Senate Study Bill 1128
SENATE FILE
BY (PROPOSED COMMITTEE ON
JUDICIARY BILL BY
CHAIRPERSON REDFERN)
Passed Senate, Date Passed House, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act relating to enforcement enhancements relative to certain
2 tobacco product manufacturers, providing appropriations and
3 penalties, and providing effective dates.
4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
5 TLSB 2080XC 80
6 pf/cf/24
PAG LIN
1 1 Section 1. Section 453C.1, subsection 10, Code 2003, is
1 2 amended to read as follows:
1 3 10. "Units sold" means the number of individual cigarettes
1 4 sold in the state by the applicable tobacco product
1 5 manufacturer, whether directly or through a distributor,
1 6 retailer, or similar intermediary or intermediaries, during
1 7 the year in question, as measured by excise taxes collected by
1 8 the state on packs or roll=your=own tobacco containers bearing
1 9 the excise tax stamp of the state. The department of revenue
1 10 and finance shall adopt rules as are necessary to ascertain
1 11 the amount of state excise tax paid on the cigarettes of such
1 12 tobacco product manufacturer for each year.
1 13 Sec. 2. Section 453C.2, subsection 2, paragraph b,
1 14 subparagraph (2), Code 2003, is amended to read as follows:
1 15 (2) To the extent that a tobacco product manufacturer
1 16 establishes that the amount the manufacturer was required to
1 17 place into escrow based on units sold in the state in a
1 18 particular year was greater than the state's allocable share
1 19 of the total payments that such manufacturer would have been
1 20 required to make in that year under the master settlement
1 21 agreement the master settlement agreement payments, as
1 22 determined pursuant to section IX(i) of that agreement
1 23 including after final determination of all adjustments, that
1 24 such manufacturer would have been required to make based on
1 25 such units sold had such manufacturer been a participating
1 26 manufacturer, as such payments are determined pursuant to
1 27 section IX(i)(2) of the master settlement agreement and before
1 28 any of the adjustments or offsets described in section
1 29 IX(i)(3) of that agreement other than the inflation
1 30 adjustment, the excess shall be released from escrow and
1 31 revert back to such tobacco product manufacturer.
1 32 Sec. 3. NEW SECTION. 453D.1 FINDINGS AND PURPOSE.
1 33 The general assembly finds that violations of chapter 453C
1 34 threaten the integrity of the tobacco master settlement
1 35 agreement, the fiscal soundness of the state, and the public
2 1 health and that establishing procedural enforcement
2 2 enhancements will aid in the enforcement of chapter 453C and
2 3 thereby safeguard the master settlement agreement, the fiscal
2 4 soundness of the state, and the public health.
2 5 Sec. 4. NEW SECTION. 453D.2 DEFINITIONS.
2 6 As used in this chapter, unless the context otherwise
2 7 requires:
2 8 1. "Brand family" means all styles of cigarettes sold
2 9 under the same trademark and differentiated from one another
2 10 by means of additional modifiers or descriptors, including but
2 11 not limited to "menthol", "lights", "kings", and "100s", and
2 12 including any brand name (alone or in conjunction with any
2 13 other word), trademark, logo, symbol, motto, selling message,
2 14 recognizable pattern of colors, or any other indicia of
2 15 product identification identical or similar to, or
2 16 identifiable with, a previously known brand of cigarettes.
2 17 2. "Cigarette" means cigarette as defined in section
2 18 453C.1.
2 19 3. "Department" means the department of revenue and
2 20 finance.
2 21 4. "Director" means the director of revenue and finance.
2 22 5. "Distributor" means a person, notwithstanding
2 23 established residency or location, who purchases non=tax=paid
2 24 cigarettes and stores, sells, or otherwise disposes of the
2 25 cigarettes.
2 26 6. "Master settlement agreement" means master settlement
2 27 agreement as defined in section 453C.1.
2 28 7. "Nonparticipating manufacturer" means any tobacco
2 29 product manufacturer that is not a participating manufacturer.
2 30 8. "Participating manufacturer" means participating
2 31 manufacturer as defined in section II(jj) of the master
2 32 settlement agreement and all amendments to the master
2 33 settlement agreement.
2 34 9. "Qualified escrow fund" means qualified escrow fund as
2 35 defined in section 453C.1.
