II 

111TH CONGRESS 

1ST SESSION S. 1147 

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

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 21, 2009 

Mr. KOHL (for himself and Mr. LEAHY) introduced the following bill; which 

was read twice and 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, makes 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 ‘‘SECTION 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. 

23 ‘‘(2) CIGARETTE.— 

24 ‘‘(A) IN GENERAL.—The term ‘cigarette’— 


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1 ‘‘(i) has the meaning given that term 

2 in section 2341 of title 18, United States 

3 Code; and 

4 ‘‘(ii) includes roll-your-own tobacco 

5 (as defined in section 5702 of the Internal 

6 Revenue Code of 1986). 

7 ‘‘(B) EXCEPTION.—The term ‘cigarette’ 

8 does not include a cigar (as defined in section 

9 5702 of the Internal Revenue Code of 1986). 

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

11 carrier’ means any person (other than a local mes12 senger service or the United States Postal Service) 

13 that holds itself out to the general public as a pro14 vider for hire of the transportation by water, land, 

15 or air of merchandise (regardless of whether the per16 son actually operates the vessel, vehicle, or aircraft 

17 by which the transportation is provided) between a 

18 port or place and a port or place in the United 

19 States. 

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

21 ‘‘(A) means any person that purchases 

22 cigarettes or smokeless tobacco; and 

23 ‘‘(B) does not include any person lawfully 

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1 saler, or retailer of cigarettes or smokeless to2 bacco. 

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

4 means any sale of cigarettes or smokeless tobacco to 

5 a consumer if— 

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

7 the sale by means of a telephone or other meth8 od of voice transmission, the mails, or the 

9 Internet or other online service, or the seller is 

10 otherwise not in the physical presence of the 

11 buyer when the request for purchase or order is 

12 made; or 

13 ‘‘(B) the cigarettes or smokeless tobacco 

14 are delivered to the buyer by common carrier, 

15 private delivery service, or other method of re16 mote delivery, or the seller is not in the physical 

17 presence of the buyer when the buyer obtains 

18 possession of the cigarettes or smokeless to19 bacco. 

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

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

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

23 country’— 

24 ‘‘(A) has the meaning given that term in 

25 section 1151 of title 18, United States Code, 


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1 except that within the State of Alaska that 

2 term applies only to the Metlakatla Indian 

3 Community, Annette Island Reserve; and 

4 ‘‘(B) includes any other land held by the 

5 United States in trust or restricted status for 

6 one or more Indian tribes. 

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

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

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

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

11 listed pursuant to section 104 of the Federally Rec12 ognized Indian Tribe List Act of 1994 (25 U.S.C. 

13 479a–1). 

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

15 ‘interstate commerce’ means commerce between a 

16 State and any place outside the State, commerce be17 tween a State and any Indian country in the State, 

18 or commerce between points in the same State but 

19 through any place outside the State or through any 

20 Indian country. 

21 ‘‘(10) PERSON.—The term ‘person’ means an 

22 individual, corporation, company, association, firm, 

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1 nization of such a government, or joint stock com2 pany. 

3 ‘‘(11) STATE.—The term ‘State’ means each of 

4 the several States of the United States, the District 

5 of Columbia, the Commonwealth of Puerto Rico, or 

6 any territory or possession of the United States. 

7 ‘‘(12) SMOKELESS TOBACCO.—The term 

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

9 powdered, or leaf tobacco, or other product con10 taining tobacco, that is intended to be placed in the 

11 oral or nasal cavity or otherwise consumed without 

12 being combusted. 

13 ‘‘(13) TOBACCO TAX ADMINISTRATOR.—The 

14 term ‘tobacco tax administrator’ means the State, 

15 local, or tribal official duly authorized to collect the 

16 tobacco tax or administer the tax law of a State, lo17 cality, or tribe, respectively. 

18 ‘‘(14) USE.—The term ‘use’ includes the con19 sumption, storage, handling, or disposal of cigarettes 

20 or smokeless tobacco.’’. 

21 (b) REPORTS TO STATE TOBACCO TAX ADMINISTRA22 TORS.—Section 2 of the Jenkins Act (15 U.S.C. 376) is 

23 amended— 


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1 (1) by striking ‘‘cigarettes’’ each place it ap2 pears and inserting ‘‘cigarettes or smokeless to3 bacco’’; 

4 (2) in subsection (a)— 

5 (A) in the matter preceding paragraph 

6 (1)— 

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

8 ‘‘(a)’’; 

9 (ii) by striking ‘‘or transfers’’ and in10 serting ‘‘, transfers, or ships’’; 

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

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

13 State’’; 

14 (iv) by striking ‘‘to other than a dis15 tributor licensed by or located in such 

16 State,’’; and 

17 (v) by striking ‘‘or transfer and ship18 ment’’ and inserting ‘‘, transfer, or ship19 ment’’; 

20 (B) in paragraph (1)— 

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

22 administrator of the State’’ and inserting 

23 ‘‘with the Attorney General of the United 

24 States and with the tobacco tax adminis25 trators of the State and place’’; and 


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

2 the following: ‘‘, as well as telephone num3 bers for each place of business, a principal 

4 electronic mail address, any website ad5 dresses, and the name, address, and tele6 phone number of an agent in the State au7 thorized to accept service on behalf of the 

8 person;’’; 

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

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

11 thereof, and the name, address, and phone 

12 number of the person delivering the shipment to 

13 the recipient on behalf of the delivery seller, 

14 with all invoice or memoranda information re15 lating to specific customers to be organized by 

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

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

18 ‘‘(3) with respect to each memorandum or in19 voice filed with a State under paragraph (2), also 

20 file copies of the memorandum or invoice with the 

21 tobacco tax administrators and chief law enforce22 ment officers of the local governments and Indian 

23 tribes operating within the borders of the State that 

24 apply their own local or tribal taxes on cigarettes or 

25 smokeless tobacco.’’; 


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1 (3) in subsection (b)— 

2 (A) by inserting ‘‘PRESUMPTIVE EVI3 DENCE.—’’ after ‘‘(b)’’; 

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

5 ‘‘that’’; and 

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

7 follows and inserting a period; and 

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

9 ‘‘(c) USE OF INFORMATION.—A tobacco tax adminis10 trator or chief law enforcement officer who receives a 

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

12 subsection (a) shall use the memorandum or invoice solely 

13 for the purposes of the enforcement of this Act and the 

14 collection of any taxes owed on related sales of cigarettes 

15 and smokeless tobacco, and shall keep confidential any 

16 personal information in the memorandum or invoice except 

17 as required for such purposes.’’. 

18 (c) REQUIREMENTS FOR DELIVERY SALES.—The 

19 Jenkins Act is amended by inserting after section 2 the 

20 following: 

21 ‘‘SEC. 2A. DELIVERY SALES. 

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

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

24 comply with— 


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1 ‘‘(1) the shipping requirements set forth in sub2 section (b); 

3 ‘‘(2) the recordkeeping requirements set forth 

4 in subsection (c); 

5 ‘‘(3) all State, local, tribal, and other laws gen6 erally applicable to sales of cigarettes or smokeless 

7 tobacco as if the delivery sales occurred entirely 

8 within the specific State and place, including laws 

9 imposing— 

10 ‘‘(A) excise taxes; 

11 ‘‘(B) licensing and tax-stamping require12 ments; 

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

14 ‘‘(D) other payment obligations or legal re15 quirements relating to the sale, distribution, or 

16 delivery of cigarettes or smokeless tobacco; and 

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

18 subsection (d). 

19 ‘‘(b) SHIPPING AND PACKAGING.— 

20 ‘‘(1) REQUIRED STATEMENT.—For any ship21 ping package containing cigarettes or smokeless to22 bacco, the delivery seller shall include on the bill of 

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

24 package, on the same surface as the delivery ad25 dress, a clear and conspicuous statement providing 


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1 as follows: ‘CIGARETTES/SMOKELESS TO2 BACCO: FEDERAL LAW REQUIRES THE PAY3 MENT OF ALL APPLICABLE EXCISE TAXES, 

4 AND COMPLIANCE WITH APPLICABLE LI5 CENSING AND TAX-STAMPING OBLIGA6 TIONS’. 

7 ‘‘(2) FAILURE TO LABEL.—Any shipping pack8 age described in paragraph (1) that is not labeled in 

9 accordance with that paragraph shall be treated as 

10 nondeliverable matter by a common carrier or other 

11 delivery service, if the common carrier or other deliv12 ery service knows or should know the package con13 tains cigarettes or smokeless tobacco. If a common 

14 carrier or other delivery service believes a package is 

15 being submitted for delivery in violation of para16 graph (1), it may require the person submitting the 

17 package for delivery to establish that it is not being 

18 sent in violation of paragraph (1) before accepting 

19 the package for delivery. Nothing in this paragraph 

20 shall require the common carrier or other delivery 

21 service to open any package to determine its con22 tents. 

