2003 Pa. Act 64 | Pennsylvania Act 2003-64 — TOBACCO PRODUCT MANUFACTURER DIRECTORY ACT - ENACTMENT

Act text

TOBACCO PRODUCT MANUFACTURER DIRECTORY ACT - ENACTMENT
	Act of Dec. 30, 2003, P.L. 441, No. 64	Cl. 72

AN ACT

Requiring certifications by tobacco product manufacturers; providing for a directory of cigarettes approved for stamping and sale; conferring powers and imposing duties on the Attorney General and the Department of Revenue; and imposing penalties.

TABLE OF CONTENTS

Chapter 1. Preliminary Provisions

Section 101. Short title.

Section 102. Definitions.

Chapter 3. Tobacco Product Manufacturers Directory

Section 301. Directory.

Section 302. Prohibition.

Section 303. Certification.

Section 304. Required information.

Section 305. Agent for service of process.

Section 306. Records and reporting.

Section 307. Penalties.

Section 308. Recovery of costs and fees by Attorney General.

Section 309. Disgorgement of profits for violations.

Section 310. Notice and review of determination.

Section 311. Regulations.

Section 312. Nonparticipating manufacturer and importer joint and several liability.

Section 313. Surety bond requirements.

Chapter 21. Miscellaneous Provisions

Section 2101. Severability.

Section 2102. Effective date.

The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:

CHAPTER 1

PRELIMINARY PROVISIONS

Section 101. Short title.

This act shall be known and may be cited as the Tobacco Product Manufacturer Directory Act.

Section 102. Definitions.

The following words and phrases when used in this act shall have the meanings given to them in this section unless the context clearly indicates otherwise:

"Adjusted for inflation." Increased in accordance with the formula for inflation adjustment set forth in Exhibit C of the Master Settlement Agreement.

"Affiliate." A person who, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with another person. For purposes of this definition, the terms "owns," "is owned" and "ownership" shall mean ownership of an equity interest, or its equivalent, of 10% or more.

"Allocable share." As that term is defined in the Master Settlement Agreement.

"Brand family." All styles of cigarettes sold under the same trademark and differentiated from one another by means of additional modifiers or descriptors, including, but not limited to, "menthol," "lights," "kings" and "100s." The term includes any use of a brand name, alone or in conjunction with any other word, trademark, logo, symbol, motto, selling message, recognizable pattern of colors or any other indicia of product identification identical or similar to or identifiable with a previously known brand of cigarettes.

"Cigarette." Any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use and consists of or contains any of the following:

(1) Any roll of tobacco wrapped in paper or in any substance not containing tobacco.

(2) Tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler or its packaging and labeling, is likely to be offered to or purchased by consumers as a cigarette.

(3) Any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler or its packaging and labeling, is likely to be offered to or purchased by consumers as a cigarette described in paragraph (1).

(4) Any "roll-your-own," which means any tobacco which, because of its appearance, type, packaging or labeling, is suitable for use and likely to be offered to or purchased by consumers as tobacco for making cigarettes. For purposes of this definition, 0.09 ounces of "roll-your-own" tobacco shall constitute one individual cigarette.

"Cigarette stamping agent." Any person licensed as such under Article XII of the act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of 1971.

"Department." The Department of Revenue of the Commonwealth.

"Directory." The listing of cigarette brands and manufacturers developed by the Attorney General under section 301.

"Importer." A person in any state or territory of the United States to whom cigarettes that are manufactured outside the United States are shipped, delivered or consigned for resale. (Def. added Oct. 11, 2023, P.L.51, No.11)

"Master Settlement Agreement." The settlement agreement and related documents entered into on November 23, 1998, by the Commonwealth and leading United States tobacco product manufacturers and approved by the court in Commonwealth v. Philip Morris, April Term, 1997, No.2443 (C.P. Philadelphia County), on January 13, 1999.

"Nonparticipating manufacturer." Any tobacco product manufacturer that is not a participating manufacturer.

