I 

111TH CONGRESS 

1ST SESSION H. R. 1400 

To amend title 39, United States Code, to make cigarettes and certain 

other tobacco products nonmailable, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 9, 2009 

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

Committee on Oversight and Government Reform 

A BILL 

To amend title 39, United States Code, to make cigarettes 

and certain other tobacco products nonmailable, 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. NONMAILABILITY OF CERTAIN TOBACCO PROD4 UCTS. 

5 (a) IN GENERAL.—Chapter 30 of title 39, United 

6 States Code, is amended by inserting after section 3002a 

7 the following: 


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1 ‘‘§ 3002b. Nonmailability of certain tobacco products 

2 ‘‘(a) IN GENERAL.—Except as provided in sub3 sections (g) and (h), cigarettes, smokeless tobacco, and 

4 roll-your-own-tobacco— 

5 ‘‘(1) are nonmailable matter; 

6 ‘‘(2) shall not be— 

7 ‘‘(A) deposited in the mails; or 

8 ‘‘(B) carried or delivered through the 

9 mails; and 

10 ‘‘(3) shall be disposed of as the Postal Service 

11 directs. 

12 ‘‘(b) CIVIL PENALTY.— 

13 ‘‘(1) IN GENERAL.—Any person who violates 

14 subsection (a)(2)(A) shall be liable to the United 

15 States for a civil penalty in an amount not to exceed 

16 $100,000 for each violation. 

17 ‘‘(2) HEARINGS.— 

18 ‘‘(A) IN GENERAL.—The Postal Service 

19 may determine that a person has violated sub20 section (a)(2)(A) only after notice and an op21 portunity for a hearing. Proceedings under this 

22 paragraph shall be conducted in accordance 

23 with section 3001(m). 

24 ‘‘(B) PENALTY CONSIDERATIONS.—In de25 termining the amount of a civil penalty under 


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1 this paragraph, the Postal Service shall con2 sider— 

3 ‘‘(i) the nature, circumstances, extent, 

4 and gravity of the violation; 

5 ‘‘(ii) with respect to the violator, the 

6 degree of culpability, ability to pay, and 

7 any history of prior violations; and 

8 ‘‘(iii) such other matters as justice 

9 may require. 

10 ‘‘(3) CIVIL ACTIONS.—The Postal Service may 

11 bring a civil action in an appropriate district court 

12 of the United States, in accordance with section 

13 409(g)(2), to enjoin violations of subsection 

14 (a)(2)(A), to collect a civil penalty under this sec15 tion, or to seek such other relief with respect to vio16 lations of subsection (a)(2)(A) as the court may 

17 deem appropriate. 

18 ‘‘(4) DISPOSITION OF AMOUNTS.—Amounts re19 ceived in payment of any civil penalties under this 

20 subsection shall be deposited as miscellaneous re21 ceipts in the Treasury of the United States. 

22 ‘‘(c) ORDERS.—Upon evidence satisfactory to the 

23 Postal Service that any person is engaged in the sending 

24 of mail matter which is nonmailable under this section, 

25 the Postal Service may issue an order which— 


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1 ‘‘(1) directs any postmaster, to whom any mail2 ing originating with such person or his representa3 tive is tendered for transmission through the mails 

4 (other than a mailing that consists only of one or 

5 more sealed letters), to refuse to accept any such 

6 mailing, unless such person or his representative 

7 first establishes to the satisfaction of the postmaster 

8 that the mailing does not contain any matter which 

9 is nonmailable under this section; and 

10 ‘‘(2) requires the person or his representative to 

11 cease and desist from mailing any mail matter which 

12 is nonmailable under this section. 

13 ‘‘(d) PRIMA FACIE EVIDENCE.—For the purposes of 

14 this section, prima facie evidence that a person is engaged 

15 in the mailing of matter which is nonmailable under this 

16 section may include a statement on a publicly available 

17 website, or an advertisement, by any person that such per18 son will mail matter which is nonmailable under this sec19 tion in return for payment or other consideration. 

20 ‘‘(e) COORDINATION OF EFFORTS.—In the enforce21 ment of this section, the Postal Service shall cooperate 

22 with, and coordinate its efforts with related activities of, 

23 any other Federal agency or any State or local govern24 ment, whenever appropriate. 


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1 ‘‘(f) ACTIONS BY STATES RELATING TO CERTAIN TO2 BACCO PRODUCTS.— 

3 ‘‘(1) AUTHORITY OF STATES.—Whenever the 

4 attorney general of a State has reason to believe 

5 that any person has engaged or is engaging in mail6 ings to residents of that State in violation of sub7 section (a)(2)(A), the State may bring, in an appro8 priate district court of the United States, a civil ac9 tion— 

10 ‘‘(A) to enjoin such mailings; 

11 ‘‘(B) to carry out paragraphs (1) and (4) 

12 of subsection (b) with respect to such mailings; 

13 or 

14 ‘‘(C) to carry out subparagraphs (A) and 

15 (B). 