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

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

25 delivered in any single sale or single delivery any 


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1 cigarettes or smokeless tobacco weighing more than 

2 10 pounds. 

3 ‘‘(4) AGE VERIFICATION.— 

4 ‘‘(A) IN GENERAL.—A delivery seller who 

5 mails or ships tobacco products— 

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

7 be delivered any tobacco products to a per8 son under the minimum age required for 

9 the legal sale or purchase of tobacco prod10 ucts, as determined by the applicable law 

11 at the place of delivery; 

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

13 shipping that requires— 

14 ‘‘(I) the purchaser placing the 

15 delivery sale order, or an adult who is 

16 at least the minimum age required for 

17 the legal sale or purchase of tobacco 

18 products, as determined by the appli19 cable law at the place of delivery, to 

20 sign to accept delivery of the shipping 

21 container at the delivery address; and 

22 ‘‘(II) the person who signs to ac23 cept delivery of the shipping container 

24 to provide proof, in the form of a 

25 valid, government-issued identification 


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1 bearing a photograph of the indi2 vidual, that the person is at least the 

3 minimum age required for the legal 

4 sale or purchase of tobacco products, 

5 as determined by the applicable law at 

6 the place of delivery; and 

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

8 order from a person without— 

9 ‘‘(I) obtaining the full name, 

10 birth date, and residential address of 

11 that person; and 

12 ‘‘(II) verifying the information 

13 provided in subclause (I), through the 

14 use of a commercially available data15 base or aggregate of databases, con16 sisting primarily of data from govern17 ment sources, that are regularly used 

18 by government and businesses for the 

19 purpose of age and identity 

20 verification and authentication, to en21 sure that the purchaser is at least the 

22 minimum age required for the legal 

23 sale or purchase of tobacco products, 

24 as determined by the applicable law at 

25 the place of delivery. 


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

2 used for age and identity verification under 

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

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

5 subject to any changes or supplementation by 

6 the delivery seller. 

7 ‘‘(c) RECORDS.— 

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

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

10 the information described in section 2(a)(2), orga11 nized by the State, and within the State, by the city 

12 or town and by zip code, into which the delivery sale 

13 is so made. 

14 ‘‘(2) RECORD RETENTION.—Records of a deliv15 ery sale shall be kept as described in paragraph (1) 

16 until the end of the 4th full calendar year that be17 gins after the date of the delivery sale. 

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

19 under paragraph (1) shall be made available to to20 bacco tax administrators of the States, to local gov21 ernments and Indian tribes that apply local or tribal 

22 taxes on cigarettes or smokeless tobacco, to the at23 torneys general of the States, to the chief law en24 forcement officers of the local governments and In25 dian tribes, and to the Attorney General of the 


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1 United States in order to ensure the compliance of 

2 persons making delivery sales with the requirements 

3 of this Act. 

4 ‘‘(d) DELIVERY.— 

5 ‘‘(1) IN GENERAL.—Except as provided in para6 graph (2), no delivery seller may sell or deliver to 

7 any consumer, or tender to any common carrier or 

8 other delivery service, any cigarettes or smokeless to9 bacco pursuant to a delivery sale unless, in advance 

10 of the sale, delivery, or tender— 

11 ‘‘(A) any cigarette or smokeless tobacco ex12 cise tax that is imposed by the State in which 

13 the cigarettes or smokeless tobacco are to be 

14 delivered has been paid to the State; 

15 ‘‘(B) any cigarette or smokeless tobacco 

16 excise tax that is imposed by the local govern17 ment of the place in which the cigarettes or 

18 smokeless tobacco are to be delivered has been 

19 paid to the local government; and 

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

21 that the excise tax has been paid are properly 

22 affixed or applied to the cigarettes or smokeless 

23 tobacco. 

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

25 apply to a delivery sale of smokeless tobacco if the 


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1 law of the State or local government of the place 

2 where the smokeless tobacco is to be delivered re3 quires or otherwise provides that delivery sellers col4 lect the excise tax from the consumer and remit the 

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

6 delivery seller complies with the requirement. 

7 ‘‘(e) LIST OF UNREGISTERED OR NONCOMPLIANT

8 DELIVERY SELLERS.— 

9 ‘‘(1) IN GENERAL.— 

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

11 days after this subsection goes into effect under 

12 the Prevent All Cigarette Trafficking Act of 

13 2009, the Attorney General of the United 

14 States shall compile a list of delivery sellers of 

15 cigarettes or smokeless tobacco that have not 

16 registered with the Attorney General of the 

17 United States pursuant to section 2(a), or that 

18 are otherwise not in compliance with this Act, 

19 and— 

20 ‘‘(i) distribute the list to— 

21 ‘‘(I) the attorney general and tax 

22 administrator of every State; 

23 ‘‘(II) common carriers and other 

24 persons that deliver small packages to 

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1 cluding the United States Postal Serv2 ice; and 

3 ‘‘(III) any other person that the 

4 Attorney General of the United States 

5 determines can promote the effective 

6 enforcement of this Act; and 

7 ‘‘(ii) publicize and make the list avail8 able to any other person engaged in the 

9 business of interstate deliveries or who de10 livers cigarettes or smokeless tobacco in or 

11 into any State. 

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

13 known, the Attorney General of the United 

14 States shall include, for each delivery seller on 

15 the list described in subparagraph (A)— 

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

17 or has used in the transaction of its busi18 ness or on packages delivered to cus19 tomers; 

20 ‘‘(ii) all addresses from which the de21 livery seller does or has done business, or 

22 ships or has shipped cigarettes or smoke23 less tobacco; 


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1 ‘‘(iii) the website addresses, primary 

2 e-mail address, and phone number of the 

3 delivery seller; and 

4 ‘‘(iv) any other information that the 

5 Attorney General of the United States de6 termines would facilitate compliance with 

7 this subsection by recipients of the list. 

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

9 the United States shall update and distribute 

10 the list described in subparagraph (A) at least 

11 once every 4 months, and may distribute the 

12 list and any updates by regular mail, electronic 

13 mail, or any other reasonable means, or by pro14 viding recipients with access to the list through 

15 a nonpublic website that the Attorney General 

16 of the United States regularly updates. 

17 ‘‘(D) STATE, LOCAL, OR TRIBAL ADDI18 TIONS.—The Attorney General of the United 

19 States shall include in the list described in sub20 paragraph (A) any noncomplying delivery sell21 ers identified by any State, local, or tribal gov22 ernment under paragraph (6), and shall dis23 tribute the list to the attorney general or chief 

24 law enforcement official and the tax adminis25 trator of any government submitting any such 


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1 information, and to any common carriers or 

2 other persons who deliver small packages to 

3 consumers identified by any government pursu4 ant to paragraph (6). 

5 ‘‘(E) ACCURACY AND COMPLETENESS OF

6 LIST OF NONCOMPLYING DELIVERY SELLERS.— 

7 In preparing and revising the list described in 

8 subparagraph (A), the Attorney General of the 

9 United States shall— 

10 ‘‘(i) use reasonable procedures to en11 sure maximum possible accuracy and com12 pleteness of the records and information 

13 relied on for the purpose of determining 

14 that a delivery seller is not in compliance 

15 with this Act; 

16 ‘‘(ii) not later than 14 days before in17 cluding a delivery seller on the list, make 

18 a reasonable attempt to send notice to the 

19 delivery seller by letter, electronic mail, or 

20 other means that the delivery seller is 

21 being placed on the list, which shall cite 

22 the relevant provisions of this Act and the 

23 specific reasons for which the delivery sell24 er is being placed on the list; 


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1 ‘‘(iii) provide an opportunity to the 

2 delivery seller to challenge placement on 

3 the list; 

4 ‘‘(iv) investigate each challenge de5 scribed in clause (iii) by contacting the rel6 evant Federal, State, tribal, and local law 

7 enforcement officials, and provide the spe8 cific findings and results of the investiga9 tion to the delivery seller not later than 30 

10 days after the date on which the challenge 

11 is made; and 

12 ‘‘(v) if the Attorney General of the 

13 United States determines that the basis for 

14 including a delivery seller on the list is in15 accurate, based on incomplete information, 

16 or cannot be verified, promptly remove the 

17 delivery seller from the list as appropriate 

18 and notify each appropriate Federal, State, 

19 tribal, and local authority of the deter20 mination. 