3 1 10. "Stamping agent" means a person authorized to affix
3 2 tax stamps to packages or other containers or cigarettes
3 3 pursuant to chapter 453A or any person that is required to pay
3 4 the tax imposed pursuant to chapter 453A on cigarettes.
3 5 11. "Tobacco product manufacturer" means tobacco product
3 6 manufacturer as defined in section 453C.1.
3 7 12. "Units sold" means units sold as defined in section
3 8 453C.1.
3 9 Sec. 5. NEW SECTION. 453D.3 CERTIFICATIONS, DIRECTORY,
3 10 TAX STAMPS.
3 11 1. CERTIFICATION. A tobacco product manufacturer whose
3 12 cigarettes are sold in this state, whether directly or through
3 13 a stamping agent, distributor, retailer, or similar
3 14 intermediary or intermediaries, shall execute and deliver on a
3 15 form and in the manner prescribed by the attorney general, a
3 16 certification to the director and the attorney general, no
3 17 later than April 30 of each year, certifying under penalty of
3 18 perjury that, as of the date of the certification, the tobacco
3 19 product manufacturer is either a participating manufacturer or
3 20 is in full compliance with chapter 453C, including all
3 21 quarterly installment payments required by rule.
3 22 a. A participating manufacturer shall include in the
3 23 participating manufacturer's certification a list of the
3 24 participating manufacturer's brand families. The
3 25 participating manufacturer shall update the list thirty
3 26 calendar days prior to any addition to or modification of the
3 27 participating manufacturer's brand families by executing and
3 28 delivering a supplemental certification to the attorney
3 29 general and the director.
3 30 b. A nonparticipating manufacturer shall include in its
3 31 certification all of the following:
3 32 (1) A list of all of the nonparticipating manufacturer's
3 33 brand families and the number of units sold for each brand
3 34 family that was sold in the state during the preceding
3 35 calendar year.
4 1 (2) A list of all of the nonparticipating manufacturer's
4 2 brand families that have been sold in the state at any time
4 3 during the current calendar year.
4 4 (3) An indication, by an asterisk, of any brand family
4 5 sold in the state during the preceding calendar year that is
4 6 no longer being sold in the state as of the date of such
4 7 certification.
4 8 (4) Identification by name and address of any other
4 9 manufacturer of such brand families in the preceding or
4 10 current calendar year.
4 11 The nonparticipating manufacturer shall update the list
4 12 thirty calendar days prior to any addition to or modification
4 13 of the nonparticipating manufacturer's brand families by
4 14 executing and delivering a supplemental certification to the
4 15 attorney general and the director.
4 16 c. A nonparticipating manufacturer shall also certify all
4 17 of the following:
4 18 (1) That the nonparticipating manufacturer is registered
4 19 to do business in the state or has appointed a resident agent
4 20 for service of process and provided notice as required in
4 21 section 453D.4.
4 22 (2) That the nonparticipating manufacturer has established
4 23 and continues to maintain a qualified escrow fund and has
4 24 executed a qualified escrow agreement that has been reviewed
4 25 and approved by the attorney general and that governs the
4 26 qualified escrow fund.
4 27 (3) That the nonparticipating manufacturer is in full
4 28 compliance with chapter 453C and this chapter and any rules
4 29 adopted pursuant to chapter 453C or this chapter.
4 30 (4) All of the following:
4 31 (a) The name, address, and telephone number of the
4 32 financial institution where the nonparticipating manufacturer
4 33 has established the qualified escrow fund required pursuant to
4 34 chapter 453C and all rules adopted pursuant to chapter 453C.
4 35 (b) The account number of the qualified escrow fund and
5 1 any subaccount number for Iowa.
5 2 (c) The amount the nonparticipating manufacturer deposited
5 3 in the qualified escrow fund for cigarettes sold in the state
5 4 during the preceding calendar year, the date and amount of
5 5 each deposit, and any evidence or verification deemed
5 6 necessary by the attorney general to confirm this information.
5 7 (d) The amount and date of any withdrawal or transfer made
5 8 at any time by the nonparticipating manufacturer from the
5 9 qualified escrow fund or from any other qualified escrow fund
5 10 into which the nonparticipating manufacturer made escrow
5 11 payments at any time pursuant to chapter 453C and any rules
5 12 adopted pursuant to chapter 453C.
