LEGISLATIVE GENERAL COUNSEL S.B. 61
6 Approved for Filing: C. Williams 6 4th Sub. (Pumpkin)
6 02-29-24 4:32 PM 6
Representative Brady Brammer proposes the following substitute bill:
1 ELECTRONIC CIGARETTE AMENDMENTS
2 2024 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Jen Plumb
5 House Sponsor: Brady Brammer
6
7 LONG TITLE
8 General Description:
9 This bill modifies provisions related to electronic cigarettes.
10 Highlighted Provisions:
11 This bill:
12 < prohibits the sale of electronic cigarette products that have not received market
13 authorization or are pending market authorization from the federal Food and Drug
14 Administration;
15 < codifies a nicotine limit for electronic cigarette products;
16 < prohibits the sale of flavored electronic cigarette products; and
17 < creates a registry for electronic cigarette products.
18 Money Appropriated in this Bill:
19 None
20 Other Special Clauses: 4th Sub. S.B. 61
21 This bill provides a special effective date.
22 Utah Code Sections Affected:
23 AMENDS:
24 10-8-41.6, as last amended by Laws of Utah 2023, Chapter 327
25 17-50-333, as last amended by Laws of Utah 2023, Chapter 327
*SB0061S04*
 4th Sub. (Pumpkin) S.B. 61 02-29-24 4:32 PM
26 26B-7-505, as renumbered and amended by Laws of Utah 2023, Chapter 308
27 59-14-807, as last amended by Laws of Utah 2023, Chapters 98, 300, 329, and 531 and
28 last amended by Coordination Clause, Laws of Utah 2023, Chapter 531
29 76-10-101, as last amended by Laws of Utah 2023, Chapter 330
30 76-10-113, as enacted by Laws of Utah 2020, Chapter 302
31 ENACTS:
32 26A-1-131, Utah Code Annotated 1953
33 59-14-810, Utah Code Annotated 1953
34
35 Be it enacted by the Legislature of the state of Utah:
36 Section 1. Section 10-8-41.6 is amended to read:
37 10-8-41.6. Regulation of retail tobacco specialty business.
38 (1) As used in this section:
39 (a) "Community location" means:
40 (i) a public or private kindergarten, elementary, middle, junior high, or high school;
41 (ii) a licensed child-care facility or preschool;
42 (iii) a trade or technical school;
43 (iv) a church;
44 (v) a public library;
45 (vi) a public playground;
46 (vii) a public park;
47 (viii) a youth center or other space used primarily for youth oriented activities;
48 (ix) a public recreational facility;
49 (x) a public arcade; or
50 (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
51 (b) "Department" means the Department of Health and Human Services created in
52 Section 26B-1-201.
53 (c) "Electronic cigarette product" means the same as that term is defined in Section
54 76-10-101.
55 [(d) "Flavored electronic cigarette product" means the same as that term is defined in
56 Section 76-10-101.]
-2-
 02-29-24 4:32 PM 4th Sub. (Pumpkin) S.B. 61
57 [(e)] (d) "Licensee" means a person licensed under this section to conduct business as a
58 retail tobacco specialty business.
59 [(f)] (e) "Local health department" means the same as that term is defined in Section
60 26A-1-102.
61 [(g)] (f) "Nicotine product" means the same as that term is defined in Section
62 76-10-101.
63 [(h)] (g) "Retail tobacco specialty business" means a commercial establishment in
64 which:
65 (i) sales of tobacco products, electronic cigarette products, and nicotine products
66 account for more than 35% of the total quarterly gross receipts for the establishment;
67 (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
68 storage of tobacco products, electronic cigarette products, or nicotine products;
69 (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
70 tobacco products, electronic cigarette products, or nicotine products;
71 (iv) the commercial establishment:
72 (A) holds itself out as a retail tobacco specialty business; and
73 (B) causes a reasonable person to believe the commercial establishment is a retail
74 tobacco specialty business; or
75 [(v) any flavored electronic cigarette product is sold; or]
76 [(vi)] (v) the retail space features a self-service display for tobacco products, electronic
77 cigarette products, or nicotine products.
78 [(i)] (h) "Self-service display" means the same as that term is defined in Section
79 76-10-105.1.
80 [(j)] (i) "Tobacco product" means:
81 (i) a tobacco product as defined in Section 76-10-101; or
82 (ii) tobacco paraphernalia as defined in Section 76-10-101.
83 (2) The regulation of a retail tobacco specialty business is an exercise of the police
84 powers of the state by the state or by delegation of the state's police powers to other
85 governmental entities.