"Nonparticipating Manufacturer Adjustment Settlement Agreement." The settlement agreement and related documents entered into on June 20, 2018, by the Commonwealth and the participating manufacturers settling certain disputes regarding application of adjustments to payments made pursuant to the Master Settlement Agreement. (Def. added Oct. 11, 2023, P.L.51, No.11)

"Participating manufacturer." A tobacco product manufacturer that is a party to the Master Settlement Agreement.

"Person." Any individual, unincorporated association, corporation, limited liability corporation, joint stock company, group, committee, agency, syndicate, trust or trustee, receiver, fiduciary, partnership or conservator. Whenever used in any section of this act to establish or impose penalties, the term "person" when applied to a partnership, unincorporated association or other joint venture means the partners or members thereof and when applied to a corporation means all officers and directors thereof.

"Qualified escrow fund." An escrow arrangement with a federally chartered or State-chartered financial institution that has no affiliation with any tobacco product manufacturer and has assets of at least $1,000,000,000 in which the escrow arrangement:

(1) requires that the financial institution hold the principal of the escrowed funds for the benefit of releasing parties as that term is defined in the Master Settlement Agreement; and

(2) prohibits the tobacco product manufacturer placing the funds into escrow from using, accessing or directing the use of the principal of the funds except as consistent with section 4 of the act of June 22, 2000 (P.L.394, No.54), known as the Tobacco Settlement Agreement Act.

"Released claims." As that term is defined in the Master Settlement Agreement.

"Sell" or "sold." The term includes sales made directly or through a distributor, retailer or similar intermediary.

"Tobacco product manufacturer."

(1) A person that directly and not exclusively through any affiliate:

(i) manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer, except where the importer is an original participating manufacturer, as that term is defined in the Master Settlement Agreement, that will be responsible for the payments under the Master Settlement Agreement with respect to the cigarettes as a result of the provisions of subsection II(mm) of the Master Settlement Agreement and that pays the taxes specified in subsection II(z) of the Master Settlement Agreement and provided that the manufacturer of the cigarettes does not market or advertise the cigarettes in the United States;

(ii) is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or

(iii) becomes a successor of a person described in subparagraph (i) or (ii).

(2) The term shall not include an affiliate of a tobacco product manufacturer unless the affiliate itself falls under paragraph (1)(i), (ii) or (iii).

"Tobacco Settlement Agreement Act." The act of June 22, 2000 (P.L.394, No.54), known as the Tobacco Settlement Agreement Act.

"Units sold." The number of individual cigarettes sold in this Commonwealth by the applicable tobacco product manufacturer during the year in question on which the Commonwealth has authority under Federal law to collect State excise tax, notwithstanding whether the State excise taxes were imposed or collected by the Commonwealth. Cigarettes that are exempt from State excise taxes under Federal law are specifically excluded from this definition. (Def. amended Oct. 11, 2023, P.L.51, No.11)

Compiler's Note: See section 8 of Act 11 of 2023 in the appendix to this act for special provisions relating to applicability. The notice regarding consent of participating manufacturers under the Master Settlement Agreement was published on January 6, 2024, at 54 Pa. B. 72.

Compiler's Note: See section 53 of Act 84 of 2016 in the appendix to this act for special provisions relating to applicability.

Compiler's Note: See section 2 of Act 95 of 2015, which amended the definition of "units sold," in the appendix to this act for special provisions relating to applicability.

CHAPTER 3

TOBACCO PRODUCT MANUFACTURERS DIRECTORY

Section 301. Directory.

The Attorney General shall develop and publish a directory of all tobacco product manufacturers and their brand families that have provided current and accurate certification under section 303. The directory shall be available on the Office of Attorney General's publicly accessible Internet website. The following shall apply: (Intro. par. amended Oct. 11, 2023, P.L.51, No.11)

(1) In the case of a nonparticipating manufacturer, neither the manufacturer nor its brand family shall be included or retained in the directory if the Attorney General determines that any of the following apply:

(i) The manufacturer has failed to provide the required certification or the certification is not in compliance with section 303.

