NO Tobacco for Kids Act

Summary: NO Tobacco for Kids Act - Directs the Secretary of Health and Human Services to conduct annual surveys to determine the number of children who used each manufacturer's tobacco products. 
Requires each such manufacturer to make specified annual reductions in child tobacco use and provides penalties based upon total consumer use for failure to meet such requirements (with reductions for near compliance).  Sets forth performance standards for new manufacturers.   Directs that specified amounts of fiscal year penalties shall go to a Tobacco Enforcement and Education Fund in the Treasury, with any excess to go to the Treasury. 
Sets forth judicial review provisions.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``NO Tobacco for Kids Act''.

SEC. 2. CHILD TOBACCO USE SURVEYS.

    (a) Annual Performance Survey.--Not later than 1 year after the 
date of the enactment of this Act and annually thereafter the Secretary 
shall conduct a survey to determine the number of children who used 
each manufacturer's tobacco products within the past 30 days.
    (b) Baseline Level.--The baseline level of child tobacco product 
use of a manufacturer is the number of children determined to have used 
the tobacco products of such manufacturer in the first annual 
performance survey.

SEC. 3. GRADUATED PERFORMANCE STANDARDS.

    (a) Performance Standards for Existing Manufacturers.--Each 
manufacturer which manufactured a tobacco product on or before the date 
of the enactment of this Act shall reduce the number of children who 
use its tobacco products so that the number of children determined to 
have used its tobacco products on the basis of--
            (1) the second annual performance survey is equal to or 
        less than--
                    (A) 80 percent of the manufacturer's baseline 
                level; or
                    (B) the de minimis level;
        whichever is greater;
            (2) the third annual performance survey is equal to or less 
        than--
                    (A) 60 percent of the manufacturer's baseline 
                level; or
                    (B) the de minimis level;
        whichever is greater;
            (3) the fourth annual performance survey is equal to or 
        less than--
                    (A) 40 percent of the manufacturer's baseline 
                level; or
                    (B) the de minimis level;
        whichever is greater;
            (4) the fifth annual performance survey is equal to or less 
        than--
                    (A) 20 percent of the manufacturer's baseline 
                level; or
                    (B) the de minimis level;
        whichever is greater; and
            (5) the sixth annual performance survey and each annual 
        performance survey conducted thereafter is equal to or less 
        than--
                    (A) 10 percent of the manufacturer's baseline 
                level; or
                    (B) the de minimis level;
        whichever is greater.
    (b) Performance Standards for New Manufacturers.--Any manufacturer 
of a tobacco product which begins to manufacture a tobacco product 
after the date of the enactment of this Act shall ensure that the 
number of children determined to have used the manufacturer's tobacco 
products in each annual performance survey conducted after the 
manufacturer begins to manufacture tobacco products is equal to or less 
than the de minimis level.
    (c) De Minimis Level.--The de minimis level shall be 0.5 percent of 
the total number of children determined to have used tobacco products 
in the first annual performance survey.

SEC. 4. NONCOMPLIANCE.

    (a) First Violation.--If a manufacturer of a tobacco product 
violates a performance standard, the manufacturer shall pay a 
noncompliance fee of $1 for each unit of its tobacco product which is 
distributed for consumer use in the year following the year in which 
the performance standard is violated.
    (b) Fee Increase for Subsequent Violations.--If a manufacturer 
violates the performance standards in 2 or more consecutive years, the 
noncompliance fee for such manufacturer shall be increased by $1 for 
each consecutive violation for each unit of its tobacco product which 
is distributed for consumer use.
    (c) Reduction in Noncompliance Fee.--If a manufacturer achieves 
more than 90 percent of the reduction in the number of children who use 
its tobacco products that is required under the applicable performance 
standard, the noncompliance fee required to be paid by the manufacturer 
shall be reduced on a pro rata basis such that there shall be a 
noncompliance fee reduction of 10 percent for each percentage point 
over 90 percent achieved by the manufacturer.
    (d) Payment.--The noncompliance fee to be paid by a manufacturer 
shall be paid on a quarterly basis, with the payments due within 30 
days after the end of each calendar quarter.

SEC. 5. USE OF NONCOMPLIANCE FEE.

    (a) Funds for Enforcement and Education.--The first $1,000,000,000 
of noncompliance fees collected in any fiscal year shall go into a 
Tobacco Enforcement and Education Fund in the United States Treasury. 
Fees in such fund shall be available to the Secretary, without fiscal 
year limitation, to enforce this Act and other Federal laws relating to 
tobacco use by children and for public education to discourage children 
from using tobacco products.
    (b) Funds for the Treasury.--Any amount of noncompliance fees 
collected in any fiscal year which exceeds $1,000,000,000 shall be paid 
into the United States Treasury.

SEC. 6. JUDICIAL REVIEW.

    A manufacturer of tobacco products may seek judicial review of any 
action under this Act only after a noncompliance fee has been assessed 
and paid by the manufacturer and only in the United States District 
Court for the District of Columbia. In an action by a manufacturer 
seeking judicial review of an annual performance survey, the 
manufacturer may prevail--
            (1) only if the manufacturer shows that the results of the 
        performance survey were arbitrary and capricious; and
            (2) only to the extent that the manufacturer shows that it 
        would have been required to pay a lesser noncompliance fee if 
        the results of the performance survey were not arbitrary and 
        capricious.

SEC. 7. ENFORCEMENT.

    Section 301 of the Federal Food, Drug, and Cosmetic Act (28 U.S.C. 
331) is amended by adding at the end the following:
    ``(x) The failure to pay any noncompliance fee required under the 
NO Tobacco for Kids Act.''.

SEC. 8. PREEMPTION.

    Nothing in this Act shall preempt or otherwise affect any other 
Federal, State, or local law or regulation which reduces the use of 
tobacco products by children.

SEC. 9. DEFINITIONS.

    In this Act:
            (1) Children.--The term ``children'' means individuals 
        under the age of 18.
            (2) Cigarette.--The term ``cigarette'' has the same meaning 
        given such term by section 3(1) of the Federal Cigarette 
        Labeling and Advertising Act (15 U.S.C. 1332(1)).
            (3) Cigarette tobacco.--The term ``cigarette tobacco'' 
        means any product that consists of loose tobacco that contains 
        or delivers nicotine and is intended for use by consumers in a 
        cigarette.
            (4) Manufacture.--The term ``manufacture'' means the 
        manufacturing, including repacking or relabeling, fabrication, 
        assembly, processing, labeling, or importing of a tobacco 
        product.
            (4) Manufacturer.--The term ``manufacturer'' means any 
        person who manufactures a tobacco product.
            (5) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services.
            (6) Smokeless tobacco.--The term ``smokeless tobacco'' has 
        the same meaning given such term by section 9(1) of the 
        Comprehensive Smokeless Tobacco Education Act of 1986 (15 
        U.S.C. 4408(1)).
            (7) Tobacco product.--The term ``tobacco product'' means a 
        cigarette, cigarette tobacco, or smokeless tobacco.
            (8) Unit.--The term ``unit'' when used in connection with a 
        tobacco product means 20 cigarettes in the case of cigarettes 
        and the smallest amount of tobacco distributed by a 
        manufacturer for consumer use in the case of any other tobacco 
        product.