I 

111TH CONGRESS 

1ST SESSION H. R. 1676 

To prevent tobacco smuggling, to ensure the collection of all tobacco taxes, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 23, 2009 

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

Committee on the Judiciary 

A BILL 

To prevent tobacco smuggling, to ensure the collection of 

all tobacco taxes, 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; FINDINGS; PURPOSES. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Prevent All Cigarette Trafficking Act of 2009’’ or 

6 ‘‘PACT Act’’. 

7 (b) FINDINGS.—Congress finds that— 

8 (1) the sale of illegal cigarettes and smokeless 

9 tobacco products significantly reduces Federal, 

10 State, and local government revenues, with Internet 


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1 sales alone accounting for billions of dollars of lost 

2 Federal, State, and local tobacco tax revenue each 

3 year; 

4 (2) Hezbollah, Hamas, al Qaeda, and other ter5 rorist organizations have profited from trafficking in 

6 illegal cigarettes or counterfeit cigarette tax stamps; 

7 (3) terrorist involvement in illicit cigarette traf8 ficking will continue to grow because of the large 

9 profits such organizations can earn; 

10 (4) the sale of illegal cigarettes and smokeless 

11 tobacco over the Internet, and through mail, fax, or 

12 phone orders, make it cheaper and easier for chil13 dren to obtain tobacco products; 

14 (5) the majority of Internet and other remote 

15 sales of cigarettes and smokeless tobacco are being 

16 made without adequate precautions to protect 

17 against sales to children, without the payment of ap18 plicable taxes, and without complying with the nomi19 nal registration and reporting requirements in exist20 ing Federal law; 

21 (6) unfair competition from illegal sales of ciga22 rettes and smokeless tobacco is taking billions of dol23 lars of sales away from law-abiding retailers 

24 throughout the United States; 


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1 (7) with rising State and local tobacco tax 

2 rates, the incentives for the illegal sale of cigarettes 

3 and smokeless tobacco have increased; 

4 (8) the number of active tobacco investigations 

5 being conducted by the Bureau of Alcohol, Tobacco, 

6 Firearms, and Explosives rose to 452 in 2005; 

7 (9) the number of Internet vendors in the 

8 United States and in foreign countries that sell ciga9 rettes and smokeless tobacco to buyers in the United 

10 States increased from only about 40 in 2000 to 

11 more than 500 in 2005; and 

12 (10) the intrastate sale of illegal cigarettes and 

13 smokeless tobacco over the Internet has a substan14 tial effect on interstate commerce. 

15 (c) PURPOSES.—It is the purpose of this Act to— 

16 (1) require Internet and other remote sellers of 

17 cigarettes and smokeless tobacco to comply with the 

18 same laws that apply to law-abiding tobacco retail19 ers; 

20 (2) create strong disincentives to illegal smug21 gling of tobacco products; 

22 (3) provide government enforcement officials 

23 with more effective enforcement tools to combat to24 bacco smuggling; 


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1 (4) make it more difficult for cigarette and 

2 smokeless tobacco traffickers to engage in and profit 

3 from their illegal activities; 

4 (5) increase collections of Federal, State, and 

5 local excise taxes on cigarettes and smokeless to6 bacco; and 

7 (6) prevent and reduce youth access to inexpen8 sive cigarettes and smokeless tobacco through illegal 

9 Internet or contraband sales. 

10 SEC. 2. COLLECTION OF STATE CIGARETTE AND SMOKE11 LESS TOBACCO TAXES. 

12 (a) DEFINITIONS.—The Act of October 19, 1949 (15 

13 U.S.C. 375 et seq.; commonly referred to as the ‘‘Jenkins 

14 Act’’) (referred to in this Act as the ‘‘Jenkins Act’’), is 

15 amended by striking the first section and inserting the fol16 lowing: 

17 ‘‘SEC. 1. DEFINITIONS. 

18 ‘‘As used in this Act, the following definitions apply: 

19 ‘‘(1) ATTORNEY GENERAL.—The term ‘attorney 

20 general’, with respect to a State, means the attorney 

21 general or other chief law enforcement officer of the 

22 State, or the designee of that officer. 

23 ‘‘(2) CIGARETTE.— 

24 ‘‘(A) IN GENERAL.—For purposes of this 

25 Act, the term ‘cigarette’ shall— 


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1 ‘‘(i) have the same meaning given that 

2 term in section 2341 of title 18, United 

3 States Code; and 

4 ‘‘(ii) include ‘roll-your-own tobacco’ 

5 (as that term is defined in section 5702 of 

6 the Internal Revenue Code of 1986). 

7 ‘‘(B) EXCEPTION.—For purposes of this 

8 Act, the term ‘cigarette’ does not include a 

9 ‘cigar’, as that term is defined in section 5702 

10 of the Internal Revenue Code of 1986. 

11 ‘‘(3) COMMON CARRIER.—The term ‘common 

12 carrier’ means any person (other than a local mes13 senger service or the United States Postal Service) 

14 that holds itself out to the general public as a pro15 vider for hire of the transportation by water, land, 

16 or air of merchandise, whether or not the person ac17 tually operates the vessel, vehicle, or aircraft by 

18 which the transportation is provided, between a port 

19 or place and a port or place in the United States. 

20 ‘‘(4) CONSUMER.—The term ‘consumer’ means 

21 any person that purchases cigarettes or smokeless 

22 tobacco, but does not include any person lawfully op23 erating as a manufacturer, distributor, wholesaler, 

24 or retailer of cigarettes or smokeless tobacco. 


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1 ‘‘(5) DELIVERY SALE.—The term ‘delivery sale’ 

2 means any sale of cigarettes or smokeless tobacco to 

3 a consumer if— 

4 ‘‘(A) the consumer submits the order for 

5 such sale by means of a telephone or other 

6 method of voice transmission, the mails, or the 

7 Internet or other online service, or the seller is 

8 otherwise not in the physical presence of the 

9 buyer when the request for purchase or order is 

10 made; or 

11 ‘‘(B) the cigarettes or smokeless tobacco 

12 are delivered to the buyer by common carrier, 

13 private delivery service, or other method of

14 remote delivery, or the seller is not in the phys15 ical presence of the buyer when the buyer ob16 tains possession of the cigarettes or smokeless 

17 tobacco. 

18 ‘‘(6) DELIVERY SELLER.—The term ‘delivery 

19 seller’ means a person who makes a delivery sale. 

20 ‘‘(7) INDIAN COUNTRY.—The term ‘Indian 

21 country’ means— 

22 ‘‘(A) Indian country as defined in section 

23 1151 of title 18, United States Code, except 

24 that within the State of Alaska that term apVerDate Nov 24 2008 22:01 Mar 24, 2009 Jkt 079200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1676.IH H1676

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1 plies only to the Metlakatla Indian Community, 

2 Annette Island Reserve; and 

3 ‘‘(B) any other land held by the United 

4 States in trust or restricted status for one or 

5 more Indian tribes. 

6 ‘‘(8) INDIAN TRIBE.—The term ‘Indian tribe’, 

7 ‘tribe’, or ‘tribal’ refers to an Indian tribe as defined 

8 in section 4(e) of the Indian Self-Determination and 

9 Education Assistance Act (25 U.S.C. 450b(e)) or as 

10 listed pursuant to section 104 of the Federally Rec11 ognized Indian Tribe List Act of 1994 (25 U.S.C. 

12 479a–1). 

13 ‘‘(9) INTERSTATE COMMERCE.—The term 

14 ‘interstate commerce’ means commerce between a 

15 State and any place outside the State, commerce be16 tween a State and any Indian country in the State, 

17 or commerce between points in the same State but 

18 through any place outside the State or through any 

19 Indian country. 

20 ‘‘(10) INTO A STATE, PLACE, OR LOCALITY.—A 

21 sale, shipment, or transfer of cigarettes or smokeless 

22 tobacco that is made in interstate commerce, as de23 fined herein, shall be deemed to have been made into 

24 the State, place or locality in which such cigarettes 

25 or smokeless tobacco are delivered. 


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1 ‘‘(11) PERSON.—The term ‘person’ means an 

2 individual, corporation, company, association, firm, 

3 partnership, society, State government, local govern4 ment, Indian tribal government, governmental orga5 nization of such government, or joint stock company. 

6 ‘‘(12) STATE.—The term ‘State’ means each of 

7 the several States of the United States, the District 

8 of Columbia, the Commonwealth of Puerto Rico, or 

9 any territory or possession of the United States. 

10 ‘‘(13) SMOKELESS TOBACCO.—The term 

11 ‘smokeless tobacco’ means any finely cut, ground, 

12 powdered, or leaf tobacco, or other product con13 taining tobacco, that is intended to be placed in the 

14 oral or nasal cavity or otherwise consumed without 

15 being combusted. 

