I 

108TH CONGRESS 

2D SESSION H. R. 3749

To revise and reform the Act commonly called the Jenkins Act, and for 

other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 28, 2004

Mr. WEINER introduced the following bill; which was referred to the 

Committee on the Judiciary 

A BILL

To revise and reform the Act commonly called the Jenkins 

Act, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Local Government 

5 Internet Tobacco Sales Enforcement Act of 2004’’. 

6 SEC. 2. REVISION OF ACT OF OCTOBER 19, 1949. 

7 The Act of October 19, 1949, entitled ‘‘An Act to 

8 assist States in collecting sales and use taxes on ciga9 rettes’’ (15 U.S.C. 375 et seq.) is amended by striking 
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1 ‘‘That for the purposes of this Act’’ and all that follows 

2 through the end of the Act and inserting the following: 

3 ‘‘SECTION 1. SHORT TITLE. 

4 ‘‘This Act may be cited as the ‘Jenkins Act’. 

5 ‘‘SEC. 2. INTERSTATE SALES OF CIGARETTES AND SMOKE6 LESS TOBACCO. 

7 ‘‘(a) COMPLIANCE WITH LAWS.—

8 ‘‘(1) Each person who engages in an interstate 

9 sale of cigarettes or smokeless tobacco or in an 

10 interstate distribution of cigarettes or smokeless to11 bacco shall comply with all the excise, sales, and use 

12 tax laws applicable to the sale or other transfer of 

13 cigarettes or smokeless tobacco in the State and 

14 place in which the cigarettes or smokeless tobacco 

15 are delivered as though the person were physically 

16 located in that State or place. 

17 ‘‘(2) Unless State law requires otherwise, no 

18 cigarettes or smokeless tobacco may be delivered 

19 pursuant to an interstate sale unless in advance of 

20 delivery—

21 ‘‘(A) any cigarette or smokeless tobacco ex22 cise tax that is imposed by the State in which 

23 the cigarettes or smokeless tobacco are to be 

24 delivered has been paid to the State; 
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1 ‘‘(B) any cigarette or smokeless tobacco 

2 excise tax imposed by the local government of 

3 the place in which the cigarettes or smokeless 

4 tobacco are to be delivered has been paid to the 

5 local or tribal government; and 

6 ‘‘(C) any required stamps or other indicia 

7 that the excise tax has been paid are properly 

8 affixed or applied to the cigarettes or smokeless 

9 tobacco. 

10 ‘‘(3) The provisions of paragraph (2) do not 

11 apply to an interstate sale or distribution of smoke12 less tobacco when the law of the State or place 

13 where the smokeless tobacco is to be delivered re14 quires or otherwise provides that interstate sellers of 

15 smokeless tobacco collect the excise tax from the 

16 consumer and remit the excise tax to the State or 

17 place, and the interstate seller complies with such 

18 requirement. 

19 ‘‘(4)(A) Each State may compile a list of inter20 state sellers of cigarettes or smokeless tobacco who 

21 are in compliance with this Act with respect to that 

22 State. If a State posts a list pursuant to this sub23 section that specifically refers to this subsection, no 

24 person may knowingly make an interstate distribu25 tion of cigarettes or smokeless tobacco into that 
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1 State other than to a person licensed or otherwise 

2 authorized by the State to engage in the business of 

3 manufacturing, distributing or selling cigarettes or 

4 smokeless tobacco unless the person initiating or or5 dering the delivery is on the list at the time of deliv6 ery. 

7 ‘‘(B) Each State may also compile a list of 

8 interstate sellers of cigarettes or smokeless tobacco 

9 who are not in compliance with this Act with respect 

10 to that State. A State may provide such a list to a 

11 common carrier, the United States Postal Service, or 

12 to any other person, and make public the availability 

13 of the list to any person engaged in the delivery 

14 business in or into the State or who delivers ciga15 rettes or smokeless tobacco in or into the State. 

16 Such list shall be confidential, and any person re17 ceiving such a list from a State shall maintain the 

18 confidentiality of the list. If a State, pursuant to 

19 this subsection, provides such a list to any person 

20 and makes public its availability to persons who de21 liver cigarettes or smokeless tobacco in or into the 

22 State, no person who receives the list and no person 

23 who delivers cigarettes or smokeless tobacco in or 

24 into the State may knowingly make an interstate 
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1 distribution of any item in or into that State for a 

2 person on the list unless—

3 ‘‘(i) the person in good faith determines 

4 that the item does not include cigarettes or 

5 smokeless tobacco; or 

6 ‘‘(ii) the delivery is made to a person li7 censed or otherwise authorized by the State to 

8 engage in the business of manufacturing, dis9 tributing or selling cigarettes or smokeless to10 bacco. 