5 13 d. A tobacco product manufacturer shall not include a
5 14 brand family in the tobacco product manufacturer's
5 15 certification unless one of the following applies, as
5 16 applicable:
5 17 (1) In the case of a participating manufacturer, the
5 18 participating manufacturer affirms that the brand family is to
5 19 be deemed to be the participating manufacturer's cigarettes
5 20 for purposes of calculating the participating manufacturer's
5 21 payments under the master settlement agreement for the
5 22 relevant year, in the volume and shares determined pursuant to
5 23 the master settlement agreement.
5 24 (2) In the case of a nonparticipating manufacturer, the
5 25 nonparticipating manufacturer affirms that the brand family is
5 26 to be deemed to be the nonparticipating manufacturer's
5 27 cigarettes for the purposes of chapter 453C.
5 28 This section shall not be construed as limiting or
5 29 otherwise affecting the state's right to maintain that a brand
5 30 family constitutes cigarettes of a different tobacco product
5 31 manufacturer for purposes of calculating payments under the
5 32 master settlement agreement or for purposes of chapter 453C.
5 33 e. Tobacco product manufacturers shall maintain all
5 34 invoices and documentation of sales and other information
5 35 relied upon for certification for a period of five years,
6 1 unless otherwise required by law to maintain invoices and
6 2 documentation for a greater period of time.
6 3 2. DIRECTORY OF CIGARETTES APPROVED FOR STAMPING AND SALE.
6 4 The director shall develop and publish on the department's
6 5 website a directory listing all tobacco product manufacturers
6 6 that have provided current and accurate certification
6 7 conforming to the requirements of subsection 1 and all brand
6 8 families that are listed in the certification, with the
6 9 following exceptions:
6 10 a. The director shall not include or retain in the
6 11 directory the name or brand families of any nonparticipating
6 12 manufacturer that has failed to provide the required
6 13 certification or whose certification the attorney general
6 14 determines is not in compliance with subsection 1, paragraphs
6 15 "b" and "c", unless the attorney general has determined that
6 16 the violation has been cured to the satisfaction of the
6 17 attorney general.
6 18 b. A tobacco product manufacturer and a brand family shall
6 19 not be included or retained in the directory if the attorney
6 20 general concludes, in the case of a nonparticipating
6 21 manufacturer, that either of the following applies:
6 22 (1) Any escrow payment required pursuant to chapter 453C
6 23 for any period for any brand family, whether or not listed by
6 24 the nonparticipating manufacturer, has not been fully paid
6 25 into a qualified escrow fund governed by a qualified escrow
6 26 agreement that has been approved by the attorney general.
6 27 (2) Any outstanding final judgment, including interest on
6 28 the judgment, for a violation of chapter 453C has not been
6 29 fully satisfied for the brand family or the nonparticipating
6 30 manufacturer.
6 31 c. The director shall update the directory as necessary in
6 32 order to correct mistakes and to add or remove a tobacco
6 33 product manufacturer or brand family to keep the directory in
6 34 conformity with the requirements of this chapter.
6 35 d. Stamping agents and distributors shall provide and
7 1 update as necessary an electronic mail address to the director
7 2 for the purpose of receiving any notifications as may be
7 3 required by this chapter.
7 4 3. PROHIBITION AGAINST STAMPING, SALE, OR IMPORT OF
7 5 CIGARETTES NOT INCLUDED IN THE DIRECTORY. It shall be
7 6 unlawful for any person to do any of the following:
7 7 1. Affix a stamp to a package or other container of
7 8 cigarettes of a tobacco product manufacturer or brand family
7 9 not included in the directory.
7 10 2. Sell, offer, or possess for sale in this state, or
7 11 import for personal consumption in this state, cigarettes of a
7 12 tobacco product manufacturer or brand family not included in
7 13 the directory.
7 14 Sec. 6. NEW SECTION. 453D.4 AGENT FOR SERVICE OF
7 15 PROCESS.