16 ‘‘(14) TOBACCO TAX ADMINISTRATOR.—The 

17 term ‘tobacco tax administrator’ means the State, 

18 local, or tribal official duly authorized to collect the 

19 tobacco tax or administer the tax law of a State, lo20 cality, or tribe, respectively. 

21 ‘‘(15) TRIBAL ENTERPRISE.—The term ‘tribal 

22 enterprise’ means any business enterprise, incor23 porated or unincorporated under Federal or tribal 

24 law, of an Indian tribe or group of Indian tribe. 


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1 ‘‘(16) USE.—The term ‘use’, in addition to its 

2 ordinary meaning, means the consumption, storage, 

3 handling, or disposal of cigarettes or smokeless to4 bacco.’’. 

5 (b) REPORTS TO STATE TOBACCO TAX ADMINISTRA6 TORS.—Section 2 of the Jenkins Act (15 U.S.C. 376) is 

7 amended— 

8 (1) by striking ‘‘cigarettes’’ each place it ap9 pears and inserting ‘‘cigarettes or smokeless to10 bacco’’; 

11 (2) in subsection (a)— 

12 (A) in the matter preceding paragraph 

13 (1)— 

14 (i) by inserting ‘‘CONTENTS.—’’ after 

15 ‘‘(a)’’; 

16 (ii) by striking ‘‘or transfers’’ and in17 serting ‘‘, transfers, or ships’’; 

18 (iii) by inserting ‘‘, locality, or Indian 

19 country of an Indian tribe’’ after ‘‘a 

20 State’’; 

21 (iv) by striking ‘‘to other than a dis22 tributor licensed by or located in such 

23 State,’’; and 


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1 (v) by striking ‘‘or transfer and ship2 ment’’ and inserting ‘‘, transfer, or ship3 ment’’; 

4 (B) in paragraph (1)— 

5 (i) by striking ‘‘with the tobacco tax 

6 administrator of the State’’ and inserting 

7 ‘‘with the Attorney General of the United 

8 States and with the tobacco tax adminis9 trators of the State and place’’; and 

10 (ii) by striking ‘‘; and’’ and inserting 

11 the following: ‘‘, as well as telephone num12 bers for each place of business, a principal 

13 electronic mail address, any website ad14 dresses, and the name, address, and tele15 phone number of an agent in the State au16 thorized to accept service on behalf of such 

17 person;’’; 

18 (C) in paragraph (2), by striking ‘‘and the 

19 quantity thereof.’’ and inserting ‘‘the quantity 

20 thereof, and the name, address, and phone 

21 number of the person delivering the shipment to 

22 the recipient on behalf of the delivery seller, 

23 with all invoice or memoranda information re24 lating to specific customers to be organized by 

25 city or town and by zip code; and’’; and 


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1 (D) by adding at the end the following: 

2 ‘‘(3) with respect to each memorandum or in3 voice filed with a State under paragraph (2), also 

4 file copies of such memorandum or invoice with the 

5 tobacco tax administrators and chief law enforce6 ment officers of the local governments and Indian 

7 tribes operating within the borders of the State that 

8 apply their own local or tribal taxes on cigarettes or 

9 smokeless tobacco.’’; 

10 (3) in subsection (b)— 

11 (A) by inserting ‘‘PRESUMPTIVE EVI12 DENCE.—’’ after ‘‘(b)’’; 

13 (B) by striking ‘‘(1) that’’ and inserting 

14 ‘‘that’’; and 

15 (C) by striking ‘‘, and (2)’’ and all that 

16 follows and inserting a period; and 

17 (4) by adding at the end the following: 

18 ‘‘(c) USE OF INFORMATION.—A tobacco tax adminis19 trator or chief law enforcement officer who receives a 

20 memorandum or invoice under paragraph (2) or (3) of 

21 subsection (a) shall use such memorandum or invoice sole22 ly for the purposes of the enforcement of this Act and the 

23 collection of any taxes owed on related sales of cigarettes 

24 and smokeless tobacco, and shall keep confidential any 


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1 personal information in such memorandum or invoice not 

2 otherwise required for such purposes.’’. 

3 (c) REQUIREMENTS FOR DELIVERY SALES.—The 

4 Jenkins Act is amended by inserting after section 2 the 

5 following: 

6 ‘‘SEC. 2A. DELIVERY SALES. 

7 ‘‘(a) IN GENERAL.—With respect to delivery sales 

8 into a specific State and place, each delivery seller shall 

9 comply with— 

10 ‘‘(1) the shipping requirements set forth in sub11 section (b); 

12 ‘‘(2) the recordkeeping requirements set forth 

13 in subsection (c); 

14 ‘‘(3) all State, local, tribal, and other laws gen15 erally applicable to sales of cigarettes or smokeless 

16 tobacco as if such delivery sales occurred entirely 

17 within the specific State and place, including laws 

18 imposing— 

19 ‘‘(A) excise taxes; 

20 ‘‘(B) licensing and tax-stamping require21 ments; 

22 ‘‘(C) restrictions on sales to minors; and 

23 ‘‘(D) other payment obligations or legal re24 quirements relating to the sale, distribution, or 

25 delivery of cigarettes or smokeless tobacco; and 


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1 ‘‘(4) the tax collection requirements set forth in 

2 subsection (d). 

3 ‘‘(b) SHIPPING AND PACKAGING.— 

4 ‘‘(1) REQUIRED STATEMENT.—For any ship5 ping package containing cigarettes or smokeless to6 bacco, the delivery seller shall include on the bill of 

7 lading, if any, and on the outside of the shipping 

8 package, on the same surface as the delivery ad9 dress, a clear and conspicuous statement providing 

10 as follows: ‘CIGARETTES/SMOKELESS TO11 BACCO: FEDERAL LAW REQUIRES THE PAY12 MENT OF ALL APPLICABLE EXCISE TAXES, 

13 AND COMPLIANCE WITH APPLICABLE LI14 CENSING AND TAX–STAMPING OBLIGA15 TIONS’. 

16 ‘‘(2) FAILURE TO LABEL.—Any shipping pack17 age described in paragraph (1) that is not labeled in 

18 accordance with that paragraph shall be treated as 

19 nondeliverable matter by a common carrier or other 

20 delivery service, if the common carrier or other deliv21 ery service knows or should know the package con22 tains cigarettes or smokeless tobacco. If a common 

23 carrier or other delivery service believes a package is 

24 being submitted for delivery in violation of para25 graph (1), it may require the person submitting the 


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1 package for delivery to establish that it is not being 

2 sent in violation of paragraph (1) before accepting 

3 the package for delivery. Nothing in this paragraph 

4 shall require the common carrier or other delivery 

5 service to open any package to determine its con6 tents. 

7 ‘‘(3) WEIGHT RESTRICTION.—A delivery seller 

8 shall not sell, offer for sale, deliver, or cause to be 

9 delivered in any single sale or single delivery any 

10 cigarettes or smokeless tobacco weighing more than 

11 10 pounds. 

12 ‘‘(4) AGE VERIFICATION.— 

13 ‘‘(A) IN GENERAL.—Notwithstanding any 

14 other provision of law, a delivery seller who 

15 mails or ships tobacco products— 

16 ‘‘(i) shall not sell, deliver, or cause to 

17 be delivered any tobacco products to a per18 son under the minimum age required for 

19 the legal sale or purchase of tobacco prod20 ucts, as determined by the applicable law 

21 at the place of delivery; 

22 ‘‘(ii) shall use a method of mailing or 

23 shipping that requires— 

24 ‘‘(I) the purchaser placing the 

25 delivery sale order, or an adult who is 


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1 at least the minimum age required for 

2 the legal sale or purchase of tobacco 

3 products, as determined by the appli4 cable law at the place of delivery, to 

5 sign to accept delivery of the shipping 

6 container at the delivery address; and 

7 ‘‘(II) the person who signs to ac8 cept delivery of the shipping container 

9 to provide proof, in the form of a 

10 valid, government-issued identification 

11 bearing a photograph of the indi12 vidual, that the person is at least the 

13 minimum age required for the legal 

14 sale or purchase of tobacco products, 

15 as determined by the applicable law at 

16 the place of delivery; and 

17 ‘‘(iii) shall not accept a delivery sale 

18 order from a person without— 

19 ‘‘(I) obtaining the full name, 

20 birth date, and residential address of 

21 that person; and 

22 ‘‘(II) verifying the information 

23 provided in subclause (I), through the 

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1 sisting primarily of data from govern2 ment sources, that are regularly used 

3 by government and businesses for the 

4 purpose of age and identity 

5 verification and authentication, to en6 sure that the purchaser is at least the 

7 minimum age required for the legal 

8 sale or purchase of tobacco products, 

9 as determined by the applicable law at 

10 the place of delivery. 

