LEGISLATIVE GENERAL COUNSEL H.B. 566
6 Approved for Filing: C. Williams 6
6 02-16-24 8:46 AM 6
1 FLAVORED TOBACCO RESTRICTIONS
2 2024 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Nelson T. Abbott
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill prohibits the distribution of certain flavored tobacco and similar products.
10 Highlighted Provisions:
11 This bill:
12 < prohibits the distribution of all flavored tobacco and similar products except for the
13 following flavors:
14 C tobacco;
15 C mint; and
16 C menthol.
17 Money Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 10-8-41.6, as last amended by Laws of Utah 2023, Chapter 327
24 17-50-333, as last amended by Laws of Utah 2023, Chapter 327
25 53-7-404, as last amended by Laws of Utah 2008, Chapter 216
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26 76-10-101, as last amended by Laws of Utah 2023, Chapter 330
27 76-10-111, as last amended by Laws of Utah 2020, Chapters 302, 347
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28 76-10-112, as last amended by Laws of Utah 2020, Chapter 302
29 76-10-113, as enacted by Laws of Utah 2020, Chapter 302
30 76-10-116, as enacted by Laws of Utah 2020, Chapter 302
31
32 Be it enacted by the Legislature of the state of Utah:
33 Section 1. Section 10-8-41.6 is amended to read:
34 10-8-41.6. Regulation of retail tobacco specialty business.
35 (1) As used in this section:
36 (a) "Community location" means:
37 (i) a public or private kindergarten, elementary, middle, junior high, or high school;
38 (ii) a licensed child-care facility or preschool;
39 (iii) a trade or technical school;
40 (iv) a church;
41 (v) a public library;
42 (vi) a public playground;
43 (vii) a public park;
44 (viii) a youth center or other space used primarily for youth oriented activities;
45 (ix) a public recreational facility;
46 (x) a public arcade; or
47 (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
48 (b) "Department" means the Department of Health and Human Services created in
49 Section 26B-1-201.
50 (c) "Electronic cigarette product" means the same as that term is defined in Section
51 76-10-101.
52 [(d) "Flavored electronic cigarette product" means the same as that term is defined in
53 Section 76-10-101.]
54 [(e)] (d) "Licensee" means a person licensed under this section to conduct business as a
55 retail tobacco specialty business.
56 [(f)] (e) "Local health department" means the same as that term is defined in Section
57 26A-1-102.
58 [(g)] (f) "Nicotine product" means the same as that term is defined in Section
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59 76-10-101.
60 [(h)] (g) "Retail tobacco specialty business" means a commercial establishment in
61 which:
62 (i) sales of tobacco products, electronic cigarette products, and nicotine products
63 account for more than 35% of the total quarterly gross receipts for the establishment;
64 (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
65 storage of tobacco products, electronic cigarette products, or nicotine products;
66 (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
67 tobacco products, electronic cigarette products, or nicotine products;
68 (iv) the commercial establishment:
69 (A) holds itself out as a retail tobacco specialty business; and
70 (B) causes a reasonable person to believe the commercial establishment is a retail
71 tobacco specialty business; or
72 [(v) any flavored electronic cigarette product is sold; or]
73 [(vi)] (v) the retail space features a self-service display for tobacco products, electronic
74 cigarette products, or nicotine products.
75 [(i)] (h) "Self-service display" means the same as that term is defined in Section
76 76-10-105.1.
77 [(j)] (i) "Tobacco product" means:
78 (i) a tobacco product as defined in Section 76-10-101; or
79 (ii) tobacco paraphernalia as defined in Section 76-10-101.
80 (2) The regulation of a retail tobacco specialty business is an exercise of the police
81 powers of the state by the state or by delegation of the state's police powers to other
82 governmental entities.
83 (3) (a) A person may not operate a retail tobacco specialty business in a municipality
84 unless the person obtains a license from the municipality in which the retail tobacco specialty
85 business is located.
86 (b) A municipality may only issue a retail tobacco specialty business license to a
87 person if the person complies with the provisions of Subsections (4) and (5).