7 16 1. A nonresident or foreign nonparticipating manufacturer
7 17 that has not registered to do business in the state as a
7 18 foreign corporation or business entity shall, as a condition
7 19 precedent to having the nonparticipating manufacturer's brand
7 20 family included or retained in the directory, appoint and
7 21 continually engage without interruption the services of an
7 22 agent in this state to act as agent for service of process on
7 23 whom all process, and any action or proceeding against the
7 24 nonparticipating manufacturer concerning or arising out of the
7 25 enforcement of this chapter or chapter 453C, may be served in
7 26 any manner authorized by law. The service shall constitute
7 27 legal and valid service of process on the nonparticipating
7 28 manufacturer. The nonparticipating manufacturer shall provide
7 29 the name, address, telephone number, and proof of the
7 30 appointment and availability of the agent to, and to the
7 31 satisfaction of, the director and the attorney general.
7 32 2. The nonparticipating manufacturer shall provide notice
7 33 to the director and the attorney general thirty calendar days
7 34 prior to termination of the authority of an agent and shall
7 35 further provide proof to the satisfaction of the attorney
8 1 general of the appointment of a new agent at least five
8 2 calendar days prior to the termination of the existing agent
8 3 appointment. In the event an agent terminates an agency
8 4 appointment, the nonparticipating manufacturer shall notify
8 5 the director and the attorney general of the termination
8 6 within five calendar days and shall include proof to the
8 7 satisfaction of the attorney general of the appointment of a
8 8 new agent.
8 9 3. A nonparticipating manufacturer whose products are sold
8 10 in this state, who has not appointed or designated an agent as
8 11 required, shall be deemed to have appointed the secretary of
8 12 state as agent and may be proceeded against in the courts of
8 13 this state by service of process upon the secretary of state.
8 14 However, the appointment of the secretary of state as agent
8 15 shall not satisfy the condition precedent for having the brand
8 16 families of the nonparticipating manufacturer included or
8 17 retained in the directory.
8 18 Sec. 7. NEW SECTION. 453D.5 REPORTING OF INFORMATION ==
8 19 ESCROW INSTALLMENTS.
8 20 1. No later than twenty calendar days after the end of
8 21 each calendar quarter, and more frequently if so directed by
8 22 the director, each stamping agent and distributor shall submit
8 23 information as the director requires to facilitate compliance
8 24 with this chapter, including but not limited to a list by
8 25 brand family of the total number of cigarettes, or, in the
8 26 case of roll=your=own tobacco, the equivalent stick count, for
8 27 which the stamping agent or distributor affixed stamps during
8 28 the previous calendar quarter or otherwise paid the tax due
8 29 for the cigarettes. The stamping agent and distributor shall
8 30 maintain, and make available to the director, all invoices and
8 31 documentation of sales of all nonparticipating manufacturer
8 32 cigarettes and any other information relied upon in reporting
8 33 to the director for a period of five years. Violations of
8 34 this subsection are subject to civil penalties as established
8 35 in section 453A.31, subsection 2.
9 1 2. The director may disclose to the attorney general any
9 2 information received under this chapter and requested by the
9 3 attorney general for purposes of determining compliance with
9 4 and enforcing this chapter. The director and attorney general
9 5 shall share with each other the information received under
9 6 this chapter, and may share the information with other
9 7 federal, state, or local agencies only for purposes of
9 8 enforcement of this chapter, chapter 453C, or corresponding
9 9 laws of other states.
9 10 3. The attorney general may require at any time from a
9 11 nonparticipating manufacturer proof from the financial
9 12 institution in which the nonparticipatory manufacturer has
9 13 established a qualified escrow fund for the purpose of
9 14 compliance with chapter 453C, of the amount of money in the
9 15 qualified escrow fund, exclusive of interest, the amount and
9 16 date of each deposit into the qualified escrow fund, and the
9 17 amount and date of each withdrawal from the qualified escrow
9 18 fund.
9 19 4. In addition to the information required to be submitted
9 20 pursuant to chapter 453C or this chapter, the director or the
9 21 attorney general may require a stamping agent, distributor, or
9 22 tobacco product manufacturer to submit any additional
9 23 information including but not limited to samples of the
9 24 packaging or labeling of each brand family, as necessary to
9 25 enable the attorney general to determine compliance by the
9 26 tobacco product manufacturer with this chapter.
