II 

Calendar No. 216 

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, Mr. LEAHY, Mrs. GILLIBRAND, Mr. SCHUMER, Mr. 

WARNER, Mr. PRYOR, Mr. SPECTER, Mrs. FEINSTEIN, Mr. KERRY, Ms. 

KLOBUCHAR, Mr. DURBIN, Mr. WEBB, Mr. CASEY, Mr. HARKIN, Mr. 

SESSIONS, Mr. CORNYN, and Mr. HATCH) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

NOVEMBER 19, 2009 

Reported by Mr. LEAHY, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

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, 


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1 SECTION 1. SHORT TITLE; FINDINGS; PURPOSES. 

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

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

4 ‘‘PACT Act’’. 

5 (b) FINDINGS.—Congress finds that— 

6 (1) the sale of illegal cigarettes and smokeless 

7 tobacco products significantly reduces Federal, 

8 State, and local government revenues, with Internet 

9 sales alone accounting for billions of dollars of lost 

10 Federal, State, and local tobacco tax revenue each 

11 year; 

12 (2) Hezbollah, Hamas, al Qaeda, and other ter13 rorist organizations have profited from trafficking in 

14 illegal cigarettes or counterfeit cigarette tax stamps; 

15 (3) terrorist involvement in illicit cigarette traf16 ficking will continue to grow because of the large 

17 profits such organizations can earn; 

18 (4) the sale of illegal cigarettes and smokeless 

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

20 phone orders, makes it cheaper and easier for chil21 dren to obtain tobacco products; 

22 (5) the majority of Internet and other remote 

23 sales of cigarettes and smokeless tobacco are being 

24 made without adequate precautions to protect 

25 against sales to children, without the payment of ap26 plicable taxes, and without complying with the nomiVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S1147.RS S1147

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1 nal registration and reporting requirements in exist2 ing Federal law; 

3 (6) unfair competition from illegal sales of ciga4 rettes and smokeless tobacco is taking billions of dol5 lars of sales away from law-abiding retailers 

6 throughout the United States; 

7 (7) with rising State and local tobacco tax 

8 rates, the incentives for the illegal sale of cigarettes 

9 and smokeless tobacco have increased; 

10 (8) the number of active tobacco investigations 

11 being conducted by the Bureau of Alcohol, Tobacco, 

12 Firearms, and Explosives rose to 452 in 2005; 

13 (9) the number of Internet vendors in the 

14 United States and in foreign countries that sell ciga15 rettes and smokeless tobacco to buyers in the United 

16 States increased from only about 40 in 2000 to 

17 more than 500 in 2005; and 

18 (10) the intrastate sale of illegal cigarettes and 

19 smokeless tobacco over the Internet has a substan20 tial effect on interstate commerce. 

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

22 (1) require Internet and other remote sellers of 

23 cigarettes and smokeless tobacco to comply with the 

24 same laws that apply to law-abiding tobacco retail25 ers; 


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1 (2) create strong disincentives to illegal smug2 gling of tobacco products; 

3 (3) provide government enforcement officials 

4 with more effective enforcement tools to combat to5 bacco smuggling; 

6 (4) make it more difficult for cigarette and 

7 smokeless tobacco traffickers to engage in and profit 

8 from their illegal activities; 

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

10 local excise taxes on cigarettes and smokeless to11 bacco; and 

12 (6) prevent and reduce youth access to inexpen13 sive cigarettes and smokeless tobacco through illegal 

14 Internet or contraband sales. 

15 SEC. 2. COLLECTION OF STATE CIGARETTE AND SMOKE16 LESS TOBACCO TAXES. 

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

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

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

20 amended by striking the first section and inserting the fol21 lowing: 

22 ‘‘SECTION 1. DEFINITIONS. 

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

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

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


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1 general or other chief law enforcement officer of the 

2 State. 

3 ‘‘(2) CIGARETTE.— 

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

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

6 in section 2341 of title 18, United States 

7 Code; and 

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

9 (as defined in section 5702 of the Internal 

10 Revenue Code of 1986). 

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

12 does not include a cigar (as defined in section 

13 5702 of the Internal Revenue Code of 1986). 

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

15 carrier’ means any person (other than a local mes16 senger service or the United States Postal Service) 

17 that holds itself out to the general public as a pro18 vider for hire of the transportation by water, land, 

19 or air of merchandise (regardless of whether the per20 son actually operates the vessel, vehicle, or aircraft 

21 by which the transportation is provided) between a 

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

23 States. 

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


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1 ‘‘(A) means any person that purchases 

2 cigarettes or smokeless tobacco; and 

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

4 operating as a manufacturer, distributor, whole5 saler, or retailer of cigarettes or smokeless to6 bacco. 

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

8 means any sale of cigarettes or smokeless tobacco to 

9 a consumer if— 

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

11 the sale by means of a telephone or other meth12 od of voice transmission, the mails, or the 

13 Internet or other online service, or the seller is 

14 otherwise not in the physical presence of the 

15 buyer when the request for purchase or order is 

16 made; or 

17 ‘‘(B) the cigarettes or smokeless tobacco 

18 are delivered to the buyer by common carrier, 

19 private delivery service, or other method of re20 mote delivery, or the seller is not in the physical 

21 presence of the buyer when the buyer obtains 

22 possession of the cigarettes or smokeless to23 bacco. 

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

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


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

2 country’— 

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

4 section 1151 of title 18, United States Code, 

5 except that within the State of Alaska that 

6 term applies only to the Metlakatla Indian 

7 Community, Annette Island Reserve; and 

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

9 United States in trust or restricted status for 

10 one or more Indian tribes. 

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

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

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

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

15 listed pursuant to section 104 of the Federally Rec16 ognized Indian Tribe List Act of 1994 (25 U.S.C. 

17 479a–1). 

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

19 ‘interstate commerce’ means commerce between a 

20 State and any place outside the State, commerce be21 tween a State and any Indian country in the State, 

22 or commerce between points in the same State but 

23 through any place outside the State or through any 

24 Indian country. 


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

2 individual, corporation, company, association, firm, 

3 partnership, society, State government, local govern4 ment, Indian tribal government, governmental orga5 nization of such a government, or joint stock com6 pany. 

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

8 the several States of the United States, the District 

9 of Columbia, the Commonwealth of Puerto Rico, or 

10 any territory or possession of the United States. 

11 ‘‘(12) SMOKELESS TOBACCO.—The term 

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

13 powdered, or leaf tobacco, or other product con14 taining tobacco, that is intended to be placed in the 

15 oral or nasal cavity or otherwise consumed without 

16 being combusted. 

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

18 term ‘tobacco tax administrator’ means the State, 

19 local, or tribal official duly authorized to collect the 

20 tobacco tax or administer the tax law of a State, lo21 cality, or tribe, respectively. 

22 ‘‘(14) USE.—The term ‘use’ includes the con23 sumption, storage, handling, or disposal of cigarettes 

24 or smokeless tobacco.’’. 


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1 (b) REPORTS TO STATE TOBACCO TAX ADMINISTRA2 TORS.—Section 2 of the Jenkins Act (15 U.S.C. 376) is 

3 amended— 

4 (1) by striking ‘‘cigarettes’’ each place it ap5 pears and inserting ‘‘cigarettes or smokeless to6 bacco’’; 

7 (2) in subsection (a)— 

8 (A) in the matter preceding paragraph 

9 (1)— 

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

11 ‘‘(a)’’; 

12 (ii) by striking ‘‘or transfers’’ and in13 serting ‘‘, transfers, or ships’’; 

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

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

16 State’’; 

17 (iv) by striking ‘‘to other than a dis18 tributor licensed by or located in such 

19 State,’’; and 

20 (v) by striking ‘‘or transfer and ship21 ment’’ and inserting ‘‘, transfer, or ship22 ment’’; 

23 (B) in paragraph (1)— 

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

25 administrator of the State’’ and inserting 


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1 ‘‘with the Attorney General of the United 

2 States and with the tobacco tax adminis3 trators of the State and place’’; and 

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

5 the following: ‘‘, as well as telephone num6 bers for each place of business, a principal 

7 electronic mail address, any website ad8 dresses, and the name, address, and tele9 phone number of an agent in the State au10 thorized to accept service on behalf of the 

11 person;’’; 

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

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

14 thereof, and the name, address, and phone 

15 number of the person delivering the shipment to 

16 the recipient on behalf of the delivery seller, 

17 with all invoice or memoranda information re18 lating to specific customers to be organized by 

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

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

21 ‘‘(3) with respect to each memorandum or in22 voice filed with a State under paragraph (2), also 

23 file copies of the memorandum or invoice with the 

24 tobacco tax administrators and chief law enforce25 ment officers of the local governments and Indian 


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1 tribes operating within the borders of the State that 

2 apply their own local or tribal taxes on cigarettes or 

3 smokeless tobacco.’’; 

4 (3) in subsection (b)— 

5 (A) by inserting ‘‘PRESUMPTIVE EVI6 DENCE.—’’ after ‘‘(b)’’; 

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

8 ‘‘that’’; and 

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

10 follows and inserting a period; and 

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

12 ‘‘(c) USE OF INFORMATION.—A tobacco tax adminis13 trator or chief law enforcement officer who receives a 

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

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

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

17 collection of any taxes owed on related sales of cigarettes 

18 and smokeless tobacco, and shall keep confidential any 

19 personal information in the memorandum or invoice except 

20 as required for such purposes.’’. 

21 (c) REQUIREMENTS FOR DELIVERY SALES.—The 

22 Jenkins Act is amended by inserting after section 2 the 

23 following: 


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1 ‘‘SEC. 2A. DELIVERY SALES. 

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

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

4 comply with— 

5 ‘‘(1) the shipping requirements set forth in sub6 section (b); 

7 ‘‘(2) the recordkeeping requirements set forth 

8 in subsection (c); 

9 ‘‘(3) all State, local, tribal, and other laws gen10 erally applicable to sales of cigarettes or smokeless 

11 tobacco as if the delivery sales occurred entirely 

12 within the specific State and place, including laws 

13 imposing— 

14 ‘‘(A) excise taxes; 

15 ‘‘(B) licensing and tax-stamping require16 ments; 

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

18 ‘‘(D) other payment obligations or legal re19 quirements relating to the sale, distribution, or 

20 delivery of cigarettes or smokeless tobacco; and 

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

22 subsection (d). 

23 ‘‘(b) SHIPPING AND PACKAGING.— 

24 ‘‘(1) REQUIRED STATEMENT.—For any ship25 ping package containing cigarettes or smokeless to26 bacco, the delivery seller shall include on the bill of 


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

2 package, on the same surface as the delivery ad3 dress, a clear and conspicuous statement providing 

4 as follows: ‘CIGARETTES/SMOKELESS TO5 BACCO: FEDERAL LAW REQUIRES THE PAY6 MENT OF ALL APPLICABLE EXCISE TAXES, 

7 AND COMPLIANCE WITH APPLICABLE LI8 CENSING AND TAX-STAMPING OBLIGA9 TIONS’. 

10 ‘‘(2) FAILURE TO LABEL.—Any shipping pack11 age described in paragraph (1) that is not labeled in 

12 accordance with that paragraph shall be treated as 

13 nondeliverable matter by a common carrier or other 

14 delivery service, if the common carrier or other deliv15 ery service knows or should know the package con16 tains cigarettes or smokeless tobacco. If a common 

17 carrier or other delivery service believes a package is 

18 being submitted for delivery in violation of para19 graph (1), it may require the person submitting the 

20 package for delivery to establish that it is not being 

21 sent in violation of paragraph (1) before accepting 

22 the package for delivery. Nothing in this paragraph 

23 shall require the common carrier or other delivery 

24 service to open any package to determine its con25 tents. 


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

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

3 delivered in any single sale or single delivery any 

4 cigarettes or smokeless tobacco weighing more than 

5 10 pounds. 

6 ‘‘(4) AGE VERIFICATION.— 

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

8 mails or ships tobacco products— 

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

10 be delivered any tobacco products to a per11 son under the minimum age required for 

12 the legal sale or purchase of tobacco prod13 ucts, as determined by the applicable law 

14 at the place of delivery; 

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

16 shipping that requires— 

17 ‘‘(I) the purchaser placing the 

18 delivery sale order, or an adult who is 

19 at least the minimum age required for 

20 the legal sale or purchase of tobacco 

21 products, as determined by the appli22 cable law at the place of delivery, to 

23 sign to accept delivery of the shipping 

24 container at the delivery address; and 


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1 ‘‘(II) the person who signs to ac2 cept delivery of the shipping container 

3 to provide proof, in the form of a 

4 valid, government-issued identification 

5 bearing a photograph of the indi6 vidual, that the person is at least the 

7 minimum age required for the legal 

8 sale or purchase of tobacco products, 

9 as determined by the applicable law at 

10 the place of delivery; and 

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

12 order from a person without— 

13 ‘‘(I) obtaining the full name, 

14 birth date, and residential address of 

15 that person; and 

16 ‘‘(II) verifying the information 

17 provided in subclause (I), through the 

18 use of a commercially available data19 base or aggregate of databases, con20 sisting primarily of data from govern21 ment sources, that are regularly used 

22 by government and businesses for the 

23 purpose of age and identity 

24 verification and authentication, to en25 sure that the purchaser is at least the 


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1 minimum age required for the legal 

2 sale or purchase of tobacco products, 

3 as determined by the applicable law at 

4 the place of delivery. 

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

6 used for age and identity verification under 

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

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

9 subject to any changes or supplementation by 

10 the delivery seller. 

11 ‘‘(c) RECORDS.— 

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

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

14 the information described in section 2(a)(2), orga15 nized by the State, and within the State, by the city 

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

17 is so made. 

18 ‘‘(2) RECORD RETENTION.—Records of a deliv19 ery sale shall be kept as described in paragraph (1) 

20 until the end of the 4th full calendar year that be21 gins after the date of the delivery sale. 

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

23 under paragraph (1) shall be made available to to24 bacco tax administrators of the States, to local gov25 ernments and Indian tribes that apply local or tribal 


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1 taxes on cigarettes or smokeless tobacco, to the at2 torneys general of the States, to the chief law en3 forcement officers of the local governments and In4 dian tribes, and to the Attorney General of the 

5 United States in order to ensure the compliance of 

6 persons making delivery sales with the requirements 

7 of this Act. 

8 ‘‘(d) DELIVERY.— 

9 ‘‘(1) IN GENERAL.—Except as provided in para10 graph (2), no delivery seller may sell or deliver to 

11 any consumer, or tender to any common carrier or 

12 other delivery service, any cigarettes or smokeless to13 bacco pursuant to a delivery sale unless, in advance 

14 of the sale, delivery, or tender— 

15 ‘‘(A) any cigarette or smokeless tobacco ex16 cise tax that is imposed by the State in which 

17 the cigarettes or smokeless tobacco are to be 

18 delivered has been paid to the State; 

19 ‘‘(B) any cigarette or smokeless tobacco 

20 excise tax that is imposed by the local govern21 ment of the place in which the cigarettes or 

22 smokeless tobacco are to be delivered has been 

23 paid to the local government; and 

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

25 that the excise tax has been paid are properly 


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1 affixed or applied to the cigarettes or smokeless 

2 tobacco. 

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

4 apply to a delivery sale of smokeless tobacco if the 

5 law of the State or local government of the place 

6 where the smokeless tobacco is to be delivered re7 quires or otherwise provides that delivery sellers col8 lect the excise tax from the consumer and remit the 

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

10 delivery seller complies with the requirement. 

