### §1716E. Tobacco products as nonmailable

(a) Prohibition.—

(1) In general.—All cigarettes and smokeless tobacco (as those terms are defined in section 1 of the Act of October 19, 1949, commonly referred to as the Jenkins Act) are nonmailable and shall not be deposited in or carried through the mails. The United States Postal Service shall not accept for delivery or transmit through the mails any package that it knows or has reasonable cause to believe contains any cigarettes or smokeless tobacco made nonmailable by this paragraph.

(2) Reasonable cause.—For the purposes of this subsection reasonable cause includes—

(A) a statement on a publicly available website, or an advertisement, by any person that the person will mail matter which is nonmailable under this section in return for payment; or

(B) the fact that the person is on the list created under section 2A(e) of the Jenkins Act.

(b) Exceptions.—

(1) Cigars.—Subsection (a) shall not apply to cigars (as defined in section 5702(a) of the Internal Revenue Code of 1986).

(2) Geographic exception.—Subsection (a) shall not apply to mailings within the State of Alaska or within the State of Hawaii.

(3) Business purposes.—

(A) In general.—Subsection (a) shall not apply to tobacco products mailed only—

(i) for business purposes between legally operating businesses that have all applicable State and Federal Government licenses or permits and are engaged in tobacco product manufacturing, distribution, wholesale, export, import, testing, investigation, or research; or

(ii) for regulatory purposes between any business described in clause (i) and an agency of the Federal Government or a State government.

(B) Rules.—

(i) In general.—Not later than 180 days after the date of enactment of the Prevent All Cigarette Trafficking Act of 2009, the Postmaster General shall issue a final rule which shall establish the standards and requirements that apply to all mailings described in subparagraph (A).

(ii) Contents.—The final rule issued under clause (i) shall require—

(I) the United States Postal Service to verify that any person submitting an otherwise nonmailable tobacco product into the mails as authorized under this paragraph is a business or government agency permitted to make a mailing under this paragraph;

(II) the United States Postal Service to ensure that any recipient of an otherwise nonmailable tobacco product sent through the mails under this paragraph is a business or government agency that may lawfully receive the product;

(III) that any mailing described in subparagraph (A) shall be sent through the systems of the United States Postal Service that provide for the tracking and confirmation of the delivery;

(IV) that the identity of the business or government entity submitting the mailing containing otherwise nonmailable tobacco products for delivery and the identity of the business or government entity receiving the mailing are clearly set forth on the package;

(V) the United States Postal Service to maintain identifying information described in subclause (IV) during the 3-year period beginning on the date of the mailing and make the information available to the Postal Service, the Attorney General of the United States, and to persons eligible to bring enforcement actions under section 3(d) 1 of the Prevent All Cigarette Trafficking Act of 2009;

(VI) that any mailing described in subparagraph (A) be marked with a United States Postal Service label or marking that makes it clear to employees of the United States Postal Service that it is a permitted mailing of otherwise nonmailable tobacco products that may be delivered only to a permitted government agency or business and may not be delivered to any residence or individual person; and

(VII) that any mailing described in subparagraph (A) be delivered only to a verified employee of the recipient business or government agency, who is not a minor and who shall be required to sign for the mailing.

(C) Definition.—In this paragraph, the term "minor" means an individual who is less than the minimum age required for the legal sale or purchase of tobacco products as determined by applicable law at the place the individual is located.

(4) Certain individuals.—

(A) In general.—Subsection (a) shall not apply to tobacco products mailed by individuals who are not minors for noncommercial purposes, including the return of a damaged or unacceptable tobacco product to the manufacturer.

(B) Rules.—

(i) In general.—Not later than 180 days after the date of enactment of the Prevent All Cigarette Trafficking Act of 2009, the Postmaster General shall issue a final rule which shall establish the standards and requirements that apply to all mailings described in subparagraph (A).

