S. 1147 

One Hundred Eleventh Congress 

of the 

United States of America 

AT THE SECOND SESSION 

Begun and held at the City of Washington on Tuesday, 

the fifth day of January, two thousand and ten 

An Act 

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

for other purposes. 

Be it enacted by the Senate and House of Representatives of 

the United States of America in Congress assembled, 

SECTION 1. SHORT TITLE; FINDINGS; PURPOSES. 

(a) SHORT TITLE.—This Act may be cited as the ‘‘Prevent All 

Cigarette Trafficking Act of 2009’’ or ‘‘PACT Act’’. 

(b) FINDINGS.—Congress finds that— 

(1) the sale of illegal cigarettes and smokeless tobacco 

products significantly reduces Federal, State, and local government revenues, with Internet sales alone accounting for billions 

of dollars of lost Federal, State, and local tobacco tax revenue 

each year; 

(2) Hezbollah, Hamas, al Qaeda, and other terrorist 

organizations have profited from trafficking in illegal cigarettes 

or counterfeit cigarette tax stamps; 

(3) terrorist involvement in illicit cigarette trafficking will 

continue to grow because of the large profits such organizations 

can earn; 

(4) the sale of illegal cigarettes and smokeless tobacco 

over the Internet, and through mail, fax, or phone orders, 

makes it cheaper and easier for children to obtain tobacco 

products; 

(5) the majority of Internet and other remote sales of 

cigarettes and smokeless tobacco are being made without adequate precautions to protect against sales to children, without 

the payment of applicable taxes, and without complying with 

the nominal registration and reporting requirements in existing 

Federal law; 

(6) unfair competition from illegal sales of cigarettes and 

smokeless tobacco is taking billions of dollars of sales away 

from law-abiding retailers throughout the United States; 

(7) with rising State and local tobacco tax rates, the incentives for the illegal sale of cigarettes and smokeless tobacco 

have increased; 

(8) the number of active tobacco investigations being conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives rose to 452 in 2005; 

(9) the number of Internet vendors in the United States 

and in foreign countries that sell cigarettes and smokeless 

tobacco to buyers in the United States increased from only 

about 40 in 2000 to more than 500 in 2005; and 
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(10) the intrastate sale of illegal cigarettes and smokeless 

tobacco over the Internet has a substantial effect on interstate 

commerce. 

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

(1) require Internet and other remote sellers of cigarettes 

and smokeless tobacco to comply with the same laws that 

apply to law-abiding tobacco retailers; 

(2) create strong disincentives to illegal smuggling of 

tobacco products; 

(3) provide government enforcement officials with more 

effective enforcement tools to combat tobacco smuggling; 

(4) make it more difficult for cigarette and smokeless 

tobacco traffickers to engage in and profit from their illegal 

activities; 

(5) increase collections of Federal, State, and local excise 

taxes on cigarettes and smokeless tobacco; and 

(6) prevent and reduce youth access to inexpensive cigarettes and smokeless tobacco through illegal Internet or contraband sales. 

SEC. 2. COLLECTION OF STATE CIGARETTE AND SMOKELESS TOBACCO 

TAXES. 

(a) DEFINITIONS.—The Act of October 19, 1949 (15 U.S.C. 375 

et seq.; commonly referred to as the ‘‘Jenkins Act’’) (referred to 

in this Act as the ‘‘Jenkins Act’’), is amended by striking the 

first section and inserting the following: 

‘‘SECTION 1. DEFINITIONS. 

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

‘‘(1) ATTORNEY GENERAL.—The term ‘attorney general’, with 

respect to a State, means the attorney general or other chief 

law enforcement officer of the State. 

‘‘(2) CIGARETTE.— 

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

‘‘(i) has the meaning given that term in section 

2341 of title 18, United States Code; and 

‘‘(ii) includes roll-your-own tobacco (as defined in 

section 5702 of the Internal Revenue Code of 1986). 

‘‘(B) EXCEPTION.—The term ‘cigarette’ does not include 

a cigar (as defined in section 5702 of the Internal Revenue 

Code of 1986). 

‘‘(3) COMMON CARRIER.—The term ‘common carrier’ means 

any person (other than a local messenger service or the United 

States Postal Service) that holds itself out to the general public 

as a provider for hire of the transportation by water, land, 

or air of merchandise (regardless of whether the person actually 

operates the vessel, vehicle, or aircraft by which the transportation is provided) between a port or place and a port or 

place in the United States. 

‘‘(4) CONSUMER.—The term ‘consumer’— 

‘‘(A) means any person that purchases cigarettes or 

smokeless tobacco; and 

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

as a manufacturer, distributor, wholesaler, or retailer of 

cigarettes or smokeless tobacco. 

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

sale of cigarettes or smokeless tobacco to a consumer if— 
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‘‘(A) the consumer submits the order for the sale by 

means of a telephone or other method of voice transmission, 

the mails, or the Internet or other online service, or the 

seller is otherwise not in the physical presence of the 

buyer when the request for purchase or order is made; 

or 

‘‘(B) the cigarettes or smokeless tobacco are delivered 

to the buyer by common carrier, private delivery service, 

or other method of remote delivery, or the seller is not 

in the physical presence of the buyer when the buyer 

obtains possession of the cigarettes or smokeless tobacco. 

‘‘(6) DELIVERY SELLER.—The term ‘delivery seller’ means 

a person who makes a delivery sale. 

‘‘(7) INDIAN COUNTRY.—The term ‘Indian country’— 

‘‘(A) has the meaning given that term in section 1151 

of title 18, United States Code, except that within the 

State of Alaska that term applies only to the Metlakatla 

Indian Community, Annette Island Reserve; and 

‘‘(B) includes any other land held by the United States 

in trust or restricted status for one or more Indian tribes. 

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

refers to an Indian tribe as defined in section 4(e) of the 

Indian Self-Determination and Education Assistance Act (25 

U.S.C. 450b(e)) or as listed pursuant to section 104 of the 

Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 

479a–1). 

‘‘(9) INTERSTATE COMMERCE.— ‘‘(A) IN GENERAL.—The term ‘interstate commerce’ 

means commerce between a State and any place outside 

the State, commerce between a State and any Indian 

country in the State, or commerce between points in the 

same State but through any place outside the State or 

through any Indian country. 

‘‘(B) INTO A STATE, PLACE, OR LOCALITY.—A sale, shipment, or transfer of cigarettes or smokeless tobacco that 

is made in interstate commerce, as defined in this paragraph, shall be deemed to have been made into the State, 

place, or locality in which such cigarettes or smokeless 

tobacco are delivered. 

‘‘(10) PERSON.—The term ‘person’ means an individual, corporation, company, association, firm, partnership, society, State 

government, local government, Indian tribal government, 

governmental organization of such a government, or joint stock 

company. 

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

States of the United States, the District of Columbia, the 

Commonwealth of Puerto Rico, or any territory or possession 

of the United States. 

‘‘(12) SMOKELESS TOBACCO.—The term ‘smokeless tobacco’ 

means any finely cut, ground, powdered, or leaf tobacco, or 

other product containing tobacco, that is intended to be placed 

in the oral or nasal cavity or otherwise consumed without 

being combusted. 

‘‘(13) TOBACCO TAX ADMINISTRATOR.—The term ‘tobacco tax 

administrator’ means the State, local, or tribal official duly 

authorized to collect the tobacco tax or administer the tax 

law of a State, locality, or tribe, respectively. 
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‘‘(14) USE.—The term ‘use’ includes the consumption, storage, handling, or disposal of cigarettes or smokeless tobacco.’’. 

