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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
|||| 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
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