11 ‘‘(e) LIST OF UNREGISTERED OR NONCOMPLIANT

12 DELIVERY SELLERS.— 

13 ‘‘(1) IN GENERAL.— 

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

15 days after this subsection goes into effect under 

16 the Prevent All Cigarette Trafficking Act of 

17 2009, the Attorney General of the United 

18 States shall compile a list of delivery sellers of 

19 cigarettes or smokeless tobacco that have not 

20 registered with the Attorney General of the 

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

22 are otherwise not in compliance with this Act, 

23 and— 

24 ‘‘(i) distribute the list to— 


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1 ‘‘(I) the attorney general and tax 

2 administrator of every State; 

3 ‘‘(II) common carriers and other 

4 persons that deliver small packages to 

5 consumers in interstate commerce, in6 cluding the United States Postal Serv7 ice; and 

8 ‘‘(III) any other person that the 

9 Attorney General of the United States 

10 determines can promote the effective 

11 enforcement of this Act; and 

12 ‘‘(ii) publicize and make the list avail13 able to any other person engaged in the 

14 business of interstate deliveries or who de15 livers cigarettes or smokeless tobacco in or 

16 into any State. 

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

18 known, the Attorney General of the United 

19 States shall include, for each delivery seller on 

20 the list described in subparagraph (A)— 

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

22 or has used in the transaction of its busi23 ness or on packages delivered to cus24 tomers; 


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1 ‘‘(ii) all addresses from which the de2 livery seller does or has done business, or 

3 ships or has shipped cigarettes or smoke4 less tobacco; 

5 ‘‘(iii) the website addresses, primary 

6 e-mail address, and phone number of the 

7 delivery seller; and 

8 ‘‘(iv) any other information that the 

9 Attorney General of the United States de10 termines would facilitate compliance with 

11 this subsection by recipients of the list. 

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

13 the United States shall update and distribute 

14 the list described in subparagraph (A) at least 

15 once every 4 months, and may distribute the 

16 list and any updates by regular mail, electronic 

17 mail, or any other reasonable means, or by pro18 viding recipients with access to the list through 

19 a nonpublic website that the Attorney General 

20 of the United States regularly updates. 

21 ‘‘(D) STATE, LOCAL, OR TRIBAL ADDI22 TIONS.—The Attorney General of the United 

23 States shall include in the list described in sub24 paragraph (A) any noncomplying delivery sell25 ers identified by any State, local, or tribal govVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6401 E:\BILLS\S1147.RS S1147

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1 ernment under paragraph (6), and shall dis2 tribute the list to the attorney general or chief 

3 law enforcement official and the tax adminis4 trator of any government submitting any such 

5 information, and to any common carriers or 

6 other persons who deliver small packages to 

7 consumers identified by any government pursu8 ant to paragraph (6). 

9 ‘‘(E) ACCURACY AND COMPLETENESS OF

10 LIST OF NONCOMPLYING DELIVERY SELLERS.— 

11 In preparing and revising the list described in 

12 subparagraph (A), the Attorney General of the 

13 United States shall— 

14 ‘‘(i) use reasonable procedures to en15 sure maximum possible accuracy and com16 pleteness of the records and information 

17 relied on for the purpose of determining 

18 that a delivery seller is not in compliance 

19 with this Act; 

20 ‘‘(ii) not later than 14 days before in21 cluding a delivery seller on the list, make 

22 a reasonable attempt to send notice to the 

23 delivery seller by letter, electronic mail, or 

24 other means that the delivery seller is 

25 being placed on the list, which shall cite 


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1 the relevant provisions of this Act and the 

2 specific reasons for which the delivery sell3 er is being placed on the list; 

4 ‘‘(iii) provide an opportunity to the 

5 delivery seller to challenge placement on 

6 the list; 

7 ‘‘(iv) investigate each challenge de8 scribed in clause (iii) by contacting the rel9 evant Federal, State, tribal, and local law 

10 enforcement officials, and provide the spe11 cific findings and results of the investiga12 tion to the delivery seller not later than 30 

13 days after the date on which the challenge 

14 is made; and 

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

16 United States determines that the basis for 

17 including a delivery seller on the list is in18 accurate, based on incomplete information, 

19 or cannot be verified, promptly remove the 

20 delivery seller from the list as appropriate 

21 and notify each appropriate Federal, State, 

22 tribal, and local authority of the deter23 mination. 

24 ‘‘(F) CONFIDENTIALITY.—The list de25 scribed in subparagraph (A) shall be confidenVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6401 E:\BILLS\S1147.RS S1147

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1 tial, and any person receiving the list shall 

2 maintain the confidentiality of the list and may 

3 deliver the list, for enforcement purposes, to 

4 any government official or to any common car5 rier or other person that delivers tobacco prod6 ucts or small packages to consumers. Nothing 

7 in this section shall prohibit a common carrier, 

8 the United States Postal Service, or any other 

9 person receiving the list from discussing with a 

10 listed delivery seller the inclusion of the delivery 

11 seller on the list and the resulting effects on 

12 any services requested by the listed delivery 

13 seller. 

14 ‘‘(2) PROHIBITION ON DELIVERY.— 

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

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

17 distribution or availability of the list described 

18 in paragraph (1)(A), no person who receives the 

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

20 delivers cigarettes or smokeless tobacco to con21 sumers, shall knowingly complete, cause to be 

22 completed, or complete its portion of a delivery 

23 of any package for any person whose name and 

24 address are on the list, unless— 


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1 ‘‘(i) the person making the delivery 

2 knows or believes in good faith that the 

3 item does not include cigarettes or smoke4 less tobacco; 

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

6 lawfully engaged in the business of manu7 facturing, distributing, or selling cigarettes 

8 or smokeless tobacco; or 

9 ‘‘(iii) the package being delivered 

10 weighs more than 100 pounds and the per11 son making the delivery does not know or 

12 have reasonable cause to believe that the 

13 package contains cigarettes or smokeless 

14 tobacco. 

15 ‘‘(B) IMPLEMENTATION OF UPDATES.— 

16 Commencing on the date that is 30 days after 

17 the date of the distribution or availability of 

18 any updates or corrections to the list described 

19 in paragraph (1)(A), all recipients and all com20 mon carriers or other persons that deliver ciga21 rettes or smokeless tobacco to consumers shall 

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

23 corrections or updates. 

24 ‘‘(3) EXEMPTIONS.— 


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

2 any requirements or restrictions placed directly 

3 on common carriers under this subsection, in4 cluding subparagraphs (A) and (B) of para5 graph (2), shall not apply to a common carrier 

6 that— 

7 ‘‘(i) is subject to a settlement agree8 ment described in subparagraph (B); or 

9 ‘‘(ii) if a settlement agreement de10 scribed in subparagraph (B) to which the 

11 common carrier is a party is terminated or 

12 otherwise becomes inactive, is admin13 istering and enforcing policies and prac14 tices throughout the United States that 

15 are at least as stringent as the agreement. 

16 ‘‘(B) SETTLEMENT AGREEMENT.—A set17 tlement agreement described in this subpara18 graph— 

19 ‘‘(i) is a settlement agreement relating 

20 to tobacco product deliveries to consumers; 

21 and 

22 ‘‘(ii) includes— 

23 ‘‘(I) the Assurance of Discontinu24 ance entered into by the Attorney 

25 General of New York and DHL HoldVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6401 E:\BILLS\S1147.RS S1147

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1 ings USA, Inc. and DHL Express 

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

3 the Assurance of Discontinuance en4 tered into by the Attorney General of 

5 New York and United Parcel Service, 

6 Inc. on or about October 21, 2005, 

7 and the Assurance of Compliance en8 tered into by the Attorney General of 

9 New York and Federal Express Cor10 poration and FedEx Ground Package 

11 Systems, Inc. on or about February 3, 

12 2006, if each of those agreements is 

13 honored throughout the United States 

14 to block illegal deliveries of cigarettes 

15 or smokeless tobacco to consumers; 

16 and 

17 ‘‘(II) any other active agreement 

18 between a common carrier and a 

19 State that operates throughout the 

20 United States to ensure that no deliv21 eries of cigarettes or smokeless to22 bacco shall be made to consumers or 

23 illegally operating Internet or mail24 order sellers and that any such deliv25 eries to consumers shall not be made 


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1 to minors or without payment to the 

2 States and localities where the con3 sumers are located of all taxes on the 

4 tobacco products. 

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

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

7 or other delivery service delays or interrupts the 

8 delivery of a package in the possession of the 

9 common carrier or delivery service because the 

10 common carrier or delivery service determines 

11 or has reason to believe that the person order12 ing the delivery is on a list described in para13 graph (1)(A) and that the package contains 

14 cigarettes or smokeless tobacco— 

15 ‘‘(i) the person ordering the delivery 

16 shall be obligated to pay— 

17 ‘‘(I) the common carrier or other 

18 delivery service as if the delivery of 

19 the package had been timely com20 pleted; and 

21 ‘‘(II) if the package is not deliv22 erable, any reasonable additional fee 

23 or charge levied by the common car24 rier or other delivery service to cover 

25 any extra costs and inconvenience and 


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1 to serve as a disincentive against such 

2 noncomplying delivery orders; and 

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

4 to be deliverable, the common carrier or 

5 other delivery service shall offer to provide 

6 the package and its contents to a Federal, 

7 State, or local law enforcement agency. 

8 ‘‘(B) RECORDS.—A common carrier or 

9 other delivery service shall maintain, for a pe10 riod of 5 years, any records kept in the ordi11 nary course of business relating to any delivery 

12 interrupted under this paragraph and provide 

13 that information, upon request, to the Attorney 

14 General of the United States or to the attorney 

15 general or chief law enforcement official or tax 

16 administrator of any State, local, or tribal gov17 ernment. 

18 ‘‘(C) CONFIDENTIALITY.—Any person re19 ceiving records under subparagraph (B) shall— 

20 ‘‘(i) use the records solely for the pur21 poses of the enforcement of this Act and 

22 the collection of any taxes owed on related 

23 sales of cigarettes and smokeless tobacco; 

24 and 


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1 ‘‘(ii) keep confidential any personal 

2 information in the records not otherwise 

3 required for such purposes. 

4 ‘‘(5) PREEMPTION.— 

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

6 tribal government, nor any political authority of 

7 2 or more State, local, or tribal governments, 

8 may enact or enforce any law or regulation re9 lating to delivery sales that restricts deliveries 

10 of cigarettes or smokeless tobacco to consumers 

11 by common carriers or other delivery services 

12 on behalf of delivery sellers by— 

13 ‘‘(i) requiring that the common carrier 

14 or other delivery service verify the age or 

15 identity of the consumer accepting the de16 livery by requiring the person who signs to 

17 accept delivery of the shipping container to 

18 provide proof, in the form of a valid, gov19 ernment-issued identification bearing a 

20 photograph of the individual, that the per21 son is at least the minimum age required 

22 for the legal sale or purchase of tobacco 

23 products, as determined by either State or 

24 local law at the place of delivery; 


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1 ‘‘(ii) requiring that the common car2 rier or other delivery service obtain a sig3 nature from the consumer accepting the 

4 delivery; 

5 ‘‘(iii) requiring that the common car6 rier or other delivery service verify that all 

7 applicable taxes have been paid; 

8 ‘‘(iv) requiring that packages delivered 

9 by the common carrier or other delivery 

10 service contain any particular labels, no11 tice, or markings; or 

12 ‘‘(v) prohibiting common carriers or 

13 other delivery services from making deliv14 eries on the basis of whether the delivery 

15 seller is or is not identified on any list of 

16 delivery sellers maintained and distributed 

17 by any entity other than the Federal Gov18 ernment. 

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

20 Except as provided in subparagraph (C), noth21 ing in this paragraph shall be construed to nul22 lify, expand, restrict, or otherwise amend or 

23 modify— 


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1 ‘‘(i) section 14501(c)(1) or 

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

3 Code; 

4 ‘‘(ii) any other restrictions in Federal 

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

6 governments to regulate common carriers; 

7 or 

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

9 tribal law regulating common carriers that 

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

11 41713(b)(4)(B) of title 49 of the United 

12 States Code. 

13 ‘‘(C) STATE LAWS PROHIBITING DELIVERY

14 SALES.— 

15 ‘‘(i) IN GENERAL.—Except as pro16 vided in clause (ii), nothing in the Prevent 

17 All Cigarette Trafficking Act of 2009, the 

18 amendments made by that Act, or in any 

19 other Federal statute shall be construed to 

20 preempt, supersede, or otherwise limit or 

21 restrict State laws prohibiting the delivery 

22 sale, or the shipment or delivery pursuant 

23 to a delivery sale, of cigarettes or other to24 bacco products to individual consumers or 

25 personal residences. 


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1 ‘‘(ii) EXEMPTIONS.—No State may 

2 enforce against a common carrier a law 

3 prohibiting the delivery of cigarettes or 

4 other tobacco products to individual con5 sumers or personal residences without 

6 proof that the common carrier is not ex7 empt under paragraph (3) of this sub8 section. 

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

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

11 tribal government shall provide the Attorney 

12 General of the United States with— 

13 ‘‘(i) all known names, addresses, 

14 website addresses, and other primary con15 tact information of any delivery seller 

16 that— 

17 ‘‘(I) offers for sale or makes 

18 sales of cigarettes or smokeless to19 bacco in or into the State, locality, or 

20 tribal land; and 

21 ‘‘(II) has failed to register with 

22 or make reports to the respective tax 

23 administrator as required by this Act, 

24 or that has been found in a legal proVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6401 E:\BILLS\S1147.RS S1147

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1 ceeding to have otherwise failed to 

2 comply with this Act; and 

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

4 other persons who make deliveries of ciga5 rettes or smokeless tobacco in or into the 

6 State, locality, or tribal land. 

7 ‘‘(B) UPDATES.—Any government pro8 viding a list to the Attorney General of the 

9 United States under subparagraph (A) shall 

10 also provide updates and corrections every 4 

11 months until such time as the government noti12 fies the Attorney General of the United States 

13 in writing that the government no longer de14 sires to submit information to supplement the 

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

16 ‘‘(C) REMOVAL AFTER WITHDRAWAL.— 

17 Upon receiving written notice that a govern18 ment no longer desires to submit information 

19 under subparagraph (A), the Attorney General 

20 of the United States shall remove from the list 

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

22 are on the list solely because of the prior sub23 missions of the government of the list of the 

24 government of noncomplying delivery sellers of 


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1 cigarettes or smokeless tobacco or a subsequent 

2 update or correction by the government. 

3 ‘‘(7) DEADLINE TO INCORPORATE ADDI4 TIONS.—The Attorney General of the United States 

5 shall— 

6 ‘‘(A) include any delivery seller identified 

7 and submitted by a State, local, or tribal gov8 ernment under paragraph (6) in any list or up9 date that is distributed or made available under 

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

11 days after the date on which the information is 

12 received by the Attorney General of the United 

13 States; and 

14 ‘‘(B) distribute any list or update de15 scribed in subparagraph (A) to any common 

16 carrier or other person who makes deliveries of 

17 cigarettes or smokeless tobacco that has been 

18 identified and submitted by a government pur19 suant to paragraph (6). 

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

21 later than 14 days before including any delivery sell22 er on the initial list described in paragraph (1)(A), 

23 or on an update to the list for the first time, the At24 torney General of the United States shall make a 

25 reasonable attempt to send notice to the delivery 


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

2 the delivery seller is being placed on the list or up3 date, with that notice citing the relevant provisions 

4 of this Act. 

5 ‘‘(9) LIMITATIONS.— 

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

7 or other person making a delivery subject to 

8 this subsection shall not be required or other9 wise obligated to— 

10 ‘‘(i) determine whether any list dis11 tributed or made available under para12 graph (1) is complete, accurate, or up-to13 date; 

14 ‘‘(ii) determine whether a person or15 dering a delivery is in compliance with this 

16 Act; or 

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

18 Act, any package being delivered to deter19 mine its contents. 

20 ‘‘(B) ALTERNATE NAMES.—Any common 

21 carrier or other person making a delivery sub22 ject to this subsection— 

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

24 inquiries or otherwise determine whether a 

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1 er on the list described in paragraph 

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

3 address in order to evade the related deliv4 ery restrictions; and 

5 ‘‘(ii) shall not knowingly deliver any 

6 packages to consumers for any delivery 

7 seller on the list described in paragraph 

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

9 delivery service knows is a delivery seller 

10 who is on the list and is using a different 

11 name or address to evade the delivery re12 strictions of paragraph (2). 

