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H0047......................................................by STATE AFFAIRS
TOBACCO PRODUCT MANUFACTURERS - Amends existing law to provide that the
Attorney General may condition certification of a nonparticipating tobacco
product manufacturer upon obtaining from the manufacturer its consent to be
sued in Idaho district court for purposes of the state of Idaho enforcing
any provisions of Chapters 78 and 84, Title 39, Idaho Code, or for the
state bringing a released claim.
01/25 House intro - 1st rdg - to printing
01/26 Rpt prt - to St Aff
02/03 Rpt out - rec d/p - to 2nd rdg
02/04 2nd rdg - to 3rd rdg
02/07 3rd rdg - PASSED - 68-1-1
AYES -- Anderson, Andrus, Barraclough, Bastian, Bayer, Bell, Bilbao,
Black, Block, Boe, Bolz, Bradford, Cannon, Chadderdon, Clark,
Collins, Crow, Deal, Denney, Edmunson, Ellsworth, Eskridge,
Field(18), Field(23), Garrett, Hart, Harwood, Henbest, Henderson,
Jaquet, Jones, Kemp, Lake, LeFavour, Loertscher, Martinez, Mathews,
McGeachin, McKague, Miller, Mitchell, Moyle, Nielsen, Nonini,
Pasley-Stuart, Pence, Raybould, Ring, Ringo, Roberts, Rusche,
Rydalch, Sali, Sayler, Schaefer, Shepherd(2), Shepherd(8), Shirley,
Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail,
Wills, Wood, Mr. Speaker
NAYS -- Barrett
Absent and excused -- Bedke
Floor Sponsor - Ring
Title apvd - to Senate
02/08 Senate intro - 1st rdg - to St Aff
02/23 Rpt out - rec d/p - to 2nd rdg
02/24 2nd rdg - to 3rd rdg
03/01 3rd rdg - PASSED - 31-0-4
AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst,
Little, Lodge, Malepeai, Marley, McGee, McKenzie, Noble, Schroeder,
Stegner, Werk, Williams
NAYS -- None
Absent and excused -- Pearce, Richardson, Stennett, Sweet
Floor Sponsor - McKenzie
Title apvd - to House
03/02 To enrol
03/03 Rpt enrol - Sp signed
03/04 Pres signed
03/07 To Governor
03/11 Governor signed
Session Law Chapter 40
Effective: 07/01/05
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 47
BY STATE AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO THE IDAHO TOBACCO MASTER SETTLEMENT AGREEMENT COMPLEMENTARY ACT;
3 AMENDING SECTION 39-8403, IDAHO CODE, TO PROVIDE THAT THE ATTORNEY GENERAL
4 MAY CONDITION CERTIFICATION OF A NONPARTICIPATING TOBACCO PRODUCT MANUFAC-
5 TURER UPON OBTAINING FROM THE MANUFACTURER ITS CONSENT TO BE SUED IN IDAHO
6 DISTRICT COURT FOR PURPOSES OF THE STATE OF IDAHO ENFORCING ANY PROVISIONS
7 OF CHAPTER 78 OR 84, TITLE 39, IDAHO CODE, OR FOR THE STATE BRINGING A
8 RELEASED CLAIM.
9 Be It Enacted by the Legislature of the State of Idaho:
10 SECTION 1. That Section 39-8403, Idaho Code, be, and the same is hereby
11 amended to read as follows:
12 39-8403. CERTIFICATIONS -- DIRECTORY -- TAX STAMPS. (1) Every tobacco
13 product manufacturer whose cigarettes are sold in this state whether directly
14 or through a wholesaler, distributor, retailer or similar intermediary or
15 intermediaries shall execute and deliver on a form prescribed by the attorney
16 general a certification to the attorney general no later than the thirtieth
17 day of April each year, certifying, under penalty of perjury, that, as of the
18 date of such certification, such tobacco product manufacturer is either: a
19 participating manufacturer; or in full compliance with section 39-7803(b),
20 Idaho Code, including all quarterly installment payments required by section
21 39-8405(5), Idaho Code.
