COMMITTEE SUBSTITUTE
FOR
SENATE BILL NO. 499
(By Senators Bailey and Walker)
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[Originating in the Committee on Small Business;
[reported February 27, 1996.]
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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 the sale of items at flea markets or swap meets;
setting forth legislative findings; defining terms; requiring
transient vendors who sell babyfood, medical devices or
nonprescription drugs at flea markets or swap meets to keep
and maintain records of the source of such items; requiring
the production of records; providing for confiscation of
babyfood, nonprescription drugs or medical devices for which
there is no required record; providing for criminal penalties;
setting forth exceptions to applicability of the section; and
authorizing the promulgation of rules.
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, drugs and medical devices
prohibited; definitions; source documentation required;
confiscation of food, drugs or medical devices; penalty and
exceptions; rules.
(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 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 these foods, nonprescription drugs or medical devices
are likely to have been stolen. The Legislature determines 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.
(b)For the purposes of this section:
(1)The term "babyfood" or "food" means any food manufactured
and packaged for sale for consumption by a child under the age of
two;
(2)The term "nonprescription drugs" does not include natural
or herbal nonprescription drugs; and
(3)The term "medical device" means any apparatus or tool
which is defined by federal law as a medical device and which has been specified by the secretary of the department of health and
human resources through legislative rules as a device which may be
marketed or sold by transient vendors.
(c)Any transient vendor who sells babyfood, nonprescription
drugs or medical devices at any flea market or swap meet in this
state shall keep and make available records of the sources of such
babyfood, nonprescription drugs or medical devices offered for sale
or sold. The records may be receipts or invoices from the persons
who sold the babyfood, nonprescription drugs or medical devices to
the transient vendor or any other documentation that establishes
the sources of the babyfood, nonprescription drugs or medical
devices. The transient vendor shall keep those records with the
babyfood, nonprescription drugs or medical devices being offered
for sale so long as such goods are in his possession and shall
maintain those records for a period of two years after the
babyfood, nonprescription drugs or medical devices are sold.
(d)Upon the request of a law-enforcement agent or a
representative of the state department of health, a transient
vendor shall produce records of the sources of babyfood,
nonprescription drugs or medical devices offered for sale or sold.
If the transient vendor fails to immediately produce the requested
records for goods offered for sale, the law-enforcement agent or
representative for the state department of health may confiscate
the babyfood, nonprescription drugs or medical devices then in
possession of the vendor. If the transient vendor fails to produce
the requested records for goods previously sold within a reasonable time, the law-enforcement agent or representative for the state
department of health may confiscate any babyfood, nonprescription
drugs or medical devices then in the possession of the vendor.
(e)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 babyfood item,
nonprescription drug or medical device offered for sale or sold.
(f)The provisions of this section do 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.
(g)The secretary of the department of health and human
services shall promulgate rules in accordance with the provisions
of chapter twenty-nine-a of this code regarding the designation
and authorized sale of medical devices sold by transient vendors
pursuant to this subsection.