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

14 person in the business of delivering packages on 

15 behalf of other persons shall not be subject to 

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

17 United States Code, or any other provision of 

18 law for— 

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

20 or any deliveries at all, on behalf of any 

21 person on the list described in paragraph 

22 (1)(A); 

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

24 practice and procedure, to make any deliv25 eries, or any deliveries in certain States, of 


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1 any cigarettes or smokeless tobacco for any 

2 person or for any person not in the busi3 ness of manufacturing, distributing, or 

4 selling cigarettes or smokeless tobacco; or 

5 ‘‘(iii) delaying or not making a deliv6 ery for any person because of reasonable 

7 efforts to comply with this Act. 

8 ‘‘(D) OTHER LIMITS.—Section 2 and sub9 sections (a), (b), (c), and (d) of this section 

10 shall not be interpreted to impose any respon11 sibilities, requirements, or liability on common 

12 carriers. 

13 ‘‘(f) PRESUMPTION.—For purposes of this Act, a de14 livery sale shall be deemed to have occurred in the State 

15 and place where the buyer obtains personal possession of 

16 the cigarettes or smokeless tobacco, and a delivery pursu17 ant to a delivery sale is deemed to have been initiated or 

18 ordered by the delivery seller.’’. 

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

20 striking section 3 and inserting the following: 

21 ‘‘SEC. 3. PENALTIES. 

22 ‘‘(a) CRIMINAL PENALTIES.— 

23 ‘‘(1) IN GENERAL.—Except as provided in para24 graph (2), whoever knowingly violates this Act shall 


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1 be imprisoned for not more than 3 years, fined 

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

3 ‘‘(2) EXCEPTIONS.— 

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

5 not apply to a State, local, or tribal govern6 ment. 

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

8 carrier or independent delivery service, or em9 ployee of a common carrier or independent de10 livery service, shall be subject to criminal pen11 alties under paragraph (1) for a violation of 

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

13 knowingly— 

14 ‘‘(i) as consideration for the receipt 

15 of, or as consideration for a promise or 

16 agreement to pay, anything of pecuniary 

17 value; or 

18 ‘‘(ii) for the purpose of assisting a de19 livery seller to violate, or otherwise evading 

20 compliance with, section 2A. 

21 ‘‘(b) CIVIL PENALTIES.— 

22 ‘‘(1) IN GENERAL.—Except as provided in para23 graph (3), whoever violates this Act shall be subject 

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


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

2 greater of— 

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

4 violation, or $10,000 for any other viola5 tion; or 

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

7 the gross sales of cigarettes or smokeless 

8 tobacco of the delivery seller during the 1- 

9 year period ending on the date of the viola10 tion. 

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

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

13 first violation, or $5,000 for any violation with14 in 1 year of a prior violation. 

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

16 penalty imposed under paragraph (1) for a violation 

17 of this Act shall be imposed in addition to any crimi18 nal penalty under subsection (a) and any other dam19 ages, equitable relief, or injunctive relief awarded by 

20 the court, including the payment of any unpaid taxes 

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

22 governments. 

23 ‘‘(3) EXCEPTIONS.— 

24 ‘‘(A) DELIVERY VIOLATIONS.—An em25 ployee of a common carrier or independent deVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6401 E:\BILLS\S1147.RS S1147

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1 livery service shall be subject to civil penalties 

2 under paragraph (1) for a violation of section 

3 2A(e) only if the violation is committed inten4 tionally— 

5 ‘‘(i) as consideration for the receipt 

6 of, or as consideration for a promise or 

7 agreement to pay, anything of pecuniary 

8 value; or 

9 ‘‘(ii) for the purpose of assisting a de10 livery seller to violate, or otherwise evading 

11 compliance with, section 2A. 

12 ‘‘(B) OTHER LIMITATIONS.—No common 

13 carrier or independent delivery service shall be 

14 subject to civil penalties under paragraph (1) 

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

16 ‘‘(i) the common carrier or inde17 pendent delivery service has implemented 

18 and enforces effective policies and practices 

19 for complying with that section; or 

20 ‘‘(ii) the violation consists of an em21 ployee of the common carrier or inde22 pendent delivery service who physically re23 ceives and processes orders, picks up pack24 ages, processes packages, or makes deliv25 eries, taking actions that are outside the 


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1 scope of employment of the employee, or 

2 that violate the implemented and enforced 

3 policies of the common carrier or inde4 pendent delivery service described in clause 

5 (i).’’. 

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

7 striking section 4 and inserting the following: 

8 ‘‘SEC. 4. ENFORCEMENT. 

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

10 courts shall have jurisdiction to prevent and restrain viola11 tions of this Act and to provide other appropriate injunc12 tive or equitable relief, including money damages, for the 

13 violations. 

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

15 The Attorney General of the United States shall admin16 ister and enforce this Act. 

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

18 ‘‘(1) IN GENERAL.— 

19 ‘‘(A) STANDING.—A State, through its at20 torney general, or a local government or Indian 

21 tribe that levies a tax subject to section 

22 2A(a)(3), through its chief law enforcement of23 ficer, may bring an action in a United States 

24 district court to prevent and restrain violations 

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


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1 appropriate relief from any person for violations 

2 of this Act, including civil penalties, money 

3 damages, and injunctive or other equitable re4 lief. 

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

6 this Act shall be deemed to abrogate or con7 stitute a waiver of any sovereign immunity of a 

8 State or local government or Indian tribe 

9 against any unconsented lawsuit under this Act, 

10 or otherwise to restrict, expand, or modify any 

11 sovereign immunity of a State or local govern12 ment or Indian tribe. 

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

14 through its attorney general, or a local government 

15 or Indian tribe that levies a tax subject to section 

16 2A(a)(3), through its chief law enforcement officer, 

17 may provide evidence of a violation of this Act by 

18 any person not subject to State, local, or tribal gov19 ernment enforcement actions for violations of this 

20 Act to the Attorney General of the United States or 

21 a United States attorney, who shall take appropriate 

22 actions to enforce this Act. 

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

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

25 separate account in the Treasury known as the 


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1 ‘PACT Anti-Trafficking Fund’. Notwith2 standing any other provision of law and subject 

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

4 percent of any criminal and civil penalties col5 lected by the Federal Government in enforcing 

6 this Act shall be transferred into the PACT 

7 Anti-Trafficking Fund and shall be available to 

8 the Attorney General of the United States for 

9 purposes of enforcing this Act and other laws 

10 relating to contraband tobacco products. 

11 ‘‘(B) ALLOCATION OF FUNDS.—Of the 

12 amount available to the Attorney General of the 

13 United States under subparagraph (A), not less 

14 than 50 percent shall be made available only to 

15 the agencies and offices within the Department 

16 of Justice that were responsible for the enforce17 ment actions in which the penalties concerned 

18 were imposed or for any underlying investiga19 tions. 

20 ‘‘(4) NONEXCLUSIVITY OF REMEDY.— 

21 ‘‘(A) IN GENERAL.—The remedies avail22 able under this section and section 3 are in ad23 dition to any other remedies available under 

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


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1 ‘‘(B) STATE COURT PROCEEDINGS.—Noth2 ing in this Act shall be construed to expand, re3 strict, or otherwise modify any right of an au4 thorized State official to proceed in State court, 

5 or take other enforcement actions, on the basis 

6 of an alleged violation of State or other law. 

7 ‘‘(C) TRIBAL COURT PROCEEDINGS.— 

8 Nothing in this Act shall be construed to ex9 pand, restrict, or otherwise modify any right of 

10 an authorized Indian tribal government official 

11 to proceed in tribal court, or take other enforce12 ment actions, on the basis of an alleged viola13 tion of tribal law. 

14 ‘‘(D) LOCAL GOVERNMENT ENFORCE15 MENT.—Nothing in this Act shall be construed 

16 to expand, restrict, or otherwise modify any 

17 right of an authorized local government official 

18 to proceed in State court, or take other enforce19 ment actions, on the basis of an alleged viola20 tion of local or other law. 

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

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

23 Internal Revenue Code of 1986 (regarding permitting of 

24 manufacturers and importers of tobacco products and ex25 port warehouse proprietors) may bring an action in an apVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00044 Fmt 6652 Sfmt 6401 E:\BILLS\S1147.RS S1147

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1 propriate United States district court to prevent and re2 strain violations of this Act by any person other than a 

3 State, local, or tribal government. 

4 ‘‘(e) NOTICE.— 

5 ‘‘(1) PERSONS DEALING IN TOBACCO PROD6 UCTS.—Any person who commences a civil action 

7 under subsection (d) shall inform the Attorney Gen8 eral of the United States of the action. 

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

10 is the sense of Congress that the attorney general of 

11 any State, or chief law enforcement officer of any lo12 cality or tribe, that commences a civil action under 

13 this section should inform the Attorney General of 

14 the United States of the action. 

15 ‘‘(f) PUBLIC NOTICE.— 

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

17 the United States shall make available to the public, 

18 by posting information on the Internet and by other 

19 appropriate means, information regarding all en20 forcement actions brought by the United States, or 

21 reported to the Attorney General of the United 

22 States, under this section, including information re23 garding the resolution of the enforcement actions 

24 and how the Attorney General of the United States 


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1 has responded to referrals of evidence of violations 

2 pursuant to subsection (c)(2). 

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

4 1 year after the date of enactment of the Prevent All 

5 Cigarette Trafficking Act of 2009, and every year 

6 thereafter until the date that is 5 years after such 

7 date of enactment, the Attorney General of the 

8 United States shall submit to Congress a report con9 taining the information described in paragraph 

10 (1).’’. 

11 SEC. 3. TREATMENT OF CIGARETTES AND SMOKELESS TO12 BACCO AS NONMAILABLE MATTER. 

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

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

15 the following: 

16 ‘‘§ 1716E. Tobacco products as nonmailable 

17 ‘‘(a) PROHIBITION.— 

18 ‘‘(1) IN GENERAL.—All cigarettes and smoke19 less tobacco (as those terms are defined in section 

20 1 of the Act of October 19, 1949, commonly referred 

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

22 be deposited in or carried through the mails. The 

23 United States Postal Service shall not accept for de24 livery or transmit through the mails any package 

25 that it knows or has reasonable cause to believe conVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6401 E:\BILLS\S1147.RS S1147

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1 tains any cigarettes or smokeless tobacco made non2 mailable by this paragraph. 

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

4 of this subsection reasonable cause includes— 

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

6 website, or an advertisement, by any person 

7 that the person will mail matter which is non8 mailable under this section in return for pay9 ment; or 

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

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

12 ‘‘(b) EXCEPTIONS.— 

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

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

15 Revenue Code of 1986). 

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

17 shall not apply to mailings within the State of Alas18 ka or within the State of Hawaii. 

19 ‘‘(3) BUSINESS PURPOSES.— 

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

21 not apply to tobacco products mailed only— 

22 ‘‘(i) for business purposes between le23 gally operating businesses that have all ap24 plicable State and Federal Government li25 censes or permits and are engaged in toVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6401 E:\BILLS\S1147.RS S1147

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1 bacco product manufacturing, distribution, 

2 wholesale, export, import, testing, inves3 tigation, or research; or 

4 ‘‘(ii) for regulatory purposes between 

5 any business described in clause (i) and an 

6 agency of the Federal Government or a 

7 State government. 

8 ‘‘(B) RULES.— 

9 ‘‘(i) IN GENERAL.—Not later than 

10 180 days after the date of enactment of 

11 the Prevent All Cigarette Trafficking Act 

12 of 2009, the Postmaster General shall 

13 issue a final rule which shall establish the 

14 standards and requirements that apply to 

15 all mailings described in subparagraph (A). 

16 ‘‘(ii) CONTENTS.—The final rule 

17 issued under clause (i) shall require— 

18 ‘‘(I) the United States Postal 

19 Service to verify that any person sub20 mitting an otherwise nonmailable to21 bacco product into the mails as au22 thorized under this paragraph is a 

23 business or government agency per24 mitted to make a mailing under this 

25 paragraph; 


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1 ‘‘(II) the United States Postal 

2 Service to ensure that any recipient of 

3 an otherwise nonmailable tobacco 

4 product sent through the mails under 

5 this paragraph is a business or gov6 ernment agency that may lawfully re7 ceive the product; 

8 ‘‘(III) that any mailing described 

9 in subparagraph (A) shall be sent 

10 through the systems of the United 

11 States Postal Service that provide for 

12 the tracking and confirmation of the 

13 delivery; 

14 ‘‘(IV) that the identity of the 

15 business or government entity submit16 ting the mailing containing otherwise 

17 nonmailable tobacco products for de18 livery and the identity of the business 

19 or government entity receiving the 

20 mailing are clearly set forth on the 

21 package; 

22 ‘‘(V) the United States Postal 

23 Service to maintain identifying infor24 mation described in subclause (IV) 

25 during the 3-year period beginning on 


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1 the date of the mailing and make the 

2 information available to the Postal 

3 Service, the Attorney General of the 

4 United States, and to persons eligible 

5 to bring enforcement actions under 

6 section 3(d) of the Prevent All Ciga7 rette Trafficking Act of 2009; 

8 ‘‘(VI) that any mailing described 

9 in subparagraph (A) be marked with 

10 a United States Postal Service label 

11 or marking that makes it clear to em12 ployees of the United States Postal 

13 Service that it is a permitted mailing 

14 of otherwise nonmailable tobacco 

15 products that may be delivered only to 

16 a permitted government agency or 

17 business and may not be delivered to 

18 any residence or individual person; 

19 and 

20 ‘‘(VII) that any mailing described 

21 in subparagraph (A) be delivered only 

22 to a verified employee of the recipient 

23 business or government agency, who is 

24 not a minor and who shall be required 

25 to sign for the mailing. 


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

2 term ‘minor’ means an individual who is less 

3 than the minimum age required for the legal 

4 sale or purchase of tobacco products as deter5 mined by applicable law at the place the indi6 vidual is located. 

7 ‘‘(4) CERTAIN INDIVIDUALS.— 

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

9 not apply to tobacco products mailed by individ10 uals who are not minors for noncommercial 

11 purposes, including the return of a damaged or 

12 unacceptable tobacco product to the manufac13 turer. 

14 ‘‘(B) RULES.— 

15 ‘‘(i) IN GENERAL.—Not later than 

16 180 days after the date of enactment of 

17 the Prevent All Cigarette Trafficking Act 

18 of 2009, the Postmaster General shall 

19 issue a final rule which shall establish the 

20 standards and requirements that apply to 

21 all mailings described in subparagraph (A). 

22 ‘‘(ii) CONTENTS.—The final rule 

23 issued under clause (i) shall require— 

24 ‘‘(I) the United States Postal 

25 Service to verify that any person subVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00051 Fmt 6652 Sfmt 6401 E:\BILLS\S1147.RS S1147

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1 mitting an otherwise nonmailable to2 bacco product into the mails as au3 thorized under this paragraph is the 

4 individual identified on the return ad5 dress label of the package and is not 

6 a minor; 

7 ‘‘(II) for a mailing to an indi8 vidual, the United States Postal Serv9 ice to require the person submitting 

10 the otherwise nonmailable tobacco 

11 product into the mails as authorized 

12 by this paragraph to affirm that the 

13 recipient is not a minor; 

14 ‘‘(III) that any package mailed 

15 under this paragraph shall weigh not 

16 more than 10 ounces; 

17 ‘‘(IV) that any mailing described 

18 in subparagraph (A) shall be sent 

19 through the systems of the United 

20 States Postal Service that provide for 

21 the tracking and confirmation of the 

22 delivery; 

23 ‘‘(V) that a mailing described in 

24 subparagraph (A) shall not be deliv25 ered or placed in the possession of any 


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1 individual who has not been verified 

2 as not being a minor; 

3 ‘‘(VI) for a mailing described in 

4 subparagraph (A) to an individual, 

5 that the United States Postal Service 

6 shall deliver the package only to a re7 cipient who is verified not to be a 

8 minor at the recipient address or 

9 transfer it for delivery to an Air/Army 

10 Postal Office or Fleet Postal Office 

11 number designated in the recipient 

12 address; and 

13 ‘‘(VII) that no person may ini14 tiate more than 10 mailings described 

15 in subparagraph (A) during any 30- 

16 day period. 