9 27 5. To promote compliance with this chapter, the attorney
9 28 general may adopt rules requiring a tobacco product
9 29 manufacturer subject to the requirements of section 453D.3,
9 30 subsection 1, paragraph "b", to make the escrow deposits
9 31 required in quarterly installments during the year in which
9 32 the sales covered by the deposits are made. The director or
9 33 the attorney general may require production of information
9 34 sufficient to enable the attorney general to determine the
9 35 adequacy of the amount of the installment deposit.
10 1 Sec. 8. NEW SECTION. 453D.6 PENALTIES AND OTHER
10 2 REMEDIES.
10 3 1. In addition to or in lieu of any other civil or
10 4 criminal remedy provided by law, upon a determination that any
10 5 person has violated section 453D.3, subsection 3, or any rule
10 6 adopted pursuant to that subsection, the director may revoke
10 7 or suspend the permit or license of any stamping agent or
10 8 distributor in the manner provided in chapter 453A. Each
10 9 stamp affixed and each sale or offer to sell cigarettes in
10 10 violation of section 453D.3, subsection 3, shall constitute a
10 11 separate violation. For each violation, the director may also
10 12 impose a civil penalty in an amount not to exceed the greater
10 13 of five hundred percent of the retail value of the cigarettes
10 14 or five thousand dollars upon a determination of violation of
10 15 section 453D.3, subsection 3, or any rules adopted pursuant to
10 16 section 453D.3, subsection 3. A penalty shall be imposed in
10 17 the manner provided in chapter 453A.
10 18 2. Cigarettes that have been sold, offered for sale, or
10 19 possessed for sale in this state, or imported for personal
10 20 consumption in this state in violation of section 453D.3,
10 21 subsection 3, shall be deemed contraband under section 453A.32
10 22 and the cigarettes shall be subject to seizure and forfeiture
10 23 as provided in that section, and all cigarettes so seized and
10 24 forfeited shall be destroyed and not resold.
10 25 3. The attorney general, on behalf of the director, may
10 26 seek an injunction to restrain a threatened or actual
10 27 violation of section 453D.3, subsection 3, or section 453D.5,
10 28 subsection 1 or 4, by a stamping agent or distributor and to
10 29 compel the stamping agent or distributor to comply with these
10 30 sections. In any action brought pursuant to this section, the
10 31 state shall be entitled to recover the costs of investigation,
10 32 expert witness fees, costs of the action, and reasonable
10 33 attorney fees.
10 34 4. It shall be unlawful for a person to sell or distribute
10 35 cigarettes or acquire, hold, own, possess, transport, import,
11 1 or cause to be imported cigarettes that the person knows or
11 2 should know are intended for distribution or sale in the state
11 3 in violation of section 453D.3, subsection 3. A violation of
11 4 this subsection is a serious misdemeanor.
11 5 Sec. 9. NEW SECTION. 453D.7 MISCELLANEOUS PROVISIONS.
11 6 1. A determination of the attorney general not to include
11 7 or to remove from the directory a brand family or tobacco
11 8 product manufacturer shall be subject to review in a manner
11 9 prescribed in rules adopted by the director.
11 10 2. A person shall not be issued a permit or license or be
11 11 granted a renewal of a permit or license to act as a stamping
11 12 agent or distributor unless the person has certified in
11 13 writing, under penalty of perjury, that the person will comply
11 14 fully with this chapter.
11 15 3. The director and the attorney general shall adopt rules
11 16 as necessary to effect the purposes of this chapter.
11 17 4. In any action brought by the state to enforce this
11 18 chapter, the state shall be entitled to recover the costs of
11 19 the investigation, expert witness fees, costs of the action,
11 20 and reasonable attorney fees.
11 21 5. If a court determines that a person has violated this
11 22 chapter, the court shall order any profits, gain, gross
11 23 receipts, or other benefit from the violation to be disgorged
11 24 and paid to the treasurer of state.
11 25 6. Unless otherwise expressly provided, the remedies or
11 26 penalties provided by this chapter are cumulative relative to
11 27 each other and relative to any other remedies or penalties
11 28 available under any other law of this state.
11 29 Sec. 10. NEW SECTION. 453D.8 STANDING APPROPRIATION.
11 30 There is appropriated from the general fund of the state to
11 31 the department of revenue and finance each fiscal year
11 32 beginning July 1, 2004, and thereafter, the sum of twenty=five
11 33 thousand dollars for enforcement of this chapter.
