General Assembly: 80 (2003 Regular GA) - Chapter 97 - Tobacco products regulation — miscellaneous provisions — appropriations


Published: 2003-05-01

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218LAWS OF THE EIGHTIETH G.A., 2003 SESSIONCH. 96

under this chapter and must comply with the renewal requirements set forth in this chapter. Licenses issued under chapter 533B, Code 2003, will be initially renewed for a period to the next September 30with the license renewal fee prorated based on a two thousand dollar annu- al fee. 2. This chapter applies to the provision of money services on or after the effective date of

this Act. This chapter does not apply to money transmission provided by a licensee who was licensed to provide money transmission under chapter 533B, Code 2003, and whose license remains in force under this section. 3. A person is not deemed to be in violation of this chapter for operating without a license

if the person files an application within three calendar months after the effective date of this Act until the application is denied.

Sec. 40. Section 524.212, Code 2003, is amended to read as follows: 524.212 PROHIBITION AGAINST DISCLOSURE OF REGULATORY INFORMATION. The superintendent, deputy superintendent, assistant to the superintendent, examiner, or

other employee of the banking division shall not disclose, in any manner, to any person other than the person examined and those regulatory agencies referred to in section 524.217, sub- section 2, any information relating specifically to the supervision and regulation of any state bank, persons subject to the provisions of chapter 533A, 533B 533C, 536, or 536A, any affiliate of any state bank, or an affiliate of a person subject to the provisions of chapter 533A, 533B 533C, 536, or 536A, exceptwhen ordered to do so by a court of competent jurisdiction and then only in those instances referred to in section 524.215, subsections 1, 2, 3, and 5.

Sec. 41. Chapter 533B, Code 2003, is repealed.

Sec. 42. EFFECTIVE DATE. This Act takes effect October 1, 2003.

Approved May 1, 2003

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CH. 97CH. 97

CHAPTER 97

TOBACCO PRODUCTS REGULATION — MISCELLANEOUS PROVISIONS — APPROPRIATIONS

S.F. 375

AN ACT relating to enforcement enhancements relative to certain tobacco product manufac- turers, providing appropriations and penalties, and providing effective dates.

Be It Enacted by the General Assembly of the State of Iowa:

Section 1. NEW SECTION. 453D.1 FINDINGS AND PURPOSE. The general assembly finds that violations of chapter 453C threaten the integrity of the to-

bacco master settlement agreement, the fiscal soundness of the state, and the public health and that establishing procedural enforcement enhancements will aid in the enforcement of chapter 453C and thereby safeguard the master settlement agreement, the fiscal soundness of the state, and the public health.

Sec. 2. NEW SECTION. 453D.2 DEFINITIONS. As used in this chapter, unless the context otherwise requires: 1. “Brand family”means all styles of cigarettes sold under the same trademark anddifferen-

219 LAWS OF THE EIGHTIETH G.A., 2003 SESSION CH. 97

tiated fromone another bymeans of additionalmodifiers or descriptors, including but not lim- ited to “menthol”, “lights”, “kings”, and “100s”, and including any brandname (alone or in con- junction with any other word), trademark, logo, symbol, motto, sellingmessage, recognizable pattern of colors, or any other indicia of product identification identical or similar to, or identi- fiable with, a previously known brand of cigarettes. 2. “Cigarette” means cigarette as defined in section 453C.1. 3. “Department” means the department of revenue and finance. 4. “Director” means the director of revenue and finance. 5. “Distributor” means a person, notwithstanding established residency or location, who

purchases non-tax-paid cigarettes and stores, sells, or otherwise disposes of the cigarettes. 6. “Master settlement agreement”meansmaster settlement agreement asdefined in section

453C.1. 7. “Nonparticipating manufacturer” means any tobacco product manufacturer that is not

a participating manufacturer. 8. “Participating manufacturer” means participating manufacturer as defined in section

II(jj) of the master settlement agreement and all amendments to the master settlement agree- ment. 9. “Qualified escrow fund” means qualified escrow fund as defined in section 453C.1. 10. “Stamping agent” means a person authorized to affix tax stamps to packages or other

containers of cigarettes pursuant to chapter 453A or any person that is required to pay the tax imposed pursuant to chapter 453A on cigarettes. 11. “Tobacco product manufacturer” means tobacco product manufacturer as defined in

section 453C.1. 12. “Units sold” means units sold as defined in section 453C.1.