(b) REPORTS TO STATE TOBACCO TAX ADMINISTRATORS.—Section 

2 of the Jenkins Act (15 U.S.C. 376) is amended— 

(1) by striking ‘‘cigarettes’’ each place it appears and 

inserting ‘‘cigarettes or smokeless tobacco’’; 

(2) in subsection (a)— 

(A) in the matter preceding paragraph (1)— 

(i) by inserting ‘‘CONTENTS.—’’ after ‘‘(a)’’; 

(ii) by striking ‘‘or transfers’’ and inserting ‘‘, transfers, or ships’’; 

(iii) by inserting ‘‘, locality, or Indian country of 

an Indian tribe’’ after ‘‘a State’’; 

(iv) by striking ‘‘to other than a distributor licensed 

by or located in such State,’’; and 

(v) by striking ‘‘or transfer and shipment’’ and 

inserting ‘‘, transfer, or shipment’’; 

(B) in paragraph (1)— 

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

of the State’’ and inserting ‘‘with the Attorney General 

of the United States and with the tobacco tax administrators of the State and place’’; and 

(ii) by striking ‘‘; and’’ and inserting the following: 

‘‘, as well as telephone numbers for each place of business, a principal electronic mail address, any website 

addresses, and the name, address, and telephone 

number of an agent in the State authorized to accept 

service on behalf of the person;’’; 

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

thereof.’’ and inserting ‘‘the quantity thereof, and the name, 

address, and phone number of the person delivering the 

shipment to the recipient on behalf of the delivery seller, 

with all invoice or memoranda information relating to specific customers to be organized by city or town and by 

zip code; and’’; and 

(D) by adding at the end the following: 

‘‘(3) with respect to each memorandum or invoice filed 

with a State under paragraph (2), also file copies of the memorandum or invoice with the tobacco tax administrators and 

chief law enforcement officers of the local governments and 

Indian tribes operating within the borders of the State that 

apply their own local or tribal taxes on cigarettes or smokeless 

tobacco.’’; 

(3) in subsection (b)— 

(A) by inserting ‘‘PRESUMPTIVE EVIDENCE.—’’ after 

‘‘(b)’’; 

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

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

inserting a period; and 

(4) by adding at the end the following: 

‘‘(c) USE OF INFORMATION.—A tobacco tax administrator or chief 

law enforcement officer who receives a memorandum or invoice 

under paragraph (2) or (3) of subsection (a) shall use the memorandum or invoice solely for the purposes of the enforcement of 

this Act and the collection of any taxes owed on related sales 

of cigarettes and smokeless tobacco, and shall keep confidential 
S. 1147—5 

any personal information in the memorandum or invoice except 

as required for such purposes.’’. 

(c) REQUIREMENTS FOR DELIVERY SALES.—The Jenkins Act is 

amended by inserting after section 2 the following: 

‘‘SEC. 2A. DELIVERY SALES. 

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

State and place, each delivery seller shall comply with— 

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

‘‘(2) the recordkeeping requirements set forth in subsection 

(c); 

‘‘(3) all State, local, tribal, and other laws generally 

applicable to sales of cigarettes or smokeless tobacco as if 

the delivery sales occurred entirely within the specific State 

and place, including laws imposing— 

‘‘(A) excise taxes; 

‘‘(B) licensing and tax-stamping requirements; 

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

‘‘(D) other payment obligations or legal requirements 

relating to the sale, distribution, or delivery of cigarettes 

or smokeless tobacco; and 

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

(d). 

‘‘(b) SHIPPING AND PACKAGING.— 

‘‘(1) REQUIRED STATEMENT.—For any shipping package containing cigarettes or smokeless tobacco, the delivery seller shall 

include on the bill of lading, if any, and on the outside of 

the shipping package, on the same surface as the delivery 

address, a clear and conspicuous statement providing as follows: 

‘CIGARETTES/SMOKELESS TOBACCO: FEDERAL LAW 

REQUIRES THE PAYMENT OF ALL APPLICABLE EXCISE 

TAXES, AND COMPLIANCE WITH APPLICABLE 

LICENSING AND TAX-STAMPING OBLIGATIONS’. 

‘‘(2) FAILURE TO LABEL.—Any shipping package described 

in paragraph (1) that is not labeled in accordance with that 

paragraph shall be treated as nondeliverable matter by a 

common carrier or other delivery service, if the common carrier 

or other delivery service knows or should know the package 

contains cigarettes or smokeless tobacco. If a common carrier 

or other delivery service believes a package is being submitted 

for delivery in violation of paragraph (1), it may require the 

person submitting the package for delivery to establish that 

it is not being sent in violation of paragraph (1) before accepting 

the package for delivery. Nothing in this paragraph shall 

require the common carrier or other delivery service to open 

any package to determine its contents. 

‘‘(3) WEIGHT RESTRICTION.—A delivery seller shall not sell, 

offer for sale, deliver, or cause to be delivered in any single 

sale or single delivery any cigarettes or smokeless tobacco 

weighing more than 10 pounds. 

‘‘(4) AGE VERIFICATION.— 

‘‘(A) IN GENERAL.—A delivery seller who mails or ships 

tobacco products— 

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

any tobacco products to a person under the minimum 

age required for the legal sale or purchase of tobacco 
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products, as determined by the applicable law at the 

place of delivery; 

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

that requires— 

‘‘(I) the purchaser placing the delivery sale 

order, or an adult who is at least the minimum 

age required for the legal sale or purchase of 

tobacco products, as determined by the applicable 

law at the place of delivery, to sign to accept 

delivery of the shipping container at the delivery 

address; and 

‘‘(II) the person who signs to accept delivery 

of the shipping container to provide proof, in the 

form of a valid, government-issued identification 

bearing a photograph of the individual, that the 

person is at least the minimum age required for 

the legal sale or purchase of tobacco products, 

as determined by the applicable law at the place 

of delivery; and 

‘‘(iii) shall not accept a delivery sale order from 

a person without— 

‘‘(I) obtaining the full name, birth date, and 

residential address of that person; and 

‘‘(II) verifying the information provided in subclause (I), through the use of a commercially available database or aggregate of databases, consisting 

primarily of data from government sources, that 

are regularly used by government and businesses 

for the purpose of age and identity verification 

and authentication, to ensure that the purchaser 

is at least the minimum age required for the legal 

sale or purchase of tobacco products, as determined 

by the applicable law at the place of delivery. 

‘‘(B) LIMITATION.—No database being used for age and 

identity verification under subparagraph (A)(iii) shall be 

in the possession or under the control of the delivery seller, 

or be subject to any changes or supplementation by the 

delivery seller. 

‘‘(c) RECORDS.— 

‘‘(1) IN GENERAL.—Each delivery seller shall keep a record 

of any delivery sale, including all of the information described 

in section 2(a)(2), organized by the State, and within the State, 

by the city or town and by zip code, into which the delivery 

sale is so made. 

‘‘(2) RECORD RETENTION.—Records of a delivery sale shall 

be kept as described in paragraph (1) until the end of the 

4th full calendar year that begins after the date of the delivery 

sale. 

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

(1) shall be made available to tobacco tax administrators of 

the States, to local governments and Indian tribes that apply 

local or tribal taxes on cigarettes or smokeless tobacco, to 

the attorneys general of the States, to the chief law enforcement 

officers of the local governments and Indian tribes, and to 

the Attorney General of the United States in order to ensure 

the compliance of persons making delivery sales with the 

requirements of this Act. 
S. 1147—7 

‘‘(d) DELIVERY.— 

‘‘(1) IN GENERAL.—Except as provided in paragraph (2), 

no delivery seller may sell or deliver to any consumer, or 

tender to any common carrier or other delivery service, any 

cigarettes or smokeless tobacco pursuant to a delivery sale 

unless, in advance of the sale, delivery, or tender— 

‘‘(A) any cigarette or smokeless tobacco excise tax that 

is imposed by the State in which the cigarettes or smokeless 

tobacco are to be delivered has been paid to the State; 

‘‘(B) any cigarette or smokeless tobacco excise tax that 

is imposed by the local government of the place in which 

the cigarettes or smokeless tobacco are to be delivered 

has been paid to the local government; and 

‘‘(C) any required stamps or other indicia that the 

excise tax has been paid are properly affixed or applied 

to the cigarettes or smokeless tobacco. 