11 ‘‘(b) RECORDKEEPING AND REPORTING.—Each per12 son who engages in an interstate sale of cigarettes or 

13 smokeless tobacco, or who advertises, or offers to engage 

14 in, such a sale, shall—

15 ‘‘(1) first file with the tobacco tax adminis16 trator of the State and place in which the cigarettes 

17 or smokeless tobacco are to be offered, advertised, or 

18 delivered, a statement setting forth the person’s 

19 name and trade name (if any), and the address of 

20 that person’s principal place of business and any 

21 other place of business, as well as telephone numbers 

22 for each place of business, a principal electronic mail 

23 address, any website addresses, and the name, ad24 dress and telephone number of an agent authorized 
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1 to accept service in the State on behalf of that per2 son; 

3 ‘‘(2) not later than the 10th day of each cal4 endar month, file with that tobacco tax adminis5 trator a memorandum or copy of the invoice cov6 ering each and every interstate sale of cigarettes or 

7 smokeless tobacco by the filer into that State or 

8 place, and each interstate distribution of cigarettes 

9 or smokeless tobacco pursuant to that sale, during 

10 the previous calendar month, and such memorandum 

11 or invoice shall include the name and address of the 

12 person to whom the cigarettes or smokeless tobacco 

13 are delivered, the brand, and the type, the quantity 

14 delivered, and the name, address, and phone number 

15 of the person delivering; and 

16 ‘‘(3) maintain records, including the informa17 tion specified in paragraph (2), for not less than 5 

18 years after the date of an interstate sale of ciga19 rettes or smokeless tobacco and of each interstate 

20 distribution of cigarettes or smokeless tobacco pur21 suant to that sale, and make those records available 

22 for inspection upon the lawful demand of the Attor23 ney General of the United States, an attorney gen24 eral of a State, the Commissioner of Internal Rev25 enue, or the chief tax collection official of a State or 
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1 place that levies an excise tax on cigarettes or 

2 smokeless tobacco. 

3 ‘‘(c) Personally identifiable information—

4 ‘‘(1) relating to an individual to whom 

5 cirgarettes or smokeless tobacco are delivered; and 

6 ‘‘(2) filed, or maintained in records, under 

7 paragraph (2) or (3) of subsection (b); 

8 shall not be made available to the public and shall be used 

9 solely for the purposes of tax collection or law enforce10 ment. 

11 ‘‘(d) DEEMING RULE.—For the purposes of this sec12 tion—

13 ‘‘(1) an interstate sale or delivery of cigarettes 

14 or smokeless tobacco shall be deemed to have oc15 curred in the State and place where the buyer ob16 tains personal possession of the cigarettes or smoke17 less tobacco; and 

18 ‘‘(2) a delivery pursuant to an interstate sale is 

19 deemed to have been initiated or ordered by the sell20 er. 

21 ‘‘SEC. 3. CIVIL ACTION. 

22 ‘‘(a) IN GENERAL.—In addition to any other rem23 edies available under other Federal or State or local law, 

24 the attorney general of a State or the chief law enforce25 ment officer of a local government that imposes an excise 
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1 tax on cigarettes or smokeless tobacco may in a civil action 

2 obtain any appropriate relief, including money damages, 

3 civil penalties, and injunctive or other equitable relief 

4 where appropriate, against—

5 ‘‘(1) any person who violates, or is about to en6 gage in a violation of, section 2; or 

7 ‘‘(2) any person who knowingly assists or par8 ticipates, or knowingly is about to engage, in such 

9 a violation. 

10 ‘‘(b) NOTICE.—No attorney general of a State or 

11 chief law enforcement officer of a local government may 

12 commence an action pursuant to subsection (a) prior to 

13 60 days after the State attorney general has given notice 

14 of his intent to commence the action to the Attorney Gen15 eral of the United States. If the Attorney General of the 

16 United States has commenced and is diligently pros17 ecuting a civil action against the persons named in the 

18 notice for the violation described in the notice, then the 

19 State attorney general may not commence an action 

20 against that defendant for that violation but may join the 

21 United States Attorney General’s action solely for the pur22 pose of establishing and collecting State damages. 

23 ‘‘(c) LIMITATIONS ON CIVIL ACTIONS BY LOCAL

24 GOVERNMENTS.—The chief law enforcement officer of a 

25 local government may not bring any unconsented suit pur-
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1 suant to this Act against any Federal, State, local, or trib2 al governmental entity. 