Sec. 3. NEW SECTION. 453D.3 CERTIFICATIONS, DIRECTORY, TAX STAMPS. 1. CERTIFICATION. A tobacco product manufacturer whose cigarettes are sold in this

state, whether directly or through a stamping agent, distributor, retailer, or similar intermedi- ary or intermediaries, shall execute and deliver on a form and in themanner prescribed by the attorney general, a certification to the director and the attorney general, no later than April 30 of each year, certifying under penalty of perjury that, as of the date of the certification, the to- bacco product manufacturer is either a participating manufacturer or is in full compliance with chapter 453C, including all quarterly installment payments required by rule. a. A participating manufacturer shall include in the participating manufacturer’s certifica-

tion a list of the participating manufacturer’s brand families. The participatingmanufacturer shall update the list thirty calendar days prior to any addition to or modification of the partici- patingmanufacturer’s brand families by executinganddeliveringa supplemental certification to the attorney general and the director. b. A nonparticipating manufacturer shall include in its certification all of the following: (1) A list of all of the nonparticipating manufacturer’s brand families and the number of

units sold for each brand family that was sold in the state during the preceding calendar year. (2) A list of all of the nonparticipating manufacturer’s brand families that have been sold

in the state at any time during the current calendar year. (3) An indication, by an asterisk, of 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 such certification. (4) Identification by name and address of any other manufacturer of such brand families in

the preceding or current calendar year. The nonparticipating manufacturer shall update the list thirty calendar days prior to any

addition to or modification of the nonparticipating manufacturer’s brand families by execut- ing and delivering a supplemental certification to the attorney general and the director. c. A nonparticipating manufacturer shall also certify all of the following: (1) That the nonparticipating manufacturer is registered to do business in the state or has

appointed a resident agent for service of process and provided notice as required in section 453D.4.

220LAWS OF THE EIGHTIETH G.A., 2003 SESSIONCH. 97

(2) That the nonparticipating manufacturer has established and continues to maintain a qualified escrow fund and has executed a qualified escrow agreement that has been reviewed and approved by the attorney general and that governs the qualified escrow fund. (3) That the nonparticipatingmanufacturer is in full compliancewith chapter 453C and this

chapter and any rules adopted pursuant to chapter 453C or this chapter. (4) All of the following: (a) The name, address, and telephone number of the financial institutionwhere the nonpar-

ticipatingmanufacturer has established the qualified escrow fund required pursuant to chap- ter 453C and all rules adopted pursuant to chapter 453C. (b) The account number of the qualified escrow fund and any subaccount number for Iowa. (c) The amount the nonparticipating manufacturer deposited in the qualified escrow fund

for cigarettes sold in the state during the preceding calendar year, the date and amount of each deposit, and any evidence or verification deemednecessary by the attorney general to confirm this information. (d) The amount and date of any withdrawal or transfer made at any time by the nonpartici-

pating manufacturer from the qualified escrow fund or from any other qualified escrow fund into which the nonparticipating manufacturer made escrow payments at any time pursuant to chapter 453C and any rules adopted pursuant to chapter 453C. d. A tobacco product manufacturer shall not include a brand family in the tobacco product

manufacturer’s certification unless one of the following applies, as applicable: (1) In the case of a participatingmanufacturer, the participatingmanufacturer affirms that

the brand family is to be deemed to be the participatingmanufacturer’s cigarettes for purposes of calculating the participating manufacturer’s payments under the master settlement agree- ment for the relevant year, in the volume and shares determined pursuant to themaster settle- ment agreement. (2) In the case of a nonparticipating manufacturer, the nonparticipating manufacturer af-

firms that the brand family is to be deemed to be the nonparticipating manufacturer’s ciga- rettes for the purposes of chapter 453C. This section shall not be construedas limitingorotherwise affecting the state’s right tomain-

tain 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 chapter 453C. e. Tobacco product manufacturers shall maintain all invoices and documentation of sales

and other information relied upon for certification for a period of five years, unless otherwise required by law to maintain invoices and documentation for a greater period of time. 2. DIRECTORYOF CIGARETTES APPROVED FOR STAMPINGANDSALE. The director

shall develop and publish on the department’s website a directory listing all tobacco product manufacturers that have provided current and accurate certification conforming to the re- quirements of subsection 1 and all brand families that are listed in the certification, with the following exceptions: a. The director shall not include or retain in the directory the name or brand families of any

nonparticipating manufacturer that has failed to provide the required certification or whose certification the attorney general determines is not in compliance with subsection 1, para- graphs “b” and “c”, unless the attorney general has determined that the violation has been cured to the satisfaction of the attorney general. b. A tobacco product manufacturer and a brand family shall not be included or retained in

the directory if the attorney general concludes, in the case of a nonparticipatingmanufacturer, that either of the following applies: (1) Any escrow payment required pursuant to chapter 453C for any period for any brand

family,whether or not listedby thenonparticipatingmanufacturer, hasnot been fully paid into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the attorney general. (2) Any outstanding final judgment, including interest on the judgment, for a violation of

chapter 453Chasnot been fully satisfied for thebrand family or thenonparticipatingmanufac- turer.