11 34 Sec. 11. NEW SECTION. 453D.9 CONSTRUCTION AND
11 35 SEVERABILITY.
12 1 1. If a court of competent jurisdiction finds that the
12 2 provisions of this chapter and of chapter 453C conflict and
12 3 cannot be harmonized, the provisions of chapter 453C shall
12 4 prevail.
12 5 2. If any portion of this chapter causes chapter 453C to
12 6 no longer constitute a qualifying or model statute, as defined
12 7 in the master settlement agreement, that portion of this
12 8 chapter shall be void.
12 9 3. If any portion of this chapter is for any reason held
12 10 to be invalid, unlawful, or unconstitutional, the
12 11 determination shall not affect the validity of the remaining
12 12 provisions of this chapter or any part of this chapter.
12 13 Sec. 12. TRANSITION PROVISIONS. For calendar year 2003,
12 14 if the effective date of this Act is later than March 16,
12 15 2003:
12 16 1. The first report of stamping agents and distributors
12 17 required by section 453D.5, subsection 1, shall be due thirty
12 18 days after the effective date of this Act.
12 19 2. The certifications by a tobacco product manufacturer
12 20 described in section 453D.3, subsection 1, shall be due forty=
12 21 five days after the effective date of this Act.
12 22 Sec. 13. APPROPRIATION. There is appropriated from the
12 23 general fund of the state to the department of revenue and
12 24 finance for the fiscal year beginning July 1, 2003, and ending
12 25 June 30, 2004, the following amount, or so much thereof as is
12 26 necessary, to implement this Act:
12 27 .................................................. $ 50,000
12 28 Sec. 14. EFFECTIVE AND APPLICABILITY DATES.
12 29 1. This Act, being deemed of immediate importance, takes
12 30 effect upon enactment.
12 31 2. The provision in section 453D.3, subsection 2, relating
12 32 to requiring the director of revenue and finance to develop
12 33 and publish on the department of revenue and finance's website
12 34 a directory listing of all tobacco product manufacturers that
12 35 have provided current and accurate certification and all brand
13 1 families listed in the certifications, is applicable no later
13 2 than ninety days after the effective date of this Act.
13 3 Sec. 15. SEVERABILITY.
13 4 1. If this Act or any portion of section 453C.2,
13 5 subsection 2, paragraph "b", subparagraph (2), as amended in
13 6 this Act, is held by a court of competent jurisdiction to be
13 7 unconstitutional, section 453C.2, subsection 2, paragraph "b",
13 8 subparagraph (2), is repealed in its entirety.
13 9 2. If section 453C.2, subsection 2, paragraph "b",
13 10 subparagraph (2), is repealed pursuant to subsection 1 and a
13 11 court of competent jurisdiction subsequently finds that such
13 12 repeal was unconstitutional, the portion of this Act amending
13 13 section 453C.2, subsection 2, paragraph "b", subparagraph (2),
13 14 is repealed and section 453C.2, subsection 2, paragraph "b",
13 15 subparagraph (2), Code 2003, shall be restored.
13 16 3. A holding of unconstitutionality of section 453C.2,
13 17 subsection 2, paragraph "b", subparagraph (2), as amended in
13 18 this Act, or the repealing of section 453C.2, subsection 2,
13 19 paragraph "b", subparagraph (2), as amended in this Act, shall
13 20 not affect, impair, or invalidate any other portion of section
13 21 453C.2 or the application of that section, and the remaining
13 22 portions of section 453C.2, shall continue in full force and
13 23 effect.
13 24 EXPLANATION
13 25 This bill relates to requirements of tobacco product
13 26 manufacturers under the tobacco master settlement agreement.
13 27 The bill requires each tobacco product manufacturer whose
13 28 cigarettes are sold in this state to provide certification to
13 29 the director of revenue and finance and to the attorney
13 30 general no later than April 30, annually, that the
13 31 manufacturer is either a participating manufacturer or is in
13 32 compliance with the requirements for a nonparticipating
13 33 manufacturer. The bill specifies the information to be
13 34 certified by a participating and a nonparticipating
13 35 manufacturer.
