§1580-L. Tobacco product manufacturer
1. Definitions.
As used in this section, unless the context otherwise indicates, the following terms
have the following meanings.
A. "Brand family" means all styles of cigarettes sold under the same trademark and
differentiated from one another by means of additional modifiers, including, but not
limited to, menthol, lights, kings and 100s. "Brand family" includes any 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. [2003, c. 439, §1 (NEW).]
B. "Cigarette" has the same meaning as in section 1580-H, subsection 4. [2003, c. 439, §1 (NEW).]
C. "Distributor" means a person that is authorized to affix tax stamps to packages
or other containers of cigarettes under Title 36, section 4366-A or any person that
is required to pay the excise tax imposed on cigarettes, including roll-your-own tobacco,
pursuant to Title 36, chapter 703 or chapter 704. [2003, c. 439, §1 (NEW).]
D. "Nonparticipating manufacturer" means any tobacco product manufacturer that is not
a participating manufacturer. [2003, c. 439, §1 (NEW).]
E. "Participating manufacturer" means a manufacturer as defined in the Master Settlement
Agreement, as that agreement is defined in section 1580-H, subsection 5. [2003, c. 439, §1 (NEW).]
F. "Qualified escrow fund" has the same meaning as in section 1580-H, subsection 6. [2003, c. 439, §1 (NEW).]
G. "Tobacco product manufacturer" has the same meaning as in section 1580-H, subsection
9. "Tobacco product manufacturer" also means a participating manufacturer or a nonparticipating
manufacturer. [2003, c. 439, §1 (NEW).]
H. "Units sold" has the same meaning as in section 1580-H, subsection 10. [2003, c. 439, §1 (NEW).]
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.]
2. Certification; participating manufacturer.
Every participating manufacturer whose cigarettes are sold in this State, whether
directly or through a distributor, retailer or similar intermediary, shall execute
and deliver in the manner prescribed by the Attorney General a certification to the
Attorney General no earlier than April 15th of each year and no later than April 30th
of each year under penalty of perjury that as of the date of certification the tobacco
product manufacturer is a participating manufacturer.
A. A participating manufacturer shall include in its certification a list of its brand
families. The participating manufacturer shall provide an updated list 30 calendar
days prior to any addition to or modification of its brand families and deliver a
supplemental certification to the Attorney General. [2003, c. 439, §1 (NEW).]
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.]
3. Certification; nonparticipating manufacturer.
Every nonparticipating manufacturer whose cigarettes are sold in this State, whether
directly or through a distributor, retailer or similar intermediary, shall execute
and deliver in the manner prescribed by the Attorney General a certification to the
Attorney General no earlier than April 15th of each year and no later than April 30th
of each year under penalty of perjury that as of the date of certification the tobacco
product manufacturer is in full compliance with subchapter 3.
A. A nonparticipating manufacturer shall include in its certification a complete list
of all of its brand families that:
(1) Separately lists for each brand family the number of units sold in the State
during the preceding calendar year;
(2) Indicates all of the nonparticipating manufacturer's brand families that have
been sold in the State at any time during the current calendar year;
(3) Indicates by an asterisk any brand family sold in the State during the preceding
calendar year that is no longer being sold in the State as of the date of certification;
and
(4) Identifies by name and address any other manufacturer of the brand families
in the preceding or current calendar year.
The nonparticipating manufacturer shall provide an updated list to the Attorney General
30 days prior to any addition to or modification of its brand families and deliver
a supplemental certification to the Attorney General. [2003, c. 439, §1 (NEW).]
B. In addition to submitting the lists required in paragraph A, a nonparticipating
manufacturer shall also state in its certification that:
(1) The nonparticipating manufacturer is registered to do business in the State
or has appointed a resident agent for service of process and provided notice of the
registration as required under subsection 8;
(2) The nonparticipating manufacturer has:
(a) Established and continues to maintain a qualified escrow fund pursuant to section
1580-I; and
(b) Executed an escrow agreement, reviewed and approved by the Attorney General,
that governs the qualified escrow fund;
(3) The nonparticipating manufacturer is in full compliance with subchapter 3 and
any rules adopted pursuant to this section and subchapter 3;
(4) The name, address and telephone number of the financial institution where the
nonparticipating manufacturer has established the qualified escrow fund required under
section 1580-I;
(5) The account number of the qualified escrow fund and the subaccount number for
the State;
(6) The amount the nonparticipating manufacturer placed in the qualified escrow
fund for cigarettes sold in the State during the preceding calendar year, the date
and amount of each deposit and evidence or verification as may be determined necessary
by the Attorney General to confirm the amount; and
(7) The amount and date of any withdrawal or transfer of funds the nonparticipating
manufacturer made at any time from the qualified escrow fund or from any other qualified
escrow fund into which the nonparticipating manufacturer has made escrow payments. [2003, c. 439, §1 (NEW).]
