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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
NAYS--None
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
Speaker
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
S1354
|||| 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
2 RELATING TO CRIMINAL OFFENSES; AMENDING CHAPTER 24, TITLE 18, IDAHO CODE, BY
3 THE ADDITION OF NEW SECTIONS 18-2416 THROUGH 18-2421, IDAHO CODE, TO PRO-
4 VIDE A SHORT TITLE, TO DEFINE TERMS, TO PROVIDE FOR PROHIBITED SALES OF
5 CERTAIN MERCHANDISE, TO PROVIDE RECORDKEEPING REQUIREMENTS AND VIOLATIONS,
6 TO PROVIDE EXEMPTIONS AND TO PROVIDE PENALTIES; AND PROVIDING AN EFFECTIVE
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-
2
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
3
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
RS09487C1
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
governments.
CONTACT: Jennifer Lindsey
President, Idaho Retailers Association
342-0010
STATEMENT OF PURPOSE/FISCAL NOTE S 1354