‘‘(2) EXCEPTION.—Paragraph (1) does not apply to a delivery 

sale of smokeless tobacco if the law of the State or local government of the place where the smokeless tobacco is to be delivered 

requires or otherwise provides that delivery sellers collect the 

excise tax from the consumer and remit the excise tax to 

the State or local government, and the delivery seller complies 

with the requirement. 

‘‘(e) LIST OF UNREGISTERED OR NONCOMPLIANT DELIVERY

SELLERS.— 

‘‘(1) IN GENERAL.— 

‘‘(A) INITIAL LIST.—Not later than 90 days after this 

subsection goes into effect under the Prevent All Cigarette 

Trafficking Act of 2009, the Attorney General of the United 

States shall compile a list of delivery sellers of cigarettes 

or smokeless tobacco that have not registered with the 

Attorney General of the United States pursuant to section 

2(a), or that are otherwise not in compliance with this 

Act, and— 

‘‘(i) distribute the list to— 

‘‘(I) the attorney general and tax administrator 

of every State; 

‘‘(II) common carriers and other persons that 

deliver small packages to consumers in interstate 

commerce, including the United States Postal 

Service; and 

‘‘(III) any other person that the Attorney General of the United States determines can promote 

the effective enforcement of this Act; and 

‘‘(ii) publicize and make the list available to any 

other person engaged in the business of interstate 

deliveries or who delivers cigarettes or smokeless 

tobacco in or into any State. 

‘‘(B) LIST CONTENTS.—To the extent known, the 

Attorney General of the United States shall include, for 

each delivery seller on the list described in subparagraph 

(A)— 

‘‘(i) all names the delivery seller uses or has used 

in the transaction of its business or on packages delivered to customers; 
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‘‘(ii) all addresses from which the delivery seller 

does or has done business, or ships or has shipped 

cigarettes or smokeless tobacco; 

‘‘(iii) the website addresses, primary e-mail 

address, and phone number of the delivery seller; and 

‘‘(iv) any other information that the Attorney General of the United States determines would facilitate 

compliance with this subsection by recipients of the 

list. 

‘‘(C) UPDATING.—The Attorney General of the United 

States shall update and distribute the list described in 

subparagraph (A) at least once every 4 months, and may 

distribute the list and any updates by regular mail, electronic mail, or any other reasonable means, or by providing 

recipients with access to the list through a nonpublic 

website that the Attorney General of the United States 

regularly updates. 

‘‘(D) STATE, LOCAL, OR TRIBAL ADDITIONS.—The 

Attorney General of the United States shall include in 

the list described in subparagraph (A) any noncomplying 

delivery sellers identified by any State, local, or tribal 

government under paragraph (6), and shall distribute the 

list to the attorney general or chief law enforcement official 

and the tax administrator of any government submitting 

any such information, and to any common carriers or other 

persons who deliver small packages to consumers identified 

by any government pursuant to paragraph (6). 

‘‘(E) ACCURACY AND COMPLETENESS OF LIST OF NONCOMPLYING DELIVERY SELLERS.—In preparing and revising the 

list described in subparagraph (A), the Attorney General 

of the United States shall— 

‘‘(i) use reasonable procedures to ensure maximum 

possible accuracy and completeness of the records and 

information relied on for the purpose of determining 

that a delivery seller is not in compliance with this 

Act; 

‘‘(ii) not later than 14 days before including a 

delivery seller on the list, make a reasonable attempt 

to send notice to the delivery seller by letter, electronic 

mail, or other means that the delivery seller is being 

placed on the list, which shall cite the relevant provisions of this Act and the specific reasons for which 

the delivery seller is being placed on the list; 

‘‘(iii) provide an opportunity to the delivery seller 

to challenge placement on the list; 

‘‘(iv) investigate each challenge described in clause 

(iii) by contacting the relevant Federal, State, tribal, 

and local law enforcement officials, and provide the 

specific findings and results of the investigation to 

the delivery seller not later than 30 days after the 

date on which the challenge is made; and 

‘‘(v) if the Attorney General of the United States 

determines that the basis for including a delivery seller 

on the list is inaccurate, based on incomplete information, or cannot be verified, promptly remove the 

delivery seller from the list as appropriate and notify 
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each appropriate Federal, State, tribal, and local 

authority of the determination. 

‘‘(F) CONFIDENTIALITY.—The list described in subparagraph (A) shall be confidential, and any person receiving 

the list shall maintain the confidentiality of the list and 

may deliver the list, for enforcement purposes, to any 

government official or to any common carrier or other 

person that delivers tobacco products or small packages 

to consumers. Nothing in this section shall prohibit a 

common carrier, the United States Postal Service, or any 

other person receiving the list from discussing with a listed 

delivery seller the inclusion of the delivery seller on the 

list and the resulting effects on any services requested 

by the listed delivery seller. 

‘‘(2) PROHIBITION ON DELIVERY.— 

‘‘(A) IN GENERAL.—Commencing on the date that is 

60 days after the date of the initial distribution or availability of the list described in paragraph (1)(A), no person 

who receives the list under paragraph (1), and no person 

who delivers cigarettes or smokeless tobacco to consumers, 

shall knowingly complete, cause to be completed, or complete its portion of a delivery of any package for any person 

whose name and address are on the list, unless— 

‘‘(i) the person making the delivery knows or 

believes in good faith that the item does not include 

cigarettes or smokeless tobacco; 

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

engaged in the business of manufacturing, distributing, 

or selling cigarettes or smokeless tobacco; or 

‘‘(iii) the package being delivered weighs more than 

100 pounds and the person making the delivery does 

not know or have reasonable cause to believe that 

the package contains cigarettes or smokeless tobacco. 

‘‘(B) IMPLEMENTATION OF UPDATES.—Commencing on 

the date that is 30 days after the date of the distribution 

or availability of any updates or corrections to the list 

described in paragraph (1)(A), all recipients and all common 

carriers or other persons that deliver cigarettes or smokeless tobacco to consumers shall be subject to subparagraph 

(A) in regard to the corrections or updates. 

‘‘(3) EXEMPTIONS.— 

‘‘(A) IN GENERAL.—Subsection (b)(2) and any requirements or restrictions placed directly on common carriers 

under this subsection, including subparagraphs (A) and 

(B) of paragraph (2), shall not apply to a common carrier 

that— 

‘‘(i) is subject to a settlement agreement described 

in subparagraph (B); or 

‘‘(ii) if a settlement agreement described in 

subparagraph (B) to which the common carrier is a 

party is terminated or otherwise becomes inactive, is 

administering and enforcing policies and practices 

throughout the United States that are at least as stringent as the agreement. 