(ii) The manufacturer has failed to make any payment required under the Tobacco Settlement Agreement Act, including applicable penalties, for any period for any brand family, whether or not listed by the tobacco product manufacturer, including all payments or penalties required from prior manufacturers of those brands, into a qualified escrow fund approved by the Attorney General. For purposes of retention on the directory, the Commonwealth's recovery of any amount from execution of a bond under section 313 shall not excuse a manufacturer's failure to timely deposit escrow as required by the Tobacco Settlement Agreement Act, notwithstanding if the bond fully covers the escrow owed and any other costs, fees or penalties that may be applicable. ((ii) amended Oct. 11, 2023, P.L.51, No.11)

(iii) Any outstanding final judgment for a violation of the Tobacco Settlement Agreement Act, including interest, has not been fully satisfied for the brand family and the manufacturer.

(iv) The requirements of section 303(a), 304(b), 312 or 313 have not been satisfied. ((iv) amended Oct. 11, 2023, P.L.51, No.11)

(v) The Commonwealth has executed upon a bond under section 313 due to the manufacturer's failure to timely deposit escrow as required. This ground for exclusion or removal from the directory shall remain notwithstanding whether the manufacturer's escrow obligations and other costs were fully covered by the amount recovered by the Commonwealth under the bond. ((v) added Oct. 11, 2023, P.L.51, No.11)

(2) The Attorney General shall take steps to update the directory, correct mistakes, add or remove a tobacco product manufacturer or brand family or to make other changes necessary to ensure compliance with this act.

(3) The Attorney General shall provide notice to the registered agent of the affected tobacco product manufacturer when the Attorney General determines to add a manufacturer or its brand families or to remove the manufacturer or its brand families from the directory. A determination of the Attorney General to remove a tobacco product manufacturer or brand families from the directory shall take effect 21 days after notice of that determination appears in the directory.

(4) The Attorney General shall publish the directory under this section within 90 days after the effective date of this section. Upon initial publication of the directory, the Attorney General shall cause notice of the same to be published in the Pennsylvania Bulletin.

Section 302. Prohibition.

It shall be unlawful for any person to:

(1) Affix a tax stamp to a package or other container of cigarettes belonging to a tobacco product manufacturer or brand family that is not included in the directory.

(2) Sell, offer, distribute or possess for sale in this Commonwealth cigarettes belonging to a tobacco product manufacturer or brand family that is not included in the directory.

(3) Acquire, hold, own, possess, transport, import or cause to be imported cigarettes that the person knows or should know are intended for distribution or sale in this Commonwealth in violation of paragraph (1).

Compiler's Note: Section 2102(1) of Act 64 of 2003, which added section 302, provided that section 302 shall take effect 15 days following the date of publication in the Pennsylvania Bulletin of the notice required under section 301(4).

Section 303. Certification.

(a) Required information.--A tobacco product manufacturer whose cigarettes are sold in this Commonwealth, whether directly or through a distributor, retailer or similar intermediary or intermediaries, shall execute and deliver to the Attorney General a certification under penalty of perjury that, as of the date of the certification, the tobacco product manufacturer is either a participating manufacturer or is in full compliance with this act and the Tobacco Settlement Agreement Act. In the case of a nonparticipating manufacturer, the certification shall include a statement that:

(1) The nonparticipating manufacturer is registered to do business in this Commonwealth or has appointed a resident agent for service of process and provided notice of the registration or appointment under section 305.

(2) The nonparticipating manufacturer has established and continuously maintains a qualified escrow fund and has executed a qualified escrow agreement approved by the Attorney General.

(3) The nonparticipating manufacturer has posted the bond required under section 313. ((3) added Oct. 11, 2023, P.L.51, No.11)

(b) Form.--The certification submitted under this section shall be on a form prescribed by the Attorney General.

(c) Time.--Initial certifications shall be due 45 days after the effective date of this section. Thereafter, certifications shall be executed no earlier than April 15 of each year and shall be delivered to the Attorney General no later than April 30 each year.

