Public Act 93-0446

HB0276 Enrolled                      LRB093 04546 SJM 04599 b

    AN ACT in relation to tobacco product manufacturers.

    Be it enacted by the People of  the  State  of  Illinois,
represented in the General Assembly:

    Section  1.  Short  title.  This  Act may be cited as the
Tobacco Products Manufacturers'  Escrow  Enforcement  Act  of
2003.

    Section 5.  Findings; purpose. The General Assembly finds
that  violations of the Tobacco Product Manufacturers' Escrow
Act threaten the integrity of the tobacco  Master  Settlement
Agreement,  the fiscal soundness of the State, and the public
health. The General Assembly finds that  enacting  procedural
enhancements   will  help  prevent  violations  and  aid  the
enforcement of the Tobacco Product Manufacturers' Escrow  Act
and  thereby  safeguard  the Master Settlement Agreement, the
fiscal soundness of the State, and  the  public  health.  The
provisions  of  this Act are not intended to and shall not be
interpreted  to  amend  the  Tobacco  Product  Manufacturers'
Escrow Act.

    Section 10.  Definitions. As used in this Act:
    "Brand family" means all styles of cigarettes sold  under
the  same  trade  mark and differentiated from one another by
means of additional modifiers or descriptors, including,  but
not limited to, menthol, lights, kings, and 100s and 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.
    "Cigarette"  has  the  same  meaning in Section 10 of the
Escrow Act.
    "Director" means the Director of Revenue.
    "Distributor" has the same meaning prescribed in  Section
1  of  the  Cigarette Tax Act, Section 1 of the Cigarette Use
Tax  Act,  and,  in  addition,   means   a   distributor   of
roll-your-own  tobacco in accordance with Section 10-5 of the
Tobacco Products Tax Act of 1995, as appropriate.
    "Escrow Act" means  the  Tobacco  Product  Manufacturers'
Escrow Act.
    "Non-participating   manufacturer"   means   any  Tobacco
Product   Manufacturer   that   is   not   a    participating
manufacturer.
    "Participating  manufacturer"  has the meaning given that
term in Section II(jj) of the Master Settlement Agreement and
all amendments thereto.
    "Qualified escrow fund" has the same meaning as that term
is defined in Section 10 of the Escrow Act.
    "Tobacco product manufacturer" has the  same  meaning  as
that term is defined in Section 10 of the Escrow Act.
    "Units sold" has the same meaning as that term is defined
in Section 10 of the Escrow Act.