21 ‘‘(F) CONFIDENTIALITY.—The list de22 scribed in subparagraph (A) shall be confiden23 tial, and any person receiving the list shall 

24 maintain the confidentiality of the list and may 

25 deliver the list, for enforcement purposes, to 


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1 any government official or to any common car2 rier or other person that delivers tobacco prod3 ucts or small packages to consumers. Nothing 

4 in this section shall prohibit a common carrier, 

5 the United States Postal Service, or any other 

6 person receiving the list from discussing with a 

7 listed delivery seller the inclusion of the delivery 

8 seller on the list and the resulting effects on 

9 any services requested by the listed delivery 

10 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 described 

15 in 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 described 

15 in paragraph (1)(A), all recipients and all com16 mon carriers or other persons that deliver ciga17 rettes or smokeless tobacco to consumers shall 

18 be subject to subparagraph (A) in regard to the 

19 corrections or updates. 

20 ‘‘(3) EXEMPTIONS.— 

21 ‘‘(A) IN GENERAL.—Subsection (b)(2) and 

22 any requirements or restrictions placed directly 

23 on common carriers under this subsection, in24 cluding subparagraphs (A) and (B) of paraVerDate Nov 24 2008 23:09 May 26, 2009 Jkt 079200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\S1147.IS S1147

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1 graph (2), shall not apply to a common carrier 

2 that— 

3 ‘‘(i) is subject to a settlement agree4 ment described in subparagraph (B); or 

5 ‘‘(ii) if a settlement agreement de6 scribed in subparagraph (B) to which the 

7 common carrier is a party is terminated or 

8 otherwise becomes inactive, is admin9 istering and enforcing policies and prac10 tices throughout the United States that 

11 are at least as stringent as the agreement. 

12 ‘‘(B) SETTLEMENT AGREEMENT.—A set13 tlement agreement described in this subpara14 graph— 

15 ‘‘(i) is a settlement agreement relating 

16 to tobacco product deliveries to consumers; 

17 and 

18 ‘‘(ii) includes— 

19 ‘‘(I) the Assurance of Discontinu20 ance entered into by the Attorney 

21 General of New York and DHL Hold22 ings USA, Inc. and DHL Express 

23 (USA), Inc. on or about July 1, 2005, 

24 the Assurance of Discontinuance en25 tered into by the Attorney General of 


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1 New York and United Parcel Service, 

2 Inc. on or about October 21, 2005, 

3 and the Assurance of Compliance en4 tered into by the Attorney General of 

5 New York and Federal Express Cor6 poration and FedEx Ground Package 

7 Systems, Inc. on or about February 3, 

8 2006, if each of those agreements is 

9 honored throughout the United States 

10 to block illegal deliveries of cigarettes 

11 or smokeless tobacco to consumers; 

12 and 

13 ‘‘(II) any other active agreement 

14 between a common carrier and a 

15 State that operates throughout the 

16 United States to ensure that no deliv17 eries of cigarettes or smokeless to18 bacco shall be made to consumers or 

19 illegally operating Internet or mail20 order sellers and that any such deliv21 eries to consumers shall not be made 

22 to minors or without payment to the 

23 States and localities where the con24 sumers are located of all taxes on the 

25 tobacco products. 


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•S 1147 IS

1 ‘‘(4) SHIPMENTS FROM PERSONS ON LIST.— 

2 ‘‘(A) IN GENERAL.—If a common carrier 

3 or other delivery service delays or interrupts the 

4 delivery of a package in the possession of the 

5 common carrier or delivery service because the 

6 common carrier or delivery service determines 

7 or has reason to believe that the person order8 ing the delivery is on a list described in para9 graph (1)(A) and that the package contains 

10 cigarettes or smokeless tobacco— 

11 ‘‘(i) the person ordering the delivery 

12 shall be obligated to pay— 

13 ‘‘(I) the common carrier or other 

14 delivery service as if the delivery of 

15 the package had been timely com16 pleted; and 

17 ‘‘(II) if the package is not deliv18 erable, any reasonable additional fee 

19 or charge levied by the common car20 rier or other delivery service to cover 

21 any extra costs and inconvenience and 

22 to serve as a disincentive against such 

23 noncomplying delivery orders; and 

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

25 to be deliverable, the common carrier or 


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•S 1147 IS

1 other delivery service shall offer to provide 

2 the package and its contents to a Federal, 

3 State, or local law enforcement agency. 

4 ‘‘(B) RECORDS.—A common carrier or 

5 other delivery service shall maintain, for a pe6 riod of 5 years, any records kept in the ordi7 nary course of business relating to any delivery 

8 interrupted under this paragraph and provide 

9 that information, upon request, to the Attorney 

10 General of the United States or to the attorney 

11 general or chief law enforcement official or tax 

12 administrator of any State, local, or tribal gov13 ernment. 

14 ‘‘(C) CONFIDENTIALITY.—Any person re15 ceiving records under subparagraph (B) shall— 

16 ‘‘(i) use the records solely for the pur17 poses of the enforcement of this Act and 

18 the collection of any taxes owed on related 

19 sales of cigarettes and smokeless tobacco; 

20 and 

21 ‘‘(ii) keep confidential any personal 

22 information in the records not otherwise 

23 required for such purposes. 

24 ‘‘(5) PREEMPTION.— 


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•S 1147 IS

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

2 tribal government, nor any political authority of 

3 2 or more State, local, or tribal governments, 

4 may enact or enforce any law or regulation re5 lating to delivery sales that restricts deliveries 

6 of cigarettes or smokeless tobacco to consumers 

7 by common carriers or other delivery services 

8 on behalf of delivery sellers by— 

9 ‘‘(i) requiring that the common carrier 

10 or other delivery service verify the age or 

11 identity of the consumer accepting the de12 livery by requiring the person who signs to 

13 accept delivery of the shipping container to 

14 provide proof, in the form of a valid, gov15 ernment-issued identification bearing a 

16 photograph of the individual, that the per17 son is at least the minimum age required 

18 for the legal sale or purchase of tobacco 

19 products, as determined by either State or 

20 local law at the place of delivery; 

21 ‘‘(ii) requiring that the common car22 rier or other delivery service obtain a sig23 nature from the consumer accepting the 

24 delivery; 


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•S 1147 IS

1 ‘‘(iii) requiring that the common car2 rier or other delivery service verify that all 

3 applicable taxes have been paid; 

4 ‘‘(iv) requiring that packages delivered 

5 by the common carrier or other delivery 

6 service contain any particular labels, no7 tice, or markings; or 

8 ‘‘(v) prohibiting common carriers or 

9 other delivery services from making deliv10 eries on the basis of whether the delivery 

11 seller is or is not identified on any list of 

12 delivery sellers maintained and distributed 

13 by any entity other than the Federal Gov14 ernment. 

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

16 Except as provided in subparagraph (C), noth17 ing in this paragraph shall be construed to nul18 lify, expand, restrict, or otherwise amend or 

19 modify— 

20 ‘‘(i) section 14501(c)(1) or 

21 41713(b)(4) of title 49, United States 

22 Code; 

23 ‘‘(ii) any other restrictions in Federal 

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


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•S 1147 IS

1 governments to regulate common carriers; 

2 or 

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

4 tribal law regulating common carriers that 

5 is described in section 14501(c)(2) or 

6 41713(b)(4)(B) of title 49 of the United 

7 States Code. 

8 ‘‘(C) STATE LAWS PROHIBITING DELIVERY

9 SALES.— 

10 ‘‘(i) IN GENERAL.—Except as pro11 vided in clause (ii), nothing in the Prevent 

12 All Cigarette Trafficking Act of 2009, the 

13 amendments made by that Act, or in any 

14 other Federal statute shall be construed to 

15 preempt, supersede, or otherwise limit or 

16 restrict State laws prohibiting the delivery 

17 sale, or the shipment or delivery pursuant 

18 to a delivery sale, of cigarettes or other to19 bacco products to individual consumers or 

20 personal residences. 

21 ‘‘(ii) EXEMPTIONS.—No State may 

22 enforce against a common carrier a law 

23 prohibiting the delivery of cigarettes or 

24 other tobacco products to individual con25 sumers or personal residences without 


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•S 1147 IS

1 proof that the common carrier is not ex2 empt under paragraph (3) of this sub3 section. 

