for admission to the event; or
 21        (b)  The  event  is  held  more  than two (2) times in a twelve (12) month
 22        period;
 23        (2)  "Unused merchandise" means tangible personal property that, since its
 24    original production or manufacturing, has never been used or consumed and,  if
 25    placed  in a package or container, is still in its original and unopened pack-
 26    age or container; and
 27        (3)  "Vendor of unused merchandise" means a person who offers unused  mer-
 28    chandise for sale or exchange at an open market.
 29        18-2418.  PROHIBITED  SALES  -- CERTAIN MERCHANDISE. (1) It is a violation
 30    of the unused merchandise ownership protection act for a vendor of unused mer-
 31    chandise to sell or offer for sale any baby food or infant formula,  cosmetic,
 32    drug  or  medical  device at an open market without displaying a written valid
 33    authorization from the manufacturer or distributor  of  the  merchandise.  The
 34    authorization  shall identify the vendor of unused merchandise and shall spec-
 35    ify the merchandise that the vendor is authorized to sell.
 36        (2)  As used in this section:
 37        (a)  "Baby food or infant formula" means unused merchandise consisting  of
 38        a  food  product  manufactured, packaged and labeled specifically for con-
 39        sumption by a child less than two (2) years of age;
 40        (b)  "Cosmetic" means unused merchandise, other than soap, that is:
 41             (i)   Intended to be rubbed, poured, sprinkled or sprayed on,  intro-
  1             duced into or otherwise applied to the human body or any part thereof
  2             for  cleansing, beautifying, promoting attractiveness or altering the
  3             appearance; or
  4             (ii)  Intended for use as a component of any articles  enumerated  in
  5             subparagraph (i) of this paragraph;
  6        (c)  "Drug" means unused merchandise, other than food, that:
  7             (i)   Is recognized in an official compendium;
  8             (ii)  Affects  the  structure  or  any function of the body of man or
  9             other animals; or
 10             (iii) Is intended for use as a component of subparagraph (i) or  (ii)
 11             of this paragraph, but does not include medical devices or their com-
 12             ponent parts or accessories;
 13        (d)  "Medical  device"  means  unused  merchandise  that is an instrument,
 14        apparatus, implement, machine, contrivance, implant, in vitro  reagent  or
 15        other  similar or related article, including any component, part or acces-
 16        sory, and that is:
 17             (i)   Recognized in an official compendium;
 18             (ii)  Intended for use in the diagnosis of disease  or  other  condi-
 19             tions,  or  in  the cure, mitigation, treatment or prevention of dis-
 20             ease, in man or other animals; or
 21             (iii) Intended to affect the structure or function of the body of man
 22             or other animals and which does not achieve  its  principal  intended
 23             purposes  through  chemical  action  within  or on the body of man or
 24             other animals and which is not dependent upon being  metabolized  for
 25             achievement of its principal intended purposes; and
 26        (e)  "Official  compendium" means the official United States pharmacopoeia
 27        national formulary or the official homeopathic pharmacopoeia of the United
 28        States or any supplement to either of them.
 29        18-2419.  RECORDKEEPING REQUIREMENTS -- VIOLATIONS. (1) A vendor of unused
 30    merchandise shall maintain receipts for the vendor's purchase  of  any  unused
 31    merchandise  sold  or  offered  for  sale by the vendor at an open market. The
 32    receipts shall be kept at the open market in which the unused  merchandise  is
 33    offered  for sale and at the vendor's residence or principal place of business
 34    for two (2) years after the merchandise is sold. Each receipt shall specify:
 35        (a)  The date of the purchase;
 36        (b)  The name and address of the person from whom the  unused  merchandise
 37        was acquired;
 38        (c)  A description of the unused merchandise purchased, including any spe-
 39        cific lot numbers or other identifying characteristics;
 40        (d)  The amount paid for the unused merchandise; and
 41        (e)  The signature of the buyer and the seller of the unused merchandise.
 42        (2)  It  is a violation of the unused merchandise ownership protection act
 43    for a person to knowingly:
 44        (a)  Falsify, obliterate or destroy any receipt required to be kept pursu-
