S-5174

   Amend House File 2109, as amended, passed, and reprinted by the House, as follows:
   1.  By striking everything after the enacting clause and inserting: 
   Section 1.  NEW SECTION.  142B.1  Definitions.

   As used in this chapter, unless the context otherwise requires:

   1.  “Electronic smoking device” means any product containing or delivering nicotine or other substance intended for human consumption that can be used by a person to simulate smoking including through inhalation of vapor or aerosol from the product. “Electronic smoking device” includes any component part of such product whether or not sold separately. “Electronic smoking device” does not include any product that has been approved by the United States food and drug administration for sale as a tobacco cessation product and is being marketed and sold solely for that approved purpose.
   2.  “Retail permit” means a permit issued pursuant to section 453A.13 or 453A.47A to retailers of cigarettes or tobacco products.
   3.  “Retailer” means any person in this state who sells, distributes, or offers for sale for consumption or possesses for the purpose of sale for consumption, electronic smoking devices irrespective of quantity or amount or the number of sales.
   Sec. 2.  NEW SECTION.  142B.2  Retail permits required.
   1.  It shall be unlawful for a person other than a holder of a retail permit to act as a retailer and sell, distribute, or offer for sale electronic smoking devices at retail under this chapter.
   2.  A retailer shall not sell, distribute, or offer for sale any electronic smoking device until an application has been filed and the fee prescribed paid for a retail permit and until such retail permit is obtained and only while such retail permit is not suspended, unrevoked, or unexpired.
   3.  The provisions of chapter 453A applicable to retail permit holders including but not limited to section 453A.13, 453A.22, 453A.47A, and 453A.50 shall also apply to retailers under this chapter, with the exception of the application to electronic smoking devices of requirements relating to the imposition of a tax on and the affixing of stamps to cigarettes or tobacco products.
   Sec. 3.  NEW SECTION.  142B.3  Access to electronic smoking devices —— compliance checks —— manner of sale —— samples —— marketing —— penalties.
   1.  A person shall not sell, give, or otherwise supply any electronic smoking device to any person under eighteen years of age.
   2.  A person under eighteen years of age shall not use, possess, purchase, or attempt to purchase any electronic smoking device.
   3.  A retailer shall not sell or offer for sale electronic smoking devices through the use of a self-service display or a vending machine.
   4.  A retailer shall not give away electronic smoking devices at any time in connection with the retailer’s business or for promotion of the business or device.
   5.  A person shall not engage in commercial nonsale distribution of electronic smoking devices. For the purposes of this subsection, “nonsale distribution” means the distribution to the public of electronic smoking devices through the redeeming of a coupon or use of a rebate or other promotional offer that results in a person receiving such product for free or at a nominal cost.
   6.  A person shall not market an electronic smoking device in any outdoor area within five hundred feet of a playground, school, high school, or any other place used by persons under eighteen years of age for recreational, educational, or other purposes.
   7.  A person shall not market electronic smoking devices in the state in any place of business unless the business ensures that no person younger than eighteen years of age is present or permitted to enter at any time.
   8.  Liquid refills for electronic smoking devices shall only be sold in child resistant packaging.
   9.  Possession of an electronic smoking device by an individual under eighteen years of age does not constitute a violation under this section if the individual under eighteen years of age possesses the electronic smoking device as part of the individual’s employment and the individual is employed by a person who holds a valid retail permit.
   10.  a.  The alcoholic beverages division of the department of commerce, a county, or a city may directly enforce subsections 1 and 2 in district court and initiate proceedings pursuant to section 453A.22 before a permit-issuing authority which issued the retail permit against a retail permit holder violating this section.
   b.  Payment and distribution of court costs, fees, and fines in a prosecution initiated by a city or county relating to subsection 1 or 2 shall be made as provided in chapter 602 for violation of a city or county ordinance.
   c.  If a county or a city has not assessed a penalty as provided in section 453A.22, subsection 2, for a violation of subsection 1, within sixty days of the adjudication of the violation, the matter shall be transferred to and be the exclusive responsibility of the alcoholic beverages division of the department of commerce. Following transfer of the matter, if the violation is contested, the alcoholic beverages division of the department of commerce shall request an administrative hearing before an administrative law judge, assigned by the division of administrative hearings of the department of inspections and appeals in accordance with the provisions of section 10A.801, to adjudicate the matter pursuant to chapter 17A.
   d.  The provisions of section 453A.4 relating to seizure of a false or altered driver’s license or nonoperator’s identification card shall apply to retailers and employees of retailers under this chapter.
   e.  The alcoholic beverages division of the department of commerce shall enhance and utilize the tobacco compliance employee training program developed pursuant to section 453A.5 to assess compliance with subsections 1 and 2 by employees and prospective employees of retailers. Civil penalties assessed under section 453A.22 for violations of this subsections 1 and 2 shall be deposited in the tobacco compliance employee training fund created in section 453A.2.
   Sec. 4.  NEW SECTION.  142B.4  Penalties.
   1.  a.  (1)  A person, other than a retailer, who violates section 142B.3, subsection 1, is subject to the same penalties applicable to a violation of section 453A.2, subsection 1.
   (2)  An employee of a retailer who violates section 142B.3, subsection 1, is subject to the same penalties applicable to a violation of section 453A.2, subsection 1.
   b.  A person who violates section 142B.3, subsection 2, is subject to the same penalties applicable to violations of section 453A.2, subsection 2.
   c.  (1)  A person shall not be guilty of a violation of section 142B.3, subsection 1 or 2, if conduct that would otherwise constitute a violation is performed to assess compliance with electronic smoking device laws if any of the following applies:
   (a)  The compliance effort is conducted by or under the supervision of law enforcement officers.
   (b)  The compliance effort is conducted with the advance knowledge of law enforcement officers and reasonable measures are adopted by those conducting the effort to ensure that use of electronic smoking devices by individuals under eighteen years of age does not result from participation by any individual under eighteen years of age in the compliance effort.
   d.  For the purposes of paragraph “c”, “law enforcement officer” means a peace officer as defined in section 801.4 and includes persons designated under section 142B.3, subsection 10, to enforce this section.
   2.  a.  A retailer who violates section 142B.3, subsection 3, is subject to the same penalties applicable to a violation of section 453A.36, subsection 6, or section 453A.36A, as applicable.
   b.  A retailer who willfully violates section 142B.3, subsection 1, or who violates another provision of this chapter, is subject to the applicable provisions of section 453A.22 for violations of section 453A.2 or other provisions of chapter 453A.
   c.  A retailer or employee of a retailer who violates section 142B.3, subsection 1 or 3, is subject to the provisions of section 453A.22 applicable to a violation of section 453A.2 or section 453A.36, subsection 6.
   d.  A retailer of an employee who violates section 142B.3, subsection 1, is subject to the provisions of section 453A.22, subsection 3.
   e.  Section 453A.22, subsections 5, 6, and 7 shall also apply to the suspensions or revocations of retail permits resulting under this subsection.
   3.  Retailers shall be subject to other penalties specified under chapter 453A including those specified for certain violations pursuant to section 453A.31, 453A.37, and 453A.47A applicable to retail permit holders.
   Sec. 5.  NEW SECTION.  142B.5  Implementation, application, and enforcement.

   For the purposes of implementation, application, and enforcement of this chapter, nothing in this chapter shall be construed to supersede the jurisdiction of any city, county, township, school district, or other political subdivision to adopt and enforce any local law or regulation that is at least as restrictive as those imposed under this chapter.>
   2.  Title page, lines 1 and 2, by striking <vapor products and alternative nicotine products> and inserting <electronic smoking devices>

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JOE BOLKCOM