4 ‘‘(6) 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 

11 that— 

12 ‘‘(I) offers for sale or makes 

13 sales of cigarettes or smokeless to14 bacco in or into the State, locality, or 

15 tribal land; and 

16 ‘‘(II) has failed to register with 

17 or make reports to the respective tax 

18 administrator as required by this Act, 

19 or that has been found in a legal pro20 ceeding to have otherwise failed to 

21 comply with this Act; and 

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

23 other persons who make deliveries of ciga24 rettes or smokeless tobacco in or into the 

25 State, locality, or tribal land. 


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1 ‘‘(B) UPDATES.—Any government pro2 viding a list to the Attorney General of the 

3 United States under subparagraph (A) shall 

4 also provide updates and corrections every 4 

5 months until such time as the government noti6 fies the Attorney General of the United States 

7 in writing that the government no longer de8 sires to submit information to supplement the 

9 list described in paragraph (1)(A). 

10 ‘‘(C) REMOVAL AFTER WITHDRAWAL.— 

11 Upon receiving written notice that a govern12 ment no longer desires to submit information 

13 under subparagraph (A), the Attorney General 

14 of the United States shall remove from the list 

15 described in paragraph (1)(A) any persons that 

16 are on the list solely because of the prior sub17 missions of the government of the list of the 

18 government of noncomplying delivery sellers of 

19 cigarettes or smokeless tobacco or a subsequent 

20 update or correction by the government. 

21 ‘‘(7) DEADLINE TO INCORPORATE ADDI22 TIONS.—The Attorney General of the United States 

23 shall— 

24 ‘‘(A) include any delivery seller identified 

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1 ernment under paragraph (6) in any list or up2 date that is distributed or made available under 

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

4 days after the date on which the information is 

5 received by the Attorney General of the United 

6 States; and 

7 ‘‘(B) distribute any list or update de8 scribed in subparagraph (A) to any common 

9 carrier or other person who makes deliveries of 

10 cigarettes or smokeless tobacco that has been 

11 identified and submitted by a government pur12 suant to paragraph (6). 

13 ‘‘(8) NOTICE TO DELIVERY SELLERS.—Not 

14 later than 14 days before including any delivery sell15 er on the initial list described in paragraph (1)(A), 

16 or on an update to the list for the first time, the At17 torney General of the United States shall make a 

18 reasonable attempt to send notice to the delivery 

19 seller by letter, electronic mail, or other means that 

20 the delivery seller is being placed on the list or up21 date, with that notice citing the relevant provisions 

22 of this Act. 

23 ‘‘(9) LIMITATIONS.— 

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

25 or other person making a delivery subject to 


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•S 1147 IS

1 this subsection shall not be required or other2 wise obligated to— 

3 ‘‘(i) determine whether any list dis4 tributed or made available under para5 graph (1) is complete, accurate, or up-to6 date; 

7 ‘‘(ii) determine whether a person or8 dering a delivery is in compliance with this 

9 Act; or 

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

11 Act, any package being delivered to deter12 mine its contents. 

13 ‘‘(B) ALTERNATE NAMES.—Any common 

14 carrier or other person making a delivery sub15 ject to this subsection— 

16 ‘‘(i) shall not be required to make any 

17 inquiries or otherwise determine whether a 

18 person ordering a delivery is a delivery sell19 er on the list described in paragraph 

20 (1)(A) who is using a different name or 

21 address in order to evade the related deliv22 ery restrictions; and 

23 ‘‘(ii) shall not knowingly deliver any 

24 packages to consumers for any delivery 

25 seller on the list described in paragraph 


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•S 1147 IS

1 (1)(A) who the common carrier or other 

2 delivery service knows is a delivery seller 

3 who is on the list and is using a different 

4 name or address to evade the delivery re5 strictions of paragraph (2). 

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

7 person in the business of delivering packages on 

8 behalf of other persons shall not be subject to 

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

10 United States Code, or any other provision of 

11 law for— 

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

13 or any deliveries at all, on behalf of any 

14 person on the list described in paragraph 

15 (1)(A); 

16 ‘‘(ii) refusing, as a matter of regular 

17 practice and procedure, to make any deliv18 eries, or any deliveries in certain States, of 

19 any cigarettes or smokeless tobacco for any 

20 person or for any person not in the busi21 ness of manufacturing, distributing, or 

22 selling cigarettes or smokeless tobacco; or 

23 ‘‘(iii) delaying or not making a deliv24 ery for any person because of reasonable 

25 efforts to comply with this Act. 


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1 ‘‘(D) OTHER LIMITS.—Section 2 and sub2 sections (a), (b), (c), and (d) of this section 

3 shall not be interpreted to impose any respon4 sibilities, requirements, or liability on common 

5 carriers. 

6 ‘‘(f) PRESUMPTION.—For purposes of this Act, a de7 livery sale shall be deemed to have occurred in the State 

8 and place where the buyer obtains personal possession of 

9 the cigarettes or smokeless tobacco, and a delivery pursu10 ant to a delivery sale is deemed to have been initiated or 

11 ordered by the delivery seller.’’. 

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

13 striking section 3 and inserting the following: 

14 ‘‘SEC. 3. PENALTIES. 

15 ‘‘(a) CRIMINAL PENALTIES.— 

16 ‘‘(1) IN GENERAL.—Except as provided in para17 graph (2), whoever knowingly violates this Act shall 

18 be imprisoned for not more than 3 years, fined 

19 under title 18, United States Code, or both. 

20 ‘‘(2) EXCEPTIONS.— 

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

22 not apply to a State, local, or tribal govern23 ment. 

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

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1 ployee of a common carrier or independent de2 livery service, shall be subject to criminal pen3 alties under paragraph (1) for a violation of 

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

5 knowingly— 

6 ‘‘(i) as consideration for the receipt 

7 of, or as consideration for a promise or 

8 agreement to pay, anything of pecuniary 

9 value; or 

10 ‘‘(ii) for the purpose of assisting a de11 livery seller to violate, or otherwise evading 

12 compliance with, section 2A. 

13 ‘‘(b) CIVIL PENALTIES.— 

14 ‘‘(1) IN GENERAL.—Except as provided in para15 graph (3), whoever violates this Act shall be subject 

16 to a civil penalty in an amount not to exceed— 

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

18 greater of— 

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

20 violation, or $10,000 for any other viola21 tion; or 

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

23 the gross sales of cigarettes or smokeless 

24 tobacco of the delivery seller during the 1- 


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•S 1147 IS

1 year period ending on the date of the viola2 tion. 

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

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

5 first violation, or $5,000 for any violation with6 in 1 year of a prior violation. 

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

8 penalty imposed under paragraph (1) for a violation 

9 of this Act shall be imposed in addition to any crimi10 nal penalty under subsection (a) and any other dam11 ages, equitable relief, or injunctive relief awarded by 

12 the court, including the payment of any unpaid taxes 

13 to the appropriate Federal, State, local, or tribal 

14 governments. 

15 ‘‘(3) EXCEPTIONS.— 

16 ‘‘(A) DELIVERY VIOLATIONS.—An em17 ployee of a common carrier or independent de18 livery service shall be subject to civil penalties 

19 under paragraph (1) for a violation of section 

20 2A(e) only if the violation is committed inten21 tionally— 

22 ‘‘(i) as consideration for the receipt 

23 of, or as consideration for a promise or 

24 agreement to pay, anything of pecuniary 

25 value; or 


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•S 1147 IS

1 ‘‘(ii) for the purpose of assisting a de2 livery seller to violate, or otherwise evading 

3 compliance with, section 2A. 

4 ‘‘(B) OTHER LIMITATIONS.—No common 

5 carrier or independent delivery service shall be 

6 subject to civil penalties under paragraph (1) 

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

8 ‘‘(i) the common carrier or inde9 pendent delivery service has implemented 

10 and enforces effective policies and practices 

11 for complying with that section; or 

12 ‘‘(ii) the violation consists of an em13 ployee of the common carrier or inde14 pendent delivery service who physically re15 ceives and processes orders, picks up pack16 ages, processes packages, or makes deliv17 eries, taking actions that are outside the 

18 scope of employment of the employee, or 

19 that violate the implemented and enforced 

20 policies of the common carrier or inde21 pendent delivery service described in clause 

22 (i).’’. 

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

24 striking section 4 and inserting the following: 


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•S 1147 IS

1 ‘‘SEC. 4. ENFORCEMENT. 

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

3 courts shall have jurisdiction to prevent and restrain viola4 tions of this Act and to provide other appropriate injunc5 tive or equitable relief, including money damages, for the 

6 violations. 