16 In the course of any such action, the State may seek 

17 damages equal to the amount of any unpaid taxes on 

18 tobacco products mailed in violation of subsection 

19 (a)(2)(A) to residents of the State and such other 

20 relief as the court may deem appropriate. 

21 ‘‘(2) RIGHTS OF THE POSTAL SERVICE.—The 

22 State shall serve prior written notice of any action 

23 under paragraph (1) upon the Postal Service and 

24 provide the Postal Service with a copy of its com25 plaint, except in any case in which such prior notice 


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1 is not feasible, in which case the State shall serve 

2 such notice immediately upon instituting such ac3 tion. The Postal Service, in accordance with section 

4 409(g)(2), shall have the right (A) to intervene in 

5 the action, (B) upon so intervening, to be heard on 

6 all matters arising therein, and (C) to file petitions 

7 for appeal. 

8 ‘‘(3) EFFECT ON STATE COURT PRO9 CEEDINGS.—Nothing contained in this section shall 

10 be considered to prohibit an authorized State official 

11 from proceeding in State court on the basis of an al12 leged violation of any general civil or criminal stat13 ute of such State. 

14 ‘‘(4) LIMITATION.—Whenever the Postal Serv15 ice institutes a civil action under subsection (a)(3) 

16 for a violation of subsection (a)(2)(A), no State may, 

17 during the pendency of such action, institute a sepa18 rate civil action for any violation of subsection 

19 (a)(2)(A) against any defendant named in the Postal 

20 Service’s complaint. 

21 ‘‘(g) MAILINGS BETWEEN LEGAL TOBACCO INDUS22 TRY BUSINESSES AND GOVERNMENT AGENCIES.— 

23 ‘‘(1) IN GENERAL.—Tobacco products otherwise 

24 made nonmailable by subsection (a) may, beginning 


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1 on the effective date of regulations prescribed under 

2 paragraph (2), be mailed— 

3 ‘‘(A) for business purposes between busi4 nesses that— 

5 ‘‘(i) have all government licenses or 

6 permits that are required in order to do 

7 business; and 

8 ‘‘(ii) are engaged in tobacco product 

9 manufacturing, distribution, wholesale, ex10 port, import, testing, investigation, or re11 search; or 

12 ‘‘(B) for regulatory purposes between any 

13 business described in subparagraph (A) and any 

14 government agency. 

15 ‘‘(2) REGULATIONS.—The Postal Service may 

16 prescribe regulations governing mailings under this 

17 subsection, including regulations to carry out the fol18 lowing: 

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

20 any person depositing any otherwise non21 mailable tobacco product into the mails under 

22 this subsection is a business or government 

23 agency permitted to make such mailing under 

24 this subsection. 


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

2 any recipient of any otherwise nonmailable to3 bacco product sent through the mails under this 

4 subsection is a business or government agency 

5 permitted to receive such mailing under this 

6 subsection. 

7 ‘‘(C) The mailing shall be sent using a 

8 method that provides for the tracking and con9 firmation of delivery. 

10 ‘‘(D) The identity of the business or gov11 ernment agency from which the mailing is sent, 

12 and the identity of the business or government 

13 agency to which the mailing is sent, shall be 

14 clearly set forth on the envelope or outside 

15 cover or wrapper in which such mailing is sent, 

16 and all of that information shall, for a period 

17 of at least 3 years from the date of the mailing, 

18 be kept in Postal Service records and made 

19 available to persons enforcing subsection 

20 (a)(2)(A). 

21 ‘‘(E) The mailing shall be marked with a 

22 Postal Service label or marking that makes it 

23 clear that such mailing— 

24 ‘‘(i) is a permissible mailing of other25 wise nonmailable tobacco products; and 


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1 ‘‘(ii) may be delivered only to a busi2 ness described in paragraph (1)(A) or a 

3 government employee or entity. 

4 ‘‘(F) The mailing shall be delivered only to 

5 a verified employee or agent of the recipient 

6 business or government agency, who— 

7 ‘‘(i) has been duly authorized to ac8 cept such mailing; and 

9 ‘‘(ii) shall be required to sign for the 

10 mailing. 

11 ‘‘(3) RULE OF CONSTRUCTION.—Nothing in 

12 this subsection shall be considered to subject a gov13 ernment agency or any government employee or 

14 agent to any penalty or other restriction in connec15 tion with any mailing made by such employee or 

16 agent, acting within the scope of his employment or 

17 agency. 

18 ‘‘(h) MAILINGS BETWEEN INDIVIDUALS.— 

19 ‘‘(1) IN GENERAL.—Tobacco products otherwise 

20 made nonmailable by subsection (a) may be mailed 

21 between individuals (other than in any of the cir22 cumstances to which subsection (g) applies), for non23 moneymaking purposes, beginning on the effective 

24 date of regulations prescribed under paragraph (2). 


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1 ‘‘(2) REGULATIONS.—The Postal Service may 

2 prescribe regulations establishing the standards and 

3 requirements which shall govern all mailings under 

4 this subsection, including regulations to carry out 

5 the following: 

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

7 the person depositing the otherwise nonmailable 

8 tobacco product into the mails is properly iden9 tified on the return address of the mailing. 