88 (4) (a) Except as provided in Subsection (7), a municipality may not issue a license for
89 a person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
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90 business is located within:
91 (i) 1,000 feet of a community location;
92 (ii) 600 feet of another retail tobacco specialty business; or
93 (iii) 600 feet from property used or zoned for:
94 (A) agriculture use; or
95 (B) residential use.
96 (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
97 a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
98 property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
99 to intervening structures or zoning districts.
100 (5) A municipality may not issue or renew a license for a person to conduct business as
101 a retail tobacco specialty business until the person provides the municipality with proof that the
102 retail tobacco specialty business has:
103 (a) a valid permit for a retail tobacco specialty business issued under Title 26B,
104 Chapter 7, Part 5, Regulation of Smoking, Tobacco Products, and Nicotine Products, by the
105 local health department having jurisdiction over the area in which the retail tobacco specialty
106 business is located; and
107 (b) (i) for a retailer that sells a tobacco product, a valid license issued by the State Tax
108 Commission in accordance with Section 59-14-201 or 59-14-301 to sell a tobacco product; and
109 (ii) for a retailer that sells an electronic cigarette product or a nicotine product, a valid
110 license issued by the State Tax Commission in accordance with Section 59-14-803 to sell an
111 electronic cigarette product or a nicotine product.
112 (6) (a) Nothing in this section:
113 (i) requires a municipality to issue a retail tobacco specialty business license; or
114 (ii) prohibits a municipality from adopting more restrictive requirements on a person
115 seeking a license or renewal of a license to conduct business as a retail tobacco specialty
116 business.
117 (b) A municipality may suspend or revoke a retail tobacco specialty business license
118 issued under this section:
119 (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
120 Part 16, Pattern of Unlawful Activity Act;
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121 (ii) if a licensee violates federal law or federal regulations restricting the sale and
122 distribution of tobacco products or electronic cigarette products to protect children and
123 adolescents;
124 (iii) upon the recommendation of the department or a local health department under
125 Title 26B, Chapter 7, Part 5, Regulation of Smoking, Tobacco Products, and Nicotine
126 Products; or
127 (iv) under any other provision of state law or local ordinance.
128 (7) (a) A retail tobacco specialty business is exempt from Subsection (4) if:
129 (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
130 license to conduct business as a retail tobacco specialty business;
131 (ii) the retail tobacco specialty business is operating in a municipality in accordance
132 with all applicable laws except for the requirement in Subsection (4); and
133 (iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
134 1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
135 (b) A retail tobacco specialty business may maintain an exemption under Subsection
136 (7)(a) if:
137 (i) the license described in Subsection (7)(a)(i) is renewed continuously without lapse
138 or permanent revocation;
139 (ii) the retail tobacco specialty business does not close for business or otherwise
140 suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
141 more than 60 consecutive days;
142 (iii) the retail tobacco specialty business does not substantially change the business
143 premises or business operation; and
144 (iv) the retail tobacco specialty business maintains the right to operate under the terms
145 of other applicable laws, including:
146 (A) Section 26B-7-503;
147 (B) zoning ordinances;
148 (C) building codes; and
149 (D) the requirements of the license described in Subsection (7)(a)(i).
150 (c) A retail tobacco specialty business that does not qualify for an exemption under
151 Subsection (7)(a) is exempt from Subsection (4) if:
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152 (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
153 general tobacco retailer permit or a retail tobacco specialty business permit under Title 26B,
154 Chapter 7, Part 5, Regulation of Smoking, Tobacco Products, and Nicotine Products, by the
155 local health department having jurisdiction over the area in which the retail tobacco specialty
156 business is located;
157 (ii) the retail tobacco specialty business is operating in the municipality in accordance
158 with all applicable laws except for the requirement in Subsection (4); and
159 (iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
160 1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
161 (d) Except as provided in Subsection (7)(e), a retail tobacco specialty business may
162 maintain an exemption under Subsection (7)(c) if:
163 (i) on or before December 31, 2020, the retail tobacco specialty business receives a
164 retail tobacco specialty business permit from the local health department having jurisdiction
165 over the area in which the retail tobacco specialty business is located;
166 (ii) the permit described in Subsection (7)(d)(i) is renewed continuously without lapse
167 or permanent revocation;
168 (iii) the retail tobacco specialty business does not close for business or otherwise
169 suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
170 more than 60 consecutive days;
171 (iv) the retail tobacco specialty business does not substantially change the business
172 premises or business operation as the business existed when the retail tobacco specialty
173 business received a permit under Subsection (7)(d)(i); and
174 (v) the retail tobacco specialty business maintains the right to operate under the terms
175 of other applicable laws, including:
176 (A) Section 26B-7-503;
177 (B) zoning ordinances;
178 (C) building codes; and
179 (D) the requirements of the retail tobacco permit described in Subsection (7)(d)(i).