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

8 The Attorney General of the United States shall admin9 ister and enforce this Act. 

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

11 ‘‘(1) IN GENERAL.— 

12 ‘‘(A) STANDING.—A State, through its at13 torney general, or a local government or Indian 

14 tribe that levies a tax subject to section 

15 2A(a)(3), through its chief law enforcement of16 ficer, may bring an action in a United States 

17 district court to prevent and restrain violations 

18 of this Act by any person or to obtain any other 

19 appropriate relief from any person for violations 

20 of this Act, including civil penalties, money 

21 damages, and injunctive or other equitable re22 lief. 

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

24 this Act shall be deemed to abrogate or con25 stitute a waiver of any sovereign immunity of a 

26 State or local government or Indian tribe 


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•S 1147 IS

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 may provide evidence of a violation of this Act by 

10 any person not subject to State, local, or tribal gov11 ernment enforcement actions for violations of this 

12 Act to the Attorney General of the United States or 

13 a United States attorney, who shall take appropriate 

14 actions to enforce this Act. 

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

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

17 separate account in the Treasury known as the 

18 ‘PACT Anti-Trafficking Fund’. Notwith19 standing any other provision of law and subject 

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

21 percent of any criminal and civil penalties col22 lected by the Federal Government in enforcing 

23 this Act shall be transferred into the PACT 

24 Anti-Trafficking Fund and shall be available to 

25 the Attorney General of the United States for 


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1 purposes of enforcing this Act and other laws 

2 relating to contraband tobacco products. 

3 ‘‘(B) ALLOCATION OF FUNDS.—Of the 

4 amount available to the Attorney General of the 

5 United States under subparagraph (A), not less 

6 than 50 percent shall be made available only to 

7 the agencies and offices within the Department 

8 of Justice that were responsible for the enforce9 ment actions in which the penalties concerned 

10 were imposed or for any underlying investiga11 tions. 

12 ‘‘(4) NONEXCLUSIVITY OF REMEDY.— 

13 ‘‘(A) IN GENERAL.—The remedies avail14 able under this section and section 3 are in ad15 dition to any other remedies available under 

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

17 ‘‘(B) STATE COURT PROCEEDINGS.—Noth18 ing in this Act shall be construed to expand, re19 strict, or otherwise modify any right of an au20 thorized State official to proceed in State court, 

21 or take other enforcement actions, on the basis 

22 of an alleged violation of State or other law. 

23 ‘‘(C) TRIBAL COURT PROCEEDINGS.— 

24 Nothing in this Act shall be construed to ex25 pand, restrict, or otherwise modify any right of 


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1 an authorized Indian tribal government official 

2 to proceed in tribal court, or take other enforce3 ment actions, on the basis of an alleged viola4 tion of tribal law. 

5 ‘‘(D) LOCAL GOVERNMENT ENFORCE6 MENT.—Nothing in this Act shall be construed 

7 to expand, restrict, or otherwise modify any 

8 right of an authorized local government official 

9 to proceed in State court, or take other enforce10 ment actions, on the basis of an alleged viola11 tion of local or other law. 

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

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

14 Internal Revenue Code of 1986 (regarding permitting of 

15 manufacturers and importers of tobacco products and ex16 port warehouse proprietors) may bring an action in an ap17 propriate United States district court to prevent and re18 strain violations of this Act by any person other than a 

19 State, local, or tribal government. 

20 ‘‘(e) NOTICE.— 

21 ‘‘(1) PERSONS DEALING IN TOBACCO PROD22 UCTS.—Any person who commences a civil action 

23 under subsection (d) shall inform the Attorney Gen24 eral of the United States of the action. 


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

2 is the sense of Congress that the attorney general of 

3 any State, or chief law enforcement officer of any lo4 cality or tribe, that commences a civil action under 

5 this section should inform the Attorney General of 

6 the United States of the action. 

7 ‘‘(f) PUBLIC NOTICE.— 

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

9 the United States shall make available to the public, 

10 by posting information on the Internet and by other 

11 appropriate means, information regarding all en12 forcement actions brought by the United States, or 

13 reported to the Attorney General of the United 

14 States, under this section, including information re15 garding the resolution of the enforcement actions 

16 and how the Attorney General of the United States 

17 has responded to referrals of evidence of violations 

18 pursuant to subsection (c)(2). 

19 ‘‘(2) REPORTS TO CONGRESS.—Not later than 

20 1 year after the date of enactment of the Prevent All 

21 Cigarette Trafficking Act of 2009, and every year 

22 thereafter until the date that is 5 years after such 

23 date of enactment, the Attorney General of the 

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1 taining the information described in paragraph 

2 (1).’’. 

3 SEC. 3. TREATMENT OF CIGARETTES AND SMOKELESS TO4 BACCO AS NONMAILABLE MATTER. 

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

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

7 the following: 

8 ‘‘§ 1716E. Tobacco products as nonmailable 

9 ‘‘(a) PROHIBITION.— 

10 ‘‘(1) IN GENERAL.—All cigarettes and smoke11 less tobacco (as those terms are defined in section 

12 1 of the Act of October 19, 1949, commonly referred 

13 to as the Jenkins Act) are nonmailable and shall not 

14 be deposited in or carried through the mails. The 

15 United States Postal Service shall not accept for de16 livery or transmit through the mails any package 

17 that it knows or has reasonable cause to believe con18 tains any cigarettes or smokeless tobacco made non19 mailable by this paragraph. 

20 ‘‘(2) REASONABLE CAUSE.—For the purposes 

21 of this subsection reasonable cause includes— 

22 ‘‘(A) a statement on a publicly available 

23 website, or an advertisement, by any person 

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1 mailable under this section in return for pay2 ment; or 

3 ‘‘(B) the fact that the person is on the list 

4 created under section 2A(e) of the Jenkins Act. 

5 ‘‘(b) EXCEPTIONS.— 

6 ‘‘(1) CIGARS.—Subsection (a) shall not apply to 

7 cigars (as defined in section 5702(a) of the Internal 

8 Revenue Code of 1986). 

9 ‘‘(2) GEOGRAPHIC EXCEPTION.—Subsection (a) 

10 shall not apply to mailings within the State of Alas11 ka or within the State of Hawaii. 

12 ‘‘(3) BUSINESS PURPOSES.— 

13 ‘‘(A) IN GENERAL.—Subsection (a) shall 

14 not apply to tobacco products mailed only— 

15 ‘‘(i) for business purposes between le16 gally operating businesses that have all ap17 plicable State and Federal Government li18 censes or permits and are engaged in to19 bacco product manufacturing, distribution, 

20 wholesale, export, import, testing, inves21 tigation, or research; or 

22 ‘‘(ii) for regulatory purposes between 

23 any business described in clause (i) and an 

24 agency of the Federal Government or a 

25 State government. 


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1 ‘‘(B) RULES.— 

2 ‘‘(i) IN GENERAL.—Not later than 

3 180 days after the date of enactment of 

4 the Prevent All Cigarette Trafficking Act 

5 of 2009, the Postmaster General shall 

6 issue a final rule which shall establish the 

7 standards and requirements that apply to 

8 all mailings described in subparagraph (A). 

9 ‘‘(ii) CONTENTS.—The final rule 

10 issued under clause (i) shall require— 

11 ‘‘(I) the United States Postal 

12 Service to verify that any person sub13 mitting an otherwise nonmailable to14 bacco product into the mails as au15 thorized under this paragraph is a 

16 business or government agency per17 mitted to make a mailing under this 

18 paragraph; 

19 ‘‘(II) the United States Postal 

20 Service to ensure that any recipient of 

21 an otherwise nonmailable tobacco 

22 product sent through the mails under 

23 this paragraph is a business or gov24 ernment agency that may lawfully re25 ceive the product; 


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•S 1147 IS

1 ‘‘(III) that any mailing described 

2 in subparagraph (A) shall be sent 

3 through the systems of the United 

4 States Postal Service that provide for 

5 the tracking and confirmation of the 

6 delivery; 

7 ‘‘(IV) that the identity of the 

8 business or government entity submit9 ting the mailing containing otherwise 

10 nonmailable tobacco products for de11 livery and the identity of the business 

12 or government entity receiving the 

13 mailing are clearly set forth on the 

14 package; 

15 ‘‘(V) the United States Postal 

16 Service to maintain identifying infor17 mation described in subclause (IV) 

18 during the 3-year period beginning on 

19 the date of the mailing and make the 

20 information available to the Postal 

21 Service, the Attorney General of the 

22 United States, and to persons eligible 

23 to bring enforcement actions under 

24 section 3(d) of the Prevent All Ciga25 rette Trafficking Act of 2009; 


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1 ‘‘(VI) that any mailing described 

2 in subparagraph (A) be marked with 

3 a United States Postal Service label 

4 or marking that makes it clear to em5 ployees of the United States Postal 

6 Service that it is a permitted mailing 

7 of otherwise nonmailable tobacco 

8 products that may be delivered only to 

9 a permitted government agency or 

10 business and may not be delivered to 

11 any residence or individual person; 

12 and 

13 ‘‘(VII) that any mailing described 

14 in subparagraph (A) be delivered only 

15 to a verified employee of the recipient 

16 business or government agency, who is 

17 not a minor and who shall be required 

18 to sign for the mailing. 