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.]
4. Tobacco product manufacturer; brand family.
A tobacco product manufacturer may not include a brand family in its certification
unless:
A. In the case of a participating manufacturer, the participating manufacturer affirms
that the brand family is deemed to be the participating manufacturer's cigarettes
for purposes of calculating its payments under the Master Settlement Agreement for
the relevant year, in the volume and shares determined pursuant to the Master Settlement
Agreement; and [2003, c. 439, §1 (NEW).]
B. In the case of a nonparticipating manufacturer, the nonparticipating manufacturer
affirms that the brand family is deemed to be the nonparticipating manufacturer's
cigarettes for purposes of subchapter 3.
Nothing in this subsection may be construed as limiting or otherwise affecting the
State'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 or for purposes of subchapter 3. [2003, c. 439, §1 (NEW).]
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5. Maintain invoices.
A tobacco product manufacturer of any cigarettes sold in this State shall maintain
all invoices and documentation of sales and other information relied upon for certification
for a period of 5 years unless otherwise required by law to maintain those invoices
and documentation of sales and other information for a greater period of time.
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2003, c. 439, §1 (NEW)
.]
6. Directory of cigarettes.
The Attorney General shall develop and make available for public inspection a directory
listing all tobacco product manufacturers that have provided accurate certifications
conforming to the requirements of this section and all brand families that are listed
in the certifications.
A. The Attorney General may not include or retain in the directory the name or brand
families of any nonparticipating manufacturer that fails to provide the required certification
or whose certification the Attorney General determines is not in compliance with subsection
3, paragraphs A and B, unless the Attorney General has determined that the nonparticipating
manufacturer is no longer in violation of subsection 3, paragraphs A and B. [2003, c. 439, §1 (NEW).]
B. Neither a tobacco product manufacturer nor brand family may be included or retained
in the directory if the Attorney General concludes that:
(1) In the case of a nonparticipating manufacturer, all escrow payments required
pursuant to subchapter 3 for any period for any brand family, whether or not listed
by the nonparticipating manufacturer, have not been fully deposited into a qualified
escrow fund governed by an escrow agreement that has been approved by the Attorney
General; or
(2) All outstanding final judgments, including interest on the judgment, for violations
of subchapter 3 have not been fully satisfied for the brand family or the tobacco
product manufacturer. [2003, c. 439, §1 (NEW).]
C. The Attorney General shall update the directory as necessary in order to correct
mistakes and to add or remove a tobacco product manufacturer or brand family to keep
the directory in conformity with the requirements of this section. A determination
by the Attorney General not to list or to remove from the directory a brand family
or tobacco product manufacturer is a final agency action as defined in Title 5, section
8002. [2003, c. 439, §1 (NEW).]
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7. Prohibition against stamping or sale of cigarettes.
It is unlawful for any person to affix a tax stamp to a package or other container
of cigarettes of a tobacco product manufacturer or brand family not included in the
directory or to distribute, sell or offer or possess for sale in this State cigarettes
of a tobacco product manufacturer or brand family not included in the directory.
A person who violates this subsection engages in an unfair and deceptive act in violation
of the Maine Unfair Trade Practices Act.
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8. Agent for service of process.
Any nonresident or foreign nonparticipating manufacturer that has not registered
to do business in the State as a foreign corporation or business entity shall, as
a condition precedent to having its brand families listed or retained in the directory,
appoint and continually engage without interruption the services of an agent in this
State for the service of process concerning or arising out of the enforcement of this
section and subchapter 3. Such service constitutes legal and valid service of process
on the nonparticipating manufacturer. The nonparticipating manufacturer shall provide
the name, address, phone number and proof of the appointment and availability of the
agent to the Attorney General.
The nonparticipating manufacturer shall provide notice to the Attorney General 30
days prior to termination of the authority of an agent and shall further provide proof
to the satisfaction of the Attorney General of the appointment of a new agent no less
than 5 days prior to the termination of an existing agent appointment. In the event
an agent terminates that agent's appointment by the nonparticipating manufacturer,
the nonparticipating manufacturer shall notify the Attorney General of the termination
within 5 days and shall include proof to the satisfaction of the Attorney General
of the appointment of a new agent.
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9. Reporting by distributors.