22 (a) A participating manufacturer shall include in its certification a
23 list of its brand families. The participating manufacturer shall update
24 such list thirty (30) days prior to any addition to or modification of its
25 brand families by executing and delivering a supplemental certification to
26 the attorney general.
27 (b) A nonparticipating manufacturer shall include in its certification a
28 complete list of all of its brand families that were sold in the state at
29 any time during the preceding calendar year, or that have been sold in the
30 state at any time during the current calendar year, and shall:
31 (i) List, for each brand family, the number of units sold in the
32 state during the preceding calendar year;
33 (ii) Note, by means of an asterisk, any brand family sold in the
34 state during the preceding calendar year that is no longer being sold
35 in the state as of the date of such certification;
36 (iii) Identify by name and address any other manufacturer of such
37 brand families in the preceding calendar year or the current calendar
38 year. The nonparticipating manufacturer shall update such list thirty
39 (30) days prior to any addition to or modification of its brand fami-
40 lies by executing and delivering a supplemental certification to the
41 attorney general;
42 (c) In the case of a nonparticipating manufacturer, such certification
43 shall further certify:
2
1 (i) That such nonparticipating manufacturer is registered to do
2 business in the state or has appointed an agent for service of proc-
3 ess and provided notice thereof as required by section 39-8404, Idaho
4 Code;
5 (ii) That such nonparticipating manufacturer has:
6 1. Established and continues to maintain a qualified escrow
7 fund;
8 2. Executed a qualified escrow agreement that has been reviewed
9 and approved by the attorney general and that governs the quali-
10 fied escrow fund;
11 (iii) That such nonparticipating manufacturer is in full compliance
12 with section 39-7803(b), Idaho Code, and this section, and any rules
13 promulgated pursuant thereto.
14 (iv) 1. The name, address, and telephone number of the financial
15 institution where the nonparticipating manufacturer has estab-
16 lished such qualified escrow fund required pursuant to section
17 39-7803(b), Idaho Code, and all rules promulgated thereto;
18 2. The account number of such qualified escrow fund and any
19 subaccount number for the state of Idaho;
20 3. The amount such nonparticipating manufacturer placed in such
21 fund for cigarettes sold in the state during the preceding cal-
22 endar year, the date and amount of each such deposit, and such
23 evidence or verification as may be deemed necessary by the
24 attorney general to confirm the foregoing;
25 4. The amount and date of any withdrawal or transfer of funds
26 the nonparticipating manufacturer made at any time from such
27 fund or from any other qualified escrow fund into which it ever
28 made escrow payments pursuant to section 39-7803(b), Idaho Code,
29 and all rules promulgated thereto.
30 (d) A tobacco product manufacturer may not include a brand family in its
31 certification unless:
32 (i) In the case of a participating manufacturer, said participating
33 manufacturer affirms that the brand family is to be deemed to be its
34 cigarettes for purposes of calculating its payments under the master
35 settlement agreement for the relevant year, in the volume and shares
36 determined pursuant to the master settlement agreement; and
37 (ii) In the case of a nonparticipating manufacturer, said nonpartic-
38 ipating manufacturer affirms that the brand family is to be deemed to
39 be its cigarettes for purposes of section 39-7803(b), Idaho Code.
40 Nothing in this section shall be construed as limiting or otherwise
41 affecting the state's right to maintain that a brand family consti-
42 tutes cigarettes of a different tobacco product manufacturer for pur-
43 poses of calculating payments under the master settlement agreement
44 or for purposes of section 39-7803(b), Idaho Code.
45 (e) Tobacco product manufacturers shall maintain all invoices and docu-
46 mentation of sales and other such information relied upon for such certi-
47 fication for a period of five (5) years, unless otherwise required by law
48 to maintain them for a greater period of time.
49 (2) Not later than September 30, 2003, the attorney general shall develop
50 and publish on his website a directory listing all tobacco product manufac-
51 turers that have provided current and accurate certifications conforming to
52 the requirements of subsection (1) of this section, and all brand families
53 that are listed in such certifications, except as noted below.