221 LAWS OF THE EIGHTIETH G.A., 2003 SESSION CH. 97

c. The director shall update the directory as necessary in order to correct mistakes and to add or remove a tobaccoproductmanufacturer or brand family tokeep thedirectory in confor- mity with the requirements of this chapter. d. Stamping agents and distributors shall provide and update as necessary an electronic

mail address to the director for the purpose of receiving any notifications as may be required by this chapter. 3. PROHIBITION AGAINST STAMPING, SALE, OR IMPORT OF CIGARETTES NOT IN-

CLUDED INTHEDIRECTORY. It shall be unlawful for any person to do any of the following: a. Affix a stamp to a package or other container of cigarettes of a tobacco productmanufac-

turer or brand family not included in the directory. b. Sell, offer, or possess for sale in this state, or import for personal consumption in this

state, cigarettes of a tobaccoproductmanufacturer or brand family not included in thedirecto- ry.

Sec. 4. NEW SECTION. 453D.4 AGENT FOR SERVICE OF PROCESS. 1. A 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 the nonparticipating manufacturer’s brand family included or retained in the direc- tory, appoint and continually engagewithout interruption the services of an agent in this state to act as agent for service of process onwhomall process, andanyaction orproceedingagainst the nonparticipatingmanufacturer concerning or arising out of the enforcement of this chap- ter or chapter 453C,may be served in anymanner authorized by law. The service shall consti- tute legal and valid service of process on the nonparticipating manufacturer. The nonpartici- pating manufacturer shall provide the name, address, telephone number, and proof of the appointment and availability of the agent to, and to the satisfaction of, the director and the at- torney general. 2. The nonparticipating manufacturer shall provide notice to the director and the attorney

general thirty calendar 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 at least five calendar daysprior to the termination of the existing agent appointment. In the event an agent terminates an agency appointment, the nonparticipating manufacturer shall notify the director and the attorney general of the termination within five calendar days and shall include proof to the satisfaction of the attorney general of the appointment of a new agent. 3. A nonparticipating manufacturer whose products are sold in this state, who has not ap-

pointed or designated an agent as required, shall be deemed to have appointed the secretary of state as agent andmay be proceeded against in the courts of this state by service of process upon the secretary of state. However, the appointment of the secretary of state as agent shall not satisfy the conditionprecedent for having thebrand families of thenonparticipatingmanu- facturer included or retained in the directory.

Sec. 5. NEW SECTION. 453D.5 REPORTING OF INFORMATION — ESCROW IN- STALLMENTS. 1. No later than twenty calendar days after the end of each calendar quarter, and more fre-

quently if so directed by the director, each stamping agent and distributor shall submit infor- mationas thedirector requires to facilitate compliancewith this chapter, includingbut not lim- ited to a list by brand family of the total number of cigarettes, or, in the case of roll-your-own tobacco, the equivalent stick count, forwhich the stamping agent or distributor affixed stamps during the previous calendar quarter or otherwise paid the tax due for the cigarettes. The stamping agent and distributor shall maintain, andmake available to the director, all invoices and documentation of sales of all nonparticipating manufacturer cigarettes and any other in- formation relied upon in reporting to the director for a period of five years. Violations of this subsection are subject to civil penalties as established in section 453A.31, subsection 2. 2. The director may disclose to the attorney general any information received under this

chapter and requested by the attorney general for purposes of determining compliance with

