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Public Act 91-0810
HB3995 Enrolled LRB9111789SMdv
AN ACT concerning cigarettes.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Cigarette Tax Act is amended by adding
Section 3-10 as follows:
(35 ILCS 130/3-10 new)
Sec. 3-10. Cigarette enforcement.
(a) Prohibitions. It is unlawful for any person:
(1) to sell or distribute in this State; to
acquire, hold, own, possess, or transport, for sale or
distribution in this State; or to import, or cause to be
imported into this State for sale or distribution in this
State:
(A) any cigarettes the package of which:
(i) bears any statement, label, stamp,
sticker, or notice indicating that the
manufacturer did not intend the cigarettes to
be sold, distributed, or used in the United
States, including but not limited to labels
stating "For Export Only", "U.S. Tax Exempt",
"For Use Outside U.S.", or similar wording; or
(ii) does not comply with:
(aa) all requirements imposed by or
pursuant to federal law regarding warnings
and other information on packages of
cigarettes manufactured, packaged, or
imported for sale, distribution, or use in
the United States, including but not
limited to the precise warning labels
specified in the federal Cigarette
Labeling and Advertising Act, 15 U.S.C.
1333; and
(bb) all federal trademark and
copyright laws;
(B) any cigarettes imported into the United
States in violation of 26 U.S.C. 5754 or any other
federal law, or implementing federal regulations;
(C) any cigarettes that such person otherwise
knows or has reason to know the manufacturer did not
intend to be sold, distributed, or used in the
United States; or
(D) any cigarettes for which there has not
been submitted to the Secretary of the U.S.
Department of Health and Human Services the list or
lists of the ingredients added to tobacco in the
manufacture of the cigarettes required by the
federal Cigarette Labeling and Advertising Act, 15
U.S.C. 1335a;
(2) to alter the package of any cigarettes, prior
to sale or distribution to the ultimate consumer, so as
to remove, conceal, or obscure:
(A) any statement, label, stamp, sticker, or
notice described in subdivision (a)(1)(A)(i) of this
Section;
(B) any health warning that is not specified
in, or does not conform with the requirements of,
the federal Cigarette Labeling and Advertising Act,
15 U.S.C. 1333; or
(3) to affix any stamp required pursuant to this
Act to the package of any cigarettes described in
subdivision (a)(1) of this Section or altered in
violation of subdivision (a)(2).
(b) Documentation. On the first business day of each
month, each person licensed to affix the State tax stamp to
cigarettes shall file with the Department, for all cigarettes
imported into the United States to which the person has
affixed the tax stamp in the preceding month:
(1) a copy of:
(A) the permit issued pursuant to the Internal
Revenue Code, 26 U.S.C. 5713, to the person
importing the cigarettes into the United States
allowing the person to import the cigarettes; and
(B) the customs form containing, with respect
to the cigarettes, the internal revenue tax
information required by the U.S. Bureau of Alcohol,
Tobacco and Firearms;
(2) a statement, signed by the person under penalty
of perjury, which shall be treated as confidential by the
Department and exempt from disclosure under the Freedom
of Information Act, identifying the brand and brand
styles of all such cigarettes, the quantity of each brand
style of such cigarettes, the supplier of such
cigarettes, and the person or persons, if any, to whom
such cigarettes have been conveyed for resale; and a
separate statement, signed by the individual under
penalty of perjury, which shall not be treated as
confidential or exempt from disclosure, separately
identifying the brands and brand styles of such
cigarettes; and
(3) a statement, signed by an officer of the
manufacturer or importer under penalty of perjury,
certifying that the manufacturer or importer has complied
with:
(A) the package health warning and ingredient
reporting requirements of the federal Cigarette
Labeling and Advertising Act, 15 U.S.C. 1333 and
1335a, with respect to such cigarettes; and
(B) the provisions of Exhibit T of the Master
Settlement Agreement entered in the case of People
of the State of Illinois v. Philip Morris, et al.