14 1 The bill directs the director of revenue and finance to
14 2 develop and publish on the department of revenue and finance's
14 3 website a directory listing of all tobacco product
14 4 manufacturers that have provided current and accurate
14 5 certification and all brand families listed in the
14 6 certifications. The bill specifies information that is
14 7 excepted from inclusion in the directory. This portion of the
14 8 bill is applicable no later than 90 days after the effective
14 9 date of the bill.
14 10 The bill requires a nonresident or foreign nonparticipating
14 11 manufacturer not registered to do business in this state as a
14 12 foreign corporation or business entity, as a condition
14 13 precedent to being included in and remaining in the directory,
14 14 to appoint and continually engage without interruption the
14 15 services of an agent in this state to act as agent for service
14 16 of process purposes. The bill provides a process to change
14 17 the agent, and provides that if a nonparticipating
14 18 manufacturer does not appoint or designate an agent, it is
14 19 deemed that the secretary of state is the manufacturer's agent
14 20 for the purposes only of service of process, but does not
14 21 satisfy the condition precedent for inclusion or retention in
14 22 the directory.
14 23 The bill provides for reporting of certain information
14 24 including amounts relating to a qualified escrow fund.
14 25 The bill provides penalties for violations of the bill,
14 26 including the revocation of the permit or license of a
14 27 stamping agent or distributor for a violation of the
14 28 prohibition against affixing a stamp to a package or other
14 29 container of cigarettes of a tobacco product manufacturer or
14 30 brand family not included in the directory; or selling,
14 31 offering, or possessing for sale in this state, or importing
14 32 for personal consumption in this state, cigarettes of a
14 33 tobacco product manufacturer or brand family not included in
14 34 the directory. A civil penalty may also apply to this
14 35 violation, which is an amount not to exceed the greater of 500
15 1 percent of the retail value of the cigarettes or $5,000. The
15 2 bill provides that cigarettes that are sold, offered for sale,
15 3 or possessed for sale in this state, or imported for personal
15 4 consumption in this state, in violation of the bill are
15 5 contraband and are subject to seizure and forfeiture. The
15 6 bill provides for injunctive relief and also provides that if
15 7 a person sells, distributes, acquires, holds, owns, possesses,
15 8 transports, imports, or causes to be imported cigarettes that
15 9 the person knows or should know are intended for distribution
15 10 or sale in this state in violation of the bill, the violation
15 11 is a serious misdemeanor.
15 12 The bill provides that a determination by the attorney
15 13 general not to include or to remove from the directory a brand
15 14 family or tobacco product manufacturer is subject to review as
15 15 prescribed by rule of the director of revenue and finance. A
15 16 person who is a stamping agent or distributor is not to be
15 17 issued a permit or license or granted a renewal unless the
15 18 person certifies in writing under penalty of perjury that the
15 19 person will comply fully with the bill. The bill directs the
15 20 director of revenue and finance and the attorney general to
15 21 adopt rules to effect the purposes of the bill. The bill
15 22 provides for recovery of costs of investigation, expert
15 23 witness fees, costs of the action, and reasonable attorney
15 24 fees in any action brought by the state to enforce the bill.
15 25 The bill also provides that if a court determines that a
15 26 person has violated the bill, the court is directed to order
15 27 any profits, gain, gross receipts, or other benefit from the
15 28 violation to be disgorged and paid to the state treasurer.
15 29 The bill provides for an appropriation from the general
15 30 fund of the state to the department of revenue and finance for
15 31 fiscal year 2003=2004 of $50,000 to implement the bill. The
15 32 bill also provides for an annual appropriation of $25,000 to
15 33 the department of revenue and finance to enforce the bill.
15 34 The bill takes effect upon enactment with the exception
15 35 that the provision relating to requiring the director of
16 1 revenue and finance to develop and publish on the department
16 2 of revenue and finance's website a directory listing of all
16 3 tobacco product manufacturers that have provided current and
16 4 accurate certification and all brand families listed in the
16 5 certifications applies no later than 90 days after the
16 6 effective date of the bill.
16 7 The bill amends a provision of Code chapter 453C relating
16 8 to release of funds for a qualified escrow fund and includes a
16 9 special severability clause for this provision.
16 10 LSB 2080XC 80
16 11 pf/cf/24.2