Section 304. Required information.

(a) Participating manufacturers.--A participating manufacturer shall include in its certification a list of its brand families. A supplemental certification shall be filed if brand families change during the year.

(b) Nonparticipating manufacturers.--A nonparticipating manufacturer shall include in its certification the following:

(1) A list of all of its brand families that were sold in this Commonwealth during the preceding calendar year, including the number of units sold for each brand family.

(2) A list of all of its brand families that have been sold in this Commonwealth during the current calendar year.

(3) The following:

(i) The name, address and telephone number of the financial institution where the nonparticipating manufacturer and its importers have established a qualified escrow fund.

(ii) The account number of each qualified escrow fund and each subaccount number for the escrow account established for the benefit of the Commonwealth.

(iii) The amount the nonparticipating manufacturer and its importers placed in qualified escrow funds for cigarettes sold in this Commonwealth during the preceding calendar year, the date and amount of each deposit and any other evidence of the deposit required by the Attorney General.

(iv) The amount and date of any withdrawal or transfer of funds the nonparticipating manufacturer or its importers made from qualified escrow funds at any time or from any other qualified escrow fund into which the nonparticipating manufacturer or its importers made escrow payments under the Tobacco Settlement Agreement Act.

(v) The name and address of any other manufacturer of its brand families in the current or preceding calendar year. A supplemental certification shall be filed if brand families change during the course of the year.

(4) If the nonparticipating manufacturer's cigarettes are manufactured outside of the United States, a complete list of its importers into the United States who sell cigarettes into this Commonwealth and the brand families sold by the importers, including the importer's name, address, contact name, phone number and email address at which the importer can be reached, and a declaration signed by each importer on a form prescribed by the Attorney General. The declaration shall state the following:

(i) The importer accepts joint and several liability with the nonparticipating manufacturer for each obligation to place money into a qualified escrow fund and for payment of civil penalties, costs, expenses and attorney's fees related to the nonparticipating manufacturer's failure to deposit escrow as required.

(ii) The importer consents to personal jurisdiction in this Commonwealth for the purposes of claims by the Commonwealth for any obligations to place money into a qualified escrow fund and for payment of civil penalties, costs, expenses and attorney's fees related to the escrow obligations.

(iii) The importer has appointed an agent for service of process in this Commonwealth according to the same requirements under section 305.

(iv) The importer holds a valid permit under 26 U.S.C. § 5713 (relating to permit).

(v) The importer agrees to provide any information required under this act.

((b) amended Oct. 11, 2023, P.L.51, No.11)

(1) in the case of a participating manufacturer, affirm that the brand family is deemed to be its cigarettes for purposes of calculating its payments under the Master Settlement Agreement for the relevant year in the volume and shares determined under the Master Settlement Agreement; or

(2) in the case of a nonparticipating manufacturer, affirm that the brand family is deemed to be its cigarettes for purposes of the Tobacco Settlement Agreement Act.

(d) Escrow fund.--A nonparticipating manufacturer whose products have not previously been sold in this Commonwealth shall deposit funds into a qualified escrow fund on a quarterly basis during the first 12 months it has sales in this Commonwealth and shall file supplemental certifications with the Attorney General. The deposit and certification for sales in the first calendar quarter shall be due May 15, the deposit and certification for the second calendar quarter shall be due August 15, the deposit and certification for the third calendar quarter shall be due November 15, and the deposit and certification for the fourth calendar quarter shall be due February 15 of the following year.

(e) Construction.--Nothing in this section shall be construed as limiting or otherwise affecting the Commonwealth's right to maintain that a brand family constitutes cigarettes of a different tobacco product manufacturer for purposes of calculating payments under the Master Settlement Agreement and the Tobacco Settlement Agreement Act.

Section 305. Agent for service of process.

