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PAG LIN
1 1 Section 1. NEW SECTION. 546B.1 DEFINITIONS.
1 2 As used in this chapter, unless the context otherwise
1 3 requires:
1 4 1. "Baby food" or "infant formula" means any food
1 5 manufactured, packaged, and labeled specifically for sale for
1 6 consumption by a child under two years of age.
1 7 2. "Cosmetic" means any of the following, but does not
1 8 include soap:
1 9 a. An article intended to be rubbed, poured, sprinkled, or
1 10 sprayed on, introduced into, or otherwise applied to the human
1 11 body or any part of a human body for cleaning, beautifying,
1 12 promoting attractiveness, or altering the appearance.
1 13 b. An article intended for use as a component of an
1 14 article defined in paragraph "a".
1 15 3. "Medical device" means an instrument, apparatus,
1 16 implement, machine, contrivance, implant, in vitro reagent,
1 17 tool, or other similar or related article, including any
1 18 component, part or accessory, to which either of the following
1 19 applies:
1 20 a. The article is required under federal law to bear the
1 21 label "Caution: Federal law requires dispensing by or on the
1 22 order of a physician".
1 23 b. The article is defined by federal law as a medical
1 24 device, and is intended for use in one of the following:
1 25 (1) The diagnosis of disease or other conditions.
1 26 (2) The cure, mitigation, treatment, or prevention of
1 27 disease in humans or other animals.
1 28 (3) To affect the structure or any function of the body of
1 29 man or other animals, but none of its principal intended
1 30 purposes are achieved through chemical action within or on the
1 31 body of a human or other animal nor is achievement of any of
1 32 its principal intended purposes dependent upon the article
1 33 being metabolized.
1 34 4. "New and unused property" means tangible personal
1 35 property that was acquired by the unused property merchant
2 1 directly from the producer, manufacturer, wholesaler, or
2 2 retailer in the ordinary course of business that has never
2 3 been used since its production or manufacture or which is in
2 4 its original and unopened package or container, if such
2 5 personal property was so packaged when originally produced or
2 6 manufactured.
2 7 5. "Nonprescription drug" means any nonnarcotic medicine,
2 8 drug, or other substance that may be sold without a
2 9 prescription or medication order, and is prepackaged for use
2 10 by the consumer, prepared by the manufacturer or producer for
2 11 use by the consumer, properly labeled and unadulterated,
2 12 pursuant to the requirements of the state and federal laws.
2 13 "Nonprescription drug" does not include herbal products,
2 14 dietary supplements, botanical extracts, or vitamins.
2 15 6. "Personal care product" means an item used in essential
2 16 activities of daily living which may include but are not
2 17 limited to bathing, personal hygiene, dressing, and grooming.
2 18 7. a. "Unused property market" means either of the
2 19 following:
2 20 (1) An event where two or more persons offer personal
2 21 property for sale or exchange, for which a fee is charged for
2 22 sale or exchange of personal property, or at which a fee is
2 23 charged to prospective buyers for admission to the area at
2 24 which personal property is offered or displayed for sale or
2 25 exchange.
2 26 (2) An event held more than six times in any twelve-month
2 27 period, where personal property is offered or displayed for
2 28 sale or exchange, regardless of the number of persons offering
2 29 or displaying personal property or the absence of fees.
2 30 (3) Any similar event that involves a series of sales
2 31 sufficient in number, scope, and character to constitute a
2 32 regular course of business, regardless of where the event is
2 33 held, and regardless of the terminology applied to such event,
2 34 including but not limited to "swap meet", "indoor swap meet",
2 35 "flea market", or other similar terms.
3 1 b. "Unused property market" shall not mean any of the
3 2 following:
3 3 (1) An event that is organized for the exclusive benefit
3 4 of any community chest, fund, foundation, association, or
3 5 corporation organized and operated for religious, educational,
3 6 or charitable purposes, provided that no part of any admission
3 7 fee or parking fee charged vendors or prospective purchasers
3 8 or the gross receipts or net earnings from the sale or
3 9 exchange of personal property, whether in the form of a
3 10 percentage of the receipts or earnings, as salary, or
3 11 otherwise, inures to the benefit of any private shareholder or
3 12 person participating in the organization or conduct of the
3 13 event.
3 14 (2) An event where all of the personal property offered
3 15 for sale or displayed is new, and all persons selling,
3 16 exchanging, or offering or displaying personal property for
3 17 sale or exchange, are manufacturers or authorized
3 18 representatives of manufacturers or distributors.
3 19 8. "Unused property merchant" means any person, other than
3 20 a vendor or merchant with an established retail store in the
3 21 county where the unused property market event occurs, who
3 22 transports an inventory of goods to a building, vacant lot, or
3 23 other unused property market location and who, at that
3 24 location, displays the goods for sale and sells the goods at
3 25 retail or offers the goods for sale at retail.