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

18 term ‘minor’ means an individual who is less 

19 than the minimum age required for the legal 

20 sale or purchase of tobacco products as deter21 mined by applicable law at the place the indi22 vidual is located. 

23 ‘‘(5) EXCEPTION FOR MAILINGS FOR CONSUMER

24 TESTING BY MANUFACTURERS.— 


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1 ‘‘(A) IN GENERAL.—Subject to subpara2 graph (B), subsection (a) shall not preclude a 

3 legally operating cigarette manufacturer or a le4 gally authorized agent of a legally operating 

5 cigarette manufacturer from using the United 

6 States Postal Service to mail cigarettes to 

7 verified adult smoker solely for consumer test8 ing purposes, if— 

9 ‘‘(i) the cigarette manufacturer has a 

10 permit, in good standing, issued under sec11 tion 5713 of the Internal Revenue Code of 

12 1986; 

13 ‘‘(ii) the package of cigarettes mailed 

14 under this paragraph contains not more 

15 than 12 packs of cigarettes (240 ciga16 rettes); 

17 ‘‘(iii) the recipient does not receive 

18 more than 1 package of cigarettes from 

19 any 1 cigarette manufacturer under this 

20 paragraph during any 30-day period; 

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

22 under this paragraph levied by the State 

23 and locality of delivery are paid to the 

24 State and locality before delivery, and tax 

25 stamps or other tax-payment indicia are 


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1 affixed to the cigarettes as required by law; 

2 and 

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

4 payments of any kind in exchange for re5 ceiving the cigarettes; 

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

7 manufacturer or agent of the manufacturer 

8 for participation in consumer product 

9 tests; and 

10 ‘‘(III) the recipient, in connection 

11 with the tests, evaluates the cigarettes and 

12 provides feedback to the manufacturer or 

13 agent. 

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

15 shall not— 

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

17 an individual located in any State that pro18 hibits the delivery or shipment of ciga19 rettes to individuals in the State, or pre20 empt, limit, or otherwise affect any related 

21 State laws; or 

22 ‘‘(ii) permit a manufacturer, directly 

23 or through a legally authorized agent, to 

24 mail cigarettes in any calendar year in a 

25 total amount greater than 1 percent of the 


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1 total cigarette sales of the manufacturer in 

2 the United States during the calendar year 

3 before the date of the mailing. 

4 ‘‘(C) RULES.— 

5 ‘‘(i) IN GENERAL.—Not later than 

6 180 days after the date of enactment of 

7 the Prevent All Cigarette Trafficking Act 

8 of 2009, the Postmaster General shall 

9 issue a final rule which shall establish the 

10 standards and requirements that apply to 

11 all mailings described in subparagraph (A). 

12 ‘‘(ii) CONTENTS.—The final rule 

13 issued under clause (i) shall require— 

14 ‘‘(I) the United States Postal 

15 Service to verify that any person sub16 mitting a tobacco product into the 

17 mails under this paragraph is a le18 gally operating cigarette manufacturer 

19 permitted to make a mailing under 

20 this paragraph, or an agent legally 

21 authorized by the legally operating 

22 cigarette manufacturer to submit the 

23 tobacco product into the mails on be24 half of the manufacturer; 


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1 ‘‘(II) the legally operating ciga2 rette manufacturer submitting the 

3 cigarettes into the mails under this 

4 paragraph to affirm that— 

5 ‘‘(aa) the manufacturer or 

6 the legally authorized agent of 

7 the manufacturer has verified 

8 that the recipient is an adult es9 tablished smoker; 

10 ‘‘(bb) the recipient has not 

11 made any payment for the ciga12 rettes; 

13 ‘‘(cc) the recipient has 

14 signed a written statement that 

15 is in effect indicating that the re16 cipient wishes to receive the mail17 ings; and 

18 ‘‘(dd) the manufacturer or 

19 the legally authorized agent of 

20 the manufacturer has offered the 

21 opportunity for the recipient to 

22 withdraw the written statement 

23 described in item (cc) not less 

24 frequently than once in every 3- 

25 month period; 


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1 ‘‘(III) the legally operating ciga2 rette manufacturer or the legally au3 thorized agent of the manufacturer 

4 submitting the cigarettes into the 

5 mails under this paragraph to affirm 

6 that any package mailed under this 

7 paragraph contains not more than 12 

8 packs of cigarettes (240 cigarettes) on 

9 which all taxes levied on the cigarettes 

10 by the State and locality of delivery 

11 have been paid and all related State 

12 tax stamps or other tax-payment indi13 cia have been applied; 

14 ‘‘(IV) that any mailing described 

15 in subparagraph (A) shall be sent 

16 through the systems of the United 

17 States Postal Service that provide for 

18 the tracking and confirmation of the 

19 delivery; 

20 ‘‘(V) the United States Postal 

21 Service to maintain records relating to 

22 a mailing described in subparagraph 

23 (A) during the 3-year period begin24 ning on the date of the mailing and 


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1 make the information available to per2 sons enforcing this section; 

3 ‘‘(VI) that any mailing described 

4 in subparagraph (A) be marked with 

5 a United States Postal Service label 

6 or marking that makes it clear to em7 ployees of the United States Postal 

8 Service that it is a permitted mailing 

9 of otherwise nonmailable tobacco 

10 products that may be delivered only to 

11 the named recipient after verifying 

12 that the recipient is an adult; and 

13 ‘‘(VII) the United States Postal 

14 Service shall deliver a mailing de15 scribed in subparagraph (A) only to 

16 the named recipient and only after 

17 verifying that the recipient is an 

18 adult. 

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

20 ‘‘(i) the term ‘adult’ means an indi21 vidual who is not less than 21 years of age; 

22 and 

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

24 means testing limited to formal data collec25 tion and analysis for the specific purpose 


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1 of evaluating the product for quality assur2 ance and benchmarking purposes of ciga3 rette brands or sub-brands among existing 

4 adult smokers. 

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

6 agency of the Federal Government involved in the 

7 consumer testing of tobacco products solely for pub8 lic health purposes may mail cigarettes under the 

9 same requirements, restrictions, and rules and pro10 cedures that apply to consumer testing mailings of 

11 cigarettes by manufacturers under paragraph (5), 

12 except that the agency shall not be required to pay 

13 the recipients for participating in the consumer test14 ing. 

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

16 smokeless tobacco made nonmailable by this subsection 

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

18 and forfeiture, pursuant to the procedures set forth in 

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

20 forfeited under this subsection shall be destroyed or re21 tained by the Federal Government for the detection or 

22 prosecution of crimes or related investigations and then 

23 destroyed. 

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

25 other fines and penalties under this title for violations of 


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1 this section, any person violating this section shall be sub2 ject to an additional civil penalty in the amount equal to 

3 10 times the retail value of the nonmailable cigarettes or 

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

5 taxes. 

6 ‘‘(e) CRIMINAL PENALTY.—Whoever knowingly de7 posits for mailing or delivery, or knowingly causes to be 

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

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

10 person to whom it is addressed, anything that is non11 mailable matter under this section shall be fined under 

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

13 ‘‘(f) USE OF PENALTIES.—There is established a sep14 arate account in the Treasury, to be known as the ‘PACT 

15 Postal Service Fund’. Notwithstanding any other provi16 sion of law, an amount equal to 50 percent of any criminal 

17 fines, civil penalties, or other monetary penalties collected 

18 by the Federal Government in enforcing this section shall 

19 be transferred into the PACT Postal Service Fund and 

20 shall be available to the Postmaster General for the pur21 pose of enforcing this subsection. 

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

23 General shall cooperate and coordinate efforts to enforce 

24 this section with related enforcement activities of any 


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1 other Federal agency or agency of any State, local, or trib2 al government, whenever appropriate. 

3 ‘‘(h) ACTIONS BY STATE, LOCAL, OR TRIBAL GOV4 ERNMENTS RELATING TO CERTAIN TOBACCO PROD5 UCTS.— 

6 ‘‘(1) IN GENERAL.—A State, through its attor7 ney general, or a local government or Indian tribe 

8 that levies an excise tax on tobacco products, 

9 through its chief law enforcement officer, may in a 

10 civil action in a United States district court obtain 

11 appropriate relief with respect to a violation of this 

12 section. Appropriate relief includes injunctive and 

13 equitable relief and damages equal to the amount of 

14 unpaid taxes on tobacco products mailed in violation 

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

16 or tribal land. 

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

18 subsection shall be deemed to abrogate or constitute 

19 a waiver of any sovereign immunity of a State or 

20 local government or Indian tribe against any 

21 unconsented lawsuit under paragraph (1), or other22 wise to restrict, expand, or modify any sovereign im23 munity of a State or local government or Indian 

24 tribe. 


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1 ‘‘(3) ATTORNEY GENERAL REFERRAL.—A 

2 State, through its attorney general, or a local gov3 ernment or Indian tribe that levies an excise tax on 

4 tobacco products, through its chief law enforcement 

5 officer, may provide evidence of a violation of this 

6 section for commercial purposes by any person not 

7 subject to State, local, or tribal government enforce8 ment actions for violations of this section to the At9 torney General of the United States, who shall take 

10 appropriate actions to enforce this section. 

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

12 remedies available under this subsection are in addi13 tion to any other remedies available under Federal, 

14 State, local, tribal, or other law. Nothing in this sub15 section shall be construed to expand, restrict, or oth16 erwise modify any right of an authorized State, 

17 local, or tribal government official to proceed in a 

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

19 other enforcement actions, on the basis of an alleged 

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

21 ‘‘(5) OTHER ENFORCEMENT ACTIONS.—Noth22 ing in this subsection shall be construed to prohibit 

23 an authorized State official from proceeding in State 

24 court on the basis of an alleged violation of any gen25 eral civil or criminal statute of the State. 


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

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

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

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

5 the item relating to section 1716D the following: 

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

6 SEC. 4. COMPLIANCE WITH MODEL STATUTE OR QUALI7 FYING STATUTE. 

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

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

10 sale, or cause to be sold in, delivered to, or placed for deliv11 ery sale in a State that is a party to the Master Settlement 

12 Agreement, any cigarette manufactured by a Tobacco 

13 Product Manufacturer that is not in full compliance with 

14 the terms of the Model Statute or Qualifying Statute en15 acted by the State requiring funds to be placed into a 

16 qualified escrow account under specified conditions, and 

17 with any regulations promulgated pursuant to the statute. 

18 (b) JURISDICTION TO PREVENT AND RESTRAIN VIO19 LATIONS.— 

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

21 courts shall have jurisdiction to prevent and restrain 

22 violations of subsection (a) in accordance with this 

23 subsection. 

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

25 its attorney general, may bring an action in an apVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00064 Fmt 6652 Sfmt 6401 E:\BILLS\S1147.RS S1147

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1 propriate United States district court to prevent and 

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

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

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

5 shall be entitled to reasonable attorney fees from a 

6 person found to have knowingly violated subsection 

7 (a). 

8 (4) NONEXCLUSIVITY OF REMEDIES.—The rem9 edy available under paragraph (2) is in addition to 

10 any other remedies available under Federal, State, 

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

12 Federal law shall be held or construed to prohibit or 

13 preempt the Master Settlement Agreement, the 

14 Model Statute (as defined in the Master Settlement 

15 Agreement), any legislation amending or complemen16 tary to the Model Statute in effect as of June 1, 

17 2006, or any legislation substantially similar to such 

18 existing, amending, or complementary legislation en19 acted after the date of enactment of this Act. 

20 (5) OTHER ENFORCEMENT ACTIONS.—Nothing 

21 in this subsection shall be construed to prohibit an 

22 authorized State official from proceeding in State 

23 court or taking other enforcement actions on the 

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


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1 (6) AUTHORITY OF THE ATTORNEY GEN2 ERAL.—The Attorney General of the United States 

3 may bring an action in an appropriate United States 

4 district court to prevent and restrain violations of 

5 subsection (a) by any person. 

6 (c) DEFINITIONS.—In this section the following defi7 nitions apply: 

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

9 means any sale of cigarettes or smokeless tobacco to 

10 a consumer if— 

11 (A) the consumer submits the order for the 

12 sale by means of a telephone or other method 

13 of voice transmission, the mails, or the Internet 

14 or other online service, or the seller is otherwise 

15 not in the physical presence of the buyer when 

16 the request for purchase or order is made; or 

17 (B) the cigarettes or smokeless tobacco are 

18 delivered to the buyer by common carrier, pri19 vate delivery service, or other method of remote 

20 delivery, or the seller is not in the physical pres21 ence of the buyer when the buyer obtains pos22 session of the cigarettes or smokeless tobacco. 

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

24 each of the following: 


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1 (A) SHIPPING OR CONSIGNING.—Any per2 son in the United States to whom nontaxpaid 

3 tobacco products manufactured in a foreign 

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

5 possession of the United States are shipped or 

6 consigned. 

7 (B) MANUFACTURING WAREHOUSES.—Any 

8 person who removes cigars or cigarettes for sale 

9 or consumption in the United States from a 

10 customs-bonded manufacturing warehouse. 

11 (C) UNLAWFUL IMPORTING.—Any person 

12 who smuggles or otherwise unlawfully brings to13 bacco products into the United States. 

14 (3) MASTER SETTLEMENT AGREEMENT.—The 

15 term ‘‘Master Settlement Agreement’’ means the 

16 agreement executed November 23, 1998, between 

17 the attorneys general of 46 States, the District of 

18 Columbia, the Commonwealth of Puerto Rico, and 4 

19 territories of the United States and certain tobacco 

20 manufacturers. 

21 (4) MODEL STATUTE; QUALIFYING STATUTE.— 

22 The terms ‘‘Model Statute’’ and ‘‘Qualifying Stat23 ute’’ means a statute as defined in section 

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


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1 (5) TOBACCO PRODUCT MANUFACTURER.—The 

2 term ‘‘Tobacco Product Manufacturer’’ has the 

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

4 Master Settlement Agreement. 

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

6 FIREARMS, AND EXPLOSIVES OF RECORDS 

7 OF CERTAIN CIGARETTE AND SMOKELESS 

8 TOBACCO SELLERS; CIVIL PENALTY. 

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

10 amended to read as follows: 

11 ‘‘(c)(1) Any officer of the Bureau of Alcohol, To12 bacco, Firearms, and Explosives may, during normal busi13 ness hours, enter the premises of any person described in 

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

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

16 maintained by the person under this chapter; or 

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

18 or stored by the person at the premises. 

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

20 have the authority in a civil action under this subsection 

21 to compel inspections authorized by paragraph (1). 

22 ‘‘(3) Whoever denies access to an officer under para23 graph (1), or who fails to comply with an order issued 

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

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


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1 SEC. 6. EXCLUSIONS REGARDING INDIAN TRIBES AND 

2 TRIBAL MATTERS. 

3 (a) IN GENERAL.—Nothing in this Act or the amend4 ments made by this Act shall be construed to amend, mod5 ify, or otherwise affect— 

6 (1) any agreements, compacts, or other inter7 governmental arrangements between any State or 

8 local government and any government of an Indian 

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

10 Indian Self-Determination and Education Assistance 

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

12 taxes on cigarettes or smokeless tobacco sold in In13 dian country; 

14 (2) any State laws that authorize or otherwise 

15 pertain to any such intergovernmental arrangements 

16 or create special rules or procedures for the collec17 tion of State, local, or tribal taxes on cigarettes or 

18 smokeless tobacco sold in Indian country; 

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

20 including Federal common law and treaties, on 

21 State, local, and tribal tax and regulatory authority 

22 with respect to the sale, use, or distribution of ciga23 rettes and smokeless tobacco by or to Indian tribes, 

24 tribal members, tribal enterprises, or in Indian coun25 try; 


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1 (4) any Federal law, including Federal common 

2 law and treaties, regarding State jurisdiction, or 

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

4 enterprises, tribal reservations, or other lands held 

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

6 tribes; or 

7 (5) any State or local government authority to 

8 bring enforcement actions against persons located in 

9 Indian country. 

10 (b) COORDINATION OF LAW ENFORCEMENT.—Noth11 ing in this Act or the amendments made by this Act shall 

12 be construed to inhibit or otherwise affect any coordinated 

13 law enforcement effort by 1 or more States or other juris14 dictions, including Indian tribes, through interstate com15 pact or otherwise, that— 

16 (1) provides for the administration of tobacco 

17 product laws or laws pertaining to interstate sales or 

18 other sales of tobacco products; 

19 (2) provides for the seizure of tobacco products 

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

21 or 

22 (3) establishes cooperative programs for the ad23 ministration of such laws. 

