House Bill 538 — Tobacco, electronic smoking devices

Parrish Miller 2020 House bill ratings Leave a Comment

Bill description: HB 538 imposes new regulations on electronic smoking devices (such as those used for vaping), requires sellers to obtain permits, and levies new fees.

Rating: -7

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?

HB 538 expands a host of regulations related to tobacco products by making them also apply to “electronic smoking devices.”

(-1)

HB 538 expands the definition of a regulated “tobacco product” by renaming it “tobacco product or electronic smoking device” and adding the following description:

“Any electronic smoking device that may be used to deliver an aerosolized or a vaporized substance to the person inhaling from the device, including but not limited to an electronic cigarette, an electronic cigar, an electronic pipe, a vape pen, or an electronic hookah, or any component, part, or accessory of such a device, or any substance intended to be aerosolized or vaporized during use of the device, whether or not the substance contains nicotine, or any heated or lighted device intended to be used for inhalation.”

It further expands the definition by adding the following description:

“Any components, parts, or accessories of a tobacco product or an electronic smoking device, whether or not they contain tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, and pipes, whether manufactured, distributed, marketed, or sold as an electronic cigarette, electronic cigar, electronic hookah, or vape pen, or under any other product name or descriptor.”

These additions are particularly troubling because they include many items that do not contain tobacco or nicotine. No exceptions are made for dual-purpose items or for items that may be sold for their collectible or historical value rather than for use for taking in tobacco or nicotine. 

(-1)

Does it increase barriers to entry into the market? Examples include occupational licensure, the minimum wage, and restrictions on home businesses. Conversely, does it remove barriers to entry into the market?

HB 538 expands the permitting mandates covering tobacco products by imposing them on sellers, distributors, and retailers of “electronic smoking devices.” 

(-1)

Does it directly or indirectly create or increase any taxes, fees, or other assessments? Conversely, does it eliminate or reduce any taxes, fees, or other assessments?

HB 538 deletes language saying that permits shall be issued annually “for no charge.”

(-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?

HB 538 imposes civil penalties up to $400 and suspends the permit of sellers, distributors, and retailers who sell or distribute “electronic smoking devices” to a minor.

(-1)

HB 538 imposes criminal penalties, including fines up to $1,000 per day and jail time, on sellers, distributors, and retailers who sell or distribute “electronic smoking devices” without a permit. 

(-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?

HB 538 allows law enforcement agencies to conduct “random, unannounced inspections” at locations where electronic smoking devices are sold or distributed to retail customers. It further instructs the Department of Health and Welfare to conduct a minimum of one such “random, unannounced inspection” each year at each permit holder’s place of business.

(-1)

Analyst’s Note: HB 538 is very similar to HB 498, and it receives the same rating for essentially the same reasons. 

HB 538 deletes two items present in HB 498. The first is a provision stating, “On or after July 1, 2021, the department shall promulgate rules setting permit fees no greater than needed to cover the cost of inspections and other responsibilities imposed on the department by this chapter.” Despite this change, both bills delete language in the existing law that calls for permits to be issued “for no charge,” which means that annual fees can still be assessed under either bill. 

HB 538 also deletes a section contained in HB 498 that would prevent local units of government from requiring a local permit or license for the sale or distribution of electronic smoking devices. Under HB 538, such local regulation is not preempted.