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