11 ‘‘(B) LIMITATION.—No database being 

12 used for age and identity verification under 

13 subparagraph (A)(iii) shall be in the possession 

14 or under the control of the delivery seller, or be 

15 subject to any changes or supplementation by 

16 the delivery seller. 

17 ‘‘(c) RECORDS.— 

18 ‘‘(1) IN GENERAL.—Each delivery seller shall 

19 keep a record of any delivery sale, including all of 

20 the information described in section 2(a)(2), orga21 nized by the State, and within such State, by the 

22 city or town and by zip code, into which such deliv23 ery sale is so made. 

24 ‘‘(2) RECORD RETENTION.—Records of a deliv25 ery sale shall be kept as described in paragraph (1) 


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1 in the year in which the delivery sale is made and 

2 for the next 4 years. 

3 ‘‘(3) ACCESS FOR OFFICIALS.—Records kept 

4 under paragraph (1) shall be made available to to5 bacco tax administrators of the States, to local gov6 ernments and Indian tribes that apply their own 

7 local or tribal taxes on cigarettes or smokeless to8 bacco, to the attorneys general of the States, to the 

9 chief law enforcement officers of such local govern10 ments and Indian tribes, and to the Attorney Gen11 eral of the United States in order to ensure the com12 pliance of persons making delivery sales with the re13 quirements of this Act. 

14 ‘‘(d) DELIVERY.— 

15 ‘‘(1) IN GENERAL.—Except as provided in para16 graph (2), no delivery seller may sell or deliver to 

17 any consumer, or tender to any common carrier or 

18 other delivery service, any cigarettes or smokeless to19 bacco pursuant to a delivery sale unless, in advance 

20 of the sale, delivery, or tender— 

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 that is imposed by the local govern3 ment of the place in which the cigarettes or 

4 smokeless tobacco are to be delivered has been 

5 paid to the local government; and 

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

7 that such excise tax has been paid are properly 

8 affixed or applied to the cigarettes or smokeless 

9 tobacco. 

10 ‘‘(2) EXCEPTION.—Paragraph (1) does not 

11 apply to a delivery sale of smokeless tobacco if the 

12 law of the State or local government of the place 

13 where the smokeless tobacco is to be delivered re14 quires or otherwise provides that delivery sellers col15 lect the excise tax from the consumer and remit the 

16 excise tax to the State or local government, and the 

17 delivery seller complies with the requirement. 

18 ‘‘(e) LIST OF UNREGISTERED OR NONCOMPLIANT

19 DELIVERY SELLERS.— 

20 ‘‘(1) IN GENERAL.— 

21 ‘‘(A) INITIAL LIST.—Not later than 90 

22 days after this subsection goes into effect under 

23 the Prevent All Cigarette Trafficking Act of 

24 2009, the Attorney General of the United 

25 States shall compile a list of delivery sellers of 


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1 cigarettes or smokeless tobacco that have not 

2 registered with the Attorney General, pursuant 

3 to section 2(a) or that are otherwise not in 

4 compliance with this Act, and— 

5 ‘‘(i) distribute the list to— 

6 ‘‘(I) the attorney general and tax 

7 administrator of every State; 

8 ‘‘(II) common carriers and other 

9 persons that deliver small packages to 

10 consumers in interstate commerce, in11 cluding the United States Postal Serv12 ice; and 

13 ‘‘(III) at the discretion of the At14 torney General of the United States, 

15 to any other persons; and 

16 ‘‘(ii) publicize and make the list avail17 able to any other person engaged in the 

18 business of interstate deliveries or who de19 livers cigarettes or smokeless tobacco in or 

20 into any State. 

21 ‘‘(B) LIST CONTENTS.—To the extent 

22 known, the Attorney General of the United 

23 States shall include, for each delivery seller on 

24 the list described in subparagraph (A)— 


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1 ‘‘(i) all names the delivery seller uses 

2 in the transaction of its business or on 

3 packages delivered to customers; 

4 ‘‘(ii) all addresses from which the de5 livery seller does business or ships ciga6 rettes or smokeless tobacco; 

7 ‘‘(iii) the website addresses, primary 

8 e-mail address, and phone number of the 

9 delivery seller; and 

10 ‘‘(iv) any other information that the 

11 Attorney General determines would facili12 tate compliance with this subsection by re13 cipients of the list. 

14 ‘‘(C) UPDATING.—The Attorney General of 

15 the United States shall update and distribute 

16 the list at least once every 4 months, and may 

17 distribute the list and any updates by regular 

18 mail, electronic mail, or any other reasonable 

19 means, or by providing recipients with access to 

20 the list through a nonpublic website that the 

21 Attorney General of the United States regularly 

22 updates. 

23 ‘‘(D) STATE, LOCAL, OR TRIBAL ADDI24 TIONS.—The Attorney General of the United 

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1 graph (A) any noncomplying delivery sellers 

2 identified by any State, local, or tribal govern3 ment under paragraph (5), and shall distribute 

4 the list to the attorney general or chief law en5 forcement official and the tax administrator of 

6 any government submitting any such informa7 tion and to any common carriers or other per8 sons who deliver small packages to consumers 

9 identified by any government pursuant to para10 graph (5). 

11 ‘‘(E) ACCURACY AND COMPLETENESS OF

12 LIST OF NONCOMPLYING DELIVERY SELLERS.— 

13 In preparing and revising the list required by 

14 subparagraph (A), the Attorney General shall— 

15 ‘‘(i) use reasonable procedures to en16 sure maximum possible accuracy and com17 pleteness of the records and information 

18 relied on for the purpose of determining 

19 that such delivery seller is noncomplying; 

20 ‘‘(ii) not later than 14 days prior to 

21 including any delivery seller on the list 

22 under paragraph (1), make a reasonable 

23 attempt to send notice to the delivery seller 

24 by letter, electronic mail, or other means 

25 that the delivery seller is being placed on 


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1 such list or update, with that notice citing 

2 the relevant provisions of this Act and the 

3 specific reasons for being placed on such 

4 list; 

5 ‘‘(iii) provide an opportunity to such 

6 delivery seller to challenge placement on 

7 such list; 

8 ‘‘(iv) investigate each such challenge 

9 by contacting the relevant Federal, State, 

10 tribal, and local law enforcement officials, 

11 and provide the specific findings and re12 sults of such investigation to such delivery 

13 seller not later than 30 days after the chal14 lenge is made; and 

15 ‘‘(v) upon finding that any placement 

16 is inaccurate, incomplete, or cannot be 

17 verified, promptly delete such delivery sell18 er from the list as appropriate and notify 

19 each appropriate Federal, State, tribal, 

20 and local authority of such finding. 

21 ‘‘(F) CONFIDENTIALITY.—The list distrib22 uted pursuant to subparagraph (A) shall be 

23 confidential, and any person receiving the list 

24 shall maintain the confidentiality of the list but 

25 may deliver the list, for enforcement purposes, 


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1 to any government official or to any common 

2 carrier or other person that delivers tobacco 

3 products or small packages to consumers. Noth4 ing in this section shall prohibit a common car5 rier, the United States Postal Service, or any 

6 other person receiving the list from discussing 

7 with the listed delivery sellers the delivery sell8 ers’ inclusion on the list and the resulting ef9 fects on any services requested by such listed 

10 delivery seller. 

11 ‘‘(2) PROHIBITION ON DELIVERY.— 

12 ‘‘(A) IN GENERAL.—Commencing on the 

13 date that is 60 days after the date of the initial 

14 distribution or availability of the list under 

15 paragraph (1)(A), no person who receives the 

16 list under paragraph (1), and no person who 

17 delivers cigarettes or smokeless tobacco to con18 sumers, shall knowingly complete, cause to be 

19 completed, or complete its portion of a delivery 

20 of any package for any person whose name and 

21 address are on the list, unless— 

22 ‘‘(i) the person making the delivery 

23 knows or believes in good faith that the 

24 item does not include cigarettes or smoke25 less tobacco; 


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1 ‘‘(ii) the delivery is made to a person 

2 lawfully engaged in the business of manu3 facturing, distributing, or selling cigarettes 

4 or smokeless tobacco; or 

5 ‘‘(iii) the package being delivered 

6 weighs more than 100 pounds and the per7 son making the delivery does not know or 

8 have reasonable cause to believe that the 

9 package contains cigarettes or smokeless 

10 tobacco. 

11 ‘‘(B) IMPLEMENTATION OF UPDATES.— 

12 Commencing on the date that is 30 days after 

13 the date of the distribution or availability of 

14 any updates or corrections to the list under 

15 paragraph (1), all recipients and all common 

16 carriers or other persons that deliver cigarettes 

17 or smokeless tobacco to consumers shall be sub18 ject to subparagraph (A) in regard to such cor19 rections or updates. 