24 (c) TREATMENT OF STATE AND LOCAL GOVERN25 MENTS.—Nothing in this Act or the amendments made 


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

2 commission States or local governments as instrumental3 ities of the United States. 

4 (d) ENFORCEMENT WITHIN INDIAN COUNTRY.— 

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

6 shall prohibit, limit, or restrict enforcement by the Attor7 ney General of the United States of this Act or an amend8 ment made by this Act within Indian country. 

9 (e) AMBIGUITY.—Any ambiguity between the lan10 guage of this section or its application and any other pro11 vision of this Act shall be resolved in favor of this section. 

12 (f) DEFINITIONS.—In this section— 

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

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

15 amended by this Act; and 

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

17 business enterprise, regardless of whether incor18 porated or unincorporated under Federal or tribal 

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

20 SEC. 7. ENHANCED CONTRABAND TOBACCO ENFORCE21 MENT. 

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

23 Alcohol, Tobacco, Firearms, and Explosives shall— 

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

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


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1 regional contraband tobacco trafficking team in each 

2 of New York, New York, the District of Columbia, 

3 Detroit, Michigan, Los Angeles, California, Seattle, 

4 Washington, and Miami, Florida; 

5 (2) create a Tobacco Intelligence Center to 

6 oversee investigations and monitor and coordinate 

7 ongoing investigations and to serve as the coordi8 nator for all ongoing tobacco diversion investigations 

9 within the Bureau of Alcohol, Tobacco, Firearms, 

10 and Explosives, in the United States and, where ap11 plicable, with law enforcement organizations around 

12 the world; 

13 (3) establish a covert national warehouse for 

14 undercover operations; and 

15 (4) create a computer database that will track 

16 and analyze information from retail sellers of to17 bacco products that sell through the Internet or by 

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

19 (b) AUTHORIZATION OF APPROPRIATIONS.—There is 

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

21 $8,500,000 for each of fiscal years 2010 through 2014. 

22 SEC. 8. EFFECTIVE DATE. 

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

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

25 after the date of enactment of this Act. 


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1 (b) BATFE AUTHORITY.—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. 

11 SECTION 1. SHORT TITLE; FINDINGS; PURPOSES. 

12 (a) SHORT TITLE.—This Act may be cited as the ‘‘Pre13 vent All Cigarette Trafficking Act of 2009’’ or ‘‘PACT Act’’. 

14 (b) FINDINGS.—Congress finds that— 

15 (1) the sale of illegal cigarettes and smokeless to16 bacco products significantly reduces Federal, State, 

17 and local government revenues, with Internet sales 

18 alone accounting for billions of dollars of lost Federal, 

19 State, and local tobacco tax revenue each year; 

20 (2) Hezbollah, Hamas, al Qaeda, and other ter21 rorist organizations have profited from trafficking in 

22 illegal cigarettes or counterfeit cigarette tax stamps; 

23 (3) terrorist involvement in illicit cigarette traf24 ficking will continue to grow because of the large 

25 profits such organizations can earn; 


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1 (4) the sale of illegal cigarettes and smokeless to2 bacco over the Internet, and through mail, fax, or 

3 phone orders, makes it cheaper and easier for children 

4 to obtain tobacco products; 

5 (5) the majority of Internet and other remote 

6 sales of cigarettes and smokeless tobacco are being 

7 made without adequate precautions to protect against 

8 sales to children, without the payment of applicable 

9 taxes, and without complying with the nominal reg10 istration and reporting requirements in existing Fed11 eral law; 

12 (6) unfair competition from illegal sales of ciga13 rettes and smokeless tobacco is taking billions of dol14 lars of sales away from law-abiding retailers through15 out the United States; 

16 (7) with rising State and local tobacco tax rates, 

17 the incentives for the illegal sale of cigarettes and 

18 smokeless tobacco have increased; 

19 (8) the number of active tobacco investigations 

20 being conducted by the Bureau of Alcohol, Tobacco, 

21 Firearms, and Explosives rose to 452 in 2005; 

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

23 States and in foreign countries that sell cigarettes 

24 and smokeless tobacco to buyers in the United States 


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1 increased from only about 40 in 2000 to more than 

2 500 in 2005; and 

3 (10) the intrastate sale of illegal cigarettes and 

4 smokeless tobacco over the Internet has a substantial 

5 effect on interstate commerce. 

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

7 (1) require Internet and other remote sellers of 

8 cigarettes and smokeless tobacco to comply with the 

9 same laws that apply to law-abiding tobacco retailers; 

10 (2) create strong disincentives to illegal smug11 gling of tobacco products; 

12 (3) provide government enforcement officials 

13 with more effective enforcement tools to combat to14 bacco smuggling; 

15 (4) make it more difficult for cigarette and 

16 smokeless tobacco traffickers to engage in and profit 

17 from their illegal activities; 

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

19 local excise taxes on cigarettes and smokeless tobacco; 

20 and 

21 (6) prevent and reduce youth access to inexpen22 sive cigarettes and smokeless tobacco through illegal 

23 Internet or contraband sales. 


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1 SEC. 2. COLLECTION OF STATE CIGARETTE AND SMOKE2 LESS TOBACCO TAXES. 

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

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

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

6 amended by striking the first section and inserting the fol7 lowing: 

8 ‘‘SECTION 1. DEFINITIONS. 

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

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

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

12 general or other chief law enforcement officer of the 

13 State. 

14 ‘‘(2) CIGARETTE.— 

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

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

17 in section 2341 of title 18, United States 

18 Code; and 

19 ‘‘(ii) includes roll-your-own tobacco (as 

20 defined in section 5702 of the Internal Rev21 enue Code of 1986). 

22 ‘‘(B) EXCEPTION.—The term ‘cigarette’ does 

23 not include a cigar (as defined in section 5702 

24 of the Internal Revenue Code of 1986). 

25 ‘‘(3) COMMON CARRIER.—The term ‘common car26 rier’ means any person (other than a local messenger 


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1 service or the United States Postal Service) that holds 

2 itself out to the general public as a provider for hire 

3 of the transportation by water, land, or air of mer4 chandise (regardless of whether the person actually 

5 operates the vessel, vehicle, or aircraft by which the 

6 transportation is provided) between a port or place 

7 and a port or place in the United States. 

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

9 ‘‘(A) means any person that purchases ciga10 rettes or smokeless tobacco; and 

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

12 operating as a manufacturer, distributor, whole13 saler, or retailer of cigarettes or smokeless to14 bacco. 

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

16 means any sale of cigarettes or smokeless tobacco to 

17 a consumer if— 

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

19 sale by means of a telephone or other method of 

20 voice transmission, the mails, or the Internet or 

21 other online service, or the seller is otherwise not 

22 in the physical presence of the buyer when the 

23 request for purchase or order is made; or 

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

25 delivered to the buyer by common carrier, priVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00078 Fmt 6652 Sfmt 6203 E:\BILLS\S1147.RS S1147

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1 vate delivery service, or other method of remote 

2 delivery, or the seller is not in the physical pres3 ence of the buyer when the buyer obtains posses4 sion of the cigarettes or smokeless tobacco. 

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

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

7 ‘‘(7) INDIAN COUNTRY.—The term ‘Indian coun8 try’— 

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

10 section 1151 of title 18, United States Code, ex11 cept that within the State of Alaska that term 

12 applies only to the Metlakatla Indian Commu13 nity, Annette Island Reserve; and 

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

15 United States in trust or restricted status for one 

16 or more Indian tribes. 

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

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

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

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

21 listed pursuant to section 104 of the Federally Recog22 nized Indian Tribe List Act of 1994 (25 U.S.C. 479a– 

23 1). 

24 ‘‘(9) INTERSTATE COMMERCE.— 


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1 ‘‘(A) IN GENERAL.—The term ‘interstate 

2 commerce’ means commerce between a State and 

3 any place outside the State, commerce between a 

4 State and any Indian country in the State, or 

5 commerce between points in the same State but 

6 through any place outside the State or through 

7 any Indian country. 

8 ‘‘(B) INTO A STATE, PLACE, OR LOCALITY.— 

9 A sale, shipment, or transfer of cigarettes or 

10 smokeless tobacco that is made in interstate com11 merce, as defined in this paragraph, shall be 

12 deemed to have been made into the State, place, 

13 or locality in which such cigarettes or smokeless 

14 tobacco are delivered. 

15 ‘‘(10) PERSON.—The term ‘person’ means an in16 dividual, corporation, company, association, firm, 

17 partnership, society, State government, local govern18 ment, Indian tribal government, governmental orga19 nization of such a government, or joint stock com20 pany. 

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

22 the several States of the United States, the District of 

23 Columbia, the Commonwealth of Puerto Rico, or any 

24 territory or possession of the United States. 


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1 ‘‘(12) SMOKELESS TOBACCO.—The term ‘smoke2 less tobacco’ means any finely cut, ground, powdered, 

3 or leaf tobacco, or other product containing tobacco, 

4 that is intended to be placed in the oral or nasal cav5 ity or otherwise consumed without being combusted. 

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

7 ‘tobacco tax administrator’ means the State, local, or 

8 tribal official duly authorized to collect the tobacco 

9 tax or administer the tax law of a State, locality, or 

10 tribe, respectively. 

11 ‘‘(14) USE.—The term ‘use’ includes the con12 sumption, storage, handling, or disposal of cigarettes 

13 or smokeless tobacco.’’. 

14 (b) REPORTS TO STATE TOBACCO TAX ADMINISTRA15 TORS.—Section 2 of the Jenkins Act (15 U.S.C. 376) is 

16 amended— 

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

18 and inserting ‘‘cigarettes or smokeless tobacco’’; 

19 (2) in subsection (a)— 

20 (A) in the matter preceding paragraph 

21 (1)— 

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

23 ‘‘(a)’’; 

24 (ii) by striking ‘‘or transfers’’ and in25 serting ‘‘, transfers, or ships’’; 


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

2 country of an Indian tribe’’ after ‘‘a State’’; 

3 (iv) by striking ‘‘to other than a dis4 tributor licensed by or located in such 

5 State,’’; and 

6 (v) by striking ‘‘or transfer and ship7 ment’’ and inserting ‘‘, transfer, or ship8 ment’’; 

9 (B) in paragraph (1)— 

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

11 administrator of the State’’ and inserting 

12 ‘‘with the Attorney General of the United 

13 States and with the tobacco tax administra14 tors of the State and place’’; and 

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

16 the following: ‘‘, as well as telephone num17 bers for each place of business, a principal 

18 electronic mail address, any website ad19 dresses, and the name, address, and tele20 phone number of an agent in the State au21 thorized to accept service on behalf of the 

22 person;’’; 

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

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

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1 ber of the person delivering the shipment to the 

2 recipient on behalf of the delivery seller, with all 

3 invoice or memoranda information relating to 

4 specific customers to be organized by city or 

5 town and by zip code; and’’; and 

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

7 ‘‘(3) with respect to each memorandum or in8 voice filed with a State under paragraph (2), also file 

9 copies of the memorandum or invoice with the tobacco 

10 tax administrators and chief law enforcement officers 

11 of the local governments and Indian tribes operating 

12 within the borders of the State that apply their own 

13 local or tribal taxes on cigarettes or smokeless to14 bacco.’’; 

15 (3) in subsection (b)— 

16 (A) by inserting ‘‘PRESUMPTIVE EVI17 DENCE.—’’ after ‘‘(b)’’; 

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

19 ‘‘that’’; and 

20 (C) by striking ‘‘, and (2)’’ and all that fol21 lows and inserting a period; and 

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

23 ‘‘(c) USE OF INFORMATION.—A tobacco tax adminis24 trator or chief law enforcement officer who receives a memo25 randum or invoice under paragraph (2) or (3) of subsection 


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1 (a) shall use the memorandum or invoice solely for the pur2 poses of the enforcement of this Act and the collection of 

3 any taxes owed on related sales of cigarettes and smokeless 

4 tobacco, and shall keep confidential any personal informa5 tion in the memorandum or invoice except as required for 

6 such purposes.’’. 

7 (c) REQUIREMENTS FOR DELIVERY SALES.—The Jen8 kins Act is amended by inserting after section 2 the fol9 lowing: 

10 ‘‘SEC. 2A. DELIVERY SALES. 

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

12 a specific State and place, each delivery seller shall comply 

13 with— 

14 ‘‘(1) the shipping requirements set forth in sub15 section (b); 

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

17 subsection (c); 

18 ‘‘(3) all State, local, tribal, and other laws gen19 erally applicable to sales of cigarettes or smokeless to20 bacco as if the delivery sales occurred entirely within 

21 the specific State and place, including laws impos22 ing— 

23 ‘‘(A) excise taxes; 

24 ‘‘(B) licensing and tax-stamping require25 ments; 


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

2 ‘‘(D) other payment obligations or legal re3 quirements relating to the sale, distribution, or 

4 delivery of cigarettes or smokeless tobacco; and 

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

6 subsection (d). 

7 ‘‘(b) SHIPPING AND PACKAGING.— 

8 ‘‘(1) REQUIRED STATEMENT.—For any shipping 

9 package containing cigarettes or smokeless tobacco, the 

10 delivery seller shall include on the bill of lading, if 

11 any, and on the outside of the shipping package, on 

12 the same surface as the delivery address, a clear and 

13 conspicuous statement providing as follows: ‘CIGA14 RETTES/SMOKELESS TOBACCO: FEDERAL 

15 LAW REQUIRES THE PAYMENT OF ALL AP16 PLICABLE EXCISE TAXES, AND COMPLIANCE 

17 WITH APPLICABLE LICENSING AND TAX– 

18 STAMPING OBLIGATIONS’. 

19 ‘‘(2) FAILURE TO LABEL.—Any shipping pack20 age described in paragraph (1) that is not labeled in 

21 accordance with that paragraph shall be treated as 

22 nondeliverable matter by a common carrier or other 

23 delivery service, if the common carrier or other deliv24 ery service knows or should know the package con25 tains cigarettes or smokeless tobacco. If a common 


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1 carrier or other delivery service believes a package is 

2 being submitted for delivery in violation of paragraph 

3 (1), it may require the person submitting the package 

4 for delivery to establish that it is not being sent in 

5 violation of paragraph (1) before accepting the pack6 age for delivery. Nothing in this paragraph shall re7 quire the common carrier or other delivery service to 

8 open any package to determine its contents. 

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

10 shall not sell, offer for sale, deliver, or cause to be de11 livered in any single sale or single delivery any ciga12 rettes or smokeless tobacco weighing more than 10 

13 pounds. 