    Section 15.  Certifications; directory; tax stamps.
    (a)  Every  tobacco product manufacturer whose cigarettes
are  sold  in  this  State  whether  directly  or  through  a
distributor,   retailer,   or   similar    intermediary    or
intermediaries shall execute and deliver on a form prescribed
by  the  Attorney  General  a  certification  to the Attorney
General, no later than the thirtieth day of April each  year,
certifying  under  penalty of perjury that, as of the date of
the certification, the tobacco product  manufacturer  either:
(i)   is  a  participating  manufacturer  and  has  generally
performed  its  financial  obligations   under   the   Master
Settlement  Agreement; or (ii) is in full compliance with the
Escrow Act, including all quarterly installment payments.
         (1)  A participating manufacturer shall  include  in
    its  certification  a  list  of  its  brand families. The
    participating manufacturer shall update the list 30  days
    prior  to  any  addition  to or modification of its brand
    families  by  executing  and  delivering  a  supplemental
    certification to the Attorney General.
         (2)  A non-participating manufacturer shall  include
    in  its certification a complete list of all of its brand
    families:  (i)  separately  listing  brand  families   of
    cigarettes  and  the  number of units sold for each brand
    family that were sold in the State during  the  preceding
    calendar  year;  (ii)  listing  all of its brand families
    that have been sold in the State at any time  during  the
    current  calendar  year; (iii) indicating 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 the certification; and (iv) identifying
    by name and address any other manufacturer of  the  brand
    families    in   the   preceding   calendar   year.   The
    non-participating manufacturer shall update the  list  30
    days  prior  to  any  addition  to or modification of its
    brand families by executing and delivering a supplemental
    certification to the Attorney General.
         (3)  In   the   case    of    a    non-participating
    manufacturer, the certification shall further certify:
              (A)  that the non-participating manufacturer is
         registered  to  do  business  in  this  State or has
         appointed a resident agent for  service  of  process
         and provided notice thereof as required by item 4 of
         subsection (a) of this Section;
              (B)  that  the  non-participating  manufacturer
         has  (i)  established  and  continues  to maintain a
         qualified escrow fund as that  term  is  defined  in
         Section  10  of  the Escrow Act, and (ii) executed a
         qualified escrow agreement that  has  been  reviewed
         and  approved  by  the  Attorney  General  and  that
         governs the qualified escrow fund;
              (C)  that the non-participating manufacturer is
         in full compliance with the Escrow Act and this Act,
         and any regulations promulgated pursuant thereto;
              (D)  the  name, address and telephone number of
         the     financial     institution     where      the
         non-participating  manufacturer  has established the
         qualified escrow fund required pursuant  to  Section
         15 of the Escrow Act and all regulations promulgated
         thereto;
              (E)  the account number of the qualified escrow
         fund and sub-account number for this State;
              (F)  the     amount    the    non-participating
         manufacturer placed in the fund for cigarettes  sold
         in  the  State  during  the preceding calendar year,
         including the dates and amount of each deposit,  and
         such  evidence  or  verification  as  may  be deemed
         necessary by the Attorney  General  to  confirm  the
         foregoing; and
              (G)  the amounts of and dates of any withdrawal
         or   transfer   of   funds   the   non-participating
         manufacturer  made at any time from the fund or from
         any other qualified escrow fund into which  it  ever
         made  escrow  payments pursuant to Section 15 of the
         Escrow Act and all regulations promulgated thereto.
         (4)  A tobacco product manufacturer may not  include
    a  brand  family  in its certification unless: (i) in the
    case of a participating manufacturer,  the  participating
    manufacturer  affirms  that  the  brand  family  is to be
    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
    pursuant  to the master settlement agreement; and (ii) in
    the  case  of  a  non-participating   manufacturer,   the
    non-participating  manufacturer  affirms  that  the brand
    family is to be deemed to be its cigarettes for  purposes
    of Section 15 of the Escrow Act.
         Nothing  in  this  Section  shall  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 Section 15 of the Escrow
    Act.
         (5)  The   tobacco   product   manufacturers   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 them for a greater period of time.
    (b)  Not  later than 6 months after the effective date of
this  Act,  the  Attorney  General  shall  develop  and  make
available for public inspection, through  publishing  on  its
website,    a   directory   listing   all   tobacco   product
manufacturers  that  have  provided  current   and   accurate
certifications  conforming  to the requirements of subsection
(a) of Section 15 and all brand families that are  listed  in
the certifications, except for the following:
         (1)  The  Attorney  General  shall  not  include  or
    retain in the directory the name or brand families of any
    non-participating  manufacturer that fails to provide the
    required  certification  or   whose   certification   the
    Attorney  General  determines  is  not in compliance with
    subsections (a)(2) or (a)(3) of Section  15,  unless  the
    Attorney  General  has  determined that the violation has
    been cured to the satisfaction of the Attorney General.
         (2)  Neither  a  tobacco  product  manufacturer  nor
    brand  family  shall  be  included  or  retained  in  the
    directory if the Attorney General concludes that: (i)  in
    the  case  of a non-participating manufacturer all escrow
    payments required pursuant to Section 15  of  the  Escrow
    Act  for  any period for any brand family, whether or not
    listed by the non-participating  manufacturer,  have  not
    been  fully paid into a qualified escrow fund governed by
    a qualified escrow agreement that has  been  approved  by
    the  Attorney  General;  or  (ii)  all  outstanding final
    judgments, including interest thereon, for violations  of
    Section  15  of  the  Escrow  Act  have  not  been  fully
    satisfied for that brand family and manufacturer.
    (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 families  to  keep  the
directory in conformity with the requirements of this Act.
    (d)  Every   distributor  shall  provide  and  update  as
necessary an electronic mail address to the Attorney  General
for  the  purpose  of  receiving  any notifications as may be
required by this Act.
    (e)  It shall be unlawful for any person: (i) to affix  a
stamp  to  a  package  or  other container of cigarettes of a
tobacco product manufacturer or brand family not included  in
the  directory or to sell, offer, or possess for sale in this
State; or (ii) import for personal consumption in this State,
cigarettes of a tobacco product manufacturer or brand  family
not included in the directory.