‘‘(B) SETTLEMENT AGREEMENT.—A settlement agreement described in this subparagraph— 
S. 1147—10 

‘‘(i) is a settlement agreement relating to tobacco 

product deliveries to consumers; and 

‘‘(ii) includes— 

‘‘(I) the Assurance of Discontinuance entered 

into by the Attorney General of New York and 

DHL Holdings USA, Inc. and DHL Express (USA), 

Inc. on or about July 1, 2005, the Assurance of 

Discontinuance entered into by the Attorney General of New York and United Parcel Service, Inc. 

on or about October 21, 2005, and the Assurance 

of Compliance entered into by the Attorney General of New York and Federal Express Corporation 

and FedEx Ground Package Systems, Inc. on or 

about February 3, 2006, if each of those agreements is honored throughout the United States 

to block illegal deliveries of cigarettes or smokeless 

tobacco to consumers; and 

‘‘(II) any other active agreement between a 

common carrier and a State that operates throughout the United States to ensure that no deliveries 

of cigarettes or smokeless tobacco shall be made 

to consumers or illegally operating Internet or 

mail-order sellers and that any such deliveries 

to consumers shall not be made to minors or without payment to the States and localities where 

the consumers are located of all taxes on the 

tobacco products. 

‘‘(4) SHIPMENTS FROM PERSONS ON LIST.— ‘‘(A) IN GENERAL.—If a common carrier or other 

delivery service delays or interrupts the delivery of a package in the possession of the common carrier or delivery 

service because the common carrier or delivery service 

determines or has reason to believe that the person 

ordering the delivery is on a list described in paragraph 

(1)(A) and that clauses (i), (ii), and (iii) of paragraph (2)(A) 

do not apply— 

‘‘(i) the person ordering the delivery shall be obligated to pay— 

‘‘(I) the common carrier or other delivery 

service as if the delivery of the package had been 

timely completed; and 

‘‘(II) if the package is not deliverable, any 

reasonable additional fee or charge levied by the 

common carrier or other delivery service to cover 

any extra costs and inconvenience and to serve 

as a disincentive against such noncomplying 

delivery orders; and 

‘‘(ii) if the package is determined not to be deliverable, the common carrier or other delivery service shall 

offer to provide the package and its contents to a 

Federal, State, or local law enforcement agency. 

‘‘(B) RECORDS.—A common carrier or other delivery 

service shall maintain, for a period of 5 years, any records 

kept in the ordinary course of business relating to any 

delivery interrupted under this paragraph and provide that 

information, upon request, to the Attorney General of the 

United States or to the attorney general or chief law 
S. 1147—11 

enforcement official or tax administrator of any State, local, 

or tribal government. 

‘‘(C) CONFIDENTIALITY.—Any person receiving records 

under subparagraph (B) shall— 

‘‘(i) use the records solely for the purposes of the 

enforcement of this Act and the collection of any taxes 

owed on related sales of cigarettes and smokeless 

tobacco; and 

‘‘(ii) keep confidential any personal information in 

the records not otherwise required for such purposes. 

‘‘(5) PREEMPTION.— 

‘‘(A) IN GENERAL.—No State, local, or tribal government, nor any political authority of 2 or more State, local, 

or tribal governments, may enact or enforce any law or 

regulation relating to delivery sales that restricts deliveries 

of cigarettes or smokeless tobacco to consumers by common 

carriers or other delivery services on behalf of delivery 

sellers by— 

‘‘(i) requiring that the common carrier or other 

delivery service verify the age or identity of the consumer accepting the delivery by requiring the person 

who signs to accept delivery of the shipping container 

to provide proof, in the form of a valid, governmentissued identification bearing a photograph of the individual, that the person is at least the minimum age 

required for the legal sale or purchase of tobacco products, as determined by either State or local law at 

the place of delivery; 

‘‘(ii) requiring that the common carrier or other 

delivery service obtain a signature from the consumer 

accepting the delivery; 

‘‘(iii) requiring that the common carrier or other 

delivery service verify that all applicable taxes have 

been paid; 

‘‘(iv) requiring that packages delivered by the 

common carrier or other delivery service contain any 

particular labels, notice, or markings; or 

‘‘(v) prohibiting common carriers or other delivery 

services from making deliveries on the basis of whether 

the delivery seller is or is not identified on any list 

of delivery sellers maintained and distributed by any 

entity other than the Federal Government. 

‘‘(B) RELATIONSHIP TO OTHER LAWS.—Except as provided in subparagraph (C), nothing in this paragraph shall 

be construed to nullify, expand, restrict, or otherwise 

amend or modify— 

‘‘(i) section 14501(c)(1) or 41713(b)(4) of title 49, 

United States Code; 

‘‘(ii) any other restrictions in Federal law on the 

ability of State, local, or tribal governments to regulate 

common carriers; or 

‘‘(iii) any provision of State, local, or tribal law 

regulating common carriers that is described in section 

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

States Code. 

‘‘(C) STATE LAWS PROHIBITING DELIVERY SALES.— 
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‘‘(i) IN GENERAL.—Except as provided in clause 

(ii), nothing in the Prevent All Cigarette Trafficking 

Act of 2009, the amendments made by that Act, or 

in any other Federal statute shall be construed to 

preempt, supersede, or otherwise limit or restrict State 

laws prohibiting the delivery sale, or the shipment 

or delivery pursuant to a delivery sale, of cigarettes 

or other tobacco products to individual consumers or 

personal residences. 

‘‘(ii) EXEMPTIONS.—No State may enforce against 

a common carrier a law prohibiting the delivery of 

cigarettes or other tobacco products to individual consumers or personal residences without proof that the 

common carrier is not exempt under paragraph (3) 

of this subsection. 

‘‘(6) STATE, LOCAL, AND TRIBAL ADDITIONS.— 

‘‘(A) IN GENERAL.—Any State, local, or tribal government shall provide the Attorney General of the United 

States with— 

‘‘(i) all known names, addresses, website addresses, 

and other primary contact information of any delivery 

seller that— 

‘‘(I) offers for sale or makes sales of cigarettes 

or smokeless tobacco in or into the State, locality, 

or tribal land; and 

‘‘(II) has failed to register with or make reports 

to the respective tax administrator as required 

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

proceeding to have otherwise failed to comply with 

this Act; and 

‘‘(ii) a list of common carriers and other persons 

who make deliveries of cigarettes or smokeless tobacco 

in or into the State, locality, or tribal land. 

‘‘(B) UPDATES.—Any government providing a list to 

the Attorney General of the United States under subparagraph (A) shall also provide updates and corrections every 

4 months until such time as the government notifies the 

Attorney General of the United States in writing that the 

government no longer desires to submit information to 

supplement the list described in paragraph (1)(A). 

‘‘(C) REMOVAL AFTER WITHDRAWAL.—Upon receiving 

written notice that a government no longer desires to 

submit information under subparagraph (A), the Attorney 

General of the United States shall remove from the list 

described in paragraph (1)(A) any persons that are on 

the list solely because of the prior submissions of the 

government of the list of the government of noncomplying 

delivery sellers of cigarettes or smokeless tobacco or a 

subsequent update or correction by the government. 

‘‘(7) DEADLINE TO INCORPORATE ADDITIONS.—The Attorney 

General of the United States shall— 

‘‘(A) include any delivery seller identified and submitted by a State, local, or tribal government under paragraph (6) in any list or update that is distributed or made 

available under paragraph (1) on or after the date that 

is 30 days after the date on which the information is 
S. 1147—13 

received by the Attorney General of the United States; 

and 

‘‘(B) distribute any list or update described in subparagraph (A) to any common carrier or other person who 

makes deliveries of cigarettes or smokeless tobacco that 

has been identified and submitted by a government pursuant to paragraph (6). 

‘‘(8) NOTICE TO DELIVERY SELLERS.—Not later than 14 days 

before including any delivery seller on the initial list described 

in paragraph (1)(A), or on an update to the list for the first 

time, the Attorney General of the United States shall make 

a reasonable attempt to send notice to the delivery seller by 

letter, electronic mail, or other means that the delivery seller 

is being placed on the list or update, with that notice citing 

the relevant provisions of this Act. 

