hb 0729

Chapter 177

HB 729-FN – FINAL VERSION

AN ACT relative to the regulation of tanning facilities.

SPONSORS: Rep. Dalrymple, Rock 76; Sen. Larsen, Dist 15

This bill requires the board of barbering, cosmetology and esthetics to regulate tanning facilities.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to the regulation of tanning facilities.

Be it Enacted by the Senate and House of Representatives in General Court convened:

177:1 New Paragraph; Barbering, Cosmetology and Estheticians; Definition Added. Amend RSA 313-A:1 by inserting after paragraph VIII the following new paragraph:

VIII-a. “Fitzpatrick scale” means the following scale for classifying the 6 skin types, based on the skin’s reaction to the first 10 to 45 minutes of sun exposure after the winter season:

177:2 New Paragraphs; Barbering, Cosmetology and Estheticians; Definitions Added. Amend RSA 313-A:1 by inserting after paragraph XI the following new paragraphs:

XI-a. “Operator” means a person age 18 or older who has received training through a program approved by the board in the safe operation of tanning devices, operates the tanning device, controls the length of the exposure to UV light, and instructs the consumer in the proper use of the device.

XI-b. “Phototherapy device” means equipment that emits UV radiation and is used by licensed health care professionals in the treatment of disease.

177:3 New Paragraphs; Barbering, Cosmetology and Estheticians; Definitions Added. Amend RSA 313-A:1 by inserting after paragraph XIII the following new paragraphs:

XIV. “Tanning device” includes any equipment, including a sunlamp, tanning booth, and tanning bed, that emits electromagnetic radiation with wavelengths in the air between 200 and 400 nanometers and is used for the tanning of human skin. The term also includes any accompanying equipment, including protective eyewear, timers, and handrails.

XV. “Tanning facility” means any location, place, area, structure or business which provides access to a tanning device for a fee, membership dues or any other compensation.

XVI. “Ultraviolet (UV) radiation” means electromagnetic radiation with wavelengths between 200 nanometers and 400 nanometers.

I. There shall be a board of barbering, cosmetology, and esthetics consisting of 7 members as follows: one licensed barber, one licensed cosmetologist, one licensed esthetician, one licensed manicurist, one licensed cosmetology school owner who shall be a resident of New Hampshire or a designee of such owner who shall be a licensed cosmetologist and a resident of New Hampshire, one owner of a registered tanning facility and [2] one public [~~members~~] member; each to be appointed by the governor with the consent of the council to a term of 5 years. No board member shall be appointed to more than 2 consecutive terms. Only board members provided for in this paragraph shall have the authority to vote in board determinations.

177:5 New Paragraph; Board Duties; Complaints. Amend RSA 313-A:7 by inserting after paragraph II the following new paragraph:

II-a. Maintain a telephone line or an electronic mail address for the purpose of accepting consumer complaints;

177:6 Board Rulemaking; Ethical Violations. Amend RSA 313-A:8, VI to read as follows:

VI. Ethical and professional standards required to be met by each holder of a license to practice under this chapter and how disciplinary actions by the board shall be implemented for violations of these standards or for any violation of this chapter;

XVII. A schedule of administrative fines for violations of this chapter under RSA 313-A:22, III(e) and (f) and procedures for the payment of such fines.

177:8 New Paragraph; Rulemaking Added; Tanning Facilities. Amend RSA 313-A:8 by inserting after paragraph X the following new paragraph:

(a) Sanitation and hygiene standards to be met and maintained by tanning facilities.

(b) Standards for approving the training curricula and programs used for training tanning device operators.

177:9 New Subparagraph; Disciplinary Proceedings. Amend RSA 313-A:22, I by inserting after subparagraph (b) the following new subparagraph:

(c) In an action concerning a registered tanning facility, upon written complaint from any person which charges a registered tanning facility or operator has violated any provision of RSA 313-A:26-34.

(e) By imposing an administrative fine not to exceed $500 for each offense committed by a licensee of the board. Each violation shall constitute a separate offense. The fine shall be paid to the board which shall forward it to the state treasurer to be deposited into the general fund.

177:11 New Subparagraph; Administrative Fines; Tanning Facility Operation. Amend RSA 313-A:22, III by inserting after subparagraph (e) the following new subparagraph:

(f) In an action concerning a registered tanning facility, by imposing an administrative fine not to exceed $250 for each offense upon any person who violates any provision of RSA 313-A:26-34 or rules adopted pursuant to such subdivision. Any administrative fine imposed under this subparagraph shall not preclude the imposition of further penalties or administrative actions under this chapter. The fine shall be paid to the board which shall forward it to the state treasurer to be deposited into the general fund.

177:12 New Paragraph; Disciplinary Proceedings; Appeals. Amend RSA 313-A:22 by inserting after paragraph III the following new paragraph:

IV. Appeals and rehearings from a decision of the board shall be made pursuant to RSA 541-A.

177:13 New Subdivision; Registration of Tanning Facilities. Amend RSA 313-A by inserting after section 25 the following new subdivision:

313-A:26 Advisory Committee Established. There is hereby established the tanning facility advisory committee. The committee shall consist of 2 physicians, licensed under RSA 329, appointed by the New Hampshire Medical Society, 2 tanning facility owners, appointed by the Indoor Tanning Association of America or its successor organization, and one member of the board, appointed by the chairman of the board, who shall serve as the chairman of the advisory committee. Members shall serve without compensation. The committee shall meet at least twice a year. The committee shall:

I. Advise the board relative to matters pertaining to the regulation of tanning facilities.

II. Advise and assist the board in the development of administrative rules necessary for the implementation of this subdivision.