    Section 20.  Agent for service of process.
    (a)  Any   non-resident   or   foreign  non-participating
manufacturer that has not registered to do business  in  this
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
to act as agent for  the  service  of  process  on  whom  all
process,  and  any action or proceeding against it concerning
or arising out of the enforcement of this Act and the  Escrow
Act,  may  be  served  in  any  manner authorized by law. The
service shall constitute legal and valid service  of  process
on  the non-participating manufacturer. The non-participating
manufacturer shall provide the name, address,  phone  number,
and proof of the appointment and availability of the agent to
and to the satisfaction of the Director and Attorney General.
    (b)  The  non-participating  manufacturer  shall  provide
notice  to the Director and Attorney General 30 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  no  less  than  5
calendar  days  prior to the termination of an existing agent
appointment. In the  event  an  agent  terminates  an  agency
appointment,  the non-participating manufacturer shall notify
the Director and Attorney General of the termination within 5
calendar days and shall include proof to the satisfaction  of
the Attorney General of the appointment of a new agent.
    (c)  Any  non-participating  manufacturer  whose products
are sold in this State, without appointing or designating  an
agent  as  herein  required shall be deemed to have appointed
the Secretary of State as the  agent  and  may  be  proceeded
against  in  courts  of this State by service of process upon
the Secretary of  State;  however,  the  appointment  of  the
Secretary  of  State  as  an  agent  shall  not  satisfy  the
condition  precedent  to  having its brand families listed or
retained in the directory.

    Section    25.  Reporting    of    information;    escrow
installments.
    (a)  Not 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   the
information  as  the  Attorney General requires to facilitate
compliance with this Act, including, but not  limited  to,  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  distributor  affixed  stamps  during the previous
calendar quarter or otherwise paid  the  tax  due  for  these
cigarettes.   The   distributor   shall  maintain,  and  make
available  to  the  Attorney  General,   all   invoices   and
documentation  of sales of all non-participating manufacturer
cigarettes and any other information relied upon in reporting
to the Attorney General for a period of 5 years.
    (b)  The  Director  is  authorized  to  disclose  to  the
Attorney General any information received under this Act  and
requested by the Attorney General for purposes of determining
compliance with and enforcing the provisions of this Act. The
Director and Attorney General shall share with each other the
information  received  under  this  Act,  and  may  share the
information with other federal, State, or local agencies only
for purposes of enforcement of this Act, the Escrow  Act,  or
corresponding laws of other states.
    (c)  The  Attorney  General may require at any time, from
the non-participating manufacturer, proof from the  financial
institution  in  which  the  manufacturer  has  established a
qualified escrow fund for the purpose of compliance with  the
Escrow  Act  of the amount of money in the fund being held on
behalf of the State and the dates of  deposits,  and  listing
the  amounts  of  all withdrawals from the fund and the dates
thereof.
    (d)  In  addition  to  the  information  required  to  be
submitted pursuant to this  Act,  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, as is necessary to enable  the  Attorney  General  to
determine  whether  a  tobacco  product  manufacturer  is  in
compliance with this Act.
    (e)  To  promote  compliance  with the provisions of this
Act,  the  Attorney  General   may   promulgate   regulations
requiring  a  tobacco  product  manufacturer  subject  to the
requirements of subsection (a)(2) of Section 15 to  make  the
escrow deposits required in quarterly installments during the
year in which the sales covered by the deposits are made. 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.

    Section 30.  Penalties and other remedies.
    (a)  In  addition  to  or  in  lieu of any other civil or
criminal remedy provided by law, upon a determination that  a
distributor  has violated subsection (c) of Section 15 or any
regulation adopted pursuant thereto, the Director may  revoke
or  suspend  the  license of any stamping agent in the manner
provided by Section 6 of the Cigarette Tax Act, Section 6  of
the  Cigarette  Use  Tax Act, or Section 10-25 of the Tobacco
Products Tax Act of 1995, as appropriate. Each stamp  affixed
and  each offer to sell cigarettes in violation of subsection
(c) of Section 15 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 500% of the  retail
value  of  the cigarettes sold or $5,000 upon a determination
of  violation  of  subsection  (c)  of  Section  15  or   any
regulations adopted pursuant thereto.
    (b)  Any  cigarettes  that  have  been  sold, offered for
sale, or possessed for sale in this State,  or  imported  for
personal consumption in this State in violation of subsection
(c)  of Section 15 shall be subject to seizure and forfeiture
as provided in Sections 18, 18a, and 20 of the Cigarette  Tax
Act  and Sections 24, 25, 25a and 26 of the Cigarette Use Tax
Act, and all cigarettes so  seized  and  forfeited  shall  be
destroyed and not resold.
    (c)  The  Attorney  General  may  seek  an  injunction to
restrain a threatened or actual violation of  subsection  (c)
of  Section  15,  subsection (a) of Section 25, or subsection
(d) of Section 25 by a  stamping  agent  and  to  compel  the
stamping agent to comply with such subsections. In any action
brought pursuant to this Section, the State shall be entitled
to  recover  the costs of investigation, costs of the action,
and reasonable attorney fees.
    (d)  It shall be unlawful for a person to:  (i)  sell  or
distribute  cigarettes;  or (ii) 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  the  State  in  violation  of subsection (c) of
Section 15. A violation of this Section shall be  a  Class  2
felony.
    (e)  A  person  who violates subsection (c) of Section 15
engages  in  an  unfair  and  deceptive  trade  practice   in
violation of the Uniform Deceptive Trade Practices Act.

