House File 2493

PAG LIN

  1  1                                             HOUSE FILE 2493
  1  2
  1  3                             AN ACT
  1  4 RELATING TO REGULATION OF SALES AT UNUSED PROPERTY MARKETS
  1  5    AND PROVIDING PENALTIES.
  1  6
  1  7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  1  8
  1  9    Section 1.  NEW SECTION.  546B.1  DEFINITIONS.
  1 10    As used in this chapter, unless the context otherwise
  1 11 requires:
  1 12    1.  "Baby food" or "infant formula" means any food
  1 13 manufactured, packaged, and labeled specifically for sale for
  1 14 consumption by a child under two years of age.
  1 15    2.  "Cosmetic" means any of the following, but does not
  1 16 include soap:
  1 17    a.  An article intended to be rubbed, poured, sprinkled, or
  1 18 sprayed on, introduced into, or otherwise applied to the human
  1 19 body or any part of a human body for cleaning, beautifying,
  1 20 promoting attractiveness, or altering the appearance.
  1 21    b.  An article intended for use as a component of an
  1 22 article defined in paragraph "a".
  1 23    3.  "Medical device" means an instrument, apparatus,
  1 24 implement, machine, contrivance, implant, in vitro reagent,
  1 25 tool, or other similar or related article, including any
  1 26 component, part, or accessory, to which either of the
  1 27 following applies:
  1 28    a.  The article is required under federal law to bear the
  1 29 label "Caution:  Federal law requires dispensing by or on the
  1 30 order of a physician".
  1 31    b.  The article is defined by federal law as a medical
  1 32 device, and is intended for use in one of the following:
  1 33    (1)  The diagnosis of disease or other conditions.
  1 34    (2)  The cure, mitigation, treatment, or prevention of
  1 35 disease in humans or other animals.
  2  1    (3)  To affect the structure or any function of the body of
  2  2 man or other animals, but none of its principal intended
  2  3 purposes are achieved through chemical action within or on the
  2  4 body of a human or other animal nor is achievement of any of
  2  5 its principal intended purposes dependent upon the article
  2  6 being metabolized.
  2  7    4.  "New and unused property" means tangible personal
  2  8 property that was acquired by the unused property merchant
  2  9 directly from the producer, manufacturer, wholesaler, or
  2 10 retailer in the ordinary course of business that has never
  2 11 been used since its production or manufacture or which is in
  2 12 its original and unopened package or container, if such
  2 13 personal property was so packaged when originally produced or
  2 14 manufactured.
  2 15    5.  "Nonprescription drug" means any nonnarcotic medicine,
  2 16 drug, or other substance that may be sold without a
  2 17 prescription or medication order, and is prepackaged for use
  2 18 by the consumer, prepared by the manufacturer or producer for
  2 19 use by the consumer, and properly labeled and unadulterated,
  2 20 pursuant to the requirements of state and federal laws.
  2 21 "Nonprescription drug" does not include herbal products,
  2 22 dietary supplements, botanical extracts, or vitamins.
  2 23    6.  "Personal care product" means an item used in essential
  2 24 activities of daily living which may include but are not
  2 25 limited to bathing, personal hygiene, dressing, and grooming.
  2 26    7.  a.  "Unused property market" means any of the
  2 27 following:
  2 28    (1)  An event where two or more persons offer personal
  2 29 property for sale or exchange, for which a fee is charged for
  2 30 sale or exchange of personal property, or at which a fee is
  2 31 charged to prospective buyers for admission to the area at
  2 32 which personal property is offered or displayed for sale or
  2 33 exchange, provided that the event is held more than six times
  2 34 in any twelve=month period.
  2 35    (2)  Any similar event that involves a series of sales
  3  1 sufficient in number, scope, and character to constitute a
  3  2 regular course of business, regardless of where the event is
  3  3 held, and regardless of the terminology applied to such event,
  3  4 including but not limited to "swap meet", "indoor swap meet",
  3  5 "flea market", or other similar terms.
  3  6    b.  "Unused property market" shall not mean any of the
  3  7 following:
  3  8    (1)  An event that is organized for the exclusive benefit
  3  9 of any community chest, fund, foundation, association, or
  3 10 corporation organized and operated for religious, educational,
  3 11 or charitable purposes, provided that no part of any admission
  3 12 fee or parking fee charged vendors or prospective purchasers
  3 13 or the gross receipts or net earnings from the sale or
  3 14 exchange of personal property, whether in the form of a
  3 15 percentage of the receipts or earnings, as salary, or
  3 16 otherwise, inures to the benefit of any private shareholder or
  3 17 person participating in the organization or conduct of the
  3 18 event.