(a) Appointment of agent.--A nonresident or foreign nonparticipating manufacturer shall, as a condition precedent to having its brand families listed or retained in the directory, appoint and continually engage the services of an agent located in this Commonwealth to act as agent for the service of process for any action or proceeding against it relating to the enforcement of this act and the Tobacco Settlement Agreement Act. Service by certified mail on the agent shall constitute legal and valid service of process on the nonparticipating manufacturer. The nonparticipating manufacturer shall provide the name, address, telephone number, proof of the appointment and availability of the agent to the Attorney General in a manner prescribed by the Attorney General.

(b) Notice.--A nonparticipating manufacturer shall provide notice to the Attorney General 30 calendar days prior to termination of the agent appointed under subsection (a). A nonparticipating manufacturer shall provide proof, as required by the Attorney General, of the appointment of a new agent no less than five calendar days prior to the termination of an existing agent. In the event an agent terminates the appointment, the nonparticipating manufacturer shall notify the Attorney General of the termination within five calendar days and include proof, as required by the Attorney General, of the appointment of a new agent.

(c) Secretary of Commonwealth.--A nonparticipating manufacturer whose products are sold in this Commonwealth without the appointment of an agent under this section shall be deemed to have appointed the Secretary of the Commonwealth as its agent and may be proceeded against in the courts of this Commonwealth by service of process upon the Secretary of the Commonwealth. The appointment of the Secretary of the Commonwealth under this subsection shall not serve as a condition precedent for including or retaining the brand families of the nonparticipating manufacturer in the directory.

(d) Importers.--Each importer of cigarettes into the United States of any nonparticipating manufacturer's brand families that are sold in this Commonwealth shall appoint an agent for service of process located in this Commonwealth pursuant to the same requirements provided by this section. The importers shall be subject to personal jurisdiction within this Commonwealth. The nonparticipating manufacturer shall bear responsibility for ensuring its importers' compliance with this act. Failure to ensure compliance shall constitute grounds for removal of the nonparticipating manufacturer's brand families from the directory. ((d) added Oct. 11, 2023, P.L.51, No.11)

Section 306. Records and reporting.

(a) Maintenance of records.--Tobacco product manufacturers shall maintain all invoices and documentation of sales and other information relied upon in a certification for a period of five years.

(b) Reporting.--Not later than 20 days following the end of each month, a cigarette stamping agent shall submit to the department information required by the department or the Attorney General to facilitate compliance with this act, including a list by brand family of the total number of cigarettes or, in the case of "roll-your-own," the equivalent stick count for which the cigarette stamping agent affixed stamps during the previous calendar month or otherwise paid the tax due. The cigarette stamping agent shall maintain and make available to the department and the Attorney General all invoices and documentation of sales of all nonparticipating manufacturer cigarettes and any other information relied upon to make reports under this subsection for a period of five years. The first report of cigarette stamping agents for the year 2003 required by this subsection shall be due 30 days after the effective date of this section.

(c) Disclosure.--The department may disclose to the Attorney General any information received under this section. The department and the Attorney General shall share information received under this chapter, the act of April 9, 1929 (P.L.343, No.176), known as The Fiscal Code, or the act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of 1971, with:

(1) other Federal, State and local agencies as necessary to determine compliance with and enforcement of this act or related laws of other states; or

(2) the data clearinghouse and the participating manufacturer's counsel as provided by the Nonparticipating Manufacturer Adjustment Settlement Agreement to determine the proper amount of any payment, offset, adjustment or refund pursuant to the Master Settlement Agreement or the Nonparticipating Manufacturer Adjustment Settlement Agreement.

((c) amended Oct. 11, 2023, P.L.51, No.11)

(d) Required proof.--The Attorney General may at any time require that a nonparticipating manufacturer submit proof from a qualified financial institution of the amount of money in a qualified escrow fund, dates of deposits and a history of all account transactions.

(e) Additional information.--The department or the Attorney General may require a cigarette stamping agent or tobacco product manufacturer to submit additional information, including samples of the packaging or labeling of each brand family, as necessary to enable the Attorney General to determine whether a tobacco product manufacturer is in compliance with this act.

Section 307. Penalties.