19 ‘‘(C) DEFINITION.—In this paragraph, the 

20 term ‘minor’ means an individual who is less 

21 than the minimum age required for the legal 

22 sale or purchase of tobacco products as deter23 mined by applicable law at the place the indi24 vidual is located. 

25 ‘‘(4) CERTAIN INDIVIDUALS.— 


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1 ‘‘(A) IN GENERAL.—Subsection (a) shall 

2 not apply to tobacco products mailed by individ3 uals who are not minors for noncommercial 

4 purposes, including the return of a damaged or 

5 unacceptable tobacco product to the manufac6 turer. 

7 ‘‘(B) RULES.— 

8 ‘‘(i) IN GENERAL.—Not later than 

9 180 days after the date of enactment of 

10 the Prevent All Cigarette Trafficking Act 

11 of 2009, the Postmaster General shall 

12 issue a final rule which shall establish the 

13 standards and requirements that apply to 

14 all mailings described in subparagraph (A). 

15 ‘‘(ii) CONTENTS.—The final rule 

16 issued under clause (i) shall require— 

17 ‘‘(I) the United States Postal 

18 Service to verify that any person sub19 mitting an otherwise nonmailable to20 bacco product into the mails as au21 thorized under this paragraph is the 

22 individual identified on the return ad23 dress label of the package and is not 

24 a minor; 


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1 ‘‘(II) for a mailing to an indi2 vidual, the United States Postal Serv3 ice to require the person submitting 

4 the otherwise nonmailable tobacco 

5 product into the mails as authorized 

6 by this paragraph to affirm that the 

7 recipient is not a minor; 

8 ‘‘(III) that any package mailed 

9 under this paragraph shall weigh not 

10 more than 10 ounces; 

11 ‘‘(IV) that any mailing described 

12 in subparagraph (A) shall be sent 

13 through the systems of the United 

14 States Postal Service that provide for 

15 the tracking and confirmation of the 

16 delivery; 

17 ‘‘(V) that a mailing described in 

18 subparagraph (A) shall not be deliv19 ered or placed in the possession of any 

20 individual who has not been verified 

21 as not being a minor; 

22 ‘‘(VI) for a mailing described in 

23 subparagraph (A) to an individual, 

24 that the United States Postal Service 

25 shall deliver the package only to a reVerDate Nov 24 2008 23:09 May 26, 2009 Jkt 079200 PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 E:\BILLS\S1147.IS S1147

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•S 1147 IS

1 cipient who is verified not to be a 

2 minor at the recipient address or 

3 transfer it for delivery to an Air/Army 

4 Postal Office or Fleet Postal Office 

5 number designated in the recipient 

6 address; and 

7 ‘‘(VII) that no person may ini8 tiate more than 10 mailings described 

9 in subparagraph (A) during any 30- 

10 day period. 

11 ‘‘(C) DEFINITION.—In this paragraph, the 

12 term ‘minor’ means an individual who is less 

13 than the minimum age required for the legal 

14 sale or purchase of tobacco products as deter15 mined by applicable law at the place the indi16 vidual is located. 

17 ‘‘(5) EXCEPTION FOR MAILINGS FOR CONSUMER

18 TESTING BY MANUFACTURERS.— 

19 ‘‘(A) IN GENERAL.—Subject to subpara20 graph (B), subsection (a) shall not preclude a 

21 legally operating cigarette manufacturer or a le22 gally authorized agent of a legally operating 

23 cigarette manufacturer from using the United 

24 States Postal Service to mail cigarettes to 


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1 verified adult smoker solely for consumer test2 ing purposes, if— 

3 ‘‘(i) the cigarette manufacturer has a 

4 permit, in good standing, issued under sec5 tion 5713 of the Internal Revenue Code of 

6 1986; 

7 ‘‘(ii) the package of cigarettes mailed 

8 under this paragraph contains not more 

9 than 12 packs of cigarettes (240 ciga10 rettes); 

11 ‘‘(iii) the recipient does not receive 

12 more than 1 package of cigarettes from 

13 any 1 cigarette manufacturer under this 

14 paragraph during any 30-day period; 

15 ‘‘(iv) all taxes on the cigarettes mailed 

16 under this paragraph levied by the State 

17 and locality of delivery are paid to the 

18 State and locality before delivery, and tax 

19 stamps or other tax-payment indicia are 

20 affixed to the cigarettes as required by law; 

21 and 

22 ‘‘(v)(I) the recipient has not made any 

23 payments of any kind in exchange for re24 ceiving the cigarettes; 


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1 ‘‘(II) the recipient is paid a fee by the 

2 manufacturer or agent of the manufacturer 

3 for participation in consumer product 

4 tests; and 

5 ‘‘(III) the recipient, in connection 

6 with the tests, evaluates the cigarettes and 

7 provides feedback to the manufacturer or 

8 agent. 

9 ‘‘(B) LIMITATIONS.—Subparagraph (A) 

10 shall not— 

11 ‘‘(i) permit a mailing of cigarettes to 

12 an individual located in any State that pro13 hibits the delivery or shipment of ciga14 rettes to individuals in the State, or pre15 empt, limit, or otherwise affect any related 

16 State laws; or 

17 ‘‘(ii) permit a manufacturer, directly 

18 or through a legally authorized agent, to 

19 mail cigarettes in any calendar year in a 

20 total amount greater than 1 percent of the 

21 total cigarette sales of the manufacturer in 

22 the United States during the calendar year 

23 before the date of the mailing. 

24 ‘‘(C) RULES.— 


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1 ‘‘(i) IN GENERAL.—Not later than 

2 180 days after the date of enactment of 

3 the Prevent All Cigarette Trafficking Act 

4 of 2009, the Postmaster General shall 

5 issue a final rule which shall establish the 

6 standards and requirements that apply to 

7 all mailings described in subparagraph (A). 

8 ‘‘(ii) CONTENTS.—The final rule 

9 issued under clause (i) shall require— 

10 ‘‘(I) the United States Postal 

11 Service to verify that any person sub12 mitting a tobacco product into the 

13 mails under this paragraph is a le14 gally operating cigarette manufacturer 

15 permitted to make a mailing under 

16 this paragraph, or an agent legally 

17 authorized by the legally operating 

18 cigarette manufacturer to submit the 

19 tobacco product into the mails on be20 half of the manufacturer; 

21 ‘‘(II) the legally operating ciga22 rette manufacturer submitting the 

23 cigarettes into the mails under this 

24 paragraph to affirm that— 


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1 ‘‘(aa) the manufacturer or 

2 the legally authorized agent of 

3 the manufacturer has verified 

4 that the recipient is an adult es5 tablished smoker; 

6 ‘‘(bb) the recipient has not 

7 made any payment for the ciga8 rettes; 

9 ‘‘(cc) the recipient has 

10 signed a written statement that 

11 is in effect indicating that the re12 cipient wishes to receive the mail13 ings; and 

14 ‘‘(dd) the manufacturer or 

15 the legally authorized agent of 

16 the manufacturer has offered the 

17 opportunity for the recipient to 

18 withdraw the written statement 

19 described in item (cc) not less 

20 frequently than once in every 3- 

21 month period; 

22 ‘‘(III) the legally operating ciga23 rette manufacturer or the legally au24 thorized agent of the manufacturer 

25 submitting the cigarettes into the 


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1 mails under this paragraph to affirm 

2 that any package mailed under this 

3 paragraph contains not more than 12 

4 packs of cigarettes (240 cigarettes) on 

5 which all taxes levied on the cigarettes 

6 by the State and locality of delivery 

7 have been paid and all related State 

8 tax stamps or other tax-payment indi9 cia have been applied; 

10 ‘‘(IV) that any mailing described 

11 in subparagraph (A) shall be sent 

12 through the systems of the United 

13 States Postal Service that provide for 

14 the tracking and confirmation of the 

15 delivery; 

16 ‘‘(V) the United States Postal 

17 Service to maintain records relating to 

18 a mailing described in subparagraph 

19 (A) during the 3-year period begin20 ning on the date of the mailing and 

21 make the information available to per22 sons enforcing this section; 

23 ‘‘(VI) that any mailing described 

24 in subparagraph (A) be marked with 

25 a United States Postal Service label 


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1 or marking that makes it clear to em2 ployees of the United States Postal 

3 Service that it is a permitted mailing 

4 of otherwise nonmailable tobacco 

5 products that may be delivered only to 

6 the named recipient after verifying 

7 that the recipient is an adult; and 

8 ‘‘(VII) the United States Postal 

9 Service shall deliver a mailing de10 scribed in subparagraph (A) only to 

11 the named recipient and only after 

12 verifying that the recipient is an 

13 adult. 

