75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1509
House Bill 2365
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Consumer Protection)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Prohibits selling, offering for sale or distributing novelty
lighters. Prohibits manufacture or importing of novelty lighters
for purpose of sale or distribution in this state. Prohibits
possession of novelty lighter in inventory for purposes of sale
or distribution in this state. Applies to sales and distribution
91 days after effective date of Act. Applies to manufacture and
import on or after effective date of Act. Creates exceptions for
lighters manufactured before January 1, 1980, and for lighters
permanently altered to prevent flame or other causes of
combustion.
Makes violations subject to civil penalty, not to exceed $500
per day for retail seller or distributor, $1,000 per day for
wholesaler or $10,000 per day for manufacturer or importer.
Authorizes State Fire Marshal to create and maintain list
identifying lighters and classes or types of lighters that are
novelty lighters. Makes State Fire Marshal listing of lighter as
novelty lighter prima facie evidence lighter is novelty lighter.
Declares novelty lighter listed by State Fire Marshal to be
contraband subject to seizure, forfeiture and destruction. Allows
seizure, forfeiture and destruction of unlisted novelty lighter
after finding grounds for imposing civil penalty. Becomes
operative 91 days after effective date of Act.
Authorizes State Fire Marshal or representative to conduct
inspections of facilities, inventory and business records related
to manufacture, import, wholesale, storage, sale or distribution
of lighters. Allows State Fire Marshal to enter into agreements
for state or local agencies to act as representatives of State
Fire Marshal.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to novelty lighters; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 6 of this 2009 Act:
(1) 'Audio effects' includes music, animal sounds and whistles,
buzzers, beepers or other noises not pertinent to the
flame-producing function of the lighter.
(2) 'Distribute' means to:
(a) Deliver to a person other than the purchaser; or
(b) Provide as part of a commercial promotion or as a prize or
premium.
(3) 'Importer' means a person who causes a lighter to enter
this state from a manufacturing, wholesale, distribution or
retail sales point outside this state, for the purpose of selling
or distributing the lighter within this state or with the result
that the lighter is sold or distributed within this state.
(4) 'Lighter' means a handheld device of a type typically used
for igniting tobacco products by use of a flame.
(5) 'Misleading design' means that a lighter has a shape that
resembles or imitates an object other than a lighter.
(6) 'Novelty lighter':
(a) Means a lighter that has misleading design, audio effects
or visual effects, or that has other features of a type that
would reasonably be expected to make the lighter appealing or
attractive to a child less than 10 years of age.
(b) Does not mean:
(A) A lighter manufactured before January 1, 1980; or
(B) A lighter that has been rendered permanently incapable of
producing a flame or otherwise causing combustion.
(7) 'Sell' means to provide or promise to provide to a
wholesale, retail, mail-order or other purchaser in exchange for
consideration.
(8) 'Visual effect':
(a) Includes flashing lights, color-changing lights and
changing images; and
(b) Does not include logos, decals, decorative artwork or
heat-shrinkable sleeves. + }
SECTION 2. { + (1) The State Fire Marshal may adopt rules to
identify lighters or classes or types of lighters that are
novelty lighters. The novelty lighters identified by the State
Fire Marshal may include, but need not be limited to, lighters of
misleading design that resemble or imitate:
(a) Cartoon characters, figurines or action figures;
(b) Toys or game pieces;
(c) Musical instruments;
(d) Vehicles;
(e) Animals;
(f) Human body parts;
(g) Food, beverages or food or beverage packages;
(h) Weaponry;
(i) Furniture;
(j) Sports equipment;
(k) Holiday decoration;
(L) Tools; or
(m) Household products.
(2) The State Fire Marshal shall establish and maintain a list
of lighters, and of classes and types of lighters, that the State
Fire Marshal has determined to be novelty lighters. The State
Fire Marshal shall make the list available to the public in
electronic form or in other forms selected by the State Fire
Marshal.
(3) A lighter is a contraband item subject to seizure and
destruction by the State Fire Marshal or a representative of the
State Fire Marshal, or by a law enforcement agency, if the
lighter is:
(a) Listed, or of a class or type listed, in State Fire Marshal
rules as a novelty lighter; and
(b) Offered for sale, sold or distributed in this state or
manufactured or possessed for the purpose of sale or distribution
in this state.