(a) License sanctions.--In addition to or in lieu of any other civil or criminal penalty, if the department determines that a cigarette stamping agent has violated section 302, the department may revoke or suspend the license of the agent. The department may also assess a civil penalty in an amount not to exceed 500% of the retail value of the cigarettes sold. An appeal from a determination by the department shall be conducted in accordance with section 207-A of the act of April 9, 1929 (P.L.343, No.176), known as The Fiscal Code.

(b) Contraband.--Any cigarettes that have been sold, offered for sale or possessed for sale in this Commonwealth in violation of section 302 shall be deemed to be contraband and shall be subject to seizure and forfeiture.

(c) Equitable relief.--The Attorney General may seek injunctive relief or other order to prevent a threatened or actual violation of or to ensure compliance by a cigarette stamping agent with section 302 or 306.

(d) Grading.--A violation of section 302 is a misdemeanor of the third degree.

(e) Separate offenses.--Each stamp affixed and each offer to sell cigarettes in violation of section 302 shall constitute a separate offense.

Compiler's Note: Section 2102(1) of Act 64 of 2003, which added section 307, provided that section 307 shall take effect 15 days following the date of publication in the Pennsylvania Bulletin of the notice required under section 301(4).

Section 308. Recovery of costs and fees by Attorney General.

In an action to enforce this act, the Commonwealth shall be entitled to recover costs, including the cost of investigation, expert witness fees and reasonable attorney fees.

Compiler's Note: Section 2102(1) of Act 64 of 2003, which added section 308, provided that section 308 shall take effect 15 days following the date of publication in the Pennsylvania Bulletin of the notice required under section 301(4).

Section 309. Disgorgement of profits for violations.

If a court determines that a person has violated this act, the court shall order any profits, gain, gross receipts or other benefit from the violation to be disgorged and paid to the Commonwealth.

Compiler's Note: Section 2102(1) of Act 64 of 2003, which added section 309, provided that section 309 shall take effect 15 days following the date of publication in the Pennsylvania Bulletin of the notice required under section 301(4).

Section 310. Notice and review of determination.

A determination by the Attorney General to exclude or remove a brand family or tobacco product manufacturer from the directory may be appealed by a manufacturer by filing a petition for review with the Commonwealth Court within 21 days of the determination. No party other than the manufacturer may challenge a determination by the Attorney General.

Section 311. Regulations.

(a) Attorney General.--The Attorney General may promulgate regulations necessary to enforce this act.

(b) Department of Revenue.--The Department of Revenue shall promulgate regulations as are necessary to ascertain the amount of State tax paid on the cigarettes of a tobacco product manufacturer for each year.

Section 312. Nonparticipating manufacturer and importer joint and several liability.

In the case of nonparticipating manufacturers located outside of the United States, each importer into the United States of any nonparticipating manufacturer's brand families that are sold in this Commonwealth shall bear joint and several liability with the nonparticipating manufacturer for deposit of all escrow due under section 4(a) of the Tobacco Settlement Agreement Act and payment of all civil penalties, fees, costs and attorney fees due under section 4(c) and (d) of the Tobacco Settlement Agreement Act.

(312 added Oct. 11, 2023, P.L.51, No.11)

Section 313. Surety bond requirements.

(a) Requirements.--All nonparticipating manufacturers shall post a bond for the benefit of the Commonwealth, which shall be:

(1) Subject to execution under subsection (c).

(2) Conditioned on the nonparticipating manufacturer's compliance with the requirements of this act and the Tobacco Settlement Agreement Act.

(3) Posted by a surety bond company located within this Commonwealth.

(4) Posted or adjusted at least 21 days prior to every calendar quarter.

(5) Provided to the Attorney General at least 21 days in advance of each calendar quarter as a precondition for the nonparticipating manufacturer and its brand families being included on the directory for that quarter. If the amount required to be posted under subsection (b) is equal to or lower than the amount already posted, the nonparticipating manufacturer shall not be required to post a new bond and may comply with this section by providing evidence that the bond already posted will remain in effect for the next calendar year or quarter, whichever is applicable.