222LAWS OF THE EIGHTIETH G.A., 2003 SESSIONCH. 97

and enforcing this chapter. The director and attorney general shall share with each other the information received under this chapter, and may share the information with other federal, state, or local agencies only for purposes of enforcement of this chapter, chapter 453C, or cor- responding laws of other states. 3. The attorney general may require at any time from a nonparticipating manufacturer

proof from the financial institution in which the nonparticipatory manufacturer has estab- lished a qualified escrow fund for the purpose of compliancewith chapter 453C, of the amount of money in the qualified escrow fund, exclusive of interest, the amount and date of each de- posit into the qualified escrow fund, and the amount and date of each withdrawal from the qualified escrow fund. 4. In addition to the information required to be submitted pursuant to chapter 453C or this

chapter, the director or the attorney general may require a stamping agent, distributor, or to- bacco product manufacturer to submit any additional information including but not limited to samples of the packaging or labeling of each brand family, as necessary to enable the attor- ney general to determine compliance by the tobacco product manufacturer with this chapter. 5. To promote compliancewith this chapter, the attorney generalmay adopt rules requiring

a tobacco product manufacturer subject to the requirements of section 453D.3, subsection 1, paragraph “b”, tomake the escrow deposits required in quarterly installments during the year in which the sales covered by the deposits aremade. The director or the attorney general may require production of information sufficient to enable the attorney general to determine the adequacy of the amount of the installment deposit.

Sec. 6. NEW SECTION. 453D.6 PENALTIES AND OTHER REMEDIES. 1. In addition toor in lieuof anyother civil or criminal remedyprovidedby law,uponadeter-

mination that any person has violated section 453D.3, subsection 3, or any rule adopted pur- suant to that subsection, the director may revoke or suspend the permit or license of any stampingagent or distributor in themannerprovided in chapter 453A. Each stampaffixedand each sale or offer to sell cigarettes in violation of section 453D.3, subsection 3, shall constitute a separate violation. For each violation, the director may also impose a civil penalty in an amount not to exceed the greater of five hundred percent of the retail value of the cigarettes or five thousand dollars upon a determination of violation of section 453D.3, subsection 3, or any rules adopted pursuant to section 453D.3, subsection 3. A penalty shall be imposed in the manner provided in chapter 453A. 2. Cigarettes that have been sold, offered for sale, or possessed for sale in this state, or im-

ported for personal consumption in this state in violation of section 453D.3, subsection 3, shall be deemed contrabandunder section 453A.32 and the cigarettes shall be subject to seizure and forfeiture as provided in that section, and all cigarettes so seized and forfeited shall be de- stroyed and not resold. 3. The attorney general, on behalf of the director, may seek an injunction to restrain a

threatened or actual violation of section 453D.3, subsection 3, or section 453D.5, subsection 1 or 4, by a stamping agent or distributor and to compel the stamping agent or distributor to comply with these sections. In any action brought pursuant to this section, the state shall be entitled to recover the costs of investigation, expert witness fees, costs of the action, and rea- sonable attorney fees. 4. It shall be unlawful for a person to sell or distribute cigarettes or acquire, hold, own, pos-

sess, transport, import, or cause to be imported cigarettes that the person knows or should knoware intended for distribution or sale in the state in violation of section 453D.3, subsection 3. A violation of this subsection is a serious misdemeanor.

Sec. 7. NEW SECTION. 453D.7 MISCELLANEOUS PROVISIONS. 1. A determination of the attorney general not to include or to remove from the directory

a brand family or tobacco product manufacturer shall be subject to review in a manner pre- scribed in rules adopted by the director. 2. A person shall not be issued a permit or license or be granted a renewal of a permit or

223 LAWS OF THE EIGHTIETH G.A., 2003 SESSION CH. 97

license to act as a stamping agent or distributor unless the person has certified in writing, un- der penalty of perjury, that the person will comply fully with this chapter. 3. Thedirector and the attorney general shall adopt rules as necessary to effect thepurposes

of this chapter. 4. In any action brought by the state to enforce this chapter, the state shall be entitled to re-

cover the costs of the investigation, expert witness fees, costs of the action, and reasonable at- torney fees. 5. If a court determines that apersonhasviolated this chapter, the court shall order anyprof-

its, gain, gross receipts, or other benefit from the violation to be disgorged and paid to the trea- surer of state. 6. Unless otherwise expressly provided, the remedies or penalties provided by this chapter

are cumulative relative to each other and relative to any other remedies or penalties available under any other law of this state.

Sec. 8. NEW SECTION. 453D.8 STANDING APPROPRIATION. There is appropriated from the general fund of the state to the department of revenue and

finance each fiscal year beginning July 1, 2004, and thereafter, the sum of twenty-five thou- sand dollars for enforcement of this chapter.

