Bill Description: Senate Bill 1366 would impose a host of regulations and registration requirements on manufacturers, retailers, distributors, and wholesalers of electronic smoking devices (“vapes”) sold in Idaho.

Rating: -7

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?

Senate Bill 1366 would create Section 39-5719, Idaho Code, to impose a host of regulations and registration requirements on manufacturers of electronic smoking devices sold in Idaho.

Senate Bill 1366 would require each manufacturer to certify that it has "received a marketing authorization or similar order for the electronic smoking device from the United States food and drug administration pursuant to 21 U.S.C. 387j" or "the electronic smoking device was marketed in the United States as of August 8, 2016, the manufacturer submitted a premarket tobacco product application for the electronic smoking device to the United States food and drug administration pursuant to 21 U.S.C. 387j on or before September 9, 2020, and the application either remains under review by the United States food and drug administration or a final decision on the application has not otherwise taken effect."

Senate Bill 1366 would also require each manufacturer to "submit a certification form that separately lists each electronic smoking device that is sold in this state."

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Senate Bill 1366 would also impose new regulations on retailers, distributors, and wholesalers of electronic smoking devices sold in Idaho. These entities would be required to stock only electronic smoking devices that comply with the regulations above, and they would be subject to "at least two (2) unannounced compliance checks annually for the purpose of enforcing this section."

"Unannounced follow-up compliance checks of all noncompliant retailers, distributors, and wholesalers shall be conducted within thirty (30) days after any violation of this section. The department shall publish the results of all compliance checks at least annually and shall make the results available to the public upon request."

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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?

The bill would require the Idaho Department of Health and Welfare to, "no later than October 1, 2024, … maintain and make publicly available on its website a directory that lists all electronic smoking device manufacturers and electronic smoking devices for which certification forms have been submitted and shall update the directory as necessary to ensure accuracy."

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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?

The bill would require each manufacturer to certify its compliance with unconstitutional federal regulations and submit a certification form that separately lists each electronic smoking device sold in Idaho. It also would impose a $1,000 fee for "each electronic smoking device the first time a manufacturer submits a certification form for that electronic smoking device and a payment of five hundred dollars ($500) annually thereafter for each electronic smoking device."

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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?

Senate Bill 1366 would impose a fine of $1,000 per day on manufacturers for each smoking device offered for sale in Idaho that was not certified and listed on the directory created by this law. 

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The bill also contains a host of escalating civil penalties that would be imposed on any "retailer, distributor, or wholesaler who sells or offers for sale an electronic smoking device for retail sale in this state that is not included in the directory." "A fourth or any subsequent violation of this section within a thirty-six (36) month period shall constitute a violation of the consumer protection act pursuant to chapter 6, title 48, Idaho Code, enforceable by the attorney general."

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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?

Senate Bill 1366 would use unconstitutional federal regulations as the basis for the certification mandates it imposes on manufacturers of electronic smoking devices. Idaho should not be attempting to enforce unconstitutional federal regulations or using them as the basis for regulating the free market. 

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