‘‘(9) LIMITATIONS.— 

‘‘(A) IN GENERAL.—Any common carrier or other person 

making a delivery subject to this subsection shall not be 

required or otherwise obligated to— 

‘‘(i) determine whether any list distributed or made 

available under paragraph (1) is complete, accurate, 

or up-to-date; 

‘‘(ii) determine whether a person ordering a 

delivery is in compliance with this Act; or 

‘‘(iii) open or inspect, pursuant to this Act, any 

package being delivered to determine its contents. 

‘‘(B) ALTERNATE NAMES.—Any common carrier or other 

person making a delivery subject to this subsection— 

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

or otherwise determine whether a person ordering a 

delivery is a delivery seller on the list described in 

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

address in order to evade the related delivery restrictions; and 

‘‘(ii) shall not knowingly deliver any packages to 

consumers for any delivery seller on the list described 

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

delivery service knows is a delivery seller who is on 

the list and is using a different name or address to 

evade the delivery restrictions of paragraph (2). 

‘‘(C) PENALTIES.—Any common carrier or person in the 

business of delivering packages on behalf of other persons 

shall not be subject to any penalty under section 14101(a) 

of title 49, United States Code, or any other provision 

of law for— 

‘‘(i) not making any specific delivery, or any deliveries at all, on behalf of any person on the list described 

in paragraph (1)(A); 

‘‘(ii) refusing, as a matter of regular practice and 

procedure, to make any deliveries, or any deliveries 

in certain States, of any cigarettes or smokeless tobacco 

for any person or for any person not in the business 

of manufacturing, distributing, or selling cigarettes or 

smokeless tobacco; or 

‘‘(iii) delaying or not making a delivery for any 

person because of reasonable efforts to comply with 

this Act. 
S. 1147—14 

‘‘(D) OTHER LIMITS.—Section 2 and subsections (a), (b), 

(c), and (d) of this section shall not be interpreted to impose 

any responsibilities, requirements, or liability on common 

carriers. 

‘‘(f) PRESUMPTION.—For purposes of this Act, a delivery sale 

shall be deemed to have occurred in the State and place where 

the buyer obtains personal possession of the cigarettes or smokeless 

tobacco, and a delivery pursuant to a delivery sale is deemed 

to have been initiated or ordered by the delivery seller.’’. 

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

3 and inserting the following: 

‘‘SEC. 3. PENALTIES. 

‘‘(a) CRIMINAL PENALTIES.— 

‘‘(1) IN GENERAL.—Except as provided in paragraph (2), 

whoever knowingly violates this Act shall be imprisoned for 

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

Code, or both. 

‘‘(2) EXCEPTIONS.— 

‘‘(A) GOVERNMENTS.—Paragraph (1) shall not apply to 

a State, local, or tribal government. 

‘‘(B) DELIVERY VIOLATIONS.—A common carrier or independent delivery service, or employee of a common carrier 

or independent delivery service, shall be subject to criminal 

penalties under paragraph (1) for a violation of section 

2A(e) only if the violation is committed knowingly— 

‘‘(i) as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything 

of pecuniary value; or 

‘‘(ii) for the purpose of assisting a delivery seller 

to violate, or otherwise evading compliance with, section 2A. 

‘‘(b) CIVIL PENALTIES.— 

‘‘(1) IN GENERAL.—Except as provided in paragraph (3), 

whoever violates this Act shall be subject to a civil penalty 

in an amount not to exceed— 

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

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

$10,000 for any other violation; or 

‘‘(ii) for any violation, 2 percent of the gross sales 

of cigarettes or smokeless tobacco of the delivery seller 

during the 1-year period ending on the date of the 

violation. 

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

service, $2,500 in the case of a first violation, or $5,000 

for any violation within 1 year of a prior violation. 

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

imposed under paragraph (1) for a violation of this Act shall 

be imposed in addition to any criminal penalty under subsection 

(a) and any other damages, equitable relief, or injunctive relief 

awarded by the court, including the payment of any unpaid 

taxes to the appropriate Federal, State, local, or tribal governments. 

‘‘(3) EXCEPTIONS.— 

‘‘(A) DELIVERY VIOLATIONS.—An employee of a common 

carrier or independent delivery service shall be subject 

to civil penalties under paragraph (1) for a violation of 
S. 1147—15 

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

‘‘(i) as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything 

of pecuniary value; or 

‘‘(ii) for the purpose of assisting a delivery seller 

to violate, or otherwise evading compliance with, section 2A. 

‘‘(B) OTHER LIMITATIONS.—No common carrier or independent delivery service shall be subject to civil penalties 

under paragraph (1) for a violation of section 2A(e) if— 

‘‘(i) the common carrier or independent delivery 

service has implemented and enforces effective policies 

and practices for complying with that section; or 

‘‘(ii) the violation consists of an employee of the 

common carrier or independent delivery service who 

physically receives and processes orders, picks up packages, processes packages, or makes deliveries, taking 

actions that are outside the scope of employment of 

the employee, or that violate the implemented and 

enforced policies of the common carrier or independent 

delivery service described in clause (i).’’. 

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

section 4 and inserting the following: 

‘‘SEC. 4. ENFORCEMENT. 

‘‘(a) IN GENERAL.—The United States district courts shall have 

jurisdiction to prevent and restrain violations of this Act and to 

provide other appropriate injunctive or equitable relief, including 

money damages, for the violations. 

‘‘(b) AUTHORITY OF THE ATTORNEY GENERAL.—The Attorney 

General of the United States shall administer and enforce this 

Act. 

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

‘‘(1) IN GENERAL.— ‘‘(A) STANDING.—A State, through its attorney general, 

or a local government or Indian tribe that levies a tax 

subject to section 2A(a)(3), through its chief law enforcement officer, may bring an action in a United States district 

court to prevent and restrain violations of this Act by 

any person or to obtain any other appropriate relief from 

any person for violations of this Act, including civil penalties, money damages, and injunctive or other equitable 

relief. 

‘‘(B) SOVEREIGN IMMUNITY.—Nothing in this Act shall 

be deemed to abrogate or constitute a waiver of any sovereign immunity of a State or local government or Indian 

tribe against any unconsented lawsuit under this Act, or 

otherwise to restrict, expand, or modify any sovereign 

immunity of a State or local government or Indian tribe. 

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

attorney general, or a local government or Indian tribe that 

levies a tax subject to section 2A(a)(3), through its chief law 

enforcement officer, may provide evidence of a violation of 

this Act by any person not subject to State, local, or tribal 

government enforcement actions for violations of this Act to 

the Attorney General of the United States or a United States 
S. 1147—16 

attorney, who shall take appropriate actions to enforce this 

Act. 

‘‘(3) USE OF PENALTIES COLLECTED.— 

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

account in the Treasury known as the ‘PACT Anti-Trafficking Fund’. Notwithstanding any other provision of law 

and subject to subparagraph (B), an amount equal to 50 

percent of any criminal and civil penalties collected by 

the Federal Government in enforcing this Act shall be 

transferred into the PACT Anti-Trafficking Fund and shall 

be available to the Attorney General of the United States 

for purposes of enforcing this Act and other laws relating 

to contraband tobacco products. 

‘‘(B) ALLOCATION OF FUNDS.—Of the amount available 

to the Attorney General of the United States under 

subparagraph (A), not less than 50 percent shall be made 

available only to the agencies and offices within the Department of Justice that were responsible for the enforcement 

actions in which the penalties concerned were imposed 

or for any underlying investigations. 

‘‘(4) NONEXCLUSIVITY OF REMEDY.— 

‘‘(A) IN GENERAL.—The remedies available under this 

section and section 3 are in addition to any other remedies 

available under Federal, State, local, tribal, or other law. 