14 ‘‘(D) DEFINITIONS.—In this paragraph— 

15 ‘‘(i) the term ‘adult’ means an indi16 vidual who is not less than 21 years of age; 

17 and 

18 ‘‘(ii) the term ‘consumer testing’ 

19 means testing limited to formal data collec20 tion and analysis for the specific purpose 

21 of evaluating the product for quality assur22 ance and benchmarking purposes of ciga23 rette brands or sub-brands among existing 

24 adult smokers. 


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1 ‘‘(6) FEDERAL GOVERNMENT AGENCIES.—An 

2 agency of the Federal Government involved in the 

3 consumer testing of tobacco products solely for pub4 lic health purposes may mail cigarettes under the 

5 same requirements, restrictions, and rules and pro6 cedures that apply to consumer testing mailings of 

7 cigarettes by manufacturers under paragraph (5), 

8 except that the agency shall not be required to pay 

9 the recipients for participating in the consumer test10 ing. 

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

12 smokeless tobacco made nonmailable by this subsection 

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

14 and forfeiture, pursuant to the procedures set forth in 

15 chapter 46 of this title. Any tobacco products seized and 

16 forfeited under this subsection shall be destroyed or re17 tained by the Federal Government for the detection or 

18 prosecution of crimes or related investigations and then 

19 destroyed. 

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

21 other fines and penalties under this title for violations of 

22 this section, any person violating this section shall be sub23 ject to an additional civil penalty in the amount equal to 

24 10 times the retail value of the nonmailable cigarettes or 


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

2 taxes. 

3 ‘‘(e) CRIMINAL PENALTY.—Whoever knowingly de4 posits for mailing or delivery, or knowingly causes to be 

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

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

7 person to whom it is addressed, anything that is non8 mailable matter under this section shall be fined under 

9 this title, imprisoned not more than 1 year, or both. 

10 ‘‘(f) USE OF PENALTIES.—There is established a sep11 arate account in the Treasury, to be known as the ‘PACT 

12 Postal Service Fund’. Notwithstanding any other provi13 sion of law, an amount equal to 50 percent of any criminal 

14 fines, civil penalties, or other monetary penalties collected 

15 by the Federal Government in enforcing this section shall 

16 be transferred into the PACT Postal Service Fund and 

17 shall be available to the Postmaster General for the pur18 pose of enforcing this subsection. 

19 ‘‘(g) COORDINATION OF EFFORTS.—The Postmaster 

20 General shall cooperate and coordinate efforts to enforce 

21 this section with related enforcement activities of any 

22 other Federal agency or agency of any State, local, or trib23 al government, whenever appropriate. 


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1 ‘‘(h) ACTIONS BY STATE, LOCAL, OR TRIBAL GOV2 ERNMENTS RELATING TO CERTAIN TOBACCO PROD3 UCTS.— 

4 ‘‘(1) IN GENERAL.—A State, through its attor5 ney general, or a local government or Indian tribe 

6 that levies an excise tax on tobacco products, 

7 through its chief law enforcement officer, may in a 

8 civil action in a United States district court obtain 

9 appropriate relief with respect to a violation of this 

10 section. Appropriate relief includes injunctive and 

11 equitable relief and damages equal to the amount of 

12 unpaid taxes on tobacco products mailed in violation 

13 of this section to addressees in that State, locality, 

14 or tribal land. 

15 ‘‘(2) SOVEREIGN IMMUNITY.—Nothing in this 

16 subsection shall be deemed to abrogate or constitute 

17 a waiver of any sovereign immunity of a State or 

18 local government or Indian tribe against any 

19 unconsented lawsuit under paragraph (1), or other20 wise to restrict, expand, or modify any sovereign im21 munity of a State or local government or Indian 

22 tribe. 

23 ‘‘(3) ATTORNEY GENERAL REFERRAL.—A 

24 State, through its attorney general, or a local gov25 ernment or Indian tribe that levies an excise tax on 


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1 tobacco products, through its chief law enforcement 

2 officer, may provide evidence of a violation of this 

3 section for commercial purposes by any person not 

4 subject to State, local, or tribal government enforce5 ment actions for violations of this section to the At6 torney General of the United States, who shall take 

7 appropriate actions to enforce this section. 

8 ‘‘(4) NONEXCLUSIVITY OF REMEDIES.—The 

9 remedies available under this subsection are in addi10 tion to any other remedies available under Federal, 

11 State, local, tribal, or other law. Nothing in this sub12 section shall be construed to expand, restrict, or oth13 erwise modify any right of an authorized State, 

14 local, or tribal government official to proceed in a 

15 State, tribal, or other appropriate court, or take 

16 other enforcement actions, on the basis of an alleged 

17 violation of State, local, tribal, or other law. 

18 ‘‘(5) OTHER ENFORCEMENT ACTIONS.—Noth19 ing in this subsection shall be construed to prohibit 

20 an authorized State official from proceeding in State 

21 court on the basis of an alleged violation of any gen22 eral civil or criminal statute of the State. 

23 ‘‘(i) DEFINITION.—In this section, the term ‘State’ 

24 has the meaning given that term in section 1716(k).’’. 


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

2 for chapter 83 of title 18 is amended by inserting after 

3 the item relating to section 1716D the following: 

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

4 SEC. 4. COMPLIANCE WITH MODEL STATUTE OR QUALI5 FYING STATUTE. 

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

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

8 sale, or cause to be sold in, delivered to, or placed for deliv9 ery sale in a State that is a party to the Master Settlement 

10 Agreement, any cigarette manufactured by a Tobacco 

11 Product Manufacturer that is not in full compliance with 

12 the terms of the Model Statute or Qualifying Statute en13 acted by the State requiring funds to be placed into a 

14 qualified escrow account under specified conditions, and 

15 with any regulations promulgated pursuant to the statute. 

16 (b) JURISDICTION TO PREVENT AND RESTRAIN VIO17 LATIONS.— 

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

19 courts shall have jurisdiction to prevent and restrain 

20 violations of subsection (a) in accordance with this 

21 subsection. 

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

23 its attorney general, may bring an action in an ap24 propriate United States district court to prevent and 

25 restrain violations of subsection (a) by any person. 


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

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

3 shall be entitled to reasonable attorney fees from a 

4 person found to have knowingly violated subsection 

5 (a). 

6 (4) NONEXCLUSIVITY OF REMEDIES.—The rem7 edy available under paragraph (2) is in addition to 

8 any other remedies available under Federal, State, 

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

10 Federal law shall be held or construed to prohibit or 

11 preempt the Master Settlement Agreement, the 

12 Model Statute (as defined in the Master Settlement 

13 Agreement), any legislation amending or complemen14 tary to the Model Statute in effect as of June 1, 

15 2006, or any legislation substantially similar to such 

16 existing, amending, or complementary legislation en17 acted after the date of enactment of this Act. 

18 (5) OTHER ENFORCEMENT ACTIONS.—Nothing 

19 in this subsection shall be construed to prohibit an 

20 authorized State official from proceeding in State 

21 court or taking other enforcement actions on the 

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

23 (6) AUTHORITY OF THE ATTORNEY GEN24 ERAL.—The Attorney General of the United States 

25 may bring an action in an appropriate United States 


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1 district court to prevent and restrain violations of 

2 subsection (a) by any person. 

3 (c) DEFINITIONS.—In this section the following defi4 nitions apply: 

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

6 means any sale of cigarettes or smokeless tobacco to 

7 a consumer if— 

8 (A) the consumer submits the order for the 

9 sale by means of a telephone or other method 

10 of voice transmission, the mails, or the Internet 

11 or other online service, or the seller is otherwise 

12 not in the physical presence of the buyer when 

13 the request for purchase or order is made; or 

14 (B) the cigarettes or smokeless tobacco are 

15 delivered to the buyer by common carrier, pri16 vate delivery service, or other method of remote 

17 delivery, or the seller is not in the physical pres18 ence of the buyer when the buyer obtains pos19 session of the cigarettes or smokeless tobacco. 