 45        ant to this section;
 46        (b)  At the request of a police officer, fail or  refuse  to  produce  any
 47        receipt required to be kept pursuant to this section; and
 48        (c)  Fail to maintain any receipt as required by this section.
 49        18-2420.  EXEMPTIONS. (1) The following persons are exempt from the provi-
 50    sions of the unused merchandise ownership protection act:
 51        (a)  A  vendor  at  an  event  organized or operated for religious, educa-
 52        tional, charitable or other nonprofit purposes if no part of any admission
 53        fee or parking fee charged vendors or prospective purchasers and  no  part
  1        of  the gross receipts or net earnings from the sale of merchandise at the
  2        event is paid to a private person for participating in the organization or
  3        operation of the event;
  4        (b)  A vendor at an industry or association trade show;
  5        (c)  A vendor at an event at which all of the merchandise offered for sale
  6        is new and at which all vendors are manufacturers or authorized  represen-
  7        tatives of manufacturers or distributors; and
  8        (d)  A vendor selling by sample, catalog or brochure for future delivery.
  9        (2)  The  requirements  of the unused merchandise ownership protection act
 10    do not apply to sales or offers for sale of the following unused merchandise:
 11        (a)  Firewood, sand, gravel, flagstone, building stone  or  other  natural
 12        product;
 13        (b)  Live animals;
 14        (c)  Vehicles subject to registration pursuant to title 49, Idaho Code;
 15        (d)  Food  intended  for  human consumption at the open market immediately
 16        after sale;
 17        (e)  Merchandise offered for sale as an antique  or  otherwise  historical
 18        item  and,  although never used, the style, packaging, material or appear-
 19        ance of which clearly indicates that the merchandise was not  produced  or
 20        manufactured within recent times;
 21        (f)  Food  offered  for  sale that was grown, harvested or produced by the
 22        vendor or the vendor's principal; and
 23        (g)  Art, crafts or handicrafts that were produced by the  vendor  or  the
 24        vendor's principal.
 25        18-2421.  PENALTIES.  A  person  who  violates any provision of the unused
 26    merchandise ownership protection act is guilty of a misdemeanor for the  first
 27    offense.  Any person who pleads guilty to or is found guilty of a violation of
 28    the unused merchandise ownership protection act, or any substantially conform-
 29    ing statute in another state or any local  jurisdiction,  for  a  second  time
 30    within five (5) years, notwithstanding the form of the judgment(s) or withheld
 31    judgment(s),  is  guilty of a  felony and shall be sentenced to the custody of
 32    the state board of correction for a term not to  exceed  five  (5)  years,  or
 33    shall  be fined an amount not to exceed twenty-five thousand dollars ($25,000)
 34    or both.
 35        SECTION 2.  This act shall be in full force and effect on and  after  July
 36    1, 2000.

Statement of Purpose / Fiscal Impact

                     STATEMENT OF PURPOSE 

Incidents of stolen merchandise offered for sale at public events are increasing. This bill would
address the problem in two ways:
         require that vendors of certain products that are offered for sale at open markets, swap
     meets and flea markets display authorization from the manufacturer or distributor of the
     merchandise. Such products would include baby food, infant formula, cosmetics, drugs,
     and medical devices. 
         require vendors to maintain receipts for the vendor's purchase of unused merchandise
     offered for sale. 

The bill would exempt from the above requirements vendors at charitable events, trade shows,
farmers' markets, arts and craft fairs, antique shows, and garage sales. It would also exempt
catalog and sample sellers. 

By implementing the above requirements, retail theft can be curtailed significantly by
eliminating an opportunity to sell stolen merchandise, and thus discouraging the theft.
Furthermore, investigations are more successful in states that have legislation that addresses the
sale of stolen merchandise at flea markets. 


                         FISCAL IMPACT 

There will be no impact on the General Fund, and no additional cost to state or local

          CONTACT:  Jennifer Lindsey 
          President, Idaho Retailers Association

                                                  STATEMENT OF PURPOSE/FISCAL NOTE                  S 1354