20 ‘‘(C) EXEMPTIONS.—Subparagraphs (A) 

21 and (B), subsection (b)(2), and any other re22 quirements or restrictions placed directly on 

23 common carriers elsewhere in this subsection, 

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1 bacco product deliveries to consumers or, if any 

2 such settlement agreement to which the com3 mon carrier was a party is terminated or other4 wise becomes inactive, is administering and en5 forcing, on a nationwide basis, policies and 

6 practices that are at least as stringent as any 

7 such agreement. For the purposes of this sec8 tion, ‘settlement agreement’ shall be defined to 

9 include the Assurance of Discontinuance en10 tered into by the Attorney General of New York 

11 and DHL Holdings USA, Inc. and DHL Ex12 press (USA), Inc. on or about July 1, 2005, the 

13 Assurance of Discontinuance entered into by 

14 the Attorney General of New York and United 

15 Parcel Service, Inc. on or about October 21, 

16 2005, and the Assurance of Compliance entered 

17 into by the Attorney General of New York and 

18 Federal Express Corporation and Fed Ex 

19 Ground package Systems, Inc. on or about Feb20 ruary 3, 2006, so long as each is honored na21 tionwide to block illegal deliveries of cigarettes 

22 or smokeless tobacco to consumers, and also in23 cludes any other active agreement between a 

24 common carrier and the States that operates 

25 nationwide to ensure that no deliveries of cigaVerDate Nov 24 2008 22:01 Mar 24, 2009 Jkt 079200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\H1676.IH H1676

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1 rettes and smokeless tobacco shall be made to 

2 consumers for illegally operating Internet or 

3 mail-order sellers and that any such deliveries 

4 to consumers shall not be made to minors or 

5 without payment to the States and localities 

6 where the consumers are located of all taxes on 

7 the tobacco products. 

8 ‘‘(3) SHIPMENTS FROM PERSONS ON LIST.— 

9 ‘‘(A) IN GENERAL.—In the event that a 

10 common carrier or other delivery service delays 

11 or interrupts the delivery of a package it has in 

12 its possession because it determines or has rea13 son to believe that the person ordering the de14 livery is on a list distributed under paragraph 

15 (1)— 

16 ‘‘(i) the person ordering the delivery 

17 shall be obligated to pay— 

18 ‘‘(I) the common carrier or other 

19 delivery service as if the delivery of 

20 the package had been timely com21 pleted; and 

22 ‘‘(II) if the package is not deliv23 erable, any reasonable additional fee 

24 or charge levied by the common car25 rier or other delivery service to cover 


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1 its extra costs and inconvenience and 

2 to serve as a disincentive against such 

3 noncomplying delivery orders; and 

4 ‘‘(ii) if the package is determined not 

5 to be deliverable, the common carrier or 

6 other delivery service shall, in its discre7 tion, either provide the package and its 

8 contents to a Federal, State, or local law 

9 enforcement agency or destroy the package 

10 and its contents. 

11 ‘‘(B) RECORDS.—A common carrier or 

12 other delivery service shall maintain, for a pe13 riod of 5 years, any records kept in the ordi14 nary course of business relating to any deliv15 eries interrupted pursuant to this paragraph 

16 and provide that information, upon request, to 

17 the Attorney General of the United States or to 

18 the attorney general or chief law enforcement 

19 official or tax administrator of any State, local, 

20 or tribal government. 

21 ‘‘(C) CONFIDENTIALITY.—Any person re22 ceiving records under subparagraph (B) shall 

23 use such records solely for the purposes of the 

24 enforcement of this Act and the collection of 

25 any taxes owed on related sales of cigarettes 


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1 and smokeless tobacco, and the person receiving 

2 records under subparagraph (B) shall keep con3 fidential any personal information in such 

4 records not otherwise required for such pur5 poses. 

6 ‘‘(4) PREEMPTION.— 

7 ‘‘(A) IN GENERAL.—No State, local, or 

8 tribal government, nor any political authority of 

9 2 or more State, local, or tribal governments, 

10 may enact or enforce any law or regulation re11 lating to delivery sales that restricts deliveries 

12 of cigarettes or smokeless tobacco to consumers 

13 by common carriers or other delivery services 

14 on behalf of delivery sellers by— 

15 ‘‘(i) requiring that the common carrier 

16 or other delivery service verify the age or 

17 identity of the consumer accepting the de18 livery by requiring the person who signs to 

19 accept delivery of the shipping container to 

20 provide proof, in the form of a valid, gov21 ernment-issued identification bearing a 

22 photograph of the individual, that such 

23 person is at least the minimum age re24 quired for the legal sale or purchase of toVerDate Nov 24 2008 22:01 Mar 24, 2009 Jkt 079200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\H1676.IH H1676

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1 bacco products, as determined by either 

2 State or local law at the place of delivery; 

3 ‘‘(ii) requiring that the common car4 rier or other delivery service obtain a sig5 nature from the consumer accepting the 

6 delivery; 

7 ‘‘(iii) requiring that the common car8 rier or other delivery service verify that all 

9 applicable taxes have been paid; 

10 ‘‘(iv) requiring that packages delivered 

11 by the common carrier or other delivery 

12 service contain any particular labels, no13 tice, or markings; or 

14 ‘‘(v) prohibiting common carriers or 

15 other delivery services from making deliv16 eries on the basis of whether the delivery 

17 seller is or is not identified on any list of 

18 delivery sellers maintained and distributed 

19 by any entity other than the Federal Gov20 ernment. 

21 ‘‘(B) RELATIONSHIP TO OTHER LAWS.— 

22 Except as provided in subparagraph (C), noth23 ing in this paragraph shall be construed to pro24 hibit, expand, restrict, or otherwise amend or 

25 modify— 


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1 ‘‘(i) section 14501(c)(1) or 

2 41713(b)(4) of title 49, United States 

3 Code; 

4 ‘‘(ii) any other restrictions in Federal 

5 law on the ability of State, local, or tribal 

6 governments to regulate common carriers; 

7 or 

8 ‘‘(iii) any provision of State, local, or 

9 tribal law regulating common carriers that 

10 falls within the provisions of sections 

11 14501(c)(2) or 41713(b)(4)(B) of title 49 

12 of the United States Code. 

13 ‘‘(C) STATE LAWS PROHIBITING DELIVERY

14 SALES.—Nothing in the Prevent All Cigarette 

15 Trafficking Act of 2008, the amendments made 

16 by that Act, or in any other Federal statute 

17 shall be construed to preempt, supersede, or 

18 otherwise limit or restrict State laws prohibiting 

19 the delivery sale, or the shipment or delivery 

20 pursuant to a delivery sale, of cigarettes or 

21 other tobacco products to individual consumers 

22 or personal residences except that no State may 

23 enforce against a common carrier a law prohib24 iting the delivery of cigarettes or other tobacco 

25 products to individual consumers or personal 


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1 residences without proof that the common car2 rier was not entitled to an exemption referred 

3 to in paragraph (2)(C) of this subsection. 

4 ‘‘(5) STATE, LOCAL, AND TRIBAL ADDITIONS.— 

5 ‘‘(A) IN GENERAL.—Any State, local, or 

6 tribal government shall provide the Attorney 

7 General of the United States with— 

8 ‘‘(i) all known names, addresses, 

9 website addresses, and other primary con10 tact information of any delivery seller that 

11 offers for sale or makes sales of cigarettes 

12 or smokeless tobacco in or into the State, 

13 locality, or tribal land but has failed to 

14 register with or make reports to the re15 spective tax administrator, as required by 

16 this Act, or that has been found in a legal 

17 proceeding to have otherwise failed to com18 ply with this Act; and 

19 ‘‘(ii) a list of common carriers and 

20 other persons who make deliveries of ciga21 rettes or smokeless tobacco in or into the 

22 State, locality, or tribal lands. 

23 ‘‘(B) UPDATES.—Any government pro24 viding a list to the Attorney General of the 

25 United States under subparagraph (A) shall 


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1 also provide updates and corrections every 4 

2 months until such time as such government no3 tifies the Attorney General of the United States 

4 in writing that such government no longer de5 sires to submit such information to supplement 

6 the list maintained and distributed by the At7 torney General of the United States under 

8 paragraph (1). 

9 ‘‘(C) REMOVAL AFTER WITHDRAWAL.— 

10 Upon receiving written notice that a govern11 ment no longer desires to submit information 

12 under subparagraph (A), the Attorney General 

13 of the United States shall remove from the list 

14 under paragraph (1) any persons that are on 

15 the list solely because of such government’s 

16 prior submissions of its list of noncomplying de17 livery sellers of cigarettes or smokeless tobacco 

18 or its subsequent updates and corrections. 