    Section 35.  Miscellaneous provisions.
    (a)  A  determination of the Attorney General to not list
or to remove from the directory a  brand  family  or  tobacco
product manufacturer shall be subject to review in the manner
prescribed by rule.
    (b)  No  person  shall  be  issued a license or granted a
renewal of a license to  act  as  a  distributor  unless  the
person  has  certified  in writing, under penalty of perjury,
that the person will comply fully with this Act.
    (c)  The Attorney General may promulgate rules  necessary
to effect the purposes of this Act.
    (d)  In  any  action brought by the State to enforce this
Act, the State shall be entitled  to  recover  the  costs  of
investigation,  expert witness fees, costs of the action, and
reasonable attorney fees.
    (e)  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 General Revenue Fund.
    (f)  Unless otherwise expressly provided the remedies  or
penalties  provided  by this Act are cumulative to each other
and to the remedies or penalties available  under  all  other
laws of this State.

    Section 40.  Severability.
    (a)  If  any  provision of this Act or its application to
any person or circumstance is held  invalid,  the  invalidity
does  not affect other provisions or applications of this Act
that can be given effect without  the  invalid  provision  or
application.
    (b)  If  a court of competent jurisdiction finds that the
provisions of this Act and of the  Escrow  Act  conflict  and
cannot  be  harmonized, then the provisions of the Escrow Act
shall control.
    (c)  If any Section, subsection, subdivision,  paragraph,
sentence,  clause,  or  phrase  of  this  Act  (excluding the
amendatory provisions of Section 300) causes the  Escrow  Act
to  no  longer  constitute  a qualifying or model statute, as
those terms are defined in the Master  Settlement  Agreement,
then that portion of this Act shall not be valid.

    (30 ILCS 169/Act rep.)
    Section  200.  The Tobacco Products Manufacturers' Escrow
Enforcement Act is repealed.
    Section 300.  The Tobacco Product  Manufacturers'  Escrow
Act  is  amended by changing Section 15 and by adding Section
20 as follows:

    (30 ILCS 168/15)
    Sec. 15.  Requirements.
    (a)  Any tobacco product manufacturer selling  cigarettes
to  consumers  within the State of Illinois (whether directly
or through a distributor, retailer, or  similar  intermediary
or intermediaries) after the effective date of this Act shall
do one of the following:
         (1)  become  a  participating  manufacturer (as that
    term  is  defined  in  Section  II(jj)  of   the   Master
    Settlement    Agreement)  and   generally   perform   its
    financial  obligations  under   the   Master   Settlement
    Agreement; or
         (2) (A)  place into a qualified escrow fund by April
         15  of  the  year following the year in question the
         following amounts (as such amounts are adjusted  for
         inflation):
                   (i)  For  1999:   $0.0094241 per unit sold
              after the effective date of this Act;
                   (ii)  For 2000:  $0.0104712 per unit sold;
                   (iii)  For  each   of   2001   and   2002:
              $0.0136125  per unit sold;
                   (iv)  For   each  of  2003  through  2006:
              $0.0167539  per unit sold;
                   (v)  For  each  of  2007  and  each   year
              thereafter:  $0.0188482 per unit sold.
              (B)  A tobacco product manufacturer that places
         funds  into escrow pursuant to subdivision (a)(2)(A)
         shall receive the interest or other appreciation  on
         the  funds as earned.  The funds themselves shall be
         released  from  escrow  only  under  the   following
         circumstances:
                   (i)  to  pay  a  judgment or settlement on
              any released claim brought against the  tobacco
              product   manufacturer  by  the  State  or  any
              releasing party  located  or  residing  in  the
              State.   Funds  shall  be  released from escrow
              under this  subdivision  (a)(2)(B)(i):  (I)  in
              the  order  in  which  they  were  placed  into
              escrow; and (II)  only to the extent and at the
              time  necessary to make payments required under
              such judgment or settlement;
                   (ii)  to the extent that a tobacco product
              manufacturer establishes that the amount it was
              required to place into  escrow  on  account  of
              units  sold  in  the State in a particular year
              was  greater   than   the   Master   Settlement
              Agreement  payments,  as determined pursuant to
              Section  IX(i)  of  that  Agreement,  including
              after final determination of  all  adjustments,
              that such manufacturer would have been required
              to  make  on  account  of  such  units sold the
              State's allocable share of the  total  payments
              that such manufacturer would have been required
              to   make   in   that  year  under  the  Master
              Settlement Agreement (as determined pursuant to
              Section  IX(i)(2)  of  the  Master   Settlement
              Agreement, and before any of the adjustments or
              offsets  described  in Section IX(i)(3) of that
              Agreement other than the Inflation  Adjustment)
              had  it  been a Participating Manufacturer, the
              excess shall be released from escrow and revert
              back to such tobacco product manufacturer; or
                   (iii)  to the  extent  not  released  from
              escrow   under   subdivisions  (a)(2)(B)(i)  or
              (a)(2)(B)(ii), funds  shall  be  released  from
              escrow  and revert back to such tobacco product
              manufacturer 25 years after the date  on  which
              they were placed into escrow.
              (C)  Each  tobacco  product  manufacturer  that
         elects  to  place funds into escrow pursuant to this
         subdivision (a)(2) shall  annually  certify  to  the
         Attorney  General that it is in compliance with this
         subdivision (a)(2).  The Attorney General may  bring
         a  civil  action  on behalf of the State of Illinois
         against any tobacco product manufacturer that  fails
         to  place  into escrow the funds required under this
         subdivision    (a)(2).     Any    tobacco    product
         manufacturer that fails in any year  to  place  into
         escrow  the  funds  required  under this subdivision
         (a)(2) shall:
                   (i)  be required within 15 days  to  place
              such  funds  into escrow as shall bring it into
              compliance with this Section.  The court,  upon
              a  finding  of  a violation of this subdivision
              (a)(2), may impose a civil penalty to  be  paid
              into  the General Revenue Fund in an amount not
              to exceed 5% of the amount improperly  withheld
              from  escrow  per day of the violation and in a
              total amount not to exceed 100% of the original
              amount improperly withheld from escrow;
                   (ii)  in the case of a knowing  violation,
              be  required within 15 days to place such funds
              into escrow as shall bring it  into  compliance
              with  this  Section.  The court, upon a finding
              of a  knowing  violation  of  this  subdivision
              (a)(2),  may  impose a civil penalty to be paid
              into the General Revenue Fund in an amount  not
              to exceed 15% of the amount improperly withheld
              from  escrow  per day of the violation and in a
              total amount not to exceed 300% of the original
              amount improperly withheld from escrow; and
                   (iii)  in the case  of  a  second  knowing
              violation,    be    prohibited   from   selling
              cigarettes to consumers  within  the  State  of
              Illinois   (whether   directly   or  through  a
              distributor, retailer, or similar intermediary)
              for a period not to exceed 2 years.
    (b)  Each failure to  make  an  annual  deposit  required
under this Section shall constitute a separate violation.  If
a  tobacco product manufacturer is successfully prosecuted by
the Attorney General for a violation of  subdivision  (a)(2),
the tobacco product manufacturer must pay, in addition to any
fine  imposed  by  a  court, the State's costs and attorney's
fees incurred in the prosecution.
(Source: P.A. 91-41, eff. 6-30-99.)

    (30 ILCS 168/20 new)
    Sec. 20.  If this amendatory  Act  of  the  93rd  General
Assembly  or  any  portion  of  the  amendment to subdivision
(2)(B)(ii) of subsection (a)  of  Section  15  made  by  this
amendatory  Act  of  the  93rd  General Assembly is held by a
court of competent jurisdiction to be unconstitutional,  then
such  subdivision  (2)(B)(ii) of subsection (a) of Section 15
shall  be  deemed  to  be  repealed  in  its  entirety.    If
subdivision  (2)(B)(ii) of subsection (a) of Section 15 shall
thereafter be held by a court of competent jurisdiction to be
unconstitutional,  then  this  amendatory  Act  of  the  93rd
General Assembly shall be  deemed  repealed  and  subdivision
(2)(B)(ii)  of subsection (a) of Section 15 shall be restored
as if no such amendments had been made.  Neither any  holding
of   unconstitutionality   nor   the  repeal  of  subdivision
(2)(B)(ii) of subsection (a)  of  Section  15  shall  affect,
impair,  or invalidate any other portion of Section 15 or the
application  of  such  Section  to  any   other   person   or
circumstance, and such remaining portions of Section 15 shall
at all times continue in full force and effect.

Effective Date: 01/01/04