(4) The State Fire Marshal or a representative of the State
Fire Marshal, or a law enforcement agency, may seize a novelty
lighter that is not described in subsection (3) of this section.
Upon finding that the person from whom the lighter was seized is
subject to imposition of a civil penalty under section 3 of this
2009 Act for being a manufacturer, importer, wholesaler, storer,
seller or distributor of the lighter, the State Fire Marshal or a
representative may order that the lighter be forfeited and
destroyed. + }
SECTION 3. { + (1) A person may not sell, offer for sale or
distribute a novelty lighter in this state. A person may not
manufacture a novelty lighter in this state, or import a novelty
lighter into this state, for the purpose of selling or
distributing the novelty lighter within this state. A person may
not possess a novelty lighter in inventory for the purpose of
selling or distributing the novelty lighter within this state.
(2) The State Fire Marshal may impose a civil penalty against a
person who violates subsection (1) of this section. The civil
penalty may not exceed:
(a) $10,000 if the person is a manufacturer or importer of
lighters.
(b) $1,000 if the person is a wholesaler of lighters or
distributes lighters by means other than distribution directly to
consumers.
(c) $500 if the person is:
(A) A retail seller of lighters; or
(B) A person distributing lighters, if the person is other than
a manufacturer, importer or wholesaler.
(3) If a person continues to violate this section after the
State Fire Marshal gives the person written notice of the
violation, each day that the violation continues is a separate
offense subject to a civil penalty.
(4) The State Fire Marshal shall impose civil penalties under
this section as provided in ORS 183.745. For purposes of ORS
183.417, it is prima facie evidence that a lighter is a novelty
lighter if the lighter is listed by the State Fire Marshal as
described in section 2 of this 2009 Act as a novelty lighter, or
is of a class or type of lighter listed by the State Fire Marshal
as novelty lighters. However, listing by the State Fire Marshal
is not a prerequisite for finding that a lighter is a novelty
lighter.
(5) All moneys collected from civil penalties under this
section shall be deposited to the credit of the State Fire
Marshal Fund. + }
SECTION 4. { + (1) The State Fire Marshal, or a representative
of the State Fire Marshal, may conduct inspections to ensure
compliance with section 3 of this 2009 Act. The State Fire
Marshal or representative may:
(a) Have access during reasonable business hours to facilities
within this state used in the business of manufacturing,
importing, distributing, selling or storing lighters;
(b) Inspect the manufacturing, importing, distribution, sales
or storage facilities and any lighters located at the facilities;
and
(c) Inspect all business records pertaining to lighter
manufacture, import, distribution, sale or storage.
(2) A person engaged in this state in the business of
manufacturing, importing, distributing, selling or storing
lighters shall grant the State Fire Marshal or a representative
reasonable access for conducting inspections as described in
subsection (1) of this section. + }
SECTION 5. { + The State Fire Marshal may enter into
agreements with any state or local agency to allow the agency to
act as a representative of the State Fire Marshal for purposes of
sections 3 and 4 of this 2009 Act. + }
SECTION 6. { + The Attorney General may bring an action at the
request of the State Fire Marshal, in the name of the state,
seeking:
(1) Injunctive relief to prevent or end a violation of section
3 or 4 of this 2009 Act;
(2) To recover civil penalties imposed under section 3 of this
2009 Act;
(3) To obtain access for inspections under section 4 of this
2009 Act; or
(4) To recover attorney fees and other enforcement costs and
disbursements. + }
SECTION 7. { + (1) Notwithstanding section 2 of this 2009 Act,
the State Fire Marshal, a representative of the State Fire
Marshal or a law enforcement agency may not seize a novelty
lighter before the 91st day following the effective date of this
2009 Act.
(2) Section 3 of this 2009 Act applies to:
(a) The manufacture or import of lighters on or after the
effective date of this 2009 Act; and
(b) The sale or distribution of lighters on or after the 91st
day following the effective date of this 2009 Act. + }
SECTION 8. { + This 2009 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2009 Act takes effect on its
passage. + }
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