(Circuit Court of Cook County, No. 96-L13146),
including a statement indicating whether the
manufacturer is, or is not, a participating tobacco
manufacturer within the meaning of Exhibit T.
(c) Administrative sanctions.
(1) Upon finding that a distributor has committed
any of the acts prohibited by subsection (a), knowing or
having reason to know that he or she has done so, or has
failed to comply with any requirement of subsection (b),
the Department may revoke or suspend the license or
licenses of any distributor pursuant to the procedures
set forth in Section 6 and impose on the distributor a
civil penalty in an amount not to exceed the greater of
500% of the retail value of the cigarettes involved or
$5,000.
(2) Cigarettes that are acquired, held, owned,
possessed, transported in, imported into, or sold or
distributed in this State in violation of this Section
shall be deemed contraband under this Act and are subject
to seizure and forfeiture as provided in this Act, and
all such cigarettes seized and forfeited shall be
destroyed. Such cigarettes shall be deemed contraband
whether the violation of this Section is knowing or
otherwise.
(d) Unfair trade practices. A violation of subsection
(a) or subsection (b) of this Section shall constitute an
unlawful practice as provided in the Consumer Fraud and
Deceptive Business Practices Act.
(e) Unfair cigarette sales. For purposes of the
Trademark Registration and Protection Act and the Counterfeit
Trademark Act, cigarettes imported or reimported into the
United States for sale or distribution under any trade name,
trade dress, or trademark that is the same as, or is
confusingly similar to, any trade name, trade dress, or
trademark used for cigarettes manufactured in the United
States for sale or distribution in the United States shall be
presumed to have been purchased outside of the ordinary
channels of trade.
(f) General provisions.
(1) This Section shall be enforced by the
Department; provided that, at the request of the Director
of Revenue or the Director's duly authorized agent, the
State police and all local police authorities shall
enforce the provisions of this Section. The Attorney
General has concurrent power with the State's Attorney of
any county to enforce this Section.
(2) For the purpose of enforcing this Section, the
Director of Revenue and any agency to which the Director
has delegated enforcement responsibility pursuant to
subdivision (f)(1) may request information from any State
or local agency and may share information with and
request information from any federal agency and any
agency of any other state or any local agency of any
other state.
(3) In addition to any other remedy provided by
law, including enforcement as provided in subdivision
(a)(1), any person may bring an action for appropriate
injunctive or other equitable relief for a violation of
this Section; actual damages, if any, sustained by reason
of the violation; and, as determined by the court,
interest on the damages from the date of the complaint,
taxable costs, and reasonable attorney's fees. If the
trier of fact finds that the violation is flagrant, it
may increase recovery to an amount not in excess of 3
times the actual damages sustained by reason of the
violation.
(g) Definitions. As used in this Section:
"Importer" means that term as defined in 26 U.S.C.
5702(1).
"Package" means that term as defined in 15 U.S.C.
1332(4).
(h) Applicability.
(1) This Section does not apply to:
(A) cigarettes allowed to be imported or
brought into the United States for personal use; and
(B) cigarettes sold or intended to be sold as
duty-free merchandise by a duty-free sales
enterprise in accordance with the provisions of 19
U.S.C. 1555(b) and any implementing regulations;
except that this Section shall apply to any such
cigarettes that are brought back into the customs
territory for resale within the customs territory.
(2) The penalties provided in this Section are in
addition to any other penalties imposed under other
provision of law.
Section 10. The Cigarette Use Tax Act is amended by
adding Section 3-10 as follows:
(35 ILCS 135/3-10 new)
Sec. 3-10. Cigarette enforcement.
(a) Prohibitions. It is unlawful for any person:
(1) to sell or distribute in this State; to
acquire, hold, own, possess, or transport, for sale or
distribution in this State; or to import, or cause to be
imported into this State for sale or distribution in this
State:
(A) any cigarettes the package of which:
(i) bears any statement, label, stamp,
sticker, or notice indicating that the
manufacturer did not intend the cigarettes to
be sold, distributed, or used in the United
States, including but not limited to labels
stating "For Export Only", "U.S. Tax Exempt",
"For Use Outside U.S.", or similar wording; or
(ii) does not comply with:
(aa) all requirements imposed by or
pursuant to federal law regarding warnings
and other information on packages of
cigarettes manufactured, packaged, or
imported for sale, distribution, or use in
the United States, including but not
limited to the precise warning labels
specified in the federal Cigarette
Labeling and Advertising Act, 15 U.S.C.
