H. B. 4072
(By Delegates Compton, Gallagher and Douglas)
[Introduced January 16, 1996; referred to the
Committee on Health and Human Resources then the
Judiciary.]
A BILL to amend article seven, chapter sixteen of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
eight, relating to pure food and drugs; setting forth
legislative findings; requiring transient vendors who sell
baby food, medical devices and nonprescription drugs to
provide the sources thereof and maintain records of those
sources; requiring the production of records; providing for
confiscation of food, nonprescription drugs and medical
devices, unlawfully possessed; providing a criminal penalty;
and setting forth exceptions to applicability of the
section.
Be it enacted by the Legislature of West Virginia:
That article seven, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
eight, to read as follows:
ARTICLE 7. PURE FOOD AND DRUGS.
§16-7-8. Resale of certain food, drug, and miscellaneous items
prohibited; documentation required; confiscation of
food and drugs; penalty and exceptions.
(a) The Legislature finds that food manufactured and
packaged for sale for consumption by a child under the age of two
and nonprescription drugs sold by transient vendors at places
such as flea markets, yard sales and swap meets, where the
sources of the food and nonprescription drugs are unknown, may be
adulterated and thus constitute a hazard to the public's health
and welfare. It further finds that it is the policy of this
state to prohibit the sale of these foods, nonprescription drugs
and medical devices if the transient vendor cannot provide and
document the sources of the merchandise. For the purposes of
this section, the term "nonprescription drugs" does not include
natural or herbal nonprescription drugs. It further finds that
these foods, nonprescription drugs and medical devices are likely
to have been stolen.
(b) Any transient vendor who sells food manufactured and
packaged for sale for consumption by a child under the age of
two years or nonprescription drugs and medical devices shall make available and keep records of the sources of food,
nonprescription drugs and medical devices that he or she offers
for sale. The records may be receipts or invoices from the
persons who sold the food, nonprescription drugs and medical
devices to the transient vendor or any other documentation that
establishes the sources of the food, nonprescription drugs and
medical devices. The transient vendor shall keep those records
with the food, nonprescription drugs and medical devices being
offered for sale and shall maintain those records for a period of
two years after the food, nonprescription drugs and medical
devices are sold. Upon the request of a law-enforcement agent or
a representative of the state department of health, the transient
vendor shall produce records of the sources of food,
nonprescription drugs and medical devices sold. If the transient
vendor fails to produce the requested records, the law-
enforcement agent or representative for the state department of
health may confiscate the food, nonprescription drugs and medical
devices.
(c) Any person who violates the provisions of this section
is guilty of a misdemeanor, and, upon conviction thereof, shall
be fined not more than two hundred dollars for each food item,
nonprescription drug or medical device offered for sale or sold:
Provided, That this section does not apply to a merchant who is
licensed by the state department of tax and revenue; who sells food or nonprescription drugs or medical devices by sample,
catalog or brochure for future delivery; or who sells at a
residential premises pursuant to an invitation issued by the
owner or legal occupant of the premises.
NOTE: The purpose of this bill is to regulate the resale by
transient vendors of baby food, nonprescription drugs and medical
devices. It requires those vendors to keep records of the
sources of these items, and to produce those records upon request
by a law-enforcement officer or state health department
representative. The bill permits confiscation of those items for
which records of sources are not produced. It also creates a
misdemeanor offense, punishable by a fine not greater than $200
per item sold or offered for sale, for violation of this section.
In addition, the bill provides exceptions to applicability of the
section.
This section is new; therefore, strike-throughs and
underscoring have been omitted.