54 (a) The attorney general shall not include or retain in such directory
55 the name or brand families of any nonparticipating manufacturer that fails
3
1 to provide the required certification or whose certification the attorney
2 general determines is not in compliance with subsections (1)(b) and (c) of
3 this section, unless the attorney general has determined that such viola-
4 tion has been cured to the satisfaction of the attorney general.
5 (b) Neither a tobacco product manufacturer nor a brand family shall be
6 included or retained in the directory if the attorney general concludes in
7 the case of a nonparticipating manufacturer that:
8 (i) Any escrow payment required pursuant to section 39-7803(b),
9 Idaho Code, for any period and for any brand family, whether or not
10 listed by such nonparticipating manufacturer, has not been fully
11 paid into a qualified escrow fund governed by a qualified escrow
12 agreement that has been approved by the attorney general; or
13 (ii) Any outstanding final judgment, including interest thereon, for
14 a violation of Idaho's tobacco master settlement agreement act has
15 not been fully satisfied for such brand family and such manufacturer.
16 (c) The attorney general shall update the directory as necessary in order
17 to correct mistakes and to add or remove a tobacco product manufacturer or
18 brand families to keep the directory in conformity with the requirements
19 of this chapter. The attorney general shall transmit by electronic mail,
20 if possible, or by other means as are reasonable to each stamping agent,
21 notice of the addition to, or removal from, the directory of any tobacco
22 product manufacturer or brand family.
23 (d) Every stamping agent shall provide and update as necessary a mailing
24 address and, where available, an electronic mail address to the attorney
25 general for the purpose of receiving any notifications as may be required
26 by this chapter.
27 (3) It shall be unlawful for any person:
28 (a) To affix a stamp to a package or other container of cigarettes of a
29 tobacco product manufacturer or brand family not included in the direc-
30 tory;
31 (b) To sell, offer or possess for sale in this state, cigarettes of a
32 tobacco product manufacturer or brand family not included in the direc-
33 tory;
34 (c) To acquire, hold, own, possess, transport, import, or cause to be
35 imported cigarettes that the person knows or should know are intended for
36 distribution or sale in the state in violation of this subsection (3).
37 (4) Nothing in this chapter shall excuse payment of cigarette taxes under
38 chapter 25, title 63, Idaho Code, by any person in regard to any package or
39 other container of cigarettes not included in the directory but sold by that
40 person.
41 (5) The attorney general may condition certification of a nonpartic-
42 ipating tobacco product manufacturer upon obtaining from the manufacturer its
43 consent to be sued in Idaho district court for purposes of the state of Idaho
44 enforcing any provisions of chapter 78 or 84, title 39, Idaho Code, or for the
45 state bringing a released claim as that term is defined by subsection (g) of
46 section 39-7802, Idaho Code.
STATEMENT OF PURPOSE
RS 14538
This proposed legislation states that the Attorney General may
require tobacco product manufacturers that have not joined what is
called the Master Settlement Agreement ("MSA"), as a condition of
being certified pursuant to Idaho's Tobacco Master Settlement
Agreement Complementary Act ("the Complementary Act"), to consent
to being sued in Idaho court for purposes of the State enforcing
any provision of the Complementary Act, Idaho's Tobacco Master
Settlement Agreement Act, or other Idaho law related to the use,
sale, distribution, manufacture, development, advertising, or
health effects of the manufacturer's tobacco products. (The MSA
being referred to is the settlement that was entered into on
November 23, 1998 between the State and leading United States
tobacco product manufacturers).
At present there are some tobacco product manufacturers that have
not joined the MSA and, having certified under the Complementary
Act, claim immunity from State enforcement of the Complementary Act
of other Idaho law because of their legal status. This legislation
will ensure that such manufacturers, before their products are sold
in Idaho, will agree to be accountable and responsive to Idaho law.
FISCAL NOTE
There is no fiscal impact to the general fund.
Contact
Name: Brett DeLange, Office of the Attorney General
Phone: 208-334-4114
Name: William von Tagen, Office of the Attorney General
Phone: 208-334-4140
STATEMENT OF PURPOSE/FISCAL NOTE H 47