  3 19    (2)  An event where all of the personal property offered
  3 20 for sale or displayed is new, and all persons selling,
  3 21 exchanging, or offering or displaying personal property for
  3 22 sale or exchange are manufacturers or authorized
  3 23 representatives of manufacturers or distributors.
  3 24    8.  "Unused property merchant" means any person, other than
  3 25 a vendor or merchant with an established retail store in the
  3 26 county where the unused property market event occurs, who
  3 27 transports an inventory of goods to a building, vacant lot, or
  3 28 other unused property market location and who, at that
  3 29 location, displays the goods for sale and sells the goods at
  3 30 retail or offers the goods for sale at retail.  "Unused
  3 31 property merchant" does not mean a merchant as defined in
  3 32 section 554.2104.
  3 33    Sec. 2.  NEW SECTION.  546B.2  SALES PROHIBITED.
  3 34    1.  An unused property merchant shall not offer for sale or
  3 35 knowingly permit the sale at an unused property market of baby
  4  1 food, infant formula, cosmetics or personal care products, or
  4  2 any nonprescription drug or medical device.
  4  3    2.  This section shall not apply to a person who possesses
  4  4 and keeps available for public inspection, authentic written
  4  5 authorization identifying that person as an authorized
  4  6 representative of the manufacturer or distributor of such
  4  7 product.  Authorization that is false, fraudulent, or
  4  8 fraudulently obtained shall not satisfy the requirement under
  4  9 this subsection.
  4 10    Sec. 3.  NEW SECTION.  546B.3  RECEIPTS.
  4 11    1.  An unused property merchant shall maintain receipts for
  4 12 the purchase of new and unused property from the producer,
  4 13 manufacturer, wholesaler, or retailer.  A receipt shall
  4 14 include all of the following:
  4 15    a.  The date of the purchase.
  4 16    b.  The name and address of the person from whom the new or
  4 17 unused property was acquired.
  4 18    c.  An identification and description of the new and unused
  4 19 property acquired.
  4 20    d.  The price paid for such new and unused property.
  4 21    e.  The signature of the seller and buyer of the new and
  4 22 unused property.
  4 23    2.  An unused property merchant shall maintain receipts
  4 24 required under subsection 1 for two years.
  4 25    3.  An unused property merchant shall not knowingly do
  4 26 either of the following:
  4 27    a.  Falsify, obliterate, or destroy receipts required under
  4 28 subsection 1.  Disposal or destruction of receipts after the
  4 29 two=year retention period required by subsection 2 shall not
  4 30 violate this paragraph.
  4 31    b.  Refuse or fail upon request and reasonable notice to
  4 32 make receipts required under subsection 1 available for
  4 33 inspection.
  4 34    4.  This section shall not apply to any of the following:
  4 35    a.  The sale of a motor vehicle or trailer that is required
  5  1 to be registered or is subject to the certificate of title
  5  2 laws of this state.
  5  3    b.  The sale of wood for fuel, ice, or livestock.
  5  4    c.  Business conducted during an industry or association
  5  5 trade show.
  5  6    d.  New and unused property that was not recently produced
  5  7 or manufactured, and the style, packaging, or material of the
  5  8 property clearly indicates that it was not recently produced
  5  9 or manufactured.
  5 10    e.  A person who sells by sample, catalog, or brochure for
  5 11 future delivery.
  5 12    f.  The sale of arts or crafts or other merchandise by a
  5 13 person who produces such arts or crafts or merchandise or by a
  5 14 person acting on such person's behalf.
  5 15    g.  A person who makes a sales presentation pursuant to a
  5 16 prior, individualized invitation issued to the consumer by the
  5 17 owner or legal occupant of the premises.
  5 18    Sec. 4.  NEW SECTION.  546B.4  PENALTIES.
  5 19    A person who violates any provision of this chapter
  5 20 commits:
  5 21    1.  A simple misdemeanor for a first offense.
  5 22    2.  A serious misdemeanor for a second offense.
  5 23    3.  An aggravated misdemeanor for a third or subsequent
  5 24 violation.
  5 25
  5 26
  5 27                                                             
  5 28                               CHRISTOPHER C. RANTS
  5 29                               Speaker of the House
  5 30
  5 31
  5 32                                                             
  5 33                               JEFFREY M. LAMBERTI
  5 34                               President of the Senate
  5 35
  6  1    I hereby certify that this bill originated in the House and
  6  2 is known as House File 2493, Eightieth General Assembly.
  6  3
  6  4
  6  5                                                             
  6  6                               MARGARET THOMSON
  6  7                               Chief Clerk of the House
  6  8 Approved                , 2004
  6  9
  6 10
  6 11                            
  6 12 THOMAS J. VILSACK
  6 13 Governor