1333; and
(bb) all federal trademark and
copyright laws;
(B) any cigarettes imported into the United
States in violation of 26 U.S.C. 5754 or any other
federal law, or implementing federal regulations;
(C) any cigarettes that such person otherwise
knows or has reason to know the manufacturer did not
intend to be sold, distributed, or used in the
United States; or
(D) any cigarettes for which there has not
been submitted to the Secretary of the U.S.
Department of Health and Human Services the list or
lists of the ingredients added to tobacco in the
manufacture of the cigarettes required by the
federal Cigarette Labeling and Advertising Act, 15
U.S.C. 1335a;
(2) to alter the package of any cigarettes, prior
to sale or distribution to the ultimate consumer, so as
to remove, conceal, or obscure:
(A) any statement, label, stamp, sticker, or
notice described in subdivision (a)(1)(A)(i) of this
Section;
(B) any health warning that is not specified
in, or does not conform with the requirements of,
the federal Cigarette Labeling and Advertising Act,
15 U.S.C. 1333; or
(3) to affix any stamp required pursuant to this
Act to the package of any cigarettes described in
subdivision (a)(1) of this Section or altered in
violation of subdivision (a)(2).
(b) Documentation. On the first business day of each
month, each person licensed to affix the State tax stamp to
cigarettes shall file with the Department, for all cigarettes
imported into the United States to which the person has
affixed the tax stamp in the preceding month:
(1) a copy of:
(A) the permit issued pursuant to the Internal
Revenue Code, 26 U.S.C. 5713, to the person
importing the cigarettes into the United States
allowing the person to import the cigarettes; and
(B) the customs form containing, with respect
to the cigarettes, the internal revenue tax
information required by the U.S. Bureau of Alcohol,
Tobacco and Firearms;
(2) a statement, signed by the person under penalty
of perjury, which shall be treated as confidential by the
Department and exempt from disclosure under the Freedom
of Information Act, identifying the brand and brand
styles of all such cigarettes, the quantity of each brand
style of such cigarettes, the supplier of such
cigarettes, and the person or persons, if any, to whom
such cigarettes have been conveyed for resale; and a
separate statement, signed by the individual under
penalty of perjury, which shall not be treated as
confidential or exempt from disclosure, separately
identifying the brands and brand styles of such
cigarettes; and
(3) a statement, signed by an officer of the
manufacturer or importer under penalty of perjury,
certifying that the manufacturer or importer has complied
with:
(A) the package health warning and ingredient
reporting requirements of the federal Cigarette
Labeling and Advertising Act, 15 U.S.C. 1333 and
1335a, with respect to such cigarettes; and
(B) the provisions of Exhibit T of the Master
Settlement Agreement entered in the case of People
of the State of Illinois v. Philip Morris, et al.
(Circuit Court of Cook County, No. 96-L13146),
including a statement indicating whether the
manufacturer is, or is not, a participating tobacco
manufacturer within the meaning of Exhibit T.
(c) Administrative sanctions.
(1) Upon finding that a distributor has committed
any of the acts prohibited by subsection (a), knowing or
having reason to know that he or she has done so, or has
failed to comply with any requirement of subsection (b),
the Department may revoke or suspend the license or
licenses of any distributor pursuant to the procedures
set forth in Section 6 and impose on the distributor a
civil penalty in an amount not to exceed the greater of
500% of the retail value of the cigarettes involved or
$5,000.
