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Internet Tobacco Sales Enforcement Act (Introduced in House)

HR 2824 IH

To revise and reform the Act commonly called the Jenkins Act, and for other purposes.

Mr. GREEN of Wisconsin (for himself, Mr. MEEHAN, Ms. PRYCE of Ohio, Mr. FEENEY, Mr. PENCE, Ms. LOFGREN, Ms. BALDWIN, Mr. WEINER, Mr. ISAKSON, Mr. CONYERS, Mr. SHUSTER, Mr. CARTER, and Mrs. BLACKBURN) introduced the following bill; which was referred to the Committee on the Judiciary

To revise and reform the Act commonly called the Jenkins Act, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Internet Tobacco Sales Enforcement Act'.

SEC. 2. REVISION OF ACT OF OCTOBER 19, 1949.

The Act of October 19, 1949, entitled `An Act to assist States in collecting sales and use taxes on cigarettes' (15 U.S.C. 375 et seq.) is amended by striking `That for the purposes of this Act' and all that follows through the end of the Act and inserting the following:

`SECTION 1. SHORT TITLE.

`This Act may be cited as the `Jenkins Act'.

`SEC. 2. INTERSTATE SALES OF CIGARETTES AND SMOKELESS TOBACCO.

`(a) COMPLIANCE WITH LAWS-

`(1) Each person who engages in an interstate sale of cigarettes or smokeless tobacco or in an interstate distribution of cigarettes or smokeless tobacco shall comply with all the excise, sales, and use tax laws applicable to the sale or other transfer of cigarettes or smokeless tobacco in the State and place in which the cigarettes or smokeless tobacco are delivered as though the person were physically located in that State or place.

`(2) Unless the law of the State and place in which cigarettes or smokeless tobacco are delivered pursuant to an interstate sale requires otherwise for the payment of an excise tax imposed on that sale, the cigarettes or smokeless tobacco may not be delivered to the buyer unless in advance of the delivery--

`(A) the excise tax has been paid; and

`(B) any required stamps or other indicia that the excise tax has been paid are properly affixed or applied to the cigarettes or smokeless tobacco.

`(3)(A) Each State may compile a list of interstate sellers of cigarettes or smokeless tobacco who are in compliance with this Act with respect to that State. If a State posts a list pursuant to this subsection, no person may knowingly make an interstate distribution of cigarettes or smokeless tobacco into that State other than to a person engaged in the business of manufacturing, distributing or selling cigarettes or smokeless tobacco unless the person initiating or ordering the delivery is on the list at the time of delivery.

`(B) Each State may also compile a list of interstate sellers of cigarettes or smokeless tobacco who are not in compliance with this Act with respect to that State. If a State posts a list pursuant to this subsection, no person make an interstate distribution of any item into that State for a person on the list unless--

`(i) the person in good faith determines that the item does not include cigarettes or smokeless tobacco; or

`(ii) the delivery is made to a person engaged in the business of manufacturing, distributing or selling cigarettes or smokeless tobacco.

`(b) RECORDKEEPING AND REPORTING- Each person who engages in an interstate sale of cigarettes or smokeless tobacco, or who advertises, or offers to engage in, such a sale, shall--

`(1) first file with the tobacco tax administrator of the State and place in which the cigarettes or smokeless tobacco are to be offered, advertised, or delivered, a statement setting forth the person's name and trade name (if any), and the address of that person's principal place of business and any other place of business, as well as telephone numbers for each place of business, a principal electronic mail address, any website addresses, and the name, address and telephone number of an agent authorized to accept service on behalf of that person;

`(2) not later than the 10th day of each calendar month, file with that tobacco tax administrator a memorandum or copy of the invoice covering each and every interstate sale of cigarettes or smokeless tobacco by the filer into that State or place, and each interstate distribution of cigarettes or smokeless tobacco pursuant to that sale, during the previous calendar month, and such memorandum or invoice shall include the name and address of the person to whom the cigarettes or smokeless tobacco are delivered, the brand, and the type, the quantity delivered, and the name, address, and phone number of the person delivering; and

`(3) maintain records, including the information specified in paragraph (2), for not less than 5 years after the date of an interstate sale of cigarettes or smokeless tobacco and of each interstate distribution of cigarettes or smokeless tobacco pursuant to that sale, and make those records available for inspection upon the lawful demand of the Attorney General of the United States, an Attorney General of a State, the Commissioner of Internal Revenue, or the chief tax collection official of a State.