180 (e) A retail tobacco specialty business described in Subsection (7)(a) or (b) that is
181 located within 1,000 feet of a public or private kindergarten, elementary, middle, junior high,
182 or high school before July 1, 2022, is exempt from Subsection (4)(a)(iii)(B) if the retail tobacco
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183 specialty business:
184 (i) relocates, before July 1, 2022, to a property that is used or zoned for commercial use
185 and located within a group of architecturally unified commercial establishments built on a site
186 that is planned, developed, owned, and managed as an operating unit; and
187 (ii) continues to meet the requirements described in Subsection (7)(b) that are not
188 directly related to the relocation described in this Subsection (7)(e).
189 Section 2. Section 17-50-333 is amended to read:
190 17-50-333. Regulation of retail tobacco specialty business.
191 (1) As used in this section:
192 (a) "Community location" means:
193 (i) a public or private kindergarten, elementary, middle, junior high, or high school;
194 (ii) a licensed child-care facility or preschool;
195 (iii) a trade or technical school;
196 (iv) a church;
197 (v) a public library;
198 (vi) a public playground;
199 (vii) a public park;
200 (viii) a youth center or other space used primarily for youth oriented activities;
201 (ix) a public recreational facility;
202 (x) a public arcade; or
203 (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
204 (b) "Department" means the Department of Health and Human Services created in
205 Section 26B-1-201.
206 (c) "Electronic cigarette product" means the same as that term is defined in Section
207 76-10-101.
208 [(d) "Flavored electronic cigarette product" means the same as that term is defined in
209 Section 76-10-101.]
210 [(e)] (d) "Licensee" means a person licensed under this section to conduct business as a
211 retail tobacco specialty business.
212 [(f)] (e) "Local health department" means the same as that term is defined in Section
213 26A-1-102.
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214 [(g)] (f) "Nicotine product" means the same as that term is defined in Section
215 76-10-101.
216 [(h)] (g) "Retail tobacco specialty business" means a commercial establishment in
217 which:
218 (i) sales of tobacco products, electronic cigarette products, and nicotine products
219 account for more than 35% of the total quarterly gross receipts for the establishment;
220 (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
221 storage of tobacco products, electronic cigarette products, or nicotine products;
222 (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
223 tobacco products, electronic cigarette products, or nicotine products;
224 (iv) the commercial establishment:
225 (A) holds itself out as a retail tobacco specialty business; and
226 (B) causes a reasonable person to believe the commercial establishment is a retail
227 tobacco specialty business; or
228 [(v) any flavored electronic cigarette product is sold; or]
229 [(vi)] (v) the retail space features a self-service display for tobacco products, electronic
230 cigarette products, or nicotine products.
231 [(i)] (h) "Self-service display" means the same as that term is defined in Section
232 76-10-105.1.
233 [(j)] (i) "Tobacco product" means:
234 (i) the same as that term is defined in Section 76-10-101; or
235 (ii) tobacco paraphernalia as defined in Section 76-10-101.
236 (2) The regulation of a retail tobacco specialty business is an exercise of the police
237 powers of the state by the state or by the delegation of the state's police power to other
238 governmental entities.
239 (3) (a) A person may not operate a retail tobacco specialty business in a county unless
240 the person obtains a license from the county in which the retail tobacco specialty business is
241 located.
242 (b) A county may only issue a retail tobacco specialty business license to a person if
243 the person complies with the provisions of Subsections (4) and (5).
244 (4) (a) Except as provided in Subsection (7), a county may not issue a license for a
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245 person to conduct business as a retail tobacco specialty business if the retail tobacco specialty