(2) Cigarettes that are acquired, held, owned,
possessed, transported in, imported into, or sold or
distributed in this State in violation of this Section
shall be deemed contraband under this Act and are subject
to seizure and forfeiture as provided in this Act, and
all such cigarettes seized and forfeited shall be
destroyed. Such cigarettes shall be deemed contraband
whether the violation of this Section is knowing or
otherwise.
(d) Unfair trade practices. A violation of subsection
(a) or subsection (b) of this Section shall constitute an
unlawful practice as provided in the Consumer Fraud and
Deceptive Business Practices Act.
(e) Unfair cigarette sales. For purposes of the
Trademark Registration and Protection Act and the Counterfeit
Trademark Act, cigarettes imported or reimported into the
United States for sale or distribution under any trade name,
trade dress, or trademark that is the same as, or is
confusingly similar to, any trade name, trade dress, or
trademark used for cigarettes manufactured in the United
States for sale or distribution in the United States shall be
presumed to have been purchased outside of the ordinary
channels of trade.
(f) General provisions.
(1) This Section shall be enforced by the
Department; provided that, at the request of the Director
of Revenue or the Director's duly authorized agent, the
State police and all local police authorities shall
enforce the provisions of this Section. The Attorney
General has concurrent power with the State's Attorney of
any county to enforce this Section.
(2) For the purpose of enforcing this Section, the
Director of Revenue and any agency to which the Director
has delegated enforcement responsibility pursuant to
subdivision (f)(1) may request information from any State
or local agency and may share information with and
request information from any federal agency and any
agency of any other state or any local agency of any
other state.
(3) In addition to any other remedy provided by
law, including enforcement as provided in subdivision
(a)(1), any person may bring an action for appropriate
injunctive or other equitable relief for a violation of
this Section; actual damages, if any, sustained by reason
of the violation; and, as determined by the court,
interest on the damages from the date of the complaint,
taxable costs, and reasonable attorney's fees. If the
trier of fact finds that the violation is flagrant, it
may increase recovery to an amount not in excess of 3
times the actual damages sustained by reason of the
violation.
(g) Definitions. As used in this Section:
"Importer" means that term as defined in 26 U.S.C.
5702(1).
"Package" means that term as defined in 15 U.S.C.
1332(4).
(h) Applicability.
(1) This Section does not apply to:
(A) cigarettes allowed to be imported or
brought into the United States for personal use; and
(B) cigarettes sold or intended to be sold as
duty-free merchandise by a duty-free sales
enterprise in accordance with the provisions of 19
U.S.C. 1555(b) and any implementing regulations;
except that this Section shall apply to any such
cigarettes that are brought back into the customs
territory for resale within the customs territory.
(2) The penalties provided in this Section are in
addition to any other penalties imposed under other
provision of law.
Section 15. The Consumer Fraud and Deceptive Business
Practices Act is amended by changing Section 2Z as follows:
(815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)
Sec. 2Z. Violations of other Acts. Any person who
knowingly violates the Automotive Repair Act, the Home Repair
and Remodeling Act, the Dance Studio Act, the Physical
Fitness Services Act, the Hearing Instrument Consumer
Protection Act, the Illinois Union Label Act, the Job
Referral and Job Listing Services Consumer Protection Act,
the Travel Promotion Consumer Protection Act, the Credit
Services Organizations Act, the Automatic Telephone Dialers
Act, the Pay-Per-Call Services Consumer Protection Act, the
Telephone Solicitations Act, the Illinois Funeral or Burial
Funds Act, the Cemetery Care Act, the Safe and Hygienic Bed
Act, the Pre-Need Cemetery Sales Act, subsection (a) or (b)
of Section 3-10 of the Cigarette Tax Act, subsection (a) or
(b) of Section 3-10 of the Cigarette Use Tax Act, or the
Electronic Mail Act commits an unlawful practice within the
meaning of this Act.
(Source: P.A. 90-426, eff. 1-1-98; 91-164, eff. 7-16-99;
91-230, eff.1-1-00; 91-233, eff. 1-1-00; revised 8-9-99.)
Section 99. Effective date. This Act takes effect upon
becoming law.
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