19 ‘‘(6) DEADLINE TO INCORPORATE ADDI20 TIONS.—The Attorney General of the United States 

21 shall— 

22 ‘‘(A) include any delivery seller identified 

23 and submitted by a State, local, or tribal gov24 ernment under paragraph (5) in any list or up25 date that is distributed or made available under 


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1 paragraph (1) on or after the date that is 30 

2 days after the date on which the information is 

3 received by the Attorney General of the United 

4 States; and 

5 ‘‘(B) distribute any such list or update to 

6 any common carrier or other person who makes 

7 deliveries of cigarettes or smokeless tobacco 

8 that has been identified and submitted by an9 other government, pursuant to paragraph (5). 

10 ‘‘(7) NOTICE TO DELIVERY SELLERS.—Not 

11 later than 14 days prior to including any delivery 

12 seller on the initial list distributed or made available 

13 under paragraph (1), or on any subsequent list or 

14 update for the first time, the Attorney General of 

15 the United States shall make a reasonable attempt 

16 to send notice to the delivery seller by letter, elec17 tronic mail, or other means that the delivery seller 

18 is being placed on such list or update, with that no19 tice citing the relevant provisions of this Act. 

20 ‘‘(8) LIMITATIONS.— 

21 ‘‘(A) IN GENERAL.—Any common carrier 

22 or other person making a delivery subject to 

23 this subsection shall not be required or other24 wise obligated to— 


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1 ‘‘(i) determine whether any list dis2 tributed or made available under para3 graph (1) is complete, accurate, or up-to4 date; 

5 ‘‘(ii) determine whether a person or6 dering a delivery is in compliance with this 

7 Act; or 

8 ‘‘(iii) open or inspect, pursuant to this 

9 Act, any package being delivered to deter10 mine its contents. 

11 ‘‘(B) ALTERNATE NAMES.—Any common 

12 carrier or other person making a delivery sub13 ject to this subsection shall not be required or 

14 otherwise obligated to make any inquiries or 

15 otherwise determine whether a person ordering 

16 a delivery is a delivery seller on the list under 

17 paragraph (1) who is using a different name or 

18 address in order to evade the related delivery 

19 restrictions, but shall not knowingly deliver any 

20 packages to consumers for any such delivery 

21 seller who the common carrier or other delivery 

22 service knows is a delivery seller who is on the 

23 list under paragraph (1) but is using a different 

24 name or address to evade the delivery restric25 tions of paragraph (2). 


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1 ‘‘(C) PENALTIES.—Any common carrier or 

2 person in the business of delivering packages on 

3 behalf of other persons shall not be subject to 

4 any penalty under section 14101(a) of title 49, 

5 United States Code, or any other provision of 

6 law for— 

7 ‘‘(i) not making any specific delivery, 

8 or any deliveries at all, on behalf of any 

9 person on the list under paragraph (1); 

10 ‘‘(ii) not, as a matter of regular prac11 tice and procedure, making any deliveries, 

12 or any deliveries in certain States, of any 

13 cigarettes or smokeless tobacco for any 

14 person or for any person not in the busi15 ness of manufacturing, distributing, or 

16 selling cigarettes or smokeless tobacco; or 

17 ‘‘(iii) delaying or not making a deliv18 ery for any person because of reasonable 

19 efforts to comply with this Act. 

20 ‘‘(D) OTHER LIMITS.—Section 2 and sub21 sections (a), (b), (c), and (d) of this section 

22 shall not be interpreted to impose any respon23 sibilities, requirements, or liability on common 

24 carriers. 


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1 ‘‘(f) PRESUMPTION.—For purposes of this Act, a de2 livery sale shall be deemed to have occurred in the State 

3 and place where the buyer obtains personal possession of 

4 the cigarettes or smokeless tobacco, and a delivery pursu5 ant to a delivery sale is deemed to have been initiated or 

6 ordered by the delivery seller.’’. 

7 (d) PENALTIES.—The Jenkins Act is amended by 

8 striking section 3 and inserting the following: 

9 ‘‘SEC. 3. PENALTIES. 

10 ‘‘(a) CRIMINAL PENALTIES.— 

11 ‘‘(1) IN GENERAL.—Except as provided in para12 graph (2), whoever violates any provision of this Act 

13 shall be guilty of a felony and shall be imprisoned 

14 not more than 3 years, fined under title 18, United 

15 States Code, or both. 

16 ‘‘(2) EXCEPTIONS.— 

17 ‘‘(A) GOVERNMENTS.—Paragraph (1) shall 

18 not apply to a State, local, or tribal govern19 ment. 

20 ‘‘(B) DELIVERY VIOLATIONS.—A common 

21 carrier or independent delivery service, or em22 ployee of a common carrier or independent de23 livery service, shall be subject to criminal pen24 alties under paragraph (1) for a violation of 


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•HR 1676 IH

1 section 2A(e) only if the violation is committed 

2 intentionally— 

3 ‘‘(i) as consideration for the receipt 

4 of, or as consideration for a promise or 

5 agreement to pay, anything of pecuniary 

6 value; or 

7 ‘‘(ii) for the purpose of assisting a de8 livery seller to violate, or otherwise evading 

9 compliance with, section 2A. 

10 ‘‘(b) CIVIL PENALTIES.— 

11 ‘‘(1) IN GENERAL.—Except as provided in para12 graph (3), whoever violates any provision of this Act 

13 shall be subject to a civil penalty in an amount not 

14 to exceed— 

15 ‘‘(A) in the case of a delivery seller, the 

16 greater of— 

17 ‘‘(i) $5,000 in the case of the first 

18 violation, or $10,000 for any other viola19 tion; or 

20 ‘‘(ii) for any violation, 2 percent of 

21 the gross sales of cigarettes or smokeless 

22 tobacco of such person during the 1-year 

23 period ending on the date of the violation. 

24 ‘‘(B) in the case of a common carrier or 

25 other delivery service, $2,500 in the case of a 


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•HR 1676 IH

1 first violation, or $5,000 for any violation with2 in 1 year of a prior violation. 

3 ‘‘(2) RELATION TO OTHER PENALTIES.—A civil 

4 penalty under paragraph (1) for a violation of this 

5 Act shall be imposed in addition to any criminal 

6 penalty under subsection (a) and any other damages, 

7 equitable relief, or injunctive relief awarded by the 

8 court, including the payment of any unpaid taxes to 

9 the appropriate Federal, State, local, or tribal gov10 ernments. 

11 ‘‘(3) EXCEPTIONS.— 

12 ‘‘(A) DELIVERY VIOLATIONS.—An em13 ployee of a common carrier or independent de14 livery service shall be subject to civil penalties 

15 under paragraph (1) for a violation of section 

16 2A(e) only if the violation is committed inten17 tionally— 

18 ‘‘(i) as consideration for the receipt 

19 of, or as consideration for a promise or 

20 agreement to pay, anything of pecuniary 

21 value; or 

22 ‘‘(ii) for the purpose of assisting a de23 livery seller to violate, or otherwise evading 

24 compliance with, section 2A. 


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1 ‘‘(B) OTHER LIMITATIONS.—No common 

2 carrier or independent delivery service shall be 

3 subject to civil penalties under paragraph (1) 

4 for a violation of section 2A(e) if— 

5 ‘‘(i) the common carrier or inde6 pendent delivery service has implemented 

7 and enforces effective policies and practices 

8 for complying with that section; or 

9 ‘‘(ii) an employee of the common car10 rier or independent delivery service who 

11 physically receives and processes orders, 

12 picks up packages, processes packages, or 

13 makes deliveries, takes actions that are 

14 outside the scope of employment of the em15 ployee in the course of the violation, or 

16 that violate the implemented and enforced 

17 policies of the common carrier or inde18 pendent delivery service described in clause 

19 (i).’’. 

20 (e) ENFORCEMENT.—The Jenkins Act is amended by 

21 striking section 4 and inserting the following: 

22 ‘‘SEC. 4. ENFORCEMENT. 

23 ‘‘(a) IN GENERAL.—The United States district 

24 courts shall have jurisdiction to prevent and restrain viola25 tions of this Act and to provide other appropriate injuncVerDate Nov 24 2008 22:01 Mar 24, 2009 Jkt 079200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\H1676.IH H1676

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1 tive or equitable relief, including money damages, for such 

2 violations. 

3 ‘‘(b) AUTHORITY OF THE ATTORNEY GENERAL.— 

4 The Attorney General of the United States shall admin5 ister and enforce the provisions of this Act. 

6 ‘‘(c) STATE, LOCAL, AND TRIBAL ENFORCEMENT.— 

7 ‘‘(1) IN GENERAL.— 

8 ‘‘(A) STANDING.—A State, through its at9 torney general (or a designee thereof), or a 

10 local government or Indian tribe that levies a 

11 tax subject to section 2A(a)(3), through its 

12 chief law enforcement officer (or a designee 

13 thereof), may bring an action in a United 

14 States district court to prevent and restrain vio15 lations of this Act by any person (or by any 

16 person controlling such person) or to obtain any 

17 other appropriate relief from any person (or 

18 from any person controlling such person) for 

19 violations of this Act, including civil penalties, 

20 money damages, and injunctive or other equi21 table relief. 