3 ‘‘(d) REFERRALS OF LOCAL VIOLATIONS FOR EN4 FORCEMENT.—The chief law enforcement officer of a local 

5 government may provide evidence of a violation of its ex6 cise tax on cigarettes or smokeless tobacco under section 

7 2(a) of this Act to the Attorney General of the United 

8 States, the United States Attorney with jurisdiction over 

9 the locality, or the attorney general of the State in which 

10 the local government is located. Upon referral, the Attor11 ney General of the United States or the United States At12 torney shall take appropriate actions to enforce this Act. 

13 ‘‘(e) AVAILABILITY OF INFORMATION.—The Attorney 

14 General of the United States shall make information about 

15 Federal, State, and other efforts to enforce this Act pub16 licly available, through posting the information on the 

17 Internet and through other means. 

18 ‘‘SEC. 4. CIVIL PENALTY. 

19 ‘‘Whoever violates section 2 is subject to a civil pen20 alty not to exceed $5,000 in the case of a first violation, 

21 and, in any other case, not to exceed $10,000 or, if it is 

22 higher, 5 percent of the gross revenue from interstate 

23 sales or distributions of cigarettes or smokeless tobacco 

24 by such person during the 1-year period ending on the 

25 date of the violation. 
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1 ‘‘SEC. 5. CRIMINAL PENALTIES. 

2 ‘‘(a) SECTION 2(a) VIOLATIONS.—Whoever violates 

3 section 2(a) shall be fined under title 18, United States 

4 Code, or imprisoned not more than 3 years, or both. 

5 ‘‘(b) SECTION 2(b) VIOLATIONS.—Whoever violates 

6 section 2(b) shall be guilty, fined under title 18, United 

7 States Code, or imprisoned not more than 6 months, or 

8 both. 

9 ‘‘SEC. 6. NONPREEMPTION. 

10 ‘‘This Act does not limit the remedies provided by 

11 State, tribal, Federal, or other law with respect to alleged 

12 violations of State, tribal, Federal, or other law relating 

13 to a sale or distribution of cigarettes or smokeless tobacco 

14 in connection with an interstate sale or distribution of 

15 cigarettes or smokeless tobacco. Nothing in this Act shall 

16 be construed to prohibit an authorized State or local gov17 ernment official from proceeding in State court or taking 

18 other enforcement actions on the basis of alleged violations 

19 of State or other law, or an authorized tribal government 

20 official from proceeding in tribal court or taking other en21 forcement action, on the basis of alleged violations of trib22 al or other law. 

23 ‘‘SEC. 7. EXCLUSIONS REGARDING INDIAN TRIBES AND 

24 TRIBAL MATTERS. 

25 ‘‘(a) INDIAN COUNTRY.—The provisions of this Act 

26 relating to State tax collection do not apply to a sale of 
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1 cigarettes or smokeless tobacco that occurs exclusively in 

2 Indian country (as defined in section 1151 of title 18, 

3 United States Code) owned or occupied by an Indian tribe 

4 to a consumer located in that Indian Country who is an 

5 individual member of the same Indian tribe. 

6 ‘‘(b) INTERGOVERNMENTAL ARRANGEMENTS.—

7 Nothing in this Act is intended nor shall be construed to 

8 affect, amend, or modify—

9 ‘‘(1) any agreement, compact, or other intergov10 ernmental arrangement between any State or local 

11 government and any Indian tribe relating to the col12 lection of taxes on cigarettes or smokeless tobacco 

13 sold on tribal lands; or 

14 ‘‘(2) any State law that pertains to any such 

15 intergovernmental arrangement or creates special 

16 rules or procedures for the collection of State, local, 

17 or tribal taxes on cigarettes or smokeless tobacco 

18 sold on tribal lands. 

19 ‘‘(c) COORDINATED LAW ENFORCEMENT EF20 FORTS.—Nothing in this Act shall be construed to inhibit 

21 or otherwise affect any coordinated law enforcement effort 

22 by one or more States or other jurisdictions, including In23 dian tribes, through interstate compact or otherwise, 

24 that—
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1 ‘‘(1) provides for the administration of tobacco 

2 product laws or laws pertaining to interstate sales or 

3 other sales of tobacco products; 

4 ‘‘(2) provides for the seizure of tobacco prod5 ucts or other property related to a violation of such 

6 laws; or 

7 ‘‘(3) establishes cooperative programs for the 

8 administration of such laws. 

9 ‘‘SEC. 8. DEFINITIONS. 