86 (3) (a) A person may not operate a retail tobacco specialty business in a municipality
87 unless the person obtains a license from the municipality in which the retail tobacco specialty
-3-
 4th Sub. (Pumpkin) S.B. 61 02-29-24 4:32 PM
88 business is located.
89 (b) A municipality may only issue a retail tobacco specialty business license to a
90 person if the person complies with the provisions of Subsections (4) and (5).
91 (4) (a) Except as provided in Subsection (7), a municipality may not issue a license for
92 a person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
93 business is located within:
94 (i) 1,000 feet of a community location;
95 (ii) 600 feet of another retail tobacco specialty business; or
96 (iii) 600 feet from property used or zoned for:
97 (A) agriculture use; or
98 (B) residential use.
99 (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
100 a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
101 property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
102 to intervening structures or zoning districts.
103 (5) A municipality may not issue or renew a license for a person to conduct business as
104 a retail tobacco specialty business until the person provides the municipality with proof that the
105 retail tobacco specialty business has:
106 (a) a valid permit for a retail tobacco specialty business issued under Title 26B,
107 Chapter 7, Part 5, Regulation of Smoking, Tobacco Products, and Nicotine Products, by the
108 local health department having jurisdiction over the area in which the retail tobacco specialty
109 business is located; and
110 (b) (i) for a retailer that sells a tobacco product, a valid license issued by the State Tax
111 Commission in accordance with Section 59-14-201 or 59-14-301 to sell a tobacco product; and
112 (ii) for a retailer that sells an electronic cigarette product or a nicotine product, a valid
113 license issued by the State Tax Commission in accordance with Section 59-14-803 to sell an
114 electronic cigarette product or a nicotine product.
115 (6) (a) Nothing in this section:
116 (i) requires a municipality to issue a retail tobacco specialty business license; or
117 (ii) prohibits a municipality from adopting more restrictive requirements on a person
118 seeking a license or renewal of a license to conduct business as a retail tobacco specialty
-4-
 02-29-24 4:32 PM 4th Sub. (Pumpkin) S.B. 61
119 business.
120 (b) A municipality may suspend or revoke a retail tobacco specialty business license
121 issued under this section:
122 (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
123 Part 16, Pattern of Unlawful Activity Act;
124 (ii) if a licensee violates federal law or federal regulations restricting the sale and
125 distribution of tobacco products or electronic cigarette products to protect children and
126 adolescents;
127 (iii) upon the recommendation of the department or a local health department under
128 Title 26B, Chapter 7, Part 5, Regulation of Smoking, Tobacco Products, and Nicotine
129 Products; or
130 (iv) under any other provision of state law or local ordinance.
131 (7) (a) A retail tobacco specialty business is exempt from Subsection (4) if:
132 (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
133 license to conduct business as a retail tobacco specialty business;
134 (ii) the retail tobacco specialty business is operating in a municipality in accordance
135 with all applicable laws except for the requirement in Subsection (4); and
136 (iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
137 1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
138 (b) A retail tobacco specialty business may maintain an exemption under Subsection
139 (7)(a) if:
140 (i) the license described in Subsection (7)(a)(i) is renewed continuously without lapse
141 or permanent revocation;
142 (ii) the retail tobacco specialty business does not close for business or otherwise
143 suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
144 more than 60 consecutive days;
145 (iii) the retail tobacco specialty business does not substantially change the business
146 premises or business operation; and
147 (iv) the retail tobacco specialty business maintains the right to operate under the terms
148 of other applicable laws, including:
149 (A) Section 26B-7-503;
-5-
 4th Sub. (Pumpkin) S.B. 61 02-29-24 4:32 PM
150 (B) zoning ordinances;
151 (C) building codes; and
152 (D) the requirements of the license described in Subsection (7)(a)(i).
