HOUSE BILL 421
54th legislature - STATE OF NEW MEXICO - first session, 2019
G. Andrés Romero
RELATING TO HEALTH; ENACTING THE INDOOR TANNING ACT; BANNING THE USE OF TANNING DEVICES BY INDIVIDUALS UNDER THE AGE OF EIGHTEEN; ESTABLISHING SAFETY MEASURES FOR INDOOR TANNING; ESTABLISHING CIVIL PENALTIES; PROVIDING FOR RULEMAKING AND TANNING FACILITY LICENSURE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Indoor Tanning Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Indoor Tanning Act:
A. "department" means the department of environment;
B. "health care practitioner" means an individual licensed or certified to deliver health care in the ordinary course of business;
C. "minor" means an individual who is under eighteen years of age;
D. "operator" means a person that owns, leases or manages a tanning facility;
E. "phototherapy device" means equipment that emits ultraviolet radiation and is used in the diagnosis or treatment of disease or injury;
F. "tanning device" means equipment that emits electromagnetic radiation having wavelengths in the air between two hundred and four hundred nanometers and that is used for tanning of human skin and any equipment used with that equipment, including protective eyewear, timers and handrails. "Tanning device" does not include a phototherapy device used, or prescribed for use, by a health care practitioner; and
G. "tanning facility" means any premises where an individual may access a tanning device, regardless of whether a fee is charged for access to the premises or the tanning device, including a common area of a private facility but excluding the interior of a private home.
SECTION 3. [NEW MATERIAL] TANNING DEVICES--PROHIBITION ON USE BY MINORS--SIGNAGE--WRITTEN STATEMENT.--
A. It is unlawful for a minor to use any tanning device in a tanning facility.
B. An operator shall post in a conspicuous place in each tanning facility a sign that contains a notice that conforms to department rules, states that the operator owns, leases or operates a tanning facility and states that:
(1) it is unlawful for a tanning facility or operator to allow an individual under the age of eighteen to use any tanning device;
(2) a tanning facility or operator that violates a provision of the Indoor Tanning Act shall be subject to a civil penalty;
(3) an individual may report a violation of one or more provisions of the Indoor Tanning Act to the department; and
(4) the health risks associated with tanning include skin cancer, premature aging of skin, burns to the skin and adverse reactions to certain medications, foods and cosmetics.
C. An operator shall give to each individual that uses a tanning device at a tanning facility under the operator's control a written statement that shall be signed by the user before the user's initial use of the tanning device and each year thereafter that the user uses the tanning device. The written statement shall conform to department rules and contain the following:
(1) the notices and warnings set forth in Paragraphs (1) through (4) of Subsection B of this section;
(2) language in which the user acknowledges that the user understands the notices and warnings set forth in Subsection B of this section; and
(3) language in which the user agrees that the user will use protective eyewear.
SECTION 4. [NEW MATERIAL] TANNING FACILITIES--OPERATING REQUIREMENTS.--The operator of a tanning facility shall ensure that:
A. a minor does not use a tanning device in the operator's tanning facility;
B. during operating hours, an individual is present at the tanning facility who has been trained in minimizing the risks associated with the use of tanning devices and who is able to inform users about, and assist users in, minimizing the risks associated with using a tanning device;
C. each tanning device is properly sanitized after each use;
D. before each user begins to use a tanning device, the user is provided, at no cost to the user, with properly sanitized and securely fitting protective eyewear that protects the wearer's eyes from ultraviolet radiation and allows enough vision to maintain balance;
E. a user does not use a tanning device unless the user wears protective eyewear;
F. each user is shown how to use such physical aids as handrails and markings on the floor to maintain a proper exposure distance from the tanning device in accordance with manufacturer recommendations;
G. a timing device that is accurate within ten percent of any selected timer interval is used and is remotely located so users cannot set their own exposure time in the tanning devices they use;
H. each tanning device is equipped with a mechanism that allows the user to turn the tanning device off;
I. each user's exposure time is limited to the amount of time recommended by the manufacturer for the user's skin type;
J. users are not allowed to use a tanning device more than once in any twenty-four-hour period;
K. the interior temperature of the tanning facility does not exceed one hundred degrees Fahrenheit; and
L. the following records are maintained:
(1) copies of all consent forms signed by users at that tanning facility;
(2) a record of each user's total number of tanning visits to the tanning facility;
(3) the dates and durations of each user's tanning exposures; and
(4) for each user, any injury report made for a period of three years after the injury report is made.
SECTION 5. [NEW MATERIAL] TANNING FACILITIES--USER DUTIES.--An individual shall not use a tanning device at a tanning facility unless the individual complies with all of the following:
A. immediately before the user's first use of a tanning facility and every year thereafter, signs a statement acknowledging that the user has read and understands the written statement and the warning sign required pursuant to Section 3 of the Indoor Tanning Act; and
B. uses protective eyewear at all times while using a tanning device.
SECTION 6. [NEW MATERIAL] EXCLUSION.--The provisions of the Indoor Tanning Act do not apply to the use of a phototherapy device:
A. by a health care practitioner;
B. by a patient of any age pursuant to a valid prescription of a health care practitioner;
C. in the office or treatment room of a health care practitioner; or
D. in a health facility that the department of health licenses.
SECTION 7. [NEW MATERIAL] PENALTIES.--
A. The department shall impose on an operator that violates a provision of the Indoor Tanning Act or any rule promulgated pursuant to that act a civil penalty of not more than two hundred fifty dollars ($250) for the first violation and not more than five hundred dollars ($500) for any subsequent violation.
B. In addition to the penalty described in Subsection A of this section, the department may suspend or revoke the license issued to the tanning facility at which the violation occurred.
SECTION 8. [NEW MATERIAL] RULEMAKING--TANNING FACILITY LICENSE.--
A. The department is authorized to make inspections and investigations and to adopt rules to carry out the provisions of the Indoor Tanning Act. At a minimum, these rules shall establish fees and procedures for an annual application for tanning facility licensure.
B. On an annual basis and in accordance with department rules, an operator shall obtain a tanning facility license from the department for each tanning facility that the operator owns or operates. An operator shall not operate a tanning facility without a tanning facility license issued by the department. The operator shall display each tanning facility's license in a conspicuous place at the tanning facility.
SECTION 9. [NEW MATERIAL] PREEMPTION.--The provisions of the Indoor Tanning Act shall not preempt any local ordinance that provides for more restrictive regulation of tanning facilities than the Indoor Tanning Act establishes.
SECTION 10. [NEW MATERIAL] SEVERABILITY.--If any part or application of the Indoor Tanning Act is held invalid, the remainder or its application to other situations or persons shall not be affected.
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