III. Make recommendations on methods for the appropriate inspection of tanning facilities and methods to monitor compliance with state and federal regulations.

IV. Advise and assist the board in identifying programs and curricula available in the state for the training of operators and developing standards for the approval of such programs.

I. Every tanning device used by a tanning facility shall comply with all applicable federal and state laws and regulations, including those promulgated by the Federal Trade Commission and the United States Food and Drug Administration.

II. The board shall enforce this chapter against a person who adulterates or misbrands a tanning device. The board may investigate a person accused of adulterating or misbranding a tanning device.

I. It shall be unlawful for any person to engage in the business of operating a tanning facility unless the facility is registered in accordance with this chapter and the registration of such facility is current and valid.

II. Any person, corporation, partnership, association, or other entity operating or intending to open or operate a tanning facility within this state shall file a registration statement annually with the board in accordance with rules adopted under RSA 541-A. Such registration statement shall be required for each facility location, shall be duly signed and verified, and shall be posted in a prominent location at the tanning facility. Such registration statement shall include, but not be limited to, the name and the business address of the applicant; if an individual, the name under which the business will be conducted; if a partnership, the name and business address of each member thereof; the name under which the business is to be conducted; if a corporation, the name of the corporation and the name and business address of each of the officers of the corporation; and the place, including the complete mailing address and physical address, where the business is to be conducted. Registration statements shall also list the number and type of tanning devices at each tanning facility location.

313-A:29 Registration Fee Required. No person shall operate a tanning facility without paying an annual registration fee established by the board. Registration fees received from each tanning facility shall be deposited into the general fund.

I. Operators shall have sufficient knowledge in the operation of the tanning devices, including but not limited to:

(d) Recognition of injuries and the facility’s procedures for handling such injuries from overexposure to ultraviolet radiation;

(e) Manufacturer’s procedures for operation and maintenance of the tanning device;

(h) Effects of UV radiation, acute and chronic exposure, biological effects and health risks;

II. Operators shall be trained in all of the areas listed in paragraph I. Training shall be received through curricula and programs approved by the board. A tanning facility shall maintain a list of the facility’s operators who have been trained in accordance with this section. Such list shall include the date of the training and shall be available for inspection by the board.

III. Operators shall obtain proof of age from each tanning device user pursuant to RSA 313-A:31, I.

IV. Operators shall read aloud and shall provide each tanning device user with a written consent statement containing the wording listed below and the Fitzpatrick Scale. In the event that the user is under the age of 18, this wording shall be read to the user’s parent or guardian. Operators shall obtain the signature of the user or parent or guardian on the written consent prior to the initial exposure to the tanning device. The consumer consent form shall include the following wording in at least size 12 font:

Avoid overexposure. As with natural sunlight, overexposure can cause eye and skin injury and allergic reactions.

Wear protective eyewear. Failure to use protective eyewear may result in severe burns or long-term injury to the eyes.

Medication or cosmetics may increase your sensitivity to the ultraviolet radiation.

Consult a physician before using sunlamp or tanning equipment if you are using medications or have a history of skin problems or believe yourself to be especially sensitive to sunlight.”

V. Upon notification by a consumer of a complaint or an alleged tanning injury, a registrant shall provide information to the consumer about how complaints may be filed with the board.

VI. The tanning facility registrant shall maintain a record for each individual tanning device user which shall include dates exposed, length of exposure and signed consent form. Records shall be maintained for a minimum of 3 years or 3 years past the age of majority of the client.

I. No person under the age of 18 shall be allowed to utilize a tanning device at a tanning facility without the written consent of that person’s parent or legal guardian and without an operator present. Proof of age shall be satisfied with a driver’s license or other government issued identification containing date of birth and a photograph of the individual. This consent requirement shall be satisfied only if the parent or legal guardian is physically present at the time of the initial use of the tanning device, and the responsible adult signs a document declaring that he or she is the parent or legal guardian of the minor and attesting to the age of the minor. The consent of the parent or legal guardian shall be valid for 12 subsequent uses of the tanning device by the minor. II. No minors under the age of 14 shall be allowed to utilize a tanning device at a tanning facility without a written order from a physician licensed under RSA 329. Persons using a tanning facility under the provisions of this paragraph shall be accompanied by a parent or legal guardian for every use of the tanning facility.

313-A:32 Suspension of Operation. Upon finding a facility in violation of any of the provisions of RSA 313-A:26-34, the board may order the owner of a tanning facility to suspend operation of the facility. Such suspension shall remain in effect until the owner submits proof of compliance with any deficiencies identified by the board. Failure to suspend operation of a tanning facility in accordance with a board order shall be subject to a civil penalty of up to $500 for each day that the facility remains in operation after issuance of the board order.

313-A:33 Exemption. This subdivision shall not apply to a phototherapy device used by or under the supervision of a licensed health care professional for treatment of disease.

313-A:34 Unregistered Tanning Facilities. Upon notification by the board, operating an unregistered tanning facility shall result in a fine of $100 per day, for every day the facility remains in operation after 7 business days from the date notification was issued.

177:14 Repeal. RSA 313-A:8, VII, relative to rulemaking authority for matters of administration, is repealed.

177:15 Prospective Repeal. RSA 313-A:26, relative to the tanning facility advisory committee, is repealed.

(Approved: Enacted in accordance with Article 44, Part II of N.H. Constitution, without signature of the governor, May 27, 2004.)

II. Remainder shall take effect January 1, 2005.)