14 ‘‘(4) AGE VERIFICATION.— 

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

16 mails or ships tobacco products— 

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

18 be delivered any tobacco products to a per19 son under the minimum age required for 

20 the legal sale or purchase of tobacco prod21 ucts, as determined by the applicable law at 

22 the place of delivery; 

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

24 shipping that requires— 


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1 ‘‘(I) the purchaser placing the de2 livery sale order, or an adult who is at 

3 least the minimum age required for the 

4 legal sale or purchase of tobacco prod5 ucts, as determined by the applicable 

6 law at the place of delivery, to sign to 

7 accept delivery of the shipping con8 tainer at the delivery address; and 

9 ‘‘(II) the person who signs to ac10 cept delivery of the shipping container 

11 to provide proof, in the form of a valid, 

12 government-issued identification bear13 ing a photograph of the individual, 

14 that the person is at least the min15 imum age required for the legal sale or 

16 purchase of tobacco products, as deter17 mined by the applicable law at the 

18 place of delivery; and 

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

20 order from a person without— 

21 ‘‘(I) obtaining the full name, birth 

22 date, and residential address of that 

23 person; and 

24 ‘‘(II) verifying the information 

25 provided in subclause (I), through the 


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1 use of a commercially available data2 base or aggregate of databases, con3 sisting primarily of data from govern4 ment sources, that are regularly used 

5 by government and businesses for the 

6 purpose of age and identity 

7 verification and authentication, to en8 sure that the purchaser is at least the 

9 minimum age required for the legal 

10 sale or purchase of tobacco products, as 

11 determined by the applicable law at 

12 the place of delivery. 

13 ‘‘(B) LIMITATION.—No database being used 

14 for age and identity verification under subpara15 graph (A)(iii) shall be in the possession or under 

16 the control of the delivery seller, or be subject to 

17 any changes or supplementation by the delivery 

18 seller. 

19 ‘‘(c) RECORDS.— 

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

21 keep a record of any delivery sale, including all of the 

22 information described in section 2(a)(2), organized by 

23 the State, and within the State, by the city or town 

24 and by zip code, into which the delivery sale is so 

25 made. 


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

2 sale shall be kept as described in paragraph (1) until 

3 the end of the 4th full calendar year that begins after 

4 the date of the delivery sale. 

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

6 under paragraph (1) shall be made available to to7 bacco tax administrators of the States, to local gov8 ernments and Indian tribes that apply local or tribal 

9 taxes on cigarettes or smokeless tobacco, to the attor10 neys general of the States, to the chief law enforce11 ment officers of the local governments and Indian 

12 tribes, and to the Attorney General of the United 

13 States in order to ensure the compliance of persons 

14 making delivery sales with the requirements of this 

15 Act. 

16 ‘‘(d) DELIVERY.— 

17 ‘‘(1) IN GENERAL.—Except as provided in para18 graph (2), no delivery seller may sell or deliver to any 

19 consumer, or tender to any common carrier or other 

20 delivery service, any cigarettes or smokeless tobacco 

21 pursuant to a delivery sale unless, in advance of the 

22 sale, delivery, or tender— 

23 ‘‘(A) any cigarette or smokeless tobacco ex24 cise tax that is imposed by the State in which 


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1 the cigarettes or smokeless tobacco are to be deliv2 ered has been paid to the State; 

3 ‘‘(B) any cigarette or smokeless tobacco ex4 cise tax that is imposed by the local government 

5 of the place in which the cigarettes or smokeless 

6 tobacco are to be delivered has been paid to the 

7 local government; and 

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

9 that the excise tax has been paid are properly af10 fixed or applied to the cigarettes or smokeless to11 bacco. 

12 ‘‘(2) EXCEPTION.—Paragraph (1) does not apply 

13 to a delivery sale of smokeless tobacco if the law of the 

14 State or local government of the place where the 

15 smokeless tobacco is to be delivered requires or other16 wise provides that delivery sellers collect the excise tax 

17 from the consumer and remit the excise tax to the 

18 State or local government, and the delivery seller 

19 complies with the requirement. 

20 ‘‘(e) LIST OF UNREGISTERED OR NONCOMPLIANT DE21 LIVERY SELLERS.— 

22 ‘‘(1) IN GENERAL.— 

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

24 after this subsection goes into effect under the 

25 Prevent All Cigarette Trafficking Act of 2009, 


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1 the Attorney General of the United States shall 

2 compile a list of delivery sellers of cigarettes or 

3 smokeless tobacco that have not registered with 

4 the Attorney General of the United States pursu5 ant to section 2(a), or that are otherwise not in 

6 compliance with this Act, and— 

7 ‘‘(i) distribute the list to— 

8 ‘‘(I) the attorney general and tax 

9 administrator of every State; 

10 ‘‘(II) common carriers and other 

11 persons that deliver small packages to 

12 consumers in interstate commerce, in13 cluding the United States Postal Serv14 ice; and 

15 ‘‘(III) any other person that the 

16 Attorney General of the United States 

17 determines can promote the effective 

18 enforcement of this Act; and 

19 ‘‘(ii) publicize and make the list avail20 able to any other person engaged in the 

21 business of interstate deliveries or who de22 livers cigarettes or smokeless tobacco in or 

23 into any State. 

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

25 known, the Attorney General of the United States 


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1 shall include, for each delivery seller on the list 

2 described in subparagraph (A)— 

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

4 or has used in the transaction of its busi5 ness or on packages delivered to customers; 

6 ‘‘(ii) all addresses from which the de7 livery seller does or has done business, or 

8 ships or has shipped cigarettes or smokeless 

9 tobacco; 

10 ‘‘(iii) the website addresses, primary e11 mail address, and phone number of the de12 livery seller; and 

13 ‘‘(iv) any other information that the 

14 Attorney General of the United States deter15 mines would facilitate compliance with this 

16 subsection by recipients of the list. 

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

18 the United States shall update and distribute the 

19 list described in subparagraph (A) at least once 

20 every 4 months, and may distribute the list and 

21 any updates by regular mail, electronic mail, or 

22 any other reasonable means, or by providing re23 cipients with access to the list through a non24 public website that the Attorney General of the 

25 United States regularly updates. 


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1 ‘‘(D) STATE, LOCAL, OR TRIBAL ADDI2 TIONS.—The Attorney General of the United 

3 States shall include in the list described in sub4 paragraph (A) any noncomplying delivery sellers 

5 identified by any State, local, or tribal govern6 ment under paragraph (6), and shall distribute 

7 the list to the attorney general or chief law en8 forcement official and the tax administrator of 

9 any government submitting any such informa10 tion, and to any common carriers or other per11 sons who deliver small packages to consumers 

12 identified by any government pursuant to para13 graph (6). 

14 ‘‘(E) ACCURACY AND COMPLETENESS OF

15 LIST OF NONCOMPLYING DELIVERY SELLERS.—In 

16 preparing and revising the list described in sub17 paragraph (A), the Attorney General of the 

18 United States shall— 

19 ‘‘(i) use reasonable procedures to en20 sure maximum possible accuracy and com21 pleteness of the records and information re22 lied on for the purpose of determining that 

23 a delivery seller is not in compliance with 

24 this Act; 


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1 ‘‘(ii) not later than 14 days before in2 cluding a delivery seller on the list, make a 

3 reasonable attempt to send notice to the de4 livery seller by letter, electronic mail, or 

5 other means that the delivery seller is being 

6 placed on the list, which shall cite the rel7 evant provisions of this Act and the specific 

8 reasons for which the delivery seller is being 

9 placed on the list; 

10 ‘‘(iii) provide an opportunity to the 

11 delivery seller to challenge placement on the 

12 list; 

13 ‘‘(iv) investigate each challenge de14 scribed in clause (iii) by contacting the rel15 evant Federal, State, tribal, and local law 

16 enforcement officials, and provide the spe17 cific findings and results of the investiga18 tion to the delivery seller not later than 30 

19 days after the date on which the challenge 

20 is made; and 

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

22 United States determines that the basis for 

23 including a delivery seller on the list is in24 accurate, based on incomplete information, 

25 or cannot be verified, promptly remove the 


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1 delivery seller from the list as appropriate 

2 and notify each appropriate Federal, State, 

3 tribal, and local authority of the determina4 tion. 

5 ‘‘(F) CONFIDENTIALITY.—The list described 

6 in subparagraph (A) shall be confidential, and 

7 any person receiving the list shall maintain the 

8 confidentiality of the list and may deliver the 

9 list, for enforcement purposes, to any government 

10 official or to any common carrier or other person 

11 that delivers tobacco products or small packages 

12 to consumers. Nothing in this section shall pro13 hibit a common carrier, the United States Postal 

14 Service, or any other person receiving the list 

15 from discussing with a listed delivery seller the 

16 inclusion of the delivery seller on the list and the 

17 resulting effects on any services requested by the 

18 listed delivery seller. 

19 ‘‘(2) PROHIBITION ON DELIVERY.— 

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

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

22 distribution or availability of the list described 

23 in paragraph (1)(A), no person who receives the 

24 list under paragraph (1), and no person who de25 livers cigarettes or smokeless tobacco to conVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00095 Fmt 6652 Sfmt 6203 E:\BILLS\S1147.RS S1147

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1 sumers, shall knowingly complete, cause to be 

2 completed, or complete its portion of a delivery 

3 of any package for any person whose name and 

4 address are on the list, unless— 

5 ‘‘(i) the person making the delivery 

6 knows or believes in good faith that the item 

7 does not include cigarettes or smokeless to8 bacco; 

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

10 lawfully engaged in the business of manu11 facturing, distributing, or selling cigarettes 

12 or smokeless tobacco; or 

13 ‘‘(iii) the package being delivered 

14 weighs more than 100 pounds and the per15 son making the delivery does not know or 

16 have reasonable cause to believe that the 

17 package contains cigarettes or smokeless to18 bacco. 

19 ‘‘(B) IMPLEMENTATION OF UPDATES.— 

20 Commencing on the date that is 30 days after 

21 the date of the distribution or availability of any 

22 updates or corrections to the list described in 

23 paragraph (1)(A), all recipients and all common 

24 carriers or other persons that deliver cigarettes 

25 or smokeless tobacco to consumers shall be subject 


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1 to subparagraph (A) in regard to the corrections 

2 or updates. 

3 ‘‘(3) EXEMPTIONS.— 

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

5 any requirements or restrictions placed directly 

6 on common carriers under this subsection, in7 cluding subparagraphs (A) and (B) of para8 graph (2), shall not apply to a common carrier 

9 that— 

10 ‘‘(i) is subject to a settlement agree11 ment described in subparagraph (B); or 

12 ‘‘(ii) if a settlement agreement de13 scribed in subparagraph (B) to which the 

14 common carrier is a party is terminated or 

15 otherwise becomes inactive, is administering 

16 and enforcing policies and practices 

17 throughout the United States that are at 

18 least as stringent as the agreement. 

19 ‘‘(B) SETTLEMENT AGREEMENT.—A settle20 ment agreement described in this subpara21 graph— 

22 ‘‘(i) is a settlement agreement relating 

23 to tobacco product deliveries to consumers; 

24 and 

25 ‘‘(ii) includes— 


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1 ‘‘(I) the Assurance of Discontinu2 ance entered into by the Attorney Gen3 eral of New York and DHL Holdings 

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

5 Inc. on or about July 1, 2005, the As6 surance of Discontinuance entered into 

7 by the Attorney General of New York 

8 and United Parcel Service, Inc. on or 

9 about October 21, 2005, and the Assur10 ance of Compliance entered into by the 

11 Attorney General of New York and 

12 Federal Express Corporation and 

13 FedEx Ground Package Systems, Inc. 

14 on or about February 3, 2006, if each 

15 of those agreements is honored through16 out the United States to block illegal 

17 deliveries of cigarettes or smokeless to18 bacco to consumers; and 

19 ‘‘(II) any other active agreement 

20 between a common carrier and a State 

21 that operates throughout the United 

22 States to ensure that no deliveries of 

23 cigarettes or smokeless tobacco shall be 

24 made to consumers or illegally oper25 ating Internet or mail-order sellers and 


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1 that any such deliveries to consumers 

2 shall not be made to minors or without 

3 payment to the States and localities 

4 where the consumers are located of all 

5 taxes on the tobacco products. 

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

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

8 other delivery service delays or interrupts the de9 livery of a package in the possession of the com10 mon carrier or delivery service because the com11 mon carrier or delivery service determines or has 

12 reason to believe that the person ordering the de13 livery is on a list described in paragraph (1)(A) 

14 and that clauses (i), (ii), and (iii) of paragraph 

15 (2)(A) do not apply— 

16 ‘‘(i) the person ordering the delivery 

17 shall be obligated to pay— 

18 ‘‘(I) the common carrier or other 

19 delivery service as if the delivery of the 

20 package had been timely completed; 

21 and 

22 ‘‘(II) if the package is not deliver23 able, any reasonable additional fee or 

24 charge levied by the common carrier or 

25 other delivery service to cover any 


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1 extra costs and inconvenience and to 

2 serve as a disincentive against such 

3 noncomplying delivery orders; and 

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

5 to be deliverable, the common carrier or 

6 other delivery service shall offer to provide 

7 the package and its contents to a Federal, 

8 State, or local law enforcement agency. 

9 ‘‘(B) RECORDS.—A common carrier or 

10 other delivery service shall maintain, for a pe11 riod of 5 years, any records kept in the ordinary 

12 course of business relating to any delivery inter13 rupted under this paragraph and provide that 

14 information, upon request, to the Attorney Gen15 eral of the United States or to the attorney gen16 eral or chief law enforcement official or tax ad17 ministrator of any State, local, or tribal govern18 ment. 

19 ‘‘(C) CONFIDENTIALITY.—Any person re20 ceiving records under subparagraph (B) shall— 

21 ‘‘(i) use the records solely for the pur22 poses of the enforcement of this Act and the 

23 collection of any taxes owed on related sales 

24 of cigarettes and smokeless tobacco; and 


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1 ‘‘(ii) keep confidential any personal in2 formation in the records not otherwise re3 quired for such purposes. 

4 ‘‘(5) PREEMPTION.— 

5 ‘‘(A) IN GENERAL.—No State, local, or trib6 al government, nor any political authority of 2 

7 or more State, local, or tribal governments, may 

8 enact or enforce any law or regulation relating 

9 to delivery sales that restricts deliveries of ciga10 rettes or smokeless tobacco to consumers by com11 mon carriers or other delivery services on behalf 

12 of delivery sellers by— 

13 ‘‘(i) requiring that the common carrier 

14 or other delivery service verify the age or 

15 identity of the consumer accepting the deliv16 ery by requiring the person who signs to ac17 cept delivery of the shipping container to 

18 provide proof, in the form of a valid, gov19 ernment-issued identification bearing a 

20 photograph of the individual, that the per21 son is at least the minimum age required 

22 for the legal sale or purchase of tobacco 

23 products, as determined by either State or 

24 local law at the place of delivery; 


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1 ‘‘(ii) requiring that the common car2 rier or other delivery service obtain a signa3 ture from the consumer accepting the deliv4 ery; 

5 ‘‘(iii) requiring that the common car6 rier or other delivery service verify that all 

7 applicable taxes have been paid; 

8 ‘‘(iv) requiring that packages delivered 

9 by the common carrier or other delivery 

10 service contain any particular labels, notice, 

11 or markings; or 

12 ‘‘(v) prohibiting common carriers or 

13 other delivery services from making deliv14 eries on the basis of whether the delivery 

15 seller is or is not identified on any list of 

16 delivery sellers maintained and distributed 

17 by any entity other than the Federal Gov18 ernment. 

19 ‘‘(B) RELATIONSHIP TO OTHER LAWS.—Ex20 cept as provided in subparagraph (C), nothing 

21 in this paragraph shall be construed to nullify, 

22 expand, restrict, or otherwise amend or modify— 

23 ‘‘(i) section 14501(c)(1) or 41713(b)(4) 

24 of title 49, United States Code; 


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1 ‘‘(ii) any other restrictions in Federal 

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

3 governments to regulate common carriers; 

4 or 

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

6 tribal law regulating common carriers that 

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

8 41713(b)(4)(B) of title 49 of the United 

9 States Code. 

10 ‘‘(C) STATE LAWS PROHIBITING DELIVERY

11 SALES.— 

12 ‘‘(i) IN GENERAL.—Except as provided 

13 in clause (ii), nothing in the Prevent All 

14 Cigarette Trafficking Act of 2009, the 

15 amendments made by that Act, or in any 

16 other Federal statute shall be construed to 

17 preempt, supersede, or otherwise limit or re18 strict State laws prohibiting the delivery 

19 sale, or the shipment or delivery pursuant 

20 to a delivery sale, of cigarettes or other to21 bacco products to individual consumers or 

22 personal residences. 