(b) Amount.--The amount of the bond required by subsection (a) shall be the greater of:

(1) $25,000;

(2) for a nonparticipating manufacturer that deposits escrow annually, the highest collective amount of escrow owed in this Commonwealth by the nonparticipating manufacturer or its predecessor for any four consecutive calendar quarters out of the past 12 calendar quarters;

(3) for a nonparticipating manufacturer that deposits escrow quarterly, the highest amount of escrow owed in this Commonwealth by the nonparticipating manufacturer or its predecessor for any of the past 12 calendar quarters; or

(4) for a nonparticipating manufacturer that, at the time of its application, is not included on the directory and is applying for initial inclusion or reinclusion on the directory, an amount determined by the Attorney General to adequately protect the Commonwealth's interest in enforcing the Tobacco Settlement Agreement Act and this act, considering:

(i) the nonparticipating manufacturer's prior sales history selling within this Commonwealth or in other states, territories or countries;

(ii) the nonparticipating manufacturer's history of compliance with Federal or State tobacco regulations;

(iii) the financial state of the nonparticipating manufacturer; and

(iv) any other factors that the Attorney General deems pertinent to the determination.

(c) Execution upon bond.--If a nonparticipating manufacturer that posted a bond has failed to make, or have made on its behalf by its importer with joint and several liability, escrow deposits equal to the full amount due for the certification within 15 days following the due date for the certification under section 4 of the Tobacco Settlement Agreement Act, the Attorney General may execute upon the bond, first to recover delinquent escrow, then to recover civil penalties and costs authorized by section 4 of the Tobacco Settlement Agreement Act, all of which, including escrow, shall be deposited into the General Fund. Escrow obligations, civil penalties, costs, fees and disgorgement of profits determined to be due under this act or the Tobacco Settlement Agreement Act that are above the amount collected on the bond shall remain due from the nonparticipating manufacturer and from any importer that sold cigarettes during the period of default. Any delinquent escrow recovered under this subsection shall reduce the amount of escrow due from the nonparticipating manufacturer by the dollar amount collected.

(313 added Oct. 11, 2023, P.L.51, No.11)

Compiler's Note: See section 8 of Act 11 of 2023 in the appendix to this act for special provisions relating to applicability.

CHAPTER 21

MISCELLANEOUS PROVISIONS

Section 2101. Severability.

The provisions of this act are severable. If any provision of this act or its application to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this act which can be given effect without the invalid provision or application.

Section 2102. Effective date.

This act shall take effect as follows:

(1) Sections 302, 307, 308 and 309 shall take effect 15 days following the date of publication in the Pennsylvania Bulletin of the notice required under section 301(4).

(2) The remainder of this act shall take effect immediately.

APPENDIX

Supplementary Provisions of Amendatory Statutes

2015, DECEMBER 28, P.L.599, NO.95

Section 2. The following shall apply:

(1) The Office of Attorney General shall attempt to obtain the consent of the participating manufacturers under the master settlement agreement to the amendment of section 102 of the act.

(2) If consent is obtained under paragraph (1), the Office of Attorney General shall:

(i) provide notice to the Secretary of Revenue; and

(ii) publish a notice of the consent in the Pennsylvania Bulletin.

(3) If consent is not obtained under paragraph (1), the Office of Attorney General shall:

(i) notify the Secretary of Revenue; and

(ii) publish a notice of the refusal in the Pennsylvania Bulletin.

Compiler's Note: Act 95 amended the definition of "units sold" in section 102.

2016, JULY 13, P.L.526, NO.84

Section 53. The following shall apply:

(1) The inclusion of roll-your-own tobacco in the addition of Article XII-A of the act requires the amendment of the definition of "units sold" in section 3 of the act of June 22, 2000 (P.L.394, No.54), known as the Tobacco Settlement Agreement Act, and in section 102 of the act of December 30, 2003 (P.L.441, No.64), known as the Tobacco Product Manufacturer Directory Act.