153 (c) A retail tobacco specialty business that does not qualify for an exemption under
154 Subsection (7)(a) is exempt from Subsection (4) if:
155 (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
156 general tobacco retailer permit or a retail tobacco specialty business permit under Title 26B,
157 Chapter 7, Part 5, Regulation of Smoking, Tobacco Products, and Nicotine Products, by the
158 local health department having jurisdiction over the area in which the retail tobacco specialty
159 business is located;
160 (ii) the retail tobacco specialty business is operating in the municipality in accordance
161 with all applicable laws except for the requirement in Subsection (4); and
162 (iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
163 1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
164 (d) Except as provided in Subsection (7)(e), a retail tobacco specialty business may
165 maintain an exemption under Subsection (7)(c) if:
166 (i) on or before December 31, 2020, the retail tobacco specialty business receives a
167 retail tobacco specialty business permit from the local health department having jurisdiction
168 over the area in which the retail tobacco specialty business is located;
169 (ii) the permit described in Subsection (7)(d)(i) is renewed continuously without lapse
170 or permanent revocation;
171 (iii) the retail tobacco specialty business does not close for business or otherwise
172 suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
173 more than 60 consecutive days;
174 (iv) the retail tobacco specialty business does not substantially change the business
175 premises or business operation as the business existed when the retail tobacco specialty
176 business received a permit under Subsection (7)(d)(i); and
177 (v) the retail tobacco specialty business maintains the right to operate under the terms
178 of other applicable laws, including:
179 (A) Section 26B-7-503;
180 (B) zoning ordinances;
-6-
 02-29-24 4:32 PM 4th Sub. (Pumpkin) S.B. 61
181 (C) building codes; and
182 (D) the requirements of the retail tobacco permit described in Subsection (7)(d)(i).
183 (e) A retail tobacco specialty business described in Subsection (7)(a) or (b) that is
184 located within 1,000 feet of a public or private kindergarten, elementary, middle, junior high,
185 or high school before July 1, 2022, is exempt from Subsection (4)(a)(iii)(B) if the retail tobacco
186 specialty business:
187 (i) relocates, before July 1, 2022, to a property that is used or zoned for commercial use
188 and located within a group of architecturally unified commercial establishments built on a site
189 that is planned, developed, owned, and managed as an operating unit; and
190 (ii) continues to meet the requirements described in Subsection (7)(b) that are not
191 directly related to the relocation described in this Subsection (7)(e).
192 Section 2. Section 17-50-333 is amended to read:
193 17-50-333. Regulation of retail tobacco specialty business.
194 (1) As used in this section:
195 (a) "Community location" means:
196 (i) a public or private kindergarten, elementary, middle, junior high, or high school;
197 (ii) a licensed child-care facility or preschool;
198 (iii) a trade or technical school;
199 (iv) a church;
200 (v) a public library;
201 (vi) a public playground;
202 (vii) a public park;
203 (viii) a youth center or other space used primarily for youth oriented activities;
204 (ix) a public recreational facility;
205 (x) a public arcade; or
206 (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
207 (b) "Department" means the Department of Health and Human Services created in
208 Section 26B-1-201.
209 (c) "Electronic cigarette product" means the same as that term is defined in Section
210 76-10-101.
211 [(d) "Flavored electronic cigarette product" means the same as that term is defined in
-7-
 4th Sub. (Pumpkin) S.B. 61 02-29-24 4:32 PM
212 Section 76-10-101.]
213 [(e)] (d) "Licensee" means a person licensed under this section to conduct business as a
214 retail tobacco specialty business.
215 [(f)] (e) "Local health department" means the same as that term is defined in Section
216 26A-1-102.
217 [(g)] (f) "Nicotine product" means the same as that term is defined in Section
218 76-10-101.
219 [(h)] (g) "Retail tobacco specialty business" means a commercial establishment in
220 which:
221 (i) sales of tobacco products, electronic cigarette products, and nicotine products
222 account for more than 35% of the total quarterly gross receipts for the establishment;
223 (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
224 storage of tobacco products, electronic cigarette products, or nicotine products;
225 (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
226 tobacco products, electronic cigarette products, or nicotine products;
227 (iv) the commercial establishment:
228 (A) holds itself out as a retail tobacco specialty business; and
229 (B) causes a reasonable person to believe the commercial establishment is a retail
230 tobacco specialty business; or
231 [(v) any flavored electronic cigarette product is sold; or]
232 [(vi)] (v) the retail space features a self-service display for tobacco products, electronic
233 cigarette products, or nicotine products.
234 [(i)] (h) "Self-service display" means the same as that term is defined in Section
235 76-10-105.1.
236 [(j)] (i) "Tobacco product" means:
237 (i) the same as that term is defined in Section 76-10-101; or
238 (ii) tobacco paraphernalia as defined in Section 76-10-101.
239 (2) The regulation of a retail tobacco specialty business is an exercise of the police
240 powers of the state by the state or by the delegation of the state's police power to other
241 governmental entities.
242 (3) (a) A person may not operate a retail tobacco specialty business in a county unless
-8-
 02-29-24 4:32 PM 4th Sub. (Pumpkin) S.B. 61
243 the person obtains a license from the county in which the retail tobacco specialty business is
244 located.