22 ‘‘(B) SOVEREIGN IMMUNITY.—Nothing in 

23 this Act shall be deemed to abrogate or con24 stitute a waiver of any sovereign immunity of a 

25 State or local government or Indian tribe 


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•HR 1676 IH

1 against any unconsented lawsuit under this Act, 

2 or otherwise to restrict, expand, or modify any 

3 sovereign immunity of a State or local govern4 ment or Indian tribe. 

5 ‘‘(2) PROVISION OF INFORMATION.—A State, 

6 through its attorney general, or a local government 

7 or Indian tribe that levies a tax subject to section 

8 2A(a)(3), through its chief law enforcement officer 

9 (or a designee thereof), may provide evidence of a 

10 violation of this Act by any person not subject to 

11 State, local, or tribal government enforcement ac12 tions for violations of this Act to the Attorney Gen13 eral of the United States or a United States attor14 ney, who shall take appropriate actions to enforce 

15 the provisions of this Act. 

16 ‘‘(3) USE OF PENALTIES COLLECTED.— 

17 ‘‘(A) IN GENERAL.—There is established a 

18 separate account in the Treasury known as the 

19 ‘PACT Anti-Trafficking Fund’. Notwith20 standing any other provision of law and subject 

21 to subparagraph (B), an amount equal to 50 

22 percent of any criminal and civil penalties col23 lected by the United States Government in en24 forcing the provisions of this Act shall be trans25 ferred into the PACT Anti-Trafficking Fund 


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1 and shall be available to the Attorney General 

2 of the United States for purposes of enforcing 

3 the provisions of this Act and other laws relat4 ing to contraband tobacco products. 

5 ‘‘(B) ALLOCATION OF FUNDS.—Of the 

6 amount available to the Attorney General under 

7 subparagraph (A), not less than 50 percent 

8 shall be made available only to the agencies and 

9 offices within the Department of Justice that 

10 were responsible for the enforcement actions in 

11 which the penalties concerned were imposed or 

12 for any underlying investigations. 

13 ‘‘(4) NONEXCLUSIVITY OF REMEDY.— 

14 ‘‘(A) IN GENERAL.—The remedies avail15 able under this section and section 3 are in ad16 dition to any other remedies available under 

17 Federal, State, local, tribal, or other law. 

18 ‘‘(B) STATE COURT PROCEEDINGS.—Noth19 ing in this Act shall be construed to expand, re20 strict, or otherwise modify any right of an au21 thorized State official to proceed in State court, 

22 or take other enforcement actions, on the basis 

23 of an alleged violation of State or other law. 

24 ‘‘(C) TRIBAL COURT PROCEEDINGS.— 

25 Nothing in this Act shall be construed to exVerDate Nov 24 2008 22:01 Mar 24, 2009 Jkt 079200 PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 E:\BILLS\H1676.IH H1676

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1 pand, restrict, or otherwise modify any right of 

2 an authorized Indian tribal government official 

3 to proceed in tribal court, or take other enforce4 ment actions, on the basis of an alleged viola5 tion of tribal law. 

6 ‘‘(D) LOCAL GOVERNMENT ENFORCE7 MENT.—Nothing in this Act shall be construed 

8 to expand, restrict, or otherwise modify any 

9 right of an authorized local government official 

10 to proceed in State court, or take other enforce11 ment actions, on the basis of an alleged viola12 tion of local or other law. 

13 ‘‘(d) PERSONS DEALING IN TOBACCO PRODUCTS.— 

14 Any person who holds a permit under section 5712 of the 

15 Internal Revenue Code of 1986 (regarding permitting of 

16 manufacturers and importers of tobacco products and ex17 port warehouse proprietors) may bring an action in a 

18 United States district court to prevent and restrain viola19 tions of this Act by any person (or by any person control20 ling such person) other than a State, local, or tribal gov21 ernment. 

22 ‘‘(e) NOTICE.— 

23 ‘‘(1) PERSONS DEALING IN TOBACCO PROD24 UCTS.—Any person who commences a civil action 


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1 under subsection (d) shall inform the Attorney Gen2 eral of the United States of the action. 

3 ‘‘(2) STATE, LOCAL, AND TRIBAL ACTIONS.—It 

4 is the sense of Congress that the attorney general of 

5 any State, or chief law enforcement officer of any lo6 cality or tribe, that commences a civil action under 

7 this section should inform the Attorney General of 

8 the United States of the action. 

9 ‘‘(f) PUBLIC NOTICE.— 

10 ‘‘(1) IN GENERAL.—The Attorney General of 

11 the United States shall make available to the public, 

12 by posting such information on the Internet and by 

13 other appropriate means, information regarding all 

14 enforcement actions undertaken by the Attorney 

15 General or United States attorneys, or reported to 

16 the Attorney General, under this section, including 

17 information regarding the resolution of such actions 

18 and how the Attorney General and the United States 

19 attorney have responded to referrals of evidence of 

20 violations pursuant to subsection (c)(2). 

21 ‘‘(2) REPORTS TO CONGRESS.—The Attorney 

22 General shall submit to Congress each year a report 

23 containing the information described in paragraph 

24 (1).’’. 


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1 SEC. 3. TREATMENT OF CIGARETTES AND SMOKELESS TO2 BACCO AS NONMAILABLE MATTER. 

3 (a) IN GENERAL.—Chapter 83 of title 18, United 

4 States Code, is amended by inserting after section 1716D 

5 the following: 

6 ‘‘§ 1716E. Tobacco products as nonmailable 

7 ‘‘(a) PROHIBITION.—All cigarettes (as that term is 

8 defined in section 1 of the Act of October 19, 1949, com9 monly referred to as the Jenkins Act) and smokeless to10 bacco (as that term is defined in section 1 of the Act of 

11 October 19, 1949, commonly referred to as the Jenkins 

12 Act) are nonmailable and shall not be deposited in or car13 ried through the mails. The United States Postal Service 

14 shall not accept for delivery or transmit through the mails 

15 any package that it knows or has reasonable cause to be16 lieve contains any cigarettes or smokeless tobacco made 

17 nonmailable by this subsection. For the purposes of sub18 section (a) reasonable cause includes— 

19 ‘‘(1) a statement on a publicly available website, 

20 or an advertisement, by any person that such person 

21 will mail matter which is nonmailable under this sec22 tion in return for payment; and 

23 ‘‘(2) the placement of the person on the list cre24 ated under section 2A(e) of the Jenkins Act. 

25 ‘‘(b) EXCEPTIONS.—This section shall not apply to 

26 the following: 


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1 ‘‘(1) CIGARS.—Cigars (as that term is defined 

2 in section 5702(a) of the Internal Revenue Code of 

3 1986). 

4 ‘‘(2) GEOGRAPHIC EXCEPTION.—Mailings with5 in the State of Alaska or within the State of Hawaii. 

6 ‘‘(3) BUSINESS PURPOSES.—Tobacco products 

7 mailed only for business purposes between legally 

8 operating businesses that have all applicable State 

9 and Federal Government licenses or permits and are 

10 engaged in tobacco product manufacturing, distribu11 tion, wholesale, export, import, testing, investigation, 

12 or research, or for regulatory purposes between any 

13 such businesses and State or Federal Government 

14 regulatory agencies, if the Postal Service issues a 

15 final rule establishing the standards and require16 ments that apply to all such mailings and which in17 cludes the following: 

18 ‘‘(A) The Postal Service shall verify that 

19 any person submitting an otherwise nonmailable 

20 tobacco product into the mails as authorized by 

21 this paragraph is a business or government 

22 agency permitted to make such mailings pursu23 ant to this section and the related final rule. 

24 ‘‘(B) The Postal Service shall ensure that 

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1 bacco product sent through the mails pursuant 

2 to this paragraph is a business or government 

3 agency that may lawfully receive such product. 

4 ‘‘(C) The mailings shall be sent through 

5 the Postal Service’s systems that provide for 

6 the tracking and confirmation of the delivery. 

7 ‘‘(D) The identities of the business or gov8 ernment entity submitting the mailing con9 taining otherwise nonmailable tobacco products 

10 for delivery and the business or government en11 tity receiving the mailing shall be clearly set 

12 forth on the package and such information shall 

13 be kept in Postal Service records and made 

14 available to the Postal Service, the Attorney 

15 General, and to persons eligible to bring en16 forcement actions pursuant to section 3(d) of 

17 the Prevent All Cigarette Trafficking Act of 

18 2008 for a period of at least three years. 

19 ‘‘(E) The mailings shall be marked with a 

20 Postal Service label or marking that makes it 

21 clear to Postal Service employees that it is a 

22 permitted mailing of otherwise nonmailable to23 bacco products that may be delivered only to a 

24 permitted government agency or business and 


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1 may not be delivered to any residence or indi2 vidual person. 