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

21 each of the following: 

22 (A) SHIPPING OR CONSIGNING.—Any per23 son in the United States to whom nontaxpaid 

24 tobacco products manufactured in a foreign 

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


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1 possession of the United States are shipped or 

2 consigned. 

3 (B) MANUFACTURING WAREHOUSES.—Any 

4 person who removes cigars or cigarettes for sale 

5 or consumption in the United States from a 

6 customs-bonded manufacturing warehouse. 

7 (C) UNLAWFUL IMPORTING.—Any person 

8 who smuggles or otherwise unlawfully brings to9 bacco products into the United States. 

10 (3) MASTER SETTLEMENT AGREEMENT.—The 

11 term ‘‘Master Settlement Agreement’’ means the 

12 agreement executed November 23, 1998, between 

13 the attorneys general of 46 States, the District of 

14 Columbia, the Commonwealth of Puerto Rico, and 4 

15 territories of the United States and certain tobacco 

16 manufacturers. 

17 (4) MODEL STATUTE; QUALIFYING STATUTE.— 

18 The terms ‘‘Model Statute’’ and ‘‘Qualifying Stat19 ute’’ means a statute as defined in section 

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

21 (5) TOBACCO PRODUCT MANUFACTURER.—The 

22 term ‘‘Tobacco Product Manufacturer’’ has the 

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

24 Master Settlement Agreement. 


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

2 FIREARMS, AND EXPLOSIVES OF RECORDS 

3 OF CERTAIN CIGARETTE AND SMOKELESS 

4 TOBACCO SELLERS; CIVIL PENALTY. 

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

6 amended to read as follows: 

7 ‘‘(c)(1) Any officer of the Bureau of Alcohol, To8 bacco, Firearms, and Explosives may, during normal busi9 ness hours, enter the premises of any person described in 

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

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

12 maintained by the person under this chapter; or 

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

14 or stored by the person at the premises. 

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

16 have the authority in a civil action under this subsection 

17 to compel inspections authorized by paragraph (1). 

18 ‘‘(3) Whoever denies access to an officer under para19 graph (1), or who fails to comply with an order issued 

20 under paragraph (2), shall be subject to a civil penalty 

21 in an amount not to exceed $10,000.’’. 

22 SEC. 6. EXCLUSIONS REGARDING INDIAN TRIBES AND 

23 TRIBAL MATTERS. 

24 (a) IN GENERAL.—Nothing in this Act or the amend25 ments made by this Act shall be construed to amend, mod26 ify, or otherwise affect— 


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1 (1) any agreements, compacts, or other inter2 governmental arrangements between any State or 

3 local government and any government of an Indian 

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

5 Indian Self-Determination and Education Assistance 

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

7 taxes on cigarettes or smokeless tobacco sold in In8 dian country; 

9 (2) any State laws that authorize or otherwise 

10 pertain to any such intergovernmental arrangements 

11 or create special rules or procedures for the collec12 tion of State, local, or tribal taxes on cigarettes or 

13 smokeless tobacco sold in Indian country; 

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

15 including Federal common law and treaties, on 

16 State, local, and tribal tax and regulatory authority 

17 with respect to the sale, use, or distribution of ciga18 rettes and smokeless tobacco by or to Indian tribes, 

19 tribal members, tribal enterprises, or in Indian coun20 try; 

21 (4) any Federal law, including Federal common 

22 law and treaties, regarding State jurisdiction, or 

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

24 enterprises, tribal reservations, or other lands held 


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

2 tribes; or 

3 (5) any State or local government authority to 

4 bring enforcement actions against persons located in 

5 Indian country. 

6 (b) COORDINATION OF LAW ENFORCEMENT.—Noth7 ing in this Act or the amendments made by this Act shall 

8 be construed to inhibit or otherwise affect any coordinated 

9 law enforcement effort by 1 or more States or other juris10 dictions, including Indian tribes, through interstate com11 pact or otherwise, that— 

12 (1) provides for the administration of tobacco 

13 product laws or laws pertaining to interstate sales or 

14 other sales of tobacco products; 

15 (2) provides for the seizure of tobacco products 

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

17 or 

18 (3) establishes cooperative programs for the ad19 ministration of such laws. 

20 (c) TREATMENT OF STATE AND LOCAL GOVERN21 MENTS.—Nothing in this Act or the amendments made 

22 by this Act shall be construed to authorize, deputize, or 

23 commission States or local governments as instrumental24 ities of the United States. 


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1 (d) ENFORCEMENT WITHIN INDIAN COUNTRY.— 

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

3 shall prohibit, limit, or restrict enforcement by the Attor4 ney General of the United States of this Act or an amend5 ment made by this Act within Indian country. 

6 (e) AMBIGUITY.—Any ambiguity between the lan7 guage of this section or its application and any other pro8 vision of this Act shall be resolved in favor of this section. 

9 (f) DEFINITIONS.—In this section— 

10 (1) the term ‘‘Indian country’’ has the meaning 

11 given that term in section 1 of the Jenkins Act, as 

12 amended by this Act; and 

13 (2) the term ‘‘tribal enterprise’’ means any 

14 business enterprise, regardless of whether incor15 porated or unincorporated under Federal or tribal 

16 law, of an Indian tribe or group of Indian tribes. 

17 SEC. 7. ENHANCED CONTRABAND TOBACCO ENFORCE18 MENT. 

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

20 Alcohol, Tobacco, Firearms, and Explosives shall— 

21 (1) not later than the end of the 3-year period 

22 beginning on the effective date of this Act, create a 

23 regional contraband tobacco trafficking team in each 

24 of New York, New York, the District of Columbia, 


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1 Detroit, Michigan, Los Angeles, California, Seattle, 

2 Washington, and Miami, Florida; 

3 (2) create a Tobacco Intelligence Center to 

4 oversee investigations and monitor and coordinate 

5 ongoing investigations and to serve as the coordi6 nator for all ongoing tobacco diversion investigations 

7 within the Bureau of Alcohol, Tobacco, Firearms, 

8 and Explosives, in the United States and, where ap9 plicable, with law enforcement organizations around 

10 the world; 

11 (3) establish a covert national warehouse for 

12 undercover operations; and 

13 (4) create a computer database that will track 

14 and analyze information from retail sellers of to15 bacco products that sell through the Internet or by 

16 mail order or make other non-face-to-face sales. 

17 (b) AUTHORIZATION OF APPROPRIATIONS.—There is 

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

19 $8,500,000 for each of fiscal years 2010 through 2014. 

20 SEC. 8. EFFECTIVE DATE. 

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

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

23 after the date of enactment of this Act. 


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1 (b) BATFE AUTHORITY.—The amendments made by 

2 section 5 shall take effect on the date of enactment of this 

3 Act. 

4 SEC. 9. SEVERABILITY. 

5 If any provision of this Act, or any amendment made 

6 by this Act, or the application thereof to any person or 

7 circumstance, is held invalid, the remainder of the Act and 

8 the application of the Act to any other person or cir9 cumstance shall not be affected thereby. 

10 SEC. 10. SENSE OF CONGRESS CONCERNING THE PRECE11 DENTIAL EFFECT OF THIS ACT. 

12 It is the sense of Congress that unique harms are 

13 associated with online cigarette sales, including problems 

14 with verifying the ages of consumers in the digital market 

15 and the long-term health problems associated with the use 

16 of certain tobacco products. This Act was enacted recog17 nizing the longstanding interest of Congress in urging 

18 compliance with States’ laws regulating remote sales of 

19 certain tobacco products to citizens of those States, includ20 ing the passage of the Jenkins Act over 50 years ago, 

21 which established reporting requirements for out-of-State 

22 companies that sell certain tobacco products to citizens of 

23 the taxing States, and which gave authority to the Depart24 ment of Justice and the Bureau of Alcohol, Tobacco, Fire25 arms, and Explosives to enforce the Jenkins Act. In light 


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1 of the unique harms and circumstances surrounding the 

2 online sale of certain tobacco products, this Act is in3 tended to help collect cigarette excise taxes, to stop to4 bacco sales to underage youth, and to help the States en5 force their laws that target the online sales of certain to6 bacco products only. This Act is in no way meant to create 

7 a precedent regarding the collection of State sales or use 

8 taxes by, or the validity of efforts to impose other types 

9 of taxes on, out-of-State entities that do not have a phys10 ical presence within the taxing State. 

Æ 


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