(ii) Contents.—The final rule issued under clause (i) shall require—

(I) the United States Postal Service to verify that any person submitting an otherwise nonmailable tobacco product into the mails as authorized under this paragraph is the individual identified on the return address label of the package and is not a minor;

(II) for a mailing to an individual, the United States Postal Service to require the person submitting the otherwise nonmailable tobacco product into the mails as authorized by this paragraph to affirm that the recipient is not a minor;

(III) that any package mailed under this paragraph shall weigh not more than 10 ounces;

(IV) that any mailing described in subparagraph (A) shall be sent through the systems of the United States Postal Service that provide for the tracking and confirmation of the delivery;

(V) that a mailing described in subparagraph (A) shall not be delivered or placed in the possession of any individual who has not been verified as not being a minor;

(VI) for a mailing described in subparagraph (A) to an individual, that the United States Postal Service shall deliver the package only to a recipient who is verified not to be a minor at the recipient address or transfer it for delivery to an Air/Army Postal Office or Fleet Postal Office number designated in the recipient address; and

(VII) that no person may initiate more than 10 mailings described in subparagraph (A) during any 30-day period.

(C) Definition.—In this paragraph, the term "minor" means an individual who is less than the minimum age required for the legal sale or purchase of tobacco products as determined by applicable law at the place the individual is located.

(5) Exception for mailings for consumer testing by manufacturers.—

(A) In general.—Subject to subparagraph (B), subsection (a) shall not preclude a legally operating cigarette manufacturer or a legally authorized agent of a legally operating cigarette manufacturer from using the United States Postal Service to mail cigarettes to verified 2 adult smoker solely for consumer testing purposes, if—

(i) the cigarette manufacturer has a permit, in good standing, issued under section 5713 of the Internal Revenue Code of 1986;

(ii) the package of cigarettes mailed under this paragraph contains not more than 12 packs of cigarettes (240 cigarettes);

(iii) the recipient does not receive more than 1 package of cigarettes from any 1 cigarette manufacturer under this paragraph during any 30-day period;

(iv) all taxes on the cigarettes mailed under this paragraph levied by the State and locality of delivery are paid to the State and locality before delivery, and tax stamps or other tax-payment indicia are affixed to the cigarettes as required by law; and

(v)(I) the recipient has not made any payments of any kind in exchange for receiving the cigarettes;

(II) the recipient is paid a fee by the manufacturer or agent of the manufacturer for participation in consumer product tests; and

(III) the recipient, in connection with the tests, evaluates the cigarettes and provides feedback to the manufacturer or agent.

(B) Limitations.—Subparagraph (A) shall not—

(i) permit a mailing of cigarettes to an individual located in any State that prohibits the delivery or shipment of cigarettes to individuals in the State, or preempt, limit, or otherwise affect any related State laws; or

(ii) permit a manufacturer, directly or through a legally authorized agent, to mail cigarettes in any calendar year in a total amount greater than 1 percent of the total cigarette sales of the manufacturer in the United States during the calendar year before the date of the mailing.

(C) Rules.—

(i) In general.—Not later than 180 days after the date of enactment of the Prevent All Cigarette Trafficking Act of 2009, the Postmaster General shall issue a final rule which shall establish the standards and requirements that apply to all mailings described in subparagraph (A).

(ii) Contents.—The final rule issued under clause (i) shall require—

(I) the United States Postal Service to verify that any person submitting a tobacco product into the mails under this paragraph is a legally operating cigarette manufacturer permitted to make a mailing under this paragraph,3 or an agent legally authorized by the legally operating cigarette manufacturer to submit the tobacco product into the mails on behalf of the manufacturer;

(II) the legally operating cigarette manufacturer submitting the cigarettes into the mails under this paragraph to affirm that—

(aa) the manufacturer or the legally authorized agent of the manufacturer has verified that the recipient is an adult established smoker;

(bb) the recipient has not made any payment for the cigarettes;