`(c) DEEMING RULE- For the purposes of this section--

`(1) an interstate sale or delivery of cigarettes or smokeless tobacco shall be deemed to have occurred in the State and place where the buyer obtains personal possession of the cigarettes or smokeless tobacco; and

`(2) a delivery pursuant to an interstate sale is deemed to have been initiated or ordered by the seller.

`SEC. 3. CIVIL ACTION.

`(a) IN GENERAL- In addition to any other remedies available under other Federal or State or local law, the Attorney General of a State may in a civil action obtain any appropriate relief, including money damages where appropriate, against--

`(1) any person who violates, or is about to engage in a violation of, section 2; or

`(2) any person who knowingly assists or participates, or knowingly is about to engage, in such a violation.

`(b) NOTICE- It is the sense of Congress that, if the Attorney General of a State commences a civil action under subsection (a), that Attorney General should inform the Attorney General of the United States, and that the Attorney General of the United States should make information about the case publicly available, through posting the information on the Internet and through other means.

`SEC. 4. CIVIL PENALTY.

`Whoever violates section 2 is subject to a civil penalty not to exceed $5,000 in the case of a first violation, and not to exceed $10,000 in any other case.

`SEC. 5. CRIMINAL PENALTY.

`Whoever violates section 2 shall be fined under title 18, United States Code, or imprisoned not more than 6 months, or both.

`SEC. 6. NONPREEMPTION.

`This Act does not limit the remedies provided by State or Federal law with respect to alleged violations of State or Federal law relating to a sale or distribution of cigarettes or smokeless tobacco, in connection with an interstate sale or distribution of cigarettes or smokeless tobacco.

`SEC. 7. DEFINITIONS.

`As used in this Act--

`(1) the term `Attorney General', with respect to a State, means the chief law enforcement officer of that State, or the designee of that officer;

`(2) the term `cigarette' means--

`(A) any roll of tobacco wrapped in paper or in any substance not containing tobacco which is to be burned;

`(B) any roll of tobacco wrapped in any substance containing tobacco that, because of its appearance, the type of tobacco used in the filler, or its packaging or labeling is likely to be offered to, or purchased by consumers as a cigarette described in subparagraph (A);

`(C) any roll of tobacco wrapped in any substance that because of its appearance, the type of tobacco used in the filler, or its packaging or labeling is likely to be offered to, or purchased by consumers as a cigarette; or

`(D) loose rolling tobacco that, because of its appearance, type, packaging, or labeling, is likely to be offered to, or purchased by, consumers as tobacco for making cigarettes;

`(3) the term `smokeless tobacco' has the meaning given that term in section 9 of the Comprehensive Smokeless Tobacco Health Education Act of 1986 (15 U.S.C. 4408);

`(4) the term `interstate sale of cigarettes or smokeless tobacco' means any sale of cigarettes or smokeless tobacco in interstate or foreign commerce to a person, other than a person licensed as a distributor in the State where the cigarettes or smokeless tobacco is delivered, in which the buyer is either not in the seller's physical presence at the time the request for purchase is made or not in the seller's physical presence at the time the buyer obtains personal possession of the cigarettes or smokeless tobacco;

`(5) the term `interstate or foreign commerce' means commerce between a State and any place outside that State, commerce between a State and any Indian lands in that State, or commerce between points in the same State but through any place outside that State;

`(6) the term `interstate distribution of cigarettes or smokeless tobacco' means a delivery or other distribution of cigarettes or smokeless tobacco pursuant to an interstate sale of cigarettes or smokeless tobacco;

`(7) the term `State' means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;

`(8) the term `person' means an individual, a corporation, company, association, firm, partnership, society, joint stock company, an Indian tribal organization, or an Indian tribal government;

`(9) the term `tribal organization' has the meaning given that term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b); and

`(10) the term `Indian lands' has the meaning given that term in section 3 of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb).'.

SEC. 3. EFFECTIVE DATE.

The amendment made by this Act shall take effect on the first day of the first month beginning on or after 60 days after the date of the enactment of this Act.