23 ‘‘(ii) EXEMPTIONS.—No State may en24 force against a common carrier a law pro25 hibiting the delivery of cigarettes or other 


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1 tobacco products to individual consumers or 

2 personal residences without proof that the 

3 common carrier is not exempt under para4 graph (3) of this subsection. 

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

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

7 tribal government shall provide the Attorney 

8 General of the United States with— 

9 ‘‘(i) all known names, addresses, 

10 website addresses, and other primary con11 tact information of any delivery seller 

12 that— 

13 ‘‘(I) offers for sale or makes sales 

14 of cigarettes or smokeless tobacco in or 

15 into the State, locality, or tribal land; 

16 and 

17 ‘‘(II) has failed to register with or 

18 make reports to the respective tax ad19 ministrator as required by this Act, or 

20 that has been found in a legal pro21 ceeding to have otherwise failed to com22 ply with this Act; and 

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

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1 rettes or smokeless tobacco in or into the 

2 State, locality, or tribal land. 

3 ‘‘(B) UPDATES.—Any government pro4 viding a list to the Attorney General of the 

5 United States under subparagraph (A) shall also 

6 provide updates and corrections every 4 months 

7 until such time as the government notifies the 

8 Attorney General of the United States in writing 

9 that the government no longer desires to submit 

10 information to supplement the list described in 

11 paragraph (1)(A). 

12 ‘‘(C) REMOVAL AFTER WITHDRAWAL.— 

13 Upon receiving written notice that a government 

14 no longer desires to submit information under 

15 subparagraph (A), the Attorney General of the 

16 United States shall remove from the list de17 scribed in paragraph (1)(A) any persons that 

18 are on the list solely because of the prior submis19 sions of the government of the list of the govern20 ment of noncomplying delivery sellers of ciga21 rettes or smokeless tobacco or a subsequent up22 date or correction by the government. 

23 ‘‘(7) DEADLINE TO INCORPORATE ADDITIONS.— 

24 The Attorney General of the United States shall— 


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1 ‘‘(A) include any delivery seller identified 

2 and submitted by a State, local, or tribal govern3 ment under paragraph (6) in any list or update 

4 that is distributed or made available under 

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

6 days after the date on which the information is 

7 received by the Attorney General of the United 

8 States; and 

9 ‘‘(B) distribute any list or update described 

10 in subparagraph (A) to any common carrier or 

11 other person who makes deliveries of cigarettes or 

12 smokeless tobacco that has been identified and 

13 submitted by a government pursuant to para14 graph (6). 

15 ‘‘(8) NOTICE TO DELIVERY SELLERS.—Not later 

16 than 14 days before including any delivery seller on 

17 the initial list described in paragraph (1)(A), or on 

18 an update to the list for the first time, the Attorney 

19 General of the United States shall make a reasonable 

20 attempt to send notice to the delivery seller by letter, 

21 electronic mail, or other means that the delivery seller 

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

23 citing the relevant provisions of this Act. 

24 ‘‘(9) LIMITATIONS.— 


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

2 other person making a delivery subject to this 

3 subsection shall not be required or otherwise obli4 gated to— 

5 ‘‘(i) determine whether any list distrib6 uted or made available under paragraph (1) 

7 is complete, accurate, or up-to-date; 

8 ‘‘(ii) determine whether a person order9 ing a delivery is in compliance with this 

10 Act; or 

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

12 Act, any package being delivered to deter13 mine its contents. 

14 ‘‘(B) ALTERNATE NAMES.—Any common 

15 carrier or other person making a delivery subject 

16 to this subsection— 

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

18 inquiries or otherwise determine whether a 

19 person ordering a delivery is a delivery sell20 er on the list described in paragraph (1)(A) 

21 who is using a different name or address in 

22 order to evade the related delivery restric23 tions; and 

24 ‘‘(ii) shall not knowingly deliver any 

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1 er on the list described in paragraph (1)(A) 

2 who the common carrier or other delivery 

3 service knows is a delivery seller who is on 

4 the list and is using a different name or ad5 dress to evade the delivery restrictions of 

6 paragraph (2). 

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

8 person in the business of delivering packages on 

9 behalf of other persons shall not be subject to any 

10 penalty under section 14101(a) of title 49, 

11 United States Code, or any other provision of 

12 law for— 

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

14 or any deliveries at all, on behalf of any 

15 person on the list described in paragraph 

16 (1)(A); 

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

18 practice and procedure, to make any deliv19 eries, or any deliveries in certain States, of 

20 any cigarettes or smokeless tobacco for any 

21 person or for any person not in the business 

22 of manufacturing, distributing, or selling 

23 cigarettes or smokeless tobacco; or 


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1 ‘‘(iii) delaying or not making a deliv2 ery for any person because of reasonable ef3 forts to comply with this Act. 

4 ‘‘(D) OTHER LIMITS.—Section 2 and sub5 sections (a), (b), (c), and (d) of this section shall 

6 not be interpreted to impose any responsibilities, 

7 requirements, or liability on common carriers. 

8 ‘‘(f) PRESUMPTION.—For purposes of this Act, a deliv9 ery sale shall be deemed to have occurred in the State and 

10 place where the buyer obtains personal possession of the 

11 cigarettes or smokeless tobacco, and a delivery pursuant to 

12 a delivery sale is deemed to have been initiated or ordered 

13 by the delivery seller.’’. 

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

15 striking section 3 and inserting the following: 

16 ‘‘SEC. 3. PENALTIES. 

17 ‘‘(a) CRIMINAL PENALTIES.— 

18 ‘‘(1) IN GENERAL.—Except as provided in para19 graph (2), whoever knowingly violates this Act shall 

20 be imprisoned for not more than 3 years, fined under 

21 title 18, United States Code, or both. 

22 ‘‘(2) EXCEPTIONS.— 

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

24 not apply to a State, local, or tribal government. 


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

2 carrier or independent delivery service, or em3 ployee of a common carrier or independent deliv4 ery service, shall be subject to criminal penalties 

5 under paragraph (1) for a violation of section 

6 2A(e) only if the violation is committed know7 ingly— 

8 ‘‘(i) as consideration for the receipt of, 

9 or as consideration for a promise or agree10 ment to pay, anything of pecuniary value; 

11 or 

12 ‘‘(ii) for the purpose of assisting a de13 livery seller to violate, or otherwise evading 

14 compliance with, section 2A. 

15 ‘‘(b) CIVIL PENALTIES.— 

16 ‘‘(1) IN GENERAL.—Except as provided in para17 graph (3), whoever violates this Act shall be subject to 

18 a civil penalty in an amount not to exceed— 

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

20 greater of— 

21 ‘‘(i) $5,000 in the case of the first vio22 lation, or $10,000 for any other violation; 

23 or 

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

25 gross sales of cigarettes or smokeless tobacco 


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1 of the delivery seller during the 1-year pe2 riod ending on the date of the violation. 

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 gov14 ernments. 

15 ‘‘(3) EXCEPTIONS.— 

16 ‘‘(A) DELIVERY VIOLATIONS.—An employee 

17 of a common carrier or independent delivery 

18 service shall be subject to civil penalties under 

19 paragraph (1) for a violation of section 2A(e) 

20 only if the violation is committed inten21 tionally— 

22 ‘‘(i) as consideration for the receipt of, 

23 or as consideration for a promise or agree24 ment to pay, anything of pecuniary value; 

25 or 


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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) for 

7 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 deliveries, 

17 taking actions that are outside the scope of 

18 employment of the employee, or that violate 

19 the implemented and enforced policies of the 

20 common carrier or independent delivery 

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

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

23 striking section 4 and inserting the following: 


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1 ‘‘SEC. 4. ENFORCEMENT. 

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

3 shall have jurisdiction to prevent and restrain violations 

4 of this Act and to provide other appropriate injunctive or 

5 equitable relief, including money damages, for the viola6 tions. 

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

8 Attorney General of the United States shall administer and 

9 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 2A(a)(3), 

15 through its chief law enforcement officer, may 

16 bring an action in a United States district court 

17 to prevent and restrain violations of this Act by 

18 any person or to obtain any other appropriate 

19 relief from any person for violations of this Act, 

20 including civil penalties, money damages, and 

21 injunctive or other equitable relief. 

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

23 this Act shall be deemed to abrogate or constitute 

24 a waiver of any sovereign immunity of a State 

25 or local government or Indian tribe against any 

26 unconsented lawsuit under this Act, or otherwise 


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1 to restrict, expand, or modify any sovereign im2 munity of a State or local government or Indian 

3 tribe. 

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

5 through its attorney general, or a local government or 

6 Indian tribe that levies a tax subject to section 

7 2A(a)(3), through its chief law enforcement officer, 

8 may provide evidence of a violation of this Act by 

9 any person not subject to State, local, or tribal gov10 ernment enforcement actions for violations of this Act 

11 to the Attorney General of the United States or a 

12 United States attorney, who shall take appropriate 

13 actions to enforce this Act. 

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

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

16 separate account in the Treasury known as the 

17 ‘PACT Anti-Trafficking Fund’. Notwithstanding 

18 any other provision of law and subject to sub19 paragraph (B), an amount equal to 50 percent 

20 of any criminal and civil penalties collected by 

21 the Federal Government in enforcing this Act 

22 shall be transferred into the PACT Anti-Traf23 ficking Fund and shall be available to the Attor24 ney General of the United States for purposes of 


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1 enforcing this Act and other laws relating to con2 traband 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 of 

8 Justice that were responsible for the enforcement 

9 actions in which the penalties concerned were 

10 imposed or for any underlying investigations. 

11 ‘‘(4) NONEXCLUSIVITY OF REMEDY.— 

12 ‘‘(A) IN GENERAL.—The remedies available 

13 under this section and section 3 are in addition 

14 to any other remedies available under Federal, 

15 State, local, tribal, or other law. 

16 ‘‘(B) STATE COURT PROCEEDINGS.—Noth17 ing in this Act shall be construed to expand, re18 strict, or otherwise modify any right of an au19 thorized State official to proceed in State court, 

20 or take other enforcement actions, on the basis of 

21 an alleged violation of State or other law. 

22 ‘‘(C) TRIBAL COURT PROCEEDINGS.—Noth23 ing in this Act shall be construed to expand, re24 strict, or otherwise modify any right of an au25 thorized Indian tribal government official to proVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00115 Fmt 6652 Sfmt 6203 E:\BILLS\S1147.RS S1147

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1 ceed in tribal court, or take other enforcement 

2 actions, on the basis of an alleged violation of 

3 tribal law. 

4 ‘‘(D) LOCAL GOVERNMENT ENFORCE5 MENT.—Nothing in this Act shall be construed to 

6 expand, restrict, or otherwise modify any right 

7 of an authorized local government official to pro8 ceed in State court, or take other enforcement ac9 tions, on the basis of an alleged violation of local 

10 or other law. 

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

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

13 Internal Revenue Code of 1986 (regarding permitting of 

14 manufacturers and importers of tobacco products and ex15 port warehouse proprietors) may bring an action in an ap16 propriate United States district court to prevent and re17 strain violations of this Act by any person other than a 

18 State, local, or tribal government. 

19 ‘‘(e) NOTICE.— 

20 ‘‘(1) PERSONS DEALING IN TOBACCO PROD21 UCTS.—Any person who commences a civil action 

22 under subsection (d) shall inform the Attorney Gen23 eral of the United States of the action. 

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

25 the sense of Congress that the attorney general of any 


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1 State, or chief law enforcement officer of any locality 

2 or tribe, that commences a civil action under this sec3 tion should inform the Attorney General of the United 

4 States of the action. 

5 ‘‘(f) PUBLIC NOTICE.— 

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

7 United States shall make available to the public, by 

8 posting information on the Internet and by other ap9 propriate means, information regarding all enforce10 ment actions brought by the United States, or re11 ported to the Attorney General of the United States, 

12 under this section, including information regarding 

13 the resolution of the enforcement actions and how the 

14 Attorney General of the United States has responded 

15 to referrals of evidence of violations pursuant to sub16 section (c)(2). 

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

18 year after the date of enactment of the Prevent All 

19 Cigarette Trafficking Act of 2009, and every year 

20 thereafter until the date that is 5 years after such 

21 date of enactment, the Attorney General of the United 

22 States shall submit to Congress a report containing 

23 the information described in paragraph (1).’’. 


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

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

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

5 the following: 

6 ‘‘§ 1716E. Tobacco products as nonmailable 

7 ‘‘(a) PROHIBITION.— 

8 ‘‘(1) IN GENERAL.—All cigarettes and smokeless 

9 tobacco (as those terms are defined in section 1 of the 

10 Act of October 19, 1949, commonly referred to as the 

11 Jenkins Act) are nonmailable and shall not be depos12 ited in or carried through the mails. The United 

13 States Postal Service shall not accept for delivery or 

14 transmit through the mails any package that it knows 

15 or has reasonable cause to believe contains any ciga16 rettes or smokeless tobacco made nonmailable by this 

17 paragraph. 

18 ‘‘(2) REASONABLE CAUSE.—For the purposes of 

19 this subsection reasonable cause includes— 

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

21 website, or an advertisement, by any person that 

22 the person will mail matter which is non23 mailable under this section in return for pay24 ment; or 

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

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


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1 ‘‘(b) EXCEPTIONS.— 

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

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

4 Revenue Code of 1986). 

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

6 shall not apply to mailings within the State of Alaska 

7 or within the State of Hawaii. 

8 ‘‘(3) BUSINESS PURPOSES.— 

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

10 apply to tobacco products mailed only— 

11 ‘‘(i) for business purposes between le12 gally operating businesses that have all ap13 plicable State and Federal Government li14 censes or permits and are engaged in to15 bacco product manufacturing, distribution, 

16 wholesale, export, import, testing, investiga17 tion, or research; or 

18 ‘‘(ii) for regulatory purposes between 

19 any business described in clause (i) and an 

20 agency of the Federal Government or a 

21 State government. 

22 ‘‘(B) RULES.— 

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

24 days after the date of enactment of the Pre25 vent All Cigarette Trafficking Act of 2009, 


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1 the Postmaster General shall issue a final 

2 rule which shall establish the standards and 

3 requirements that apply to all mailings de4 scribed in subparagraph (A). 

5 ‘‘(ii) CONTENTS.—The final rule issued 

6 under clause (i) shall require— 

7 ‘‘(I) the United States Postal 

8 Service to verify that any person sub9 mitting an otherwise nonmailable to10 bacco product into the mails as author11 ized under this paragraph is a business 

12 or government agency permitted to 

13 make a mailing under this paragraph; 

14 ‘‘(II) the United States Postal 

15 Service to ensure that any recipient of 

16 an otherwise nonmailable tobacco prod17 uct sent through the mails under this 

18 paragraph is a business or government 

19 agency that may lawfully receive the 

20 product; 

21 ‘‘(III) that any mailing described 

22 in subparagraph (A) shall be sent 

23 through the systems of the United 

24 States Postal Service that provide for 


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1 the tracking and confirmation of the 

2 delivery; 

3 ‘‘(IV) that the identity of the busi4 ness or government entity submitting 

5 the mailing containing otherwise non6 mailable tobacco products for delivery 

7 and the identity of the business or gov8 ernment entity receiving the mailing 

9 are clearly set forth on the package; 

10 ‘‘(V) the United States Postal 

11 Service to maintain identifying infor12 mation described in subclause (IV) 

13 during the 3-year period beginning on 

14 the date of the mailing and make the 

15 information available to the Postal 

16 Service, the Attorney General of the 

17 United States, and to persons eligible 

18 to bring enforcement actions under sec19 tion 3(d) of the Prevent All Cigarette 

20 Trafficking Act of 2009; 

21 ‘‘(VI) that any mailing described 

22 in subparagraph (A) be marked with a 

23 United States Postal Service label or 

24 marking that makes it clear to employ25 ees of the United States Postal Service 


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1 that it is a permitted mailing of other2 wise nonmailable tobacco products that 

3 may be delivered only to a permitted 

4 government agency or business and 

5 may not be delivered to any residence 

6 or individual person; and 

7 ‘‘(VII) that any mailing described 

8 in subparagraph (A) be delivered only 

9 to a verified employee of the recipient 

10 business or government agency, who is 

11 not a minor and who shall be required 

12 to sign for the mailing. 