3 26 Sec. 2. NEW SECTION. 546B.2 SALES PROHIBITED.
3 27 1. An unused property merchant shall not offer for sale or
3 28 knowingly permit the sale at an unused property market of baby
3 29 food, infant formula, cosmetics or personal care products, or
3 30 any nonprescription drug or medical device.
3 31 2. This section shall not apply to a person who possesses
3 32 and keeps available for public inspection, authentic written
3 33 authorization identifying that person as an authorized
3 34 representative of the manufacturer or distributor of such
3 35 product. Authorization that is false, fraudulent, or
4 1 fraudulently obtained shall not satisfy the requirement under
4 2 this subsection.
4 3 Sec. 3. NEW SECTION. 546B.3 RECEIPTS.
4 4 1. An unused property merchant shall maintain receipts for
4 5 the purchase of new and unused property from the producer,
4 6 manufacturer, wholesaler, or retailer. A receipt shall
4 7 include all of the following:
4 8 a. The date of the purchase.
4 9 b. The name and address of the person from whom the new or
4 10 unused property was acquired.
4 11 c. An identification and description of the new and unused
4 12 property acquired.
4 13 d. The price paid for such new and unused property.
4 14 e. The signature of the seller and buyer of the new and
4 15 unused property.
4 16 2. An unused property merchant shall maintain receipts
4 17 required under subsection 1 for two years.
4 18 3. An unused property merchant shall not knowingly do
4 19 either of the following:
4 20 a. Falsify, obliterate, or destroy receipts required under
4 21 subsection 1. Disposal or destruction of receipts after the
4 22 two-year retention period required by subsection 2 shall not
4 23 violate this paragraph.
4 24 b. Refuse or fail upon request and reasonable notice to
4 25 make receipts required under subsection 1 available for
4 26 inspection.
4 27 4. This section shall not apply to any of the following:
4 28 a. The sale of a motor vehicle or trailer that is required
4 29 to be registered or is subject to the certificate of title
4 30 laws of this state.
4 31 b. The sale of wood for fuel, ice, or livestock.
4 32 c. Business conducted during an industry or association
4 33 trade show.
4 34 d. New and unused property that was not recently produced
4 35 or manufactured, and the style, packaging, or material of the
5 1 property clearly indicates that it was not recently produced
5 2 or manufactured.
5 3 e. A person who sells by sample, catalog, or brochure for
5 4 future delivery.
5 5 f. The sale of arts or crafts or other merchandise by a
5 6 person who produces such arts or crafts or merchandise or by a
5 7 person acting on such person's behalf.
5 8 g. A person who makes a sale presentation pursuant to a
5 9 prior, individualized invitation issued to the consumer by the
5 10 owner or legal occupant of the premises.
5 11 Sec. 4. NEW SECTION. 546B.4 PENALTIES.
5 12 A person who violates any provision of this chapter
5 13 commits:
5 14 1. A simple misdemeanor for a first offense.
5 15 2. A serious misdemeanor for a second offense.
5 16 3. A class "D" felony for a third or subsequent violation.
5 17 EXPLANATION
5 18 This bill creates new Code chapter 546B regulating sales
5 19 activities at unused property market events, commonly referred
5 20 to as flea markets, swap meets, and other similar terms. The
5 21 bill contains definitions for "unused property market",
5 22 "unused property merchant", and "new and unused property",
5 23 among other terms.
5 24 The bill prohibits the sale of baby food, infant formula,
5 25 cosmetics or personal care products, or any nonprescription
5 26 drug or medical device at such events, except by an authorized
5 27 representative of the manufacturer or distributor of such
5 28 product. The bill also includes definitions for each of those
5 29 categories of items.
5 30 The bill also requires an unused property merchant to
5 31 retain receipts for the purchase of new and unused property
5 32 from the producer, manufacturer, wholesaler, or retailer for
5 33 at least two years, and to produce such receipts for
5 34 inspection upon reasonable notice. The bill provides that an
5 35 unused property merchant shall not knowingly falsify,
6 1 obliterate, or destroy receipts. Certain types of sales are
6 2 expressly excepted from these requirements.
6 3 Violations of the chapter are punishable as a simple
6 4 misdemeanor for a first offense, a serious misdemeanor for a
6 5 second offense, and a class "D" felony for a third or
6 6 subsequent offense. A simple misdemeanor is punishable by
6 7 confinement for no more than 30 days or a fine of at least $50
6 8 but not more than $500 or by both. A serious misdemeanor is
6 9 punishable by confinement for no more than one year and a fine
6 10 of at least $250 but not more than $1,500. A class "D" felony
6 11 is punishable by confinement for no more than five years and a
6 12 fine of at least $750 but not more than $7,500.
6 13 LSB 5565YC 78
6 14 jj/as/5
Text: HSB00730 Text: HSB00732 Text: HSB00700 - HSB00799 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
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