Bill Description: House Bill 244 would create a state ban list (and an exemption list) to prohibit the sale of many electronic smoking (vaping) devices in Idaho.

Rating: -6

NOTE: House Bill 244 is related to Senate Bill 1366, introduced in the 2024 legislative session. 

Does it create, expand, or enlarge any agency, board, program, function, or activity of government? Conversely, does it eliminate or curtail the size or scope of government?

House Bill 244 would create Section 39-5719, Idaho Code, to require the Idaho Department of Health and Welfare to create an "illegal electronic smoking devices brand list" to identify certain vaping devices.

This list would include "brand families of electronic smoking devices" where any single SKU "has been identified in an FDA warning letter as being adulterated or misbranded"; "is currently included in an FDA import alert"; "has been the subject of an FDA seizure order or warrant"; "has been identified in a civil monetary complaint as being adulterated or misbranded"; or "has been identified in a civil or criminal complaint filed by the United States department of justice as being adulterated or misbranded."

In addition to the ban list, the bill would require the department to create an exemption list "of electronic smoking devices that are exempt from inclusion on the illegal electronic smoking device brand list."

In order for a manufacturer to have their products included on the exemption list, they would have to meet one of the following exceptions:

• Receive "a marketing granted order from the FDA pursuant to 21 CFR 1114."
• "The electronic smoking device contains nicotine derived from tobacco, was marketed in the United States as of August 8, 2016, is the subject of an application pursuant to 21 U.S.C. 387j that was submitted to the FDA on or before September 9, 2020, and accepted for filing, and the application either remains under review by the FDA or has received a denial order that has been and remains stayed by the FDA or court order, rescinded by the FDA, or vacated by a court."
• "The electronic smoking device was not required to receive FDA authorization prior to marketing because it does not contain nicotine."
• "The electronic smoking device is a rebrand" as defined in this law.

The bill says the department shall "update the illegal electronic smoking device brand list and exemption list at least monthly."

(-1)

Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?

House Bill 244 would impose new regulations on retailers, distributors, and wholesalers of electronic smoking devices sold in Idaho. These entities would not be allowed to sell or offer for sale any "electronic smoking device brand families included on the illegal electronic smoking device brand list."

Sellers would have only 60 days to dispose of all merchandise included on or added to the ban list, and they would face "at least two (2) unannounced compliance checks annually by the department for purposes of enforcing this section."

(-1)

Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?

House Bill 244 would impose a $5,000 fine for every violation. It also would suspend permits, with each suspension becoming more severe with each subsequent offense. A fifth violation would mean the state permanently revoked the seller’s permit. 

(-1)

In addition to imposing the penalties above, the bill says "any electronic smoking devices in a brand family that are included on the illegal electronic smoking device brand list that are held for sale or offered for sale are hereby declared to be contraband goods and shall be seized without a warrant by the department, an employee of the department, or any peace officer when directed by the department."

It would further say that "the cost of such seizure and destruction or disposal shall be borne by the person from whom the products are seized."

(-1)

Does it violate the principle of equal protection under the law? Examples include laws that discriminate or differentiate based on age, gender, or religion or which apply laws, regulations, rules, or penalties differently based on such characteristics. conversely, does it restore or protect the principle of equal protection under the law?

The primary drivers of this legislation are certain large corporations that seek to use their size and political clout to force competitors out of the market. The definitions used to craft the exemption list are designed to protect the products offered by favored corporations while the ban list will prevent sellers and consumers from accessing popular alternatives that are often less expensive. 

(-1)

Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing federal code without noting as it is written on a certain date, using state resources to enforce federal law, and refusing to support and uphold the Tenth Amendment. Conversely, does it restore or uphold the principles of federalism?

The ban and exemption lists called for by House Bill 244 would be based primarily on how manufacturers and distributors of electronic smoking devices comply with FDA regulations. In many cases, these regulations are overbroad and beyond the proper constitutional role of the federal government. 

Incorporating these regulations into Idaho code subordinates state law to both current and future federal edicts. 

State governments are not obligated to enforce federal regulations and should not use them as a basis for regulating the free market. 

(-1)