‘‘(B) STATE COURT PROCEEDINGS.—Nothing in this Act 

shall be construed to expand, restrict, or otherwise modify 

any right of an authorized State official to proceed in 

State court, or take other enforcement actions, on the basis 

of an alleged violation of State or other law. 

‘‘(C) TRIBAL COURT PROCEEDINGS.—Nothing in this Act 

shall be construed to expand, restrict, or otherwise modify 

any right of an authorized Indian tribal government official 

to proceed in tribal court, or take other enforcement actions, 

on the basis of an alleged violation of tribal law. 

‘‘(D) LOCAL GOVERNMENT ENFORCEMENT.—Nothing in 

this Act shall be construed to expand, restrict, or otherwise 

modify any right of an authorized local government official 

to proceed in State court, or take other enforcement actions, 

on the basis of an alleged violation of local or other law. 

‘‘(d) PERSONS DEALING IN TOBACCO PRODUCTS.—Any person 

who holds a permit under section 5712 of the Internal Revenue 

Code of 1986 (regarding permitting of manufacturers and importers 

of tobacco products and export warehouse proprietors) may bring 

an action in an appropriate United States district court to prevent 

and restrain violations of this Act by any person other than a 

State, local, or tribal government. 

‘‘(e) NOTICE.— 

‘‘(1) PERSONS DEALING IN TOBACCO PRODUCTS.—Any person 

who commences a civil action under subsection (d) shall inform 

the Attorney General of the United States of the action. 

‘‘(2) STATE, LOCAL, AND TRIBAL ACTIONS.—It is the sense 

of Congress that the attorney general of any State, or chief 

law enforcement officer of any locality or tribe, that commences 

a civil action under this section should inform the Attorney 

General of the United States of the action. 

‘‘(f) PUBLIC NOTICE.— 
S. 1147—17 

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

States shall make available to the public, by posting information on the Internet and by other appropriate means, information regarding all enforcement actions brought by the United 

States, or reported to the Attorney General of the United States, 

under this section, including information regarding the resolution of the enforcement actions and how the Attorney General 

of the United States has responded to referrals of evidence 

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

‘‘(2) REPORTS TO CONGRESS.—Not later than 1 year after 

the date of enactment of the Prevent All Cigarette Trafficking 

Act of 2009, and every year thereafter until the date that 

is 5 years after such date of enactment, the Attorney General 

of the United States shall submit to Congress a report containing the information described in paragraph (1).’’. 

SEC. 3. TREATMENT OF CIGARETTES AND SMOKELESS TOBACCO AS 

NONMAILABLE MATTER. 

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

is amended by inserting after section 1716D the following: 

‘‘§ 1716E. Tobacco products as nonmailable 

‘‘(a) PROHIBITION.— ‘‘(1) IN GENERAL.—All cigarettes and smokeless tobacco (as 

those terms are defined in section 1 of the Act of October 

19, 1949, commonly referred to as the Jenkins Act) are nonmailable and shall not be deposited in or carried through the 

mails. The United States Postal Service shall not accept for 

delivery or transmit through the mails any package that it 

knows or has reasonable cause to believe contains any cigarettes 

or smokeless tobacco made nonmailable by this paragraph. 

‘‘(2) REASONABLE CAUSE.—For the purposes of this subsection reasonable cause includes— 

‘‘(A) a statement on a publicly available website, or 

an advertisement, by any person that the person will mail 

matter which is nonmailable under this section in return 

for payment; or 

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

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

‘‘(b) EXCEPTIONS.— 

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

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

1986). 

‘‘(2) GEOGRAPHIC EXCEPTION.—Subsection (a) shall not 

apply to mailings within the State of Alaska or within the 

State of Hawaii. 

‘‘(3) BUSINESS PURPOSES.— 

‘‘(A) IN GENERAL.—Subsection (a) shall not apply to 

tobacco products mailed only— 

‘‘(i) for business purposes between legally operating 

businesses that have all applicable State and Federal 

Government licenses or permits and are engaged in 

tobacco product manufacturing, distribution, wholesale, 

export, import, testing, investigation, or research; or 

‘‘(ii) for regulatory purposes between any business 

described in clause (i) and an agency of the Federal 

Government or a State government. 
S. 1147—18 

‘‘(B) RULES.— 

‘‘(i) IN GENERAL.—Not later than 180 days after 

the date of enactment of the Prevent All Cigarette 

Trafficking Act of 2009, the Postmaster General shall 

issue a final rule which shall establish the standards 

and requirements that apply to all mailings described 

in subparagraph (A). 

‘‘(ii) CONTENTS.—The final rule issued under clause 

(i) shall require— 

‘‘(I) the United States Postal Service to verify 

that any person submitting an otherwise nonmailable tobacco product into the mails as authorized under this paragraph is a business or government agency permitted to make a mailing under 

this paragraph; 

‘‘(II) the United States Postal Service to ensure 

that any recipient of an otherwise nonmailable 

tobacco product sent through the mails under this 

paragraph is a business or government agency that 

may lawfully receive the product; 

‘‘(III) that any mailing described in subparagraph (A) shall be sent through the systems of 

the United States Postal Service that provide for 

the tracking and confirmation of the delivery; 

‘‘(IV) that the identity of the business or 

government entity submitting the mailing containing otherwise nonmailable tobacco products for 

delivery and the identity of the business or government entity receiving the mailing are clearly set 

forth on the package; 

‘‘(V) the United States Postal Service to maintain identifying information described in subclause 

(IV) during the 3-year period beginning on the 

date of the mailing and make the information 

available to the Postal Service, the Attorney General of the United States, and to persons eligible 

to bring enforcement actions under section 3(d) 

of the Prevent All Cigarette Trafficking Act of 

2009; 

‘‘(VI) that any mailing described in subparagraph (A) be marked with a United States Postal 

Service label or marking that makes it clear to 

employees of the United States Postal Service that 

it is a permitted mailing of otherwise nonmailable 

tobacco products that may be delivered only to 

a permitted government agency or business and 

may not be delivered to any residence or individual 

person; and 

‘‘(VII) that any mailing described in subparagraph (A) be delivered only to a verified employee 

of the recipient business or government agency, 

who is not a minor and who shall be required 

to sign for the mailing. 

‘‘(C) DEFINITION.—In this paragraph, the term ‘minor’ 

means an individual who is less than the minimum age 

required for the legal sale or purchase of tobacco products 
S. 1147—19 

as determined by applicable law at the place the individual 

is located. 

‘‘(4) CERTAIN INDIVIDUALS.— 

‘‘(A) IN GENERAL.—Subsection (a) shall not apply to 

tobacco products mailed by individuals who are not minors 

for noncommercial purposes, including the return of a damaged or unacceptable tobacco product to the manufacturer. 

‘‘(B) RULES.— 

‘‘(i) IN GENERAL.—Not later than 180 days after 

the date of enactment of the Prevent All Cigarette 

Trafficking Act of 2009, the Postmaster General shall 

issue a final rule which shall establish the standards 

and requirements that apply to all mailings described 

in subparagraph (A). 

