State of Illinois
91st General Assembly
Public Acts

[ Home ]  [ ILCS ] [ Search ] [ Bottom ]
 [ Other General Assemblies ]

Public Act 91-0041

SB1183 Enrolled                                LRB9101846SMdv

    AN ACT regarding tobacco.

    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 Product Manufacturers' Escrow Act.

    Section 5.  Findings and Purpose.
    (a)  Cigarette smoking  presents  serious  public  health
concerns  to the State of Illinois and to the citizens of the
State.  The  Surgeon  General  has  determined  that  smoking
causes   lung   cancer,  heart  disease,  and  other  serious
diseases,  and  that  there  are  hundreds  of  thousands  of
tobacco-related deaths in the United States each year.  These
diseases  most often do not appear until many years after the
person in question begins smoking.
    (b)  Cigarette smoking also  presents  serious  financial
concerns  for  the  State  of Illinois.  Under certain health
care programs, the State  may  have  a  legal  obligation  to
provide  medical  assistance  to  eligible persons for health
conditions  associated  with  cigarette  smoking,  and  those
persons may have a legal entitlement to receive such  medical
assistance.
    (c)  Under  these  programs,  the  State pays millions of
dollars each year to provide  medical  assistance  for  these
persons  for  health  conditions  associated  with  cigarette
smoking.
    (d)  It  is  the  policy  of  the  State of Illinois that
financial burdens imposed on the State by  cigarette  smoking
be  borne by tobacco product manufacturers rather than by the
State to the extent that such manufacturers either  determine
to  enter  into  a  settlement  with  the  State or are found
culpable by the courts.
    (e)  On November 23, 1998, leading United States  tobacco
product  manufacturers  entered  into a settlement agreement,
entitled the "Master Settlement Agreement", with the State of
Illinois.  The Master Settlement  Agreement  obligates  these
manufacturers,  in return for a release of past, present, and
certain future  claims  against  them  as  described  in  the
Agreement, to pay substantial sums to the State (tied in part
to  their  volume  of  sales);  to fund a national foundation
devoted to the  interests  of  public  health;  and  to  make
substantial   changes  in  their  advertising  and  marketing
practices  and  corporate  culture,  with  the  intention  of
reducing underage smoking.
    (f)  It would be contrary to the policy of the  State  of
Illinois  if  tobacco product manufacturers who determine not
to enter into such a settlement could use  a  resulting  cost
advantage  to  derive  large, short-term profits in the years
before liability may arise without ensuring  that  the  State
will  have  an  eventual source of recovery from them if they
are proven to  have  acted  culpably.   It  is  thus  in  the
interest  of  the  State  of  Illinois  to  require that such
manufacturers establish a reserve fund to guarantee a  source
of  compensation  and  to  prevent  such  manufacturers  from
deriving   large,   short-term   profits  and  then  becoming
judgment-proof before liability may arise.

    Section 10.  Definitions.  As used in this Act:
    "Adjusted for inflation" means  increased  in  accordance
with  the  formula  for  inflation  adjustment  set  forth in
Exhibit C to the Master Settlement Agreement.
    "Affiliate" means a person  who  directly  or  indirectly
owns  or  controls,  is  owned  or controlled by, or is under
common ownership or control with, another person.  Solely for
purposes of this definition, the terms  "owns",  "is  owned",
and  "ownership" mean ownership of an equity interest, or the
equivalent thereof, of 10% or more,  and  the  term  "person"
means  an  individual,  partnership,  committee, association,
corporation, or any other organization or group of persons.
    "Allocable share" means Allocable Share as that  term  is
defined in the Master Settlement Agreement.
    "Cigarette"  means any product that contains nicotine, is
intended to be burned or heated under ordinary conditions  of
use, and consists of or contains:
    (1)  any  roll  of  tobacco  wrapped  in  paper or in any
substance not containing tobacco; or
    (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; or
    (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 item (1)  of this definition.
"Cigarette"  also  means  "roll-your-own"  tobacco (i.e., 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  Act,  0.09  ounces  of  "roll-your-own"
tobacco shall constitute one individual cigarette.
    "Master   Settlement   Agreement"  means  the  settlement
agreement (and related documents)  entered into  on  November
23,  1998  by the State of Illinois and leading United States
tobacco product manufacturers.
    "Qualified escrow fund" means an escrow arrangement  with
a  federally  or State chartered financial institution having
no affiliation with  any  tobacco  product  manufacturer  and
having   assets   of   at  least  $1,000,000,000  where  such
arrangement requires that such financial institution hold the
escrowed  funds'  principal  for  the  benefit  of  releasing
parties  and  prohibits  the  tobacco  product   manufacturer
placing  the  funds  into  escrow  from  using, accessing, or
directing  the  use  of  the  funds'  principal   except   as
consistent  with  subdivision (a)(2)(B) of Section 15 of this
Act.
    "Released claims" means Released Claims as that  term  is
defined in the Master Settlement Agreement.
    "Releasing  parties" means Releasing Parties as that term
is defined in the Master Settlement Agreement.
    "Tobacco Product Manufacturer"  means  any  entity  that,
after  the  effective  date  of  this  Act  directly (and not
exclusively through any affiliate):
    (1)  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  such  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  such 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 such cigarettes does not market or advertise
such cigarettes in the United States);
    (2)  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
    (3)  becomes a successor of an entity described in  items
(1)  or (2).
"Tobacco  Product Manufacturer" does not mean an affiliate of
a tobacco product manufacturer unless  the  affiliate  itself
falls   within   any   of  items  (1)  through  (3)  of  this
definition.
    "Units sold" means the number  of  individual  cigarettes
sold  in  the  State  of  Illinois  by the applicable tobacco
product  manufacturer  (whether   directly   or   through   a
distributor,    retailer,    or   similar   intermediary   or
intermediaries)  during the year in question, as measured  by
excise   taxes   collected   by   the   State  on  packs  (or
"roll-your-own" tobacco containers)  bearing the  excise  tax
stamp  of the State. The Illinois Department of Revenue shall
promulgate such rules  as  are  necessary  to  ascertain  the
amount  of  State  excise  tax paid on the cigarettes of such
tobacco product manufacturer for each year.

    Section 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 in  a  particular
              year  was  greater  than  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.

    Section 999.  Effective Date.  This Act takes effect upon
becoming law.

[ Top ]