No later than 20 days after the end of each calendar quarter and more frequently
if so directed by the Attorney General, each distributor shall submit information
as the Attorney General requires to facilitate compliance with this section, including,
but not limited to, a list by brand family of the total number of cigarettes upon
which the distributor affixed tax stamps during the previous calendar quarter or,
in the case of roll-your-own tobacco, the equivalent stick count for which the distributor
paid the tax due. The distributor shall maintain all invoices and documentation of
sales of all nonparticipating manufacturer cigarettes and any other information relied
upon in reporting to the Attorney General for a period of 5 years.
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10. Disclosure of information.
Notwithstanding any other provision of law, the Department of Administrative and
Financial Services, Bureau of Revenue Services is authorized to disclose to the Attorney
General any tax information received by the Bureau of Revenue Services and requested
by the Attorney General for purposes of determining compliance with and enforcing
the provisions of this section. The Attorney General may share any information received
under this section, other than information received from the Bureau of Revenue Services,
with other federal, State or local agencies but only for purposes of enforcement of
this section, subchapter 3 or corresponding laws of other states. The Attorney General
shall provide notice to the Department of Administrative Services, Bureau of Revenue
Services of those persons certified under this section.
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11. Verification of qualified escrow fund.
The Attorney General may require at any time that the nonparticipating manufacturer
provide from the financial institution in which the nonparticipating manufacturer
has established a qualified escrow fund for the purpose of compliance with subchapter
3 proof of the amount of money in the qualified escrow fund being held on behalf of
the State, the dates of deposits and a listing of the amounts of all withdrawals from
the fund and the dates of the withdrawals.
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12. Requests for additional information.
The Attorney General may require a distributor or tobacco product manufacturer to
submit any additional information, including, but not limited to, samples of the packaging
or labeling of each brand family necessary to enable the Attorney General to determine
whether a tobacco product manufacturer is in compliance with this section.
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13. Escrow installments.
To promote compliance with the provisions of this section, the Attorney General
may adopt rules requiring a tobacco product manufacturer subject to the requirements
of subsection 3, paragraph A to make the required deposits in the qualified escrow
fund in installments during the year in which the sales covered by the deposits are
made. The Attorney General may require sufficient information to enable the Attorney
General to determine the adequacy of the amount of the installment deposit.
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14. Rules.
The Attorney General may adopt rules necessary to carry out the purposes of this
section. Rules adopted pursuant to this section are routine technical rules as defined
in Title 5, chapter 375, subchapter 2-A.
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15. Unlawful acts.
A person may not:
A. Sell or distribute cigarettes in violation of subsection 7; [2003, c. 439, §1 (NEW).]
B. Violate paragraph A after having been previously convicted of a violation of this
section; [2003, c. 439, §1 (NEW).]
C. Acquire, hold, own, possess, transport, import or cause to be imported cigarettes
that the person knows or should have known are intended for distribution or sale in
the State in violation of subsection 7; or [2003, c. 439, §1 (NEW).]
D. Violate paragraph C after having been previously convicted of a violation of this
section. [2003, c. 439, §1 (NEW).]
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16. Criminal penalty.
A violation of this section is a Class E crime except that violation of this section
is a Class D crime when the person has one or more prior convictions for violation
of this section. Title 17-A, section 9-A governs the use of prior convictions when
determining a sentence.
Each stamp affixed and each offer to sell cigarettes in violation of subsection 7
constitutes a separate violation.
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17. Contraband; seizure.
Cigarettes that have been sold, offered for sale or possessed for sale in this State
in violation of subsection 7 are deemed contraband under Title 36, section 4372-A
and the cigarettes are subject to seizure and forfeiture as provided in section 4372-A.
All cigarettes so seized and forfeited must be destroyed and may not be resold.
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18. Injunction.
The Attorney General may seek an injunction to restrain a threatened or actual violation
of subsection 7, 9 or 12 and to compel compliance with these subsections.
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19. Recovery of costs.
In any action brought by the State to enforce this section, the State is entitled
to recover the costs of investigation, expert witness fees, costs of the action and
reasonable attorney's fees.
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20. Profits.
If a court determines that a person has violated this section, the court shall order
any profits, gain, gross receipts or other benefit from the violation to be paid to
the Fund for a Healthy Maine. Unless otherwise expressly provided, the remedies or
penalties provided by this section are cumulative to each other and to the remedies
or penalties available under all other laws of this State.
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2003, c. 439, §1 (NEW)
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21. Construction; severability.
If a court of competent jurisdiction finds that the provisions of this section and
of subchapter 3 conflict, then the provisions of subchapter 3 control. If any portion
of this section causes subchapter 3 to no longer constitute a qualifying or model
statute, as those terms are defined in the Master Settlement Agreement, then that
portion of this section is not valid.
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2003, c. 439, §1 (NEW)
.]
SECTION HISTORY
2003, c. 439, §1 (NEW).