(cc) the recipient has signed a written statement that is in effect indicating that the recipient wishes to receive the mailings; and

(dd) the manufacturer or the legally authorized agent of the manufacturer has offered the opportunity for the recipient to withdraw the written statement described in item (cc) not less frequently than once in every 3-month period;

(III) the legally operating cigarette manufacturer or the legally authorized agent of the manufacturer submitting the cigarettes into the mails under this paragraph to affirm that any package mailed under this paragraph contains not more than 12 packs of cigarettes (240 cigarettes) on which all taxes levied on the cigarettes by the State and locality of delivery have been paid and all related State tax stamps or other tax-payment indicia have been applied;

(IV) that any mailing described in subparagraph (A) shall be sent through the systems of the United States Postal Service that provide for the tracking and confirmation of the delivery;

(V) the United States Postal Service to maintain records relating to a mailing described in subparagraph (A) during the 3-year period beginning on the date of the mailing and make the information available to persons enforcing this section;

(VI) that any mailing described in subparagraph (A) be marked with a United States Postal Service label or marking that makes it clear to employees of the United States Postal Service that it is a permitted mailing of otherwise nonmailable tobacco products that may be delivered only to the named recipient after verifying that the recipient is an adult; and

(VII) the United States Postal Service shall deliver a mailing described in subparagraph (A) only to the named recipient and only after verifying that the recipient is an adult.

(D) Definitions.—In this paragraph—

(i) the term "adult" means an individual who is not less than 21 years of age; and

(ii) the term "consumer testing" means testing limited to formal data collection and analysis for the specific purpose of evaluating the product for quality assurance and benchmarking purposes of cigarette brands or sub-brands among existing adult smokers.

(6) Federal government agencies.—An agency of the Federal Government involved in the consumer testing of tobacco products solely for public health purposes may mail cigarettes under the same requirements, restrictions, and rules and procedures that apply to consumer testing mailings of cigarettes by manufacturers under paragraph (5), except that the agency shall not be required to pay the recipients for participating in the consumer testing.

(c) Seizure and Forfeiture.—Any cigarettes or smokeless tobacco made nonmailable by this subsection that are deposited in the mails shall be subject to seizure and forfeiture, pursuant to the procedures set forth in chapter 46 of this title. Any tobacco products seized and forfeited under this subsection shall be destroyed or retained by the Federal Government for the detection or prosecution of crimes or related investigations and then destroyed.

(d) Additional Penalties.—In addition to any other fines and penalties under this title for violations of this section, any person violating this section shall be subject to an additional civil penalty in the amount equal to 10 times the retail value of the nonmailable cigarettes or smokeless tobacco, including all Federal, State, and local taxes.

(e) Criminal Penalty.—Whoever knowingly deposits for mailing or delivery, or knowingly causes to be delivered by mail, according to the direction thereon, or at any place at which it is directed to be delivered by the person to whom it is addressed, anything that is nonmailable matter under this section shall be fined under this title, imprisoned not more than 1 year, or both.

(f) Use of Penalties.—There is established a separate account in the Treasury, to be known as the "PACT Postal Service Fund". Notwithstanding any other provision of law, an amount equal to 50 percent of any criminal fines, civil penalties, or other monetary penalties collected by the Federal Government in enforcing this section shall be transferred into the PACT Postal Service Fund and shall be available to the Postmaster General for the purpose of enforcing this subsection.

(g) Coordination of Efforts.—The Postmaster General shall cooperate and coordinate efforts to enforce this section with related enforcement activities of any other Federal agency or agency of any State, local, or tribal government, whenever appropriate.

(h) Actions by State, Local, or Tribal Governments Relating to Certain Tobacco Products.—

(1) In general.—A State, through its attorney general, or a local government or Indian tribe that levies an excise tax on tobacco products, through its chief law enforcement officer, may in a civil action in a United States district court obtain appropriate relief with respect to a violation of this section. Appropriate relief includes injunctive and equitable relief and damages equal to the amount of unpaid taxes on tobacco products mailed in violation of this section to addressees in that State, locality, or tribal land.