‘‘(ii) CONTENTS.—The final rule issued under clause 

(i) shall require— 

‘‘(I) the United States Postal Service to verify 

that any person submitting an otherwise nonmailable tobacco product into the mails as authorized under this paragraph is the individual identified on the return address label of the package 

and is not a minor; 

‘‘(II) for a mailing to an individual, the United 

States Postal Service to require the person submitting the otherwise nonmailable tobacco product 

into the mails as authorized by this paragraph 

to affirm that the recipient is not a minor; 

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

‘‘(IV) that any mailing described in subparagraph (A) shall be sent through the systems of 

the United States Postal Service that provide for 

the tracking and confirmation of the delivery; 

‘‘(V) that a mailing described in subparagraph 

(A) shall not be delivered or placed in the possession of any individual who has not been verified 

as not being a minor; 

‘‘(VI) for a mailing described in subparagraph 

(A) to an individual, that the United States Postal 

Service shall deliver the package only to a recipient 

who is verified not to be a minor at the recipient 

address or transfer it for delivery to an Air/Army 

Postal Office or Fleet Postal Office number designated in the recipient address; and 

‘‘(VII) that no person may initiate more than 

10 mailings described in subparagraph (A) during 

any 30-day period. 

‘‘(C) DEFINITION.—In this paragraph, the term ‘minor’ 

means an individual who is less than the minimum age 

required for the legal sale or purchase of tobacco products 

as determined by applicable law at the place the individual 

is located. 

‘‘(5) EXCEPTION FOR MAILINGS FOR CONSUMER TESTING BY

MANUFACTURERS.— 

‘‘(A) IN GENERAL.—Subject to subparagraph (B), subsection (a) shall not preclude a legally operating cigarette 

manufacturer or a legally authorized agent of a legally 
S. 1147—20 

operating cigarette manufacturer from using the United 

States Postal Service to mail cigarettes to verified adult 

smoker solely for consumer testing purposes, if— 

‘‘(i) the cigarette manufacturer has a permit, in 

good standing, issued under section 5713 of the 

Internal Revenue Code of 1986; 

‘‘(ii) the package of cigarettes mailed under this 

paragraph contains not more than 12 packs of cigarettes (240 cigarettes); 

‘‘(iii) the recipient does not receive more than 1 

package of cigarettes from any 1 cigarette manufacturer under this paragraph during any 30-day period; 

‘‘(iv) all taxes on the cigarettes mailed under this 

paragraph levied by the State and locality of delivery 

are paid to the State and locality before delivery, and 

tax stamps or other tax-payment indicia are affixed 

to the cigarettes as required by law; and 

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

of any kind in exchange for receiving the cigarettes; 

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

or agent of the manufacturer for participation in consumer product tests; and 

‘‘(III) the recipient, in connection with the tests, 

evaluates the cigarettes and provides feedback to the 

manufacturer or agent. 

‘‘(B) LIMITATIONS.—Subparagraph (A) shall not— 

‘‘(i) permit a mailing of cigarettes to an individual 

located in any State that prohibits the delivery or 

shipment of cigarettes to individuals in the State, or 

preempt, limit, or otherwise affect any related State 

laws; or 

‘‘(ii) permit a manufacturer, directly or through 

a legally authorized agent, to mail cigarettes in any 

calendar year in a total amount greater than 1 percent 

of the total cigarette sales of the manufacturer in the 

United States during the calendar year before the date 

of the mailing. 

‘‘(C) RULES.— 

‘‘(i) IN GENERAL.—Not later than 180 days after 

the date of enactment of the Prevent All Cigarette 

Trafficking Act of 2009, the Postmaster General shall 

issue a final rule which shall establish the standards 

and requirements that apply to all mailings described 

in subparagraph (A). 

‘‘(ii) CONTENTS.—The final rule issued under clause 

(i) shall require— 

‘‘(I) the United States Postal Service to verify 

that any person submitting a tobacco product into 

the mails under this paragraph is a legally operating cigarette manufacturer permitted to make 

a mailing under this paragraph, or an agent legally 

authorized by the legally operating cigarette manufacturer to submit the tobacco product into the 

mails on behalf of the manufacturer; 

‘‘(II) the legally operating cigarette manufacturer submitting the cigarettes into the mails 

under this paragraph to affirm that— 
S. 1147—21 

‘‘(aa) the manufacturer or the legally 

authorized agent of the manufacturer has 

verified that the recipient is an adult established smoker; 

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

‘‘(cc) the recipient has signed a written 

statement that is in effect indicating that the 

recipient wishes to receive the mailings; and 

‘‘(dd) the manufacturer or the legally 

authorized agent of the manufacturer has 

offered the opportunity for the recipient to 

withdraw the written statement described in 

item (cc) not less frequently than once in every 

3-month period; 

‘‘(III) the legally operating cigarette manufacturer or the legally authorized agent of the manufacturer submitting the cigarettes into the mails 

under this paragraph to affirm that any package 

mailed under this paragraph contains not more 

than 12 packs of cigarettes (240 cigarettes) on 

which all taxes levied on the cigarettes by the 

State and locality of delivery have been paid and 

all related State tax stamps or other tax-payment 

indicia have been applied; 

‘‘(IV) that any mailing described in subparagraph (A) shall be sent through the systems of 

the United States Postal Service that provide for 

the tracking and confirmation of the delivery; 

‘‘(V) the United States Postal Service to maintain records relating to a mailing described in 

subparagraph (A) during the 3-year period beginning on the date of the mailing and make the 

information available to persons enforcing this section; 

‘‘(VI) that any mailing described in subparagraph (A) be marked with a United States Postal 

Service label or marking that makes it clear to 

employees of the United States Postal Service that 

it is a permitted mailing of otherwise nonmailable 

tobacco products that may be delivered only to 

the named recipient after verifying that the 

recipient is an adult; and 

‘‘(VII) the United States Postal Service shall 

deliver a mailing described in subparagraph (A) 

only to the named recipient and only after 

verifying that the recipient is an adult. 

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

‘‘(i) the term ‘adult’ means an individual who is 

not less than 21 years of age; and 

‘‘(ii) the term ‘consumer testing’ means testing limited to formal data collection and analysis for the specific purpose of evaluating the product for quality 

assurance and benchmarking purposes of cigarette 

brands or sub-brands among existing adult smokers. 

‘‘(6) FEDERAL GOVERNMENT AGENCIES.—An agency of the 

Federal Government involved in the consumer testing of tobacco 
S. 1147—22 

products solely for public health purposes may mail cigarettes 

under the same requirements, restrictions, and rules and procedures that apply to consumer testing mailings of cigarettes 

by manufacturers under paragraph (5), except that the agency 

shall not be required to pay the recipients for participating 

in the consumer testing. 

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

tobacco made nonmailable by this subsection that are deposited 

in the mails shall be subject to seizure and forfeiture, pursuant 

to the procedures set forth in chapter 46 of this title. Any tobacco 

products seized and forfeited under this subsection shall be 

destroyed or retained by the Federal Government for the detection 

or prosecution of crimes or related investigations and then 

destroyed. 

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

and penalties under this title for violations of this section, any 

person violating this section shall be subject to an additional civil 

penalty in the amount equal to 10 times the retail value of the 

nonmailable cigarettes or smokeless tobacco, including all Federal, 

State, and local taxes. 

‘‘(e) CRIMINAL PENALTY.—Whoever knowingly deposits for 

mailing or delivery, or knowingly causes to be delivered by mail, 

according to the direction thereon, or at any place at which it 

is directed to be delivered by the person to whom it is addressed, 

anything that is nonmailable matter under this section shall be 

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

‘‘(f) USE OF PENALTIES.—There is established a separate account 

in the Treasury, to be known as the ‘PACT Postal Service Fund’. 

Notwithstanding any other provision of law, an amount equal to 

50 percent of any criminal fines, civil penalties, or other monetary 

penalties collected by the Federal Government in enforcing this 

section shall be transferred into the PACT Postal Service Fund 

and shall be available to the Postmaster General for the purpose 

of enforcing this subsection. 

‘‘(g) COORDINATION OF EFFORTS.—The Postmaster General shall 

cooperate and coordinate efforts to enforce this section with related 

enforcement activities of any other Federal agency or agency of 

any State, local, or tribal government, whenever appropriate. 