3 ‘‘(F) The mailings shall be delivered only 

4 to verified adult employees of the recipient busi5 nesses or government agencies who shall be re6 quired to sign for the mailing. 

7 ‘‘(4) CERTAIN INDIVIDUALS.—Tobacco products 

8 mailed by individual adult people for noncommercial, 

9 nonbusiness and non-money making purposes, in10 cluding the return of a damaged or unacceptable to11 bacco product to its manufacturer, if the Postal 

12 Service issues a final rule establishing the standards 

13 and requirements that applies to all such mailings 

14 and which includes the following: 

15 ‘‘(A) The Postal Service shall verify that 

16 any person submitting an otherwise nonmailable 

17 tobacco product into the mails as authorized by 

18 this section is the individual person identified 

19 on the return address label of the package and 

20 is an adult. 

21 ‘‘(B) For mailings to individual persons 

22 the Postal Service shall require the person sub23 mitting the otherwise nonmailable tobacco prod24 uct into the mails as authorized by this sub25 section to affirm that the recipient is an adult. 


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•HR 1676 IH

1 ‘‘(C) The package shall not weigh more 

2 than 10 ounces. 

3 ‘‘(D) The mailings shall be sent through 

4 the Postal Service’s systems that provide for 

5 the tracking and confirmation of the delivery. 

6 ‘‘(E) No package shall be delivered or 

7 placed in the possession of any individual per8 son who is not a verified adult. For mailings to 

9 individual persons, the Postal Service shall de10 liver the package only to the verified adult re11 cipient at the recipient address or transfer it 

12 for delivery to an Air/Army Postal Office 

13 (APO) or Fleet Postal Office (FPO) number 

14 designated in the recipient address. 

15 ‘‘(F) No person shall initiate more than 

16 ten such mailings in any thirty-day period. 

17 ‘‘(5) DEFINITION OF ADULT.—For the purposes 

18 of paragraphs (3) and (4), the term ‘adult’ means 

19 an individual person of at least the minimum age re20 quired for the legal sale or purchase of tobacco prod21 ucts as determined by the applicable law at the place 

22 the individual person is located. 

23 ‘‘(c) SEIZURE AND FORFEITURE.—Any cigarettes or 

24 smokeless tobacco made nonmailable by this subsection 

25 that are deposited in the mails shall be subject to seizure 


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1 and forfeiture, pursuant to the procedures set forth in 

2 chapter 46 of this title. Any tobacco products so seized 

3 and forfeited shall either be destroyed or retained by Gov4 ernment officials for the detection or prosecution of crimes 

5 or related investigations and then destroyed. 

6 ‘‘(d) ADDITIONAL PENALTIES.—In addition to any 

7 other fines and penalties imposed by this chapter for viola8 tions of this section, any person violating this section shall 

9 be subject to an additional civil penalty in the amount of 

10 10 times the retail value of the nonmailable cigarettes or 

11 smokeless tobacco, including all Federal, State, and local 

12 taxes. 

13 ‘‘(e) CRIMINAL PENALTY.—Whoever knowingly de14 posits for mailing or delivery, or knowingly causes to be 

15 delivered by mail, according to the direction thereon, or 

16 at any place at which it is directed to be delivered by the 

17 person to whom it is addressed, anything that this section 

18 declares to be nonmailable matter shall be fined under this 

19 title, imprisoned not more than 1 year, or both. 

20 ‘‘(f) DEFINITION.—As used in this section, the term 

21 ‘State’ has the meaning given that term in section 

22 1716(k). 

23 ‘‘(g) USE OF PENALTIES.—There is established a 

24 separate account in the Treasury of the United States, 

25 to be known as the ‘PACT Postal Service Fund’. NotwithVerDate Nov 24 2008 21:41 Mar 27, 2009 Jkt 079200 PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 E:\BILLS\H1676.IH H1676

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1 standing any other provision of law, an amount equal to 

2 50 percent of any criminal and civil fines or monetary pen3 alties collected by the United States Government in en4 forcing the provisions of this subsection shall be trans5 ferred into the PACT Postal Service Fund and shall be 

6 available to the Postmaster General for the purpose of en7 forcing the provisions of this subsection. 

8 ‘‘(h) COORDINATION OF EFFORTS.—In the enforce9 ment of this section, the Postal Service shall cooperate and 

10 coordinate its efforts with related enforcement activities 

11 of any other Federal agency or of any State, local, or trib12 al government, whenever appropriate.’’. 

13 (b) ACTIONS BY STATE, LOCAL OR TRIBAL GOVERN14 MENTS RELATING TO CERTAIN TOBACCO PRODUCTS.— 

15 (1) A State, through its attorney general (or a 

16 designee thereof), or a local government or Indian 

17 tribe that levies an excise tax on tobacco products, 

18 through its chief law enforcement officer (or a des19 ignee thereof), may in a civil action in a United 

20 States district court obtain appropriate relief with 

21 respect to a violation of section 1716E of title 18, 

22 United States Code. Appropriate relief includes in23 junctive and equitable relief and damages equal to 

24 the amount of unpaid taxes on tobacco products 


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1 mailed in violation of that section to addressees in 

2 that State. 

3 (2) Nothing in this section shall be deemed to 

4 abrogate or constitute a waiver of any sovereign im5 munity of a State or local government or Indian 

6 tribe against any unconsented lawsuit under para7 graph (1), or otherwise to restrict, expand, or mod8 ify any sovereign immunity of a State or local gov9 ernment or Indian tribe. 

10 (3) Nothing in this section shall be construed to 

11 prohibit an authorized State official from proceeding 

12 in State court on the basis of an alleged violation of 

13 any general civil or criminal statute of such State. 

14 (4) A State, through its attorney general, or a 

15 local government or Indian tribe that levies an excise 

16 tax on tobacco products, through its chief law en17 forcement officer (or a designee thereof), may pro18 vide evidence of a violation of paragraph (1) for 

19 commercial, business or money-making purposes by 

20 any person not subject to State, local, or tribal gov21 ernment enforcement actions for violations of para22 graph (1) to the Attorney General of the United 

23 States or a United States attorney, who shall take 

24 appropriate actions to enforce the provisions of this 

25 subsection. 


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1 (5) The remedies available under this sub2 section are in addition to any other remedies avail3 able under Federal, State, local, tribal, or other law. 

4 Nothing in this subsection shall be construed to ex5 pand, restrict, or otherwise modify any right of an 

6 authorized State, local, or tribal government official 

7 to proceed in a State, tribal, or other appropriate 

8 court, or take other enforcement actions, on the 

9 basis of an alleged violation of State, local, tribal, or 

10 other law. 

11 (c) CLERICAL AMENDMENT.—The table of sections 

12 at the beginning of chapter 83 of title 18 is amended by 

13 adding after the item relating to section 1716D the fol14 lowing new item: 

‘‘1716E. Tobacco products as nonmailable.’’. 

15 SEC. 4. COMPLIANCE WITH MODEL STATUTE OR QUALI16 FYING STATUTE. 

17 (a) IN GENERAL.—A Tobacco Product Manufacturer 

18 or importer may not sell in, deliver to, or place for delivery 

19 sale, or cause to be sold in, delivered to, or placed for deliv20 ery sale in a State that is a party to the Master Settlement 

21 Agreement, any cigarette manufactured by a Tobacco 

22 Product Manufacturer that is not in full compliance with 

23 the terms of the Model Statute or Qualifying Statute en24 acted by such State requiring funds to be placed into a 


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1 qualified escrow account under specified conditions, or any 

2 regulations promulgated pursuant to such statute. 

3 (b) JURISDICTION TO PREVENT AND RESTRAIN VIO4 LATIONS.— 

5 (1) IN GENERAL.—The United States district 

6 courts shall have jurisdiction to prevent and restrain 

7 violations of subsection (a) in accordance with this 

8 subsection. 

9 (2) INITIATION OF ACTION.—A State, through 

10 its attorney general, may bring an action in the 

11 United States district courts to prevent and restrain 

12 violations of subsection (a) by any person (or by any 

13 person controlling such person). 

14 (3) ATTORNEY FEES.—In any action under 

15 paragraph (2), a State, through its attorney general, 

16 shall be entitled to reasonable attorney fees from a 

17 person found to have willfully and knowingly violated 

18 subsection (a). 

19 (4) NONEXCLUSIVITY OF REMEDIES.—The rem20 edy available under paragraph (2) is in addition to 

21 any other remedies available under Federal, State, 

22 or other law. No provision of this Act or any other 

23 Federal law shall be held or construed to prohibit or 

24 preempt the Master Settlement Agreement, the 

25 Model Statute (as defined in the Master Settlement 


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1 Agreement), any legislation amending or complemen2 tary to the Model Statute in effect as of June 1, 

3 2006, or any legislation substantially similar to such 

4 existing, amending, or complementary legislation 

5 hereinafter enacted. 