10 ‘‘(B) The Postal Service shall require the 

11 person depositing the otherwise nonmailable to12 bacco product into the mails to affirm that the 

13 recipient is an individual who is of legal age to 

14 purchase tobacco products. 

15 ‘‘(C) The Postal Service shall require the 

16 person depositing the otherwise nonmailable to17 bacco product into the mails to affirm that the 

18 product is not being sent for moneymaking pur19 poses. 

20 ‘‘(D) The mailing shall weigh not more 

21 than 10 ounces. 

22 ‘‘(E) The mailing shall be sent using a 

23 method that provides for the tracking and con24 firmation of delivery. 


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1 ‘‘(F) The Postal Service shall deliver the 

2 mailing only to the verified recipient (as de3 scribed in subparagraph (B)) at the recipient’s 

4 address, including an Air/Army Postal Office 

5 (APO) or Fleet Postal Office (FPO) address. 

6 ‘‘(i) DEFINITIONS.—For purposes of this section— 

7 ‘‘(1) the terms ‘cigarette’ and ‘roll-your-own-to8 bacco’ have the meanings given them by section 

9 5702 of the Internal Revenue Code of 1986; 

10 ‘‘(2) the term ‘smokeless tobacco’ has the 

11 meaning given such term by section 2341 of title 18; 

12 and 

13 ‘‘(3) the term ‘State’ includes the District of 

14 Columbia, the Commonwealth of Puerto Rico, the 

15 Virgin Islands, American Samoa, Guam, and the 

16 Commonwealth of the Northern Mariana Islands.’’. 

17 (b) ADMINISTRATIVE SUBPOENAS.—Section 3016(a) 

18 of title 39, United States Code, is amended in paragraphs 

19 (1)(A) and (2) by inserting ‘‘3002b or’’ before ‘‘3005(a)’’. 

20 (c) ENFORCEMENT OF POSTAL SERVICE ORDERS.— 

21 Section 3012 of title 39, United States Code, is amend22 ed— 

23 (1) in subsection (b), by striking ‘‘or (d)’’ each 

24 place it appears and inserting ‘‘(d), or (e)’’; 


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1 (2) by redesignating subsections (e) and (f) as 

2 subsections (f) and (g), respectively; and 

3 (3) by inserting after subsection (d) the fol4 lowing: 

5 ‘‘(e) Any person who fails to comply with an order 

6 issued under section 3002b(c)(2) shall be liable to the 

7 United States for a civil penalty— 

8 ‘‘(1) not to exceed $10,000 for each mailing of 

9 fewer than 10 pieces; 

10 ‘‘(2) not to exceed $50,000 for each mailing of 

11 10 to 50 pieces; and 

12 ‘‘(3) not to exceed $100,000 for each mailing of 

13 more than 50 pieces.’’; and 

14 (4) in subsection (g) (as so redesignated by 

15 paragraph (2)), by inserting ‘‘3002b(c)(2) or’’ before 

16 ‘‘3005’’ each place it appears. 

17 (d) SEMIANNUAL REPORTS.—Section 3013 of title 

18 39, United States Code, is amended— 

19 (1) in paragraph (1), by inserting ‘‘3002b(b) 

20 or’’ before ‘‘3005’’; 

21 (2) in paragraph (2), by inserting ‘‘3002b(c) 

22 or’’ before ‘‘3005(e)’’; and 

23 (3) in paragraph (3), by striking ‘‘section 3007 

24 of this title’’ and inserting ‘‘section 3002b(c) or sec25 tion 3007, respectively,’’. 


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1 (e) CLERICAL AMENDMENT.—The table of sections 

2 for chapter 30 of title 39, United States Code, is amended 

3 by inserting after the item relating to section 3002a the 

4 following: 

‘‘3002b. Nonmailability of certain tobacco products.’’. 

5 (f) EFFECTIVE DATES.— 

6 (1) IN GENERAL.—Except as provided in para7 graph (2), the amendments made by this section 

8 shall take effect on the 60th day after the date of 

9 the enactment of this Act, and shall apply with re10 spect to any mail matter mailed on or after such 

11 60th day. 

12 (2) SEMIANNUAL REPORTS.—The amendments 

13 made by subsection (d) shall apply beginning with 

14 the report submitted for the reporting period in 

15 which occurs the 60th day after the date of the en16 actment of this Act. 

17 SEC. 2. TECHNICAL CORRECTION. 

18 (a) IN GENERAL.—Sections 3007(a)(1), 3012(b)(1), 

19 and 3018(f)(1) of title 39, United States Code, are amend20 ed by striking ‘‘409(d)’’ and inserting ‘‘409(g)(2)’’. 

21 (b) EFFECTIVE DATE.—The amendments made by 

22 subsection (a) shall take effect as if included in the enact23 ment of the Postal Accountability and Enhancement Act 

24 (Public Law 109–435). 

Æ 


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