(2) The Office of Attorney General shall attempt to obtain the consent of the participating manufacturers under the Master Settlement Agreement to the amendments specified under paragraph (1). For the purposes of this paragraph, the term "Master Settlement Agreement" shall mean the settlement agreement and related documents entered into on November 23, 1998, by the Commonwealth and leading United States tobacco product manufacturers and approved by the court in Commonwealth v. Philip Morris, April Term, 1997, No.2443 (C.P. Philadelphia County), on January 13, 1999.

(3) If the consents under paragraph (2) are obtained, the Office of Attorney General shall:

(i) provide notice to the Secretary of Revenue; and

(ii) submit for publication in the Pennsylvania Bulletin a notice of the consent.

(4) If the consents under paragraph (2) are not obtained, the Office of Attorney General shall:

(i) notify the Secretary of Revenue; and

(ii) submit for publication in the Pennsylvania Bulletin a notice of the refusal.

(5) The following provisions shall take effect 60 days after the Office of Attorney General publishes the notice of the consents under paragraph (3)(ii):

(i) The amendment of section 1215(g) of the act.

(ii) The addition of the following:

(A) The definition of "roll-your-own tobacco" in section 1201-A of the act.

(B) Paragraph (2) of the definition of "tobacco products" in section 1201-A of the act.

(D) Section 1216-A of the act.

Compiler's Note: Act 84 amended, renumbered, added, deleted or repealed sections 201, 204, 227, 268, 301, 303, 312, 315.12, 316, 317, 318, 319, 320, 321, 325, 352.2, 403, 406.1, 408, 701, 701.1, 701.4, 701.5, 1101, 1101-C, 1102-C.2, 1102-C.3, 1206, 1206.1, 1215, 1216, 1296, Article XVII-A, section 1707-B, Articles XVIII-D, XVII-J and XVII-K, sections 1801-B, 1804-B, 1802-C, 1803-C, 1803.1-C, 1804-C, 1806-C, 1807-C, 1808-C, 1809-C, 1810-C, 1811-C, 1812-C, 1813-C, 1814-C, 1816-C, 1818-C, 1819-C, Article XVIII-G, sections 1902-A, 1904-A, 1905-A, 1902-B, 1904-B, 1904.1-B, 1904.2-B, 1909-B, 1903-C, Articles XIX-D and XIX-E, XIX-F, sections 2010, 2102, 2111, 2130, Article XXV, section 2703 and Articles XXIX-D and XXIX-G of Act 2 of 1971, section 312 of Act 91 of 1971, Act 206 of 2012, 12 Pa.C.S. Chapter 37 and 53 Pa.C.S. § 8722.

2023, OCTOBER 11, P.L.51, NO.11

Section 8. The following shall apply:

(1) The Office of Attorney General shall attempt to obtain the consent of the participating manufacturers under the Master Settlement Agreement, as defined in section 102 of the act, to the amendment or addition of the following provisions of the act:

(i) The definitions of "importer," "Nonparticipating Manufacturer Adjustment Settlement Agreement" and "units sold" in section 102.

(ii) Section 301(1)(ii), (iv) and (v).

(iii) Section 303(a)(3).

(iv) Section 304(b).

(v) Section 305(d).

(vi) Section 306(c).

(vii) Section 312.

(viii) Section 313.

(2) If consent is obtained under paragraph (1), the Office of Attorney General shall:

(i) provide notice to the Secretary of Revenue; and

(ii) transmit notice of the consent to the Legislative Reference Bureau for publication in the next available issue of the Pennsylvania Bulletin.

(3) If consent is not obtained under paragraph (1), the Office of Attorney General shall:

(i) notify the Secretary of Revenue; and

(ii) transmit notice of the refusal to the Legislative Reference Bureau for publication in the next available issue of the Pennsylvania Bulletin.

Compiler's Note: Act 11 amended or added sections 102, 301, 303, 304, 305, 306, 312 and 313 of the act.

Pennsylvania Act 2003-64 — TOBACCO PRODUCT MANUFACTURER DIRECTORY ACT - ENACTMENT

Act text

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