‘‘(h) ACTIONS BY STATE, LOCAL, OR TRIBAL GOVERNMENTS

RELATING TO CERTAIN TOBACCO PRODUCTS.— 

‘‘(1) IN GENERAL.—A State, through its attorney general, 

or a local government or Indian tribe that levies an excise 

tax on tobacco products, through its chief law enforcement 

officer, may in a civil action in a United States district court 

obtain appropriate relief with respect to a violation of this 

section. Appropriate relief includes injunctive and equitable 

relief and damages equal to the amount of unpaid taxes on 

tobacco products mailed in violation of this section to addressees 

in that State, locality, or tribal land. 

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

shall be deemed to abrogate or constitute a waiver of any 

sovereign immunity of a State or local government or Indian 

tribe against any unconsented lawsuit under paragraph (1), 

or otherwise to restrict, expand, or modify any sovereign immunity of a State or local government or Indian tribe. 

‘‘(3) ATTORNEY GENERAL REFERRAL.—A State, through its 

attorney general, or a local government or Indian tribe that 
S. 1147—23 

levies an excise tax on tobacco products, through its chief 

law enforcement officer, may provide evidence of a violation 

of this section for commercial purposes by any person not 

subject to State, local, or tribal government enforcement actions 

for violations of this section to the Attorney General of the 

United States, who shall take appropriate actions to enforce 

this section. 

‘‘(4) NONEXCLUSIVITY OF REMEDIES.—The remedies available under this subsection are in addition to any other remedies 

available under Federal, State, local, tribal, or other law. 

Nothing in this subsection shall be construed to expand, 

restrict, or otherwise modify any right of an authorized State, 

local, or tribal government official to proceed in a State, tribal, 

or other appropriate court, or take other enforcement actions, 

on the basis of an alleged violation of State, local, tribal, or 

other law. 

‘‘(5) OTHER ENFORCEMENT ACTIONS.—Nothing in this subsection shall be construed to prohibit an authorized State official from proceeding in State court on the basis of an alleged 

violation of any general civil or criminal statute of the State. 

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

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

(b) CLERICAL AMENDMENT.—The table of sections for chapter 

83 of title 18 is amended by inserting after the item relating 

to section 1716D the following: 

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

SEC. 4. INSPECTION BY BUREAU OF ALCOHOL, TOBACCO, FIREARMS, 

AND EXPLOSIVES OF RECORDS OF CERTAIN CIGARETTE AND 

SMOKELESS TOBACCO SELLERS; CIVIL PENALTY. 

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

to read as follows: 

‘‘(c)(1) Any officer of the Bureau of Alcohol, Tobacco, Firearms, 

and Explosives may, during normal business hours, enter the premises of any person described in subsection (a) or (b) for the purposes 

of inspecting— 

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

by the person under this chapter; or 

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

by the person at the premises. 

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

authority in a civil action under this subsection to compel inspections authorized by paragraph (1). 

‘‘(3) Whoever denies access to an officer under paragraph (1), 

or who fails to comply with an order issued under paragraph (2), 

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

$10,000.’’. 

SEC. 5. EXCLUSIONS REGARDING INDIAN TRIBES AND TRIBAL MATTERS. 

(a) IN GENERAL.—Nothing in this Act or the amendments made 

by this Act shall be construed to amend, modify, or otherwise 

affect— 

(1) any agreements, compacts, or other intergovernmental 

arrangements between any State or local government and any 

government of an Indian tribe (as that term is defined in 

section 4(e) of the Indian Self-Determination and Education 
S. 1147—24 

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

of taxes on cigarettes or smokeless tobacco sold in Indian 

country; 

(2) any State laws that authorize or otherwise pertain 

to any such intergovernmental arrangements or create special 

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

taxes on cigarettes or smokeless tobacco sold in Indian country; 

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

Federal common law and treaties, on State, local, and tribal 

tax and regulatory authority with respect to the sale, use, 

or distribution of cigarettes and smokeless tobacco by or to 

Indian tribes, tribal members, tribal enterprises, or in Indian 

country; 

(4) any Federal law, including Federal common law and 

treaties, regarding State jurisdiction, or lack thereof, over any 

tribe, tribal members, tribal enterprises, tribal reservations, 

or other lands held by the United States in trust for one 

or more Indian tribes; or 

(5) any State or local government authority to bring 

enforcement actions against persons located in Indian country. 

(b) COORDINATION OF LAW ENFORCEMENT.—Nothing in this Act 

or the amendments made by this Act shall be construed to inhibit 

or otherwise affect any coordinated law enforcement effort by 1 

or more States or other jurisdictions, including Indian tribes, 

through interstate compact or otherwise, that— 

(1) provides for the administration of tobacco product laws 

or laws pertaining to interstate sales or other sales of tobacco 

products; 

(2) provides for the seizure of tobacco products or other 

property related to a violation of such laws; or 

(3) establishes cooperative programs for the administration 

of such laws. 

(c) TREATMENT OF STATE AND LOCAL GOVERNMENTS.—Nothing 

in this Act or the amendments made by this Act shall be construed 

to authorize, deputize, or commission States or local governments 

as instrumentalities of the United States. 

(d) ENFORCEMENT WITHIN INDIAN COUNTRY.—Nothing in this 

Act or the amendments made by this Act shall prohibit, limit, 

or restrict enforcement by the Attorney General of the United 

States of this Act or an amendment made by this Act within 

Indian country. 

(e) AMBIGUITY.—Any ambiguity between the language of this 

section or its application and any other provision of this Act shall 

be resolved in favor of this section. 

(f) DEFINITIONS.—In this section— 

(1) the term ‘‘Indian country’’ has the meaning given that 

term in section 1 of the Jenkins Act, as amended by this 

Act; and 

(2) the term ‘‘tribal enterprise’’ means any business enterprise, regardless of whether incorporated or unincorporated 

under Federal or tribal law, of an Indian tribe or group of 

Indian tribes. 

SEC. 6. EFFECTIVE DATE. 

(a) IN GENERAL.—Except as provided in subsection (b), this 

Act shall take effect on the date that is 90 days after the date 

of enactment of this Act. 
S. 1147—25 

(b) BATFE AUTHORITY.—The amendments made by section 4 

shall take effect on the date of enactment of this Act. 

SEC. 7. SEVERABILITY. 

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

Act, or the application thereof to any person or circumstance, is 

held invalid, the remainder of the Act and the application of the 

Act to any other person or circumstance shall not be affected 

thereby. 

SEC. 8. SENSE OF CONGRESS CONCERNING THE PRECEDENTIAL 

EFFECT OF THIS ACT. 

It is the sense of Congress that unique harms are associated 

with online cigarette sales, including problems with verifying the 

ages of consumers in the digital market and the long-term health 

problems associated with the use of certain tobacco products. This 

Act was enacted recognizing the longstanding interest of Congress 

in urging compliance with States’ laws regulating remote sales 

of certain tobacco products to citizens of those States, including 

the passage of the Jenkins Act over 50 years ago, which established 

reporting requirements for out-of-State companies that sell certain 

tobacco products to citizens of the taxing States, and which gave 

authority to the Department of Justice and the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives to enforce the Jenkins Act. In 

light of the unique harms and circumstances surrounding the online 

sale of certain tobacco products, this Act is intended to help collect 

cigarette excise taxes, to stop tobacco sales to underage youth, 

and to help the States enforce their laws that target the online 

sales of certain tobacco products only. This Act is in no way meant 

to create a precedent regarding the collection of State sales or 

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

taxes on, out-of-State entities that do not have a physical presence 

within the taxing State. 

Speaker of the House of Representatives. 

Vice President of the United States and

President of the Senate.