10 ‘‘As used in this Act—

11 ‘‘(1) the term ‘attorney general’, with respect to 

12 a State, means the chief law enforcement officer of 

13 that State, or the designee of that officer; 

14 ‘‘(2) the term ‘cigarette’ means—

15 ‘‘(A) any roll of tobacco wrapped in paper 

16 or in any substance not containing tobacco 

17 which is to be heated or burned; 

18 ‘‘(B) any roll of tobacco wrapped in any 

19 substance containing tobacco that, because of 

20 its appearance, the type of tobacco used in the 

21 filler, or its packaging or labeling is likely to be 

22 offered to, or purchased by consumers as a cig23 arette described in subparagraph (A); 

24 ‘‘(C) any roll of tobacco wrapped in any 

25 substance that because of its appearance, the 
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1 type of tobacco used in the filler, or its pack2 aging or labeling is likely to be offered to, or 

3 purchased by consumers as a cigarette; or 

4 ‘‘(D) loose rolling tobacco that, because of 

5 its appearance, type, packaging, or labeling, is 

6 likely to be offered to, or purchased by, con7 sumers as tobacco for making cigarettes; 

8 ‘‘(3) the term ‘smokeless tobacco’ means any 

9 product intended or marketed for human consump10 tion containing finely cut, ground, powdered, leaf, or 

11 other tobacco that is intended to be placed in the 

12 oral or nasal cavity or otherwise consumed without 

13 being combusted; 

14 ‘‘(4) the term ‘interstate sale of cigarettes or 

15 smokeless tobacco’ means any sale of cigarettes or 

16 smokeless tobacco in interstate or foreign commerce 

17 to a person, other than a person licensed or other18 wise authorized as a distributor, wholesaler, or re19 tailer in the State where the cigarettes or smokeless 

20 tobacco is delivered, in which—

21 ‘‘(A) the buyer submits the order for such 

22 sale by means of a telephone or other method 

23 of voice transmission, the mails, or the Internet 

24 or other online service, or the seller is not in 
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1 the physical presence of the buyer when the re2 quest for purchase or order is made; or 

3 ‘‘(B) the cigarettes or smokeless tobacco 

4 are delivered by use of a common carrier, pri5 vate delivery service, or the mails, or the seller 

6 is not in the physical presence of the buyer 

7 when the buyer obtains physical possession of 

8 the delivered cigarettes or smokeless tobacco; 

9 ‘‘(5) the term ‘interstate or foreign commerce’ 

10 means commerce between a State and any place out11 side that State, commerce between a State and any 

12 Indian lands in that State, or commerce between 

13 points in the same State but through any place out14 side that State; 

15 ‘‘(6) the term ‘interstate distribution of ciga16 rettes or smokeless tobacco’ means a delivery or 

17 other distribution of cigarettes or smokeless tobacco 

18 pursuant to an interstate sale of cigarettes or 

19 smokeless tobacco; 

20 ‘‘(7) the term ‘State’ means a State of the 

21 United States, the District of Columbia, the Com22 monwealth of Puerto Rico, or any territory or pos23 session of the United States; 

24 ‘‘(8) the term ‘person’ means an individual, a 

25 corporation, company, association, firm, partnership, 
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1 society, joint stock company, an Indian tribal organi2 zation, or an Indian tribal government; 

3 ‘‘(9) the term ‘tribal organization’ has the 

4 meaning given that term in section 4 of the Indian 

5 Self-Determination and Education Assistance Act 

6 (25 U.S.C. 450b); and 

7 ‘‘(10) the term ‘Indian lands’ has the meaning 

8 given that term in section 3 of the Archaeological 

9 Resources Protection Act of 1979 (16 U.S.C. 

10 470bb).’’. 

11 SEC. 3. SENSE OF CONGRESS CONCERNING THE PRECE12 DENTIAL EFFECT OF THIS ACT. 

13 It is the sense of Congress that unique harms are 

14 associated with the remote interstate sales of cigarette and 

15 smokeless tobacco, including problems associated with 

16 verifying the legal age of consumers and long-term nega17 tive health effects associated with the continued use of 

18 these products. This Act further affirms Congress’ long19 standing interest in encouraging compliance and enforce20 ment of State laws that relate to the remote sales, includ21 ing internet sales, of these specific harmful products. En22 acted more than 50 years ago, the Jenkins Act established 

23 reporting requirements for remote interstate sellers of 

24 cigarettes in order to reduce incentives for smuggling and 

25 to help states enforce tobacco taxes. In light of the unique 
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1 federal policy and historic distinctions between cigarettes 

2 and smokeless tobacco and other products, the require3 ments of this Act are in no way meant to create, and ought 

4 not be considered, precedent regarding the collection of 

5 State sales or use taxes by out-of-state entities that lack 

6 a physical presence within the taxing State. 

7 SEC. 4. EFFECTIVE DATE. 

8 The amendment made by this Act shall take effect 

9 on the first day of the first month beginning on or after 

10 60 days after the date of the enactment of this Act.

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