(2) Sovereign immunity.—Nothing in this subsection shall be deemed to abrogate or constitute a waiver of any sovereign immunity of a State or local government or Indian tribe against any unconsented lawsuit under paragraph (1), or otherwise to restrict, expand, or modify any sovereign immunity of a State or local government or Indian tribe.

(3) Attorney general referral.—A State, through its attorney general, or a local government or Indian tribe that levies an excise tax on tobacco products, through its chief law enforcement officer, may provide evidence of a violation of this section for commercial purposes by any person not subject to State, local, or tribal government enforcement actions for violations of this section to the Attorney General of the United States, who shall take appropriate actions to enforce this section.

(4) Nonexclusivity of remedies.—The remedies available under this subsection are in addition to any other remedies available under Federal, State, local, tribal, or other law. Nothing in this subsection shall be construed to expand, restrict, or otherwise modify any right of an authorized State, local, or tribal government official to proceed in a State, tribal, or other appropriate court, or take other enforcement actions, on the basis of an alleged violation of State, local, tribal, or other law.

(5) Other enforcement actions.—Nothing in this subsection shall be construed to prohibit an authorized State official from proceeding in State court on the basis of an alleged violation of any general civil or criminal statute of the State.

(i) Definition.—In this section, the term "State" has the meaning given that term in section 1716(k).

(Added Pub. L. 111–154, §3(a), Mar. 31, 2010, 124 Stat. 1103.)

#### **Editorial Notes**

#### References in Text

Section 1 of the Act of October 19, 1949, commonly referred to as the Jenkins Act, referred to in subsec. (a)(1), is classified to section 375 of Title 15, Commerce and Trade.

Section 2A(e) of the Jenkins Act, referred to in subsec. (a)(2)(B), is classified to section 376a of Title 15, Commerce and Trade.

The Internal Revenue Code of 1986, referred to in subsec. (b)(1), (5)(A)(i), is classified generally to Title 26, Internal Revenue Code.

The date of enactment of the Prevent All Cigarette Trafficking Act of 2009, referred to in subsec. (b)(3)(B)(i), (4)(B)(i), (5)(C)(i), is the date of enactment of Pub. L. 111–154, which was approved Mar. 31, 2010.

Section 3(d) of the Prevent All Cigarette Trafficking Act of 2009, referred to in subsec. (b)(3)(B)(ii)(V), is unidentifiable because section 3 of that Act, Pub. L. 111–154, Mar. 31, 2010, 124 Stat. 1103, does not contain a subsec. (d).

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date

Section effective on the date that is 90 days after March 31, 2010, see section 6 of Pub. L. 111–154, set out as an Effective Date of 2010 Amendment note under section 375 of Title 15, Commerce and Trade.

#### Nonmailability of Electronic Nicotine Delivery Systems

Pub. L. 116–260, div. FF, title VI, §603, Dec. 27, 2020, 134 Stat. 3137, provided that:

"(a) Regulations.—Not later than 120 days after the date of enactment of this Act [Dec. 27, 2020], the United States Postal Service shall promulgate regulations to clarify the applicability of the prohibition on mailing of cigarettes under section 1716E of title 18, United States Code, to electronic nicotine delivery systems, in accordance with the amendment to the definition of 'cigarette' made by section 602 [amending sections 375 and 376a of Title 15, Commerce and Trade].

"(b) Effective Date.—The prohibition on mailing of cigarettes under section 1716E of title 18, United States Code, shall apply to electronic nicotine delivery systems on and after the date on which the United States Postal Service promulgates regulations under subsection (a) of this section."

1 See References in Text note below.

2 So in original. Probably should be preceded by "a".

3 So in original. The comma probably should not appear.