6 (5) OTHER ENFORCEMENT ACTIONS.—Nothing 

7 in this subsection shall be construed to prohibit an 

8 authorized State official from proceeding in State 

9 court or taking other enforcement actions on the 

10 basis of an alleged violation of State or other law. 

11 (6) AUTHORITY OF THE ATTORNEY GEN12 ERAL.—The Attorney General of the United States 

13 may administer and enforce subsection (a). 

14 (c) DEFINITIONS.—In this section the following defi15 nitions apply: 

16 (1) DELIVERY SALE.—The term ‘‘delivery sale’’ 

17 means any sale of cigarettes or smokeless tobacco to 

18 a consumer if— 

19 (A) the consumer submits the order for 

20 such sale by means of a telephone or other 

21 method of voice transmission, the mails, or the 

22 Internet or other online service, or the seller is 

23 otherwise not in the physical presence of the 

24 buyer when the request for purchase or order is 

25 made; or 


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1 (B) the cigarettes or smokeless tobacco are 

2 delivered to the buyer by common carrier, pri3 vate delivery service, or other method of remote 

4 delivery, or the seller is not in the physical pres5 ence of the buyer when the buyer obtains pos6 session of the cigarettes or smokeless tobacco. 

7 (2) IMPORTER.—The term ‘‘importer’’ means 

8 each of the following: 

9 (A) SHIPPING OR CONSIGNING.—Any per10 son in the United States to whom nontaxpaid 

11 tobacco products manufactured in a foreign 

12 country, Puerto Rico, the Virgin Islands, or a 

13 possession of the United States are shipped or 

14 consigned. 

15 (B) MANUFACTURING WAREHOUSES.—Any 

16 person who removes cigars or cigarettes for sale 

17 or consumption in the United States from a 

18 customs-bonded manufacturing warehouse. 

19 (C) UNLAWFUL IMPORTING.—Any person 

20 who smuggles or otherwise unlawfully brings to21 bacco products into the United States. 

22 (3) MASTER SETTLEMENT AGREEMENT.—The 

23 term ‘‘Master Settlement Agreement’’ means the 

24 agreement executed November 23, 1998, between 

25 the attorneys general of 46 States, the District of 


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1 Columbia, the Commonwealth of Puerto Rico, and 4 

2 territories of the United States and certain tobacco 

3 manufacturers. 

4 (4) MODEL STATUTE; QUALIFYING STATUTE.— 

5 The terms ‘‘Model Statute’’ and ‘‘Qualifying Stat6 ute’’ means a statute as defined in section 

7 IX(d)(2)(e) of the Master Settlement Agreement. 

8 (5) TOBACCO PRODUCT MANUFACTURER.—The 

9 term ‘‘Tobacco Product Manufacturer’’ has the 

10 meaning given that term in section II(uu) of the 

11 Master Settlement Agreement. 

12 SEC. 5. INSPECTION BY BUREAU OF ALCOHOL, TOBACCO, 

13 FIREARMS, AND EXPLOSIVES OF RECORDS 

14 OF CERTAIN CIGARETTE AND SMOKELESS 

15 TOBACCO SELLERS; CIVIL PENALTY. 

16 Section 2343(c) of title 18, United States Code, is 

17 amended to read as follows: 

18 ‘‘(c)(1) Any officer of the Bureau of Alcohol, To19 bacco, Firearms, and Explosives may, during normal busi20 ness hours, enter the premises of any person described in 

21 subsection (a) or (b) for the purposes of inspecting— 

22 ‘‘(A) any records or information required to be 

23 maintained by such person under the provisions of 

24 law referred to in this chapter; or 


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1 ‘‘(B) any cigarettes or smokeless tobacco kept 

2 or stored by such person at such premises. 

3 ‘‘(2) The district courts of the United States shall 

4 have the authority in a civil action under this subsection 

5 to compel inspections authorized by paragraph (1).’’ 

6 ‘‘(3) Whoever violates paragraph (1), or an order 

7 issued under paragraph (2), shall be subject to a civil pen8 alty in an amount not to exceed $10,000 for each viola9 tion.’’. 

10 SEC. 6. EXCLUSIONS REGARDING INDIAN TRIBES AND 

11 TRIBAL MATTERS. 

12 (a) IN GENERAL.—Nothing in this Act or the amend13 ments made by this Act is intended nor shall be construed 

14 to affect, amend, or modify— 

15 (1) any agreements, compacts, or other inter16 governmental arrangements between any State or 

17 local government and any government of an Indian 

18 tribe (as that term is defined in section 4(e) of the 

19 Indian Self-Determination and Education Assistance 

20 Act (25 U.S.C. 450b(e)) relating to the collection of 

21 taxes on cigarettes or smokeless tobacco sold in In22 dian country; 

23 (2) any State laws that authorize or otherwise 

24 pertain to any such intergovernmental arrangements 

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1 tion of State, local, or tribal taxes on cigarettes or 

2 smokeless tobacco sold in Indian country; 

3 (3) any limitations under Federal or State law, 

4 including Federal common law and treaties, on 

5 State, local, and tribal tax and regulatory authority 

6 with respect to the sale, use, or distribution of ciga7 rettes and smokeless tobacco by or to Indian tribes, 

8 tribal members, tribal enterprises, or in Indian coun9 try; 

10 (4) any Federal law, including Federal common 

11 law and treaties, regarding State jurisdiction, or 

12 lack thereof, over any tribe, tribal members, tribal 

13 enterprises, tribal reservations, or other lands held 

14 by the United States in trust for one or more Indian 

15 tribes; and 

16 (5) any State or local government authority to 

17 bring enforcement actions against persons located in 

18 Indian country. 

19 (b) COORDINATION OF LAW ENFORCEMENT.—Noth20 ing in this Act or the amendments made by this Act shall 

21 be construed to inhibit or otherwise affect any coordinated 

22 law enforcement effort by 1 or more States or other juris23 dictions, including Indian tribes, through interstate com24 pact or otherwise, 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 products 

5 or other property related to a violation of such laws; 

6 or 

7 (3) establishes cooperative programs for the ad8 ministration of such laws. 

9 (c) TREATMENT OF STATE AND LOCAL GOVERN10 MENTS.—Nothing in this Act or the amendments made 

11 by this Act is intended, and shall not be construed to, au12 thorize, deputize, or commission States or local govern13 ments as instrumentalities of the United States. 

14 (d) ENFORCEMENT WITHIN INDIAN COUNTRY.— 

15 Nothing in this Act or the amendments made by this Act 

16 is intended to prohibit, limit, or restrict enforcement by 

17 the Attorney General of the United States of the provi18 sions herein within Indian country. 

19 (e) AMBIGUITY.—Any ambiguity between the lan20 guage of this section or its application and any other pro21 vision of this Act shall be resolved in favor of this section. 

22 SEC. 7. ENHANCED CONTRABAND TOBACCO ENFORCE23 MENT. 

24 (a) REQUIREMENTS.—The Director of the Bureau of 

25 Alcohol, Tobacco, Firearms and Explosives shall— 


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1 (1) create 6 regional contraband tobacco traf2 ficking teams over a 3-year period in New York 

3 City, Washington DC, Detroit, Los Angeles, Seattle, 

4 and Miami, 

5 (2) create a new Tobacco Intelligence Center to 

6 oversee investigations and monitor and coordinate 

7 ongoing investigations and to serve as a nerve center 

8 for all on going tobacco diversion investigations in 

9 the United States, and where applicable with law en10 forcement organizations around the world within the 

11 Bureau of Alcohol, Tobacco, Firearms, and Explo12 sives, 

13 (3) establish covert national warehouse for un14 dercover operations, and 

15 (4) create a computer database that will track 

16 and analyze information from retail sellers of to17 bacco products that sell through the internet, mail 

18 order or make other non face to face sales. 

19 (b) AUTHORIZATION OF APPROPRIATIONS.—The is 

20 authorized to be appropriated to carry out subsection (a) 

21 $8,500,000 for each of 5 fiscal years. 

22 SEC. 8. EFFECTIVE DATE. 

23 (a) IN GENERAL.—Except as provided in subsection 

24 (b), this Act shall take effect on the date that is 90 days 

25 after the date of enactment of this Act. 


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1 (b) BATFE AUTHORITY.—Section 5 shall take effect 

2 on the date of enactment of this Act. 

3 SEC. 9. SEVERABILITY. 

4 If any provision of this, or an amendment made by 

5 this Act or the application thereof to any person or cir6 cumstance is held invalid, the remainder of the Act and 

7 the application of it to any other person or circumstance 

8 shall not be affected thereby. 

Æ 


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