Sec. 9. NEW SECTION. 453D.9 CONSTRUCTION AND SEVERABILITY. 1. If a court of competent jurisdiction finds that the provisions of this chapter and of chapter

453C conflict and cannot be harmonized, the provisions of chapter 453C shall prevail. 2. If any portion of this chapter causes chapter 453C to no longer constitute a qualifying or

model statute, as defined in themaster settlement agreement, that portion of this chapter shall be void. 3. If any portion of this chapter is for any reason held to be invalid, unlawful, or unconstitu-

tional, thedetermination shall not affect the validity of the remainingprovisionsof this chapter or any part of this chapter.

Sec. 10. TRANSITION PROVISIONS. For calendar year 2003, if the effective date of this Act is later than March 16, 2003: 1. The first report of stamping agents and distributors required by section 453D.5, subsec-

tion 1, shall be due thirty days after the effective date of this Act. 2. The certifications by a tobacco product manufacturer described in section 453D.3, sub-

section 1, shall be due forty-five days after the effective date of this Act.

Sec. 11. APPROPRIATION. There is appropriated from the general fund of the state to the department of revenue and finance for the fiscal year beginning July 1, 2003, and ending June 30, 2004, the following amount, or so much thereof as is necessary, to implement this Act:

$ 50,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sec. 12. APPROPRIATION — TOBACCO MASTER SETTLEMENT AGREEMENT LIT- IGATION FEES. There is appropriated from the tax-exempt bond proceeds restricted capital funds account of the tobacco settlement trust fund created in section 12E.12, to the treasurer of state for the fiscal year beginning July 1, 2002, and ending June 30, 2003, the following amount, or so much thereof as is necessary, in addition to any other amount appropriated for the same purpose in the same fiscal year, to be used for the purpose designated: For payment of litigation fees incurred pursuant to the tobacco master settlement agree-

ment: $ 646,076.48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sec. 13. EFFECTIVE AND APPLICABILITY DATES. 1. This Act, being deemed of immediate importance, takes effect upon enactment. 2. Theprovision in section453D.3, subsection2, relating to requiring thedirector of revenue

224LAWS OF THE EIGHTIETH G.A., 2003 SESSIONCH. 97

and finance todevelopandpublishon thedepartment of revenueand finance’swebsite adirec- tory listingof all tobaccoproductmanufacturers that haveprovided current andaccurate certi- fication and all brand families listed in the certifications, is applicable no later thanninety days after the effective date of this Act.

Approved May 1, 2003

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CH. 98CH. 98

CHAPTER 98

DEPENDENT ADULT ABUSE — FACILITIES, SERVICES, AND INFORMATION

S.F. 416

AN ACT relating to dependent adult abuse including elder abuse emergency shelter and sup- port services projects.

Be It Enacted by the General Assembly of the State of Iowa:

Section 1. NEW SECTION. 231.56A ELDER ABUSE EMERGENCY SHELTER AND SUPPORT SERVICES PROJECTS. 1. Through the state’s service contract process adopted pursuant to section 8.47, the depart-

ment shall identify area agencies on aging that have demonstrated the ability to provide a col- laborative response to the immediate needs of elders in the area agency on aging service area for the purpose of implementing elder abuse emergency shelter and support services projects. The projects shall be implemented only in the counties within an area agency on aging service area that have a multidisciplinary team established pursuant to section 235B.1.1

2. The target population of the projects shall be any elder residing in the service area of an area agency on aging who meets both of the following conditions: a. Is the subject of a report of suspected dependent adult abuse pursuant to chapter 235B. b. Is not receiving assistance under a county management plan approved pursuant to sec-

tion 331.439. 3. Theareaagencies onaging implementing theprojects shall identify allowable emergency

shelter and support services, state funding, outcomes, reporting requirements, and approved community resources from which services may be obtained under the projects. The area agency on aging shall identify at least one provider of case management services for the proj- ect area. 4. The area agencies on aging shall implement the projects and shall coordinate the provid-

er network through the use of referrals or other engagement of community resources to pro- vide services to elders. 5. The department shall award funds to the area agencies on aging in accordance with the

state’s service contract process. Receipt and expenditures of moneys under the projects are subject to examination, including audit, by the department. 6. This section shall not be construed and is not intended as, and shall not imply, a grant of

entitlement for services to individuals who are not otherwise eligible for the services or for uti- lization of services that do not currently exist or are not otherwise available.

Sec. 2. Section 235B.3, subsection 5, Code 2003, is amended to read as follows: 5. Following the reporting of suspected dependent adult abuse, the department of human

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1 See chapter 179, §67 herein