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

14 term ‘minor’ means an individual who is less 

15 than the minimum age required for the legal sale 

16 or purchase of tobacco products as determined by 

17 applicable law at the place the individual is lo18 cated. 

19 ‘‘(4) CERTAIN INDIVIDUALS.— 

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

21 apply to tobacco products mailed by individuals 

22 who are not minors for noncommercial purposes, 

23 including the return of a damaged or unaccept24 able tobacco product to the manufacturer. 

25 ‘‘(B) RULES.— 


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

2 days after the date of enactment of the Pre3 vent All Cigarette Trafficking Act of 2009, 

4 the Postmaster General shall issue a final 

5 rule which shall establish the standards and 

6 requirements that apply to all mailings de7 scribed in subparagraph (A). 

8 ‘‘(ii) CONTENTS.—The final rule issued 

9 under clause (i) shall require— 

10 ‘‘(I) the United States Postal 

11 Service to verify that any person sub12 mitting an otherwise nonmailable to13 bacco product into the mails as author14 ized under this paragraph is the indi15 vidual identified on the return address 

16 label of the package and is not a 

17 minor; 

18 ‘‘(II) for a mailing to an indi19 vidual, the United States Postal Serv20 ice to require the person submitting the 

21 otherwise nonmailable tobacco product 

22 into the mails as authorized by this 

23 paragraph to affirm that the recipient 

24 is not a minor; 


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1 ‘‘(III) that any package mailed 

2 under this paragraph shall weigh not 

3 more than 10 ounces; 

4 ‘‘(IV) that any mailing described 

5 in subparagraph (A) shall be sent 

6 through the systems of the United 

7 States Postal Service that provide for 

8 the tracking and confirmation of the 

9 delivery; 

10 ‘‘(V) that a mailing described in 

11 subparagraph (A) shall not be deliv12 ered or placed in the possession of any 

13 individual who has not been verified as 

14 not being a minor; 

15 ‘‘(VI) for a mailing described in 

16 subparagraph (A) to an individual, 

17 that the United States Postal Service 

18 shall deliver the package only to a re19 cipient who is verified not to be a 

20 minor at the recipient address or 

21 transfer it for delivery to an Air/Army 

22 Postal Office or Fleet Postal Office 

23 number designated in the recipient ad24 dress; and 


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1 ‘‘(VII) that no person may ini2 tiate more than 10 mailings described 

3 in subparagraph (A) during any 30- 

4 day period. 

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

6 term ‘minor’ means an individual who is less 

7 than the minimum age required for the legal sale 

8 or purchase of tobacco products as determined by 

9 applicable law at the place the individual is lo10 cated. 

11 ‘‘(5) EXCEPTION FOR MAILINGS FOR CONSUMER

12 TESTING BY MANUFACTURERS.— 

13 ‘‘(A) IN GENERAL.—Subject to subpara14 graph (B), subsection (a) shall not preclude a le15 gally operating cigarette manufacturer or a le16 gally authorized agent of a legally operating cig17 arette manufacturer from using the United 

18 States Postal Service to mail cigarettes to 

19 verified adult smoker solely for consumer testing 

20 purposes, if— 

21 ‘‘(i) the cigarette manufacturer has a 

22 permit, in good standing, issued under sec23 tion 5713 of the Internal Revenue Code of 

24 1986; 


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1 ‘‘(ii) the package of cigarettes mailed 

2 under this paragraph contains not more 

3 than 12 packs of cigarettes (240 cigarettes); 

4 ‘‘(iii) the recipient does not receive 

5 more than 1 package of cigarettes from any 

6 1 cigarette manufacturer under this para7 graph during any 30-day period; 

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

9 under this paragraph levied by the State 

10 and locality of delivery are paid to the 

11 State and locality before delivery, and tax 

12 stamps or other tax-payment indicia are af13 fixed to the cigarettes as required by law; 

14 and 

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

16 payments of any kind in exchange for re17 ceiving the cigarettes; 

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

19 manufacturer or agent of the manufacturer 

20 for participation in consumer product tests; 

21 and 

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

23 the tests, evaluates the cigarettes and pro24 vides feedback to the manufacturer or agent. 


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

2 shall not— 

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

4 an individual located in any State that 

5 prohibits the delivery or shipment of ciga6 rettes to individuals in the State, or pre7 empt, limit, or otherwise affect any related 

8 State laws; or 

9 ‘‘(ii) permit a manufacturer, directly 

10 or through a legally authorized agent, to 

11 mail cigarettes in any calendar year in a 

12 total amount greater than 1 percent of the 

13 total cigarette sales of the manufacturer in 

14 the United States during the calendar year 

15 before the date of the mailing. 

16 ‘‘(C) RULES.— 

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

18 days after the date of enactment of the Pre19 vent All Cigarette Trafficking Act of 2009, 

20 the Postmaster General shall issue a final 

21 rule which shall establish the standards and 

22 requirements that apply to all mailings de23 scribed in subparagraph (A). 

24 ‘‘(ii) CONTENTS.—The final rule issued 

25 under clause (i) shall require— 


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1 ‘‘(I) the United States Postal 

2 Service to verify that any person sub3 mitting a tobacco product into the 

4 mails under this paragraph is a le5 gally operating cigarette manufacturer 

6 permitted to make a mailing under 

7 this paragraph, or an agent legally au8 thorized by the legally operating ciga9 rette manufacturer to submit the to10 bacco product into the mails on behalf 

11 of the manufacturer; 

12 ‘‘(II) the legally operating ciga13 rette manufacturer submitting the 

14 cigarettes into the mails under this 

15 paragraph to affirm that— 

16 ‘‘(aa) the manufacturer or 

17 the legally authorized agent of the 

18 manufacturer has verified that the 

19 recipient is an adult established 

20 smoker; 

21 ‘‘(bb) the recipient has not 

22 made any payment for the ciga23 rettes; 

24 ‘‘(cc) the recipient has signed 

25 a written statement that is in efVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00128 Fmt 6652 Sfmt 6203 E:\BILLS\S1147.RS S1147

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1 fect indicating that the recipient 

2 wishes to receive the mailings; 

3 and 

4 ‘‘(dd) the manufacturer or 

5 the legally authorized agent of the 

6 manufacturer has offered the op7 portunity for the recipient to 

8 withdraw the written statement 

9 described in item (cc) not less fre10 quently than once in every 3- 

11 month period; 

12 ‘‘(III) the legally operating ciga13 rette manufacturer or the legally au14 thorized agent of the manufacturer sub15 mitting the cigarettes into the mails 

16 under this paragraph to affirm that 

17 any package mailed under this para18 graph contains not more than 12 packs 

19 of cigarettes (240 cigarettes) on which 

20 all taxes levied on the cigarettes by the 

21 State and locality of delivery have been 

22 paid and all related State tax stamps 

23 or other tax-payment indicia have been 

24 applied; 


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1 ‘‘(IV) 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 ‘‘(V) the United States Postal 

8 Service to maintain records relating to 

9 a mailing described in subparagraph 

10 (A) during the 3-year period beginning 

11 on the date of the mailing and make 

12 the information available to persons 

13 enforcing this section; 

14 ‘‘(VI) that any mailing described 

15 in subparagraph (A) be marked with a 

16 United States Postal Service label or 

17 marking that makes it clear to employ18 ees of the United States Postal Service 

19 that it is a permitted mailing of other20 wise nonmailable tobacco products that 

21 may be delivered only to the named re22 cipient after verifying that the recipi23 ent is an adult; and 

24 ‘‘(VII) the United States Postal 

25 Service shall deliver a mailing deVerDate Nov 24 2008 00:07 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00130 Fmt 6652 Sfmt 6203 E:\BILLS\S1147.RS S1147

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1 scribed in subparagraph (A) only to 

2 the named recipient and only after 

3 verifying that the recipient is an adult. 

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

5 ‘‘(i) the term ‘adult’ means an indi6 vidual who is not less than 21 years of age; 

7 and 

8 ‘‘(ii) the term ‘consumer testing’ means 

9 testing limited to formal data collection and 

10 analysis for the specific purpose of evalu11 ating the product for quality assurance and 

12 benchmarking purposes of cigarette brands 

13 or sub-brands among existing adult smok14 ers. 

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

16 agency of the Federal Government involved in the 

17 consumer testing of tobacco products solely for public 

18 health purposes may mail cigarettes under the same 

19 requirements, restrictions, and rules and procedures 

20 that apply to consumer testing mailings of cigarettes 

21 by manufacturers under paragraph (5), except that 

22 the agency shall not be required to pay the recipients 

23 for participating in the consumer testing. 

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

25 smokeless tobacco made nonmailable by this subsection that 


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1 are deposited in the mails shall be subject to seizure and 

2 forfeiture, pursuant to the procedures set forth in chapter 

3 46 of this title. Any tobacco products seized and forfeited 

4 under this subsection shall be destroyed or retained by the 

5 Federal Government for the detection or prosecution of 

6 crimes or related investigations and then destroyed. 

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

8 other fines and penalties under this title for violations of 

9 this section, any person violating this section shall be sub10 ject to an additional civil penalty in the amount equal to 

11 10 times the retail value of the nonmailable cigarettes or 

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

13 taxes. 

14 ‘‘(e) CRIMINAL PENALTY.—Whoever knowingly depos15 its for mailing or delivery, or knowingly causes to be deliv16 ered by mail, according to the direction thereon, or at any 

17 place at which it is directed to be delivered by the person 

18 to whom it is addressed, anything that is nonmailable mat19 ter under this section shall be fined under this title, impris20 oned not more than 1 year, or both. 

21 ‘‘(f) USE OF PENALTIES.—There is established a sepa22 rate account in the Treasury, to be known as the ‘PACT 

23 Postal Service Fund’. Notwithstanding any other provision 

24 of law, an amount equal to 50 percent of any criminal 

25 fines, civil penalties, or other monetary penalties collected 


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1 by the Federal Government in enforcing this section shall 

2 be transferred into the PACT Postal Service Fund and shall 

3 be available to the Postmaster General for the purpose of 

4 enforcing this subsection. 

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

6 General shall cooperate and coordinate efforts to enforce this 

7 section with related enforcement activities of any other Fed8 eral agency or agency of any State, local, or tribal govern9 ment, whenever appropriate. 

10 ‘‘(h) ACTIONS BY STATE, LOCAL, OR TRIBAL GOVERN11 MENTS RELATING TO CERTAIN TOBACCO PRODUCTS.— 

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

13 general, or a local government or Indian tribe that 

14 levies an excise tax on tobacco products, through its 

15 chief law enforcement officer, may in a civil action in 

16 a United States district court obtain appropriate re17 lief with respect to a violation of this section. Appro18 priate relief includes injunctive and equitable relief 

19 and damages equal to the amount of unpaid taxes on 

20 tobacco products mailed in violation of this section to 

21 addressees in that State, locality, or tribal land. 

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

23 subsection shall be deemed to abrogate or constitute a 

24 waiver of any sovereign immunity of a State or local 

25 government or Indian tribe against any unconsented 


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1 lawsuit under paragraph (1), or otherwise to restrict, 

2 expand, or modify any sovereign immunity of a State 

3 or local government or Indian tribe. 

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

5 through its attorney general, or a local government or 

6 Indian tribe that levies an excise tax on tobacco prod7 ucts, through its chief law enforcement officer, may 

8 provide evidence of a violation of this section for com9 mercial purposes by any person not subject to State, 

10 local, or tribal government enforcement actions for 

11 violations of this section to the Attorney General of 

12 the United States, who shall take appropriate actions 

13 to enforce this section. 

14 ‘‘(4) NONEXCLUSIVITY OF REMEDIES.—The rem15 edies available under this subsection are in addition 

16 to any other remedies available under Federal, State, 

17 local, tribal, or other law. Nothing in this subsection 

18 shall be construed to expand, restrict, or otherwise 

19 modify any right of an authorized State, local, or 

20 tribal government official to proceed in a State, trib21 al, or other appropriate court, or take other enforce22 ment actions, on the basis of an alleged violation of 

23 State, local, tribal, or other law. 

24 ‘‘(5) OTHER ENFORCEMENT ACTIONS.—Nothing 

25 in this subsection shall be construed to prohibit an 


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1 authorized State official from proceeding in State 

2 court on the basis of an alleged violation of any gen3 eral civil or criminal statute of the State. 

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

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

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

7 chapter 83 of title 18 is amended by inserting after the item 

8 relating to section 1716D the following: 

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

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

10 FIREARMS, AND EXPLOSIVES OF RECORDS OF 

11 CERTAIN CIGARETTE AND SMOKELESS TO12 BACCO SELLERS; CIVIL PENALTY. 

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

14 amended to read as follows: 

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

16 Firearms, and Explosives may, during normal business 

17 hours, enter the premises of any person described in sub18 section (a) or (b) for the purposes of inspecting— 

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

20 maintained by the person under this chapter; or 

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

22 stored by the person at the premises. 

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

24 the authority in a civil action under this subsection to com25 pel inspections authorized by paragraph (1). 


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1 ‘‘(3) Whoever denies access to an officer under para2 graph (1), or who fails to comply with an order issued 

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

4 an amount not to exceed $10,000.’’. 

5 SEC. 5. EXCLUSIONS REGARDING INDIAN TRIBES AND TRIB6 AL MATTERS. 

7 (a) IN GENERAL.—Nothing in this Act or the amend8 ments made by this Act shall be construed to amend, mod9 ify, or otherwise affect— 

10 (1) any agreements, compacts, or other intergov11 ernmental arrangements between any State or local 

12 government and any government of an Indian tribe 

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

14 Self-Determination and Education Assistance Act (25 

15 U.S.C. 450b(e)) relating to the collection of taxes on 

16 cigarettes or smokeless tobacco sold in Indian country; 

17 (2) any State laws that authorize or otherwise 

18 pertain to any such intergovernmental arrangements 

19 or create special rules or procedures for the collection 

20 of State, local, or tribal taxes on cigarettes or smoke21 less tobacco sold in Indian country; 

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

23 including Federal common law and treaties, on State, 

24 local, and tribal tax and regulatory authority with 

25 respect to the sale, use, or distribution of cigarettes 


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1 and smokeless tobacco by or to Indian tribes, tribal 

2 members, tribal enterprises, or in Indian country; 

3 (4) any Federal law, including Federal common 

4 law and treaties, regarding State jurisdiction, or lack 

5 thereof, over any tribe, tribal members, tribal enter6 prises, tribal reservations, or other lands held by the 

7 United States in trust for one or more Indian tribes; 

8 or 

9 (5) any State or local government authority to 

10 bring enforcement actions against persons located in 

11 Indian country. 

12 (b) COORDINATION OF LAW ENFORCEMENT.—Nothing 

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

14 construed to inhibit or otherwise affect any coordinated law 

15 enforcement effort by 1 or more States or other jurisdictions, 

16 including Indian tribes, through interstate compact or oth17 erwise, that— 

18 (1) provides for the administration of tobacco 

19 product laws or laws pertaining to interstate sales or 

20 other sales of tobacco products; 

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

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

23 (3) establishes cooperative programs for the ad24 ministration of such laws. 


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1 (c) TREATMENT OF STATE AND LOCAL GOVERN2 MENTS.—Nothing in this Act or the amendments made by 

3 this Act shall be construed to authorize, deputize, or com4 mission States or local governments as instrumentalities of 

5 the United States. 

6 (d) ENFORCEMENT WITHIN INDIAN COUNTRY.—Noth7 ing in this Act or the amendments made by this Act shall 

8 prohibit, limit, or restrict enforcement by the Attorney Gen9 eral of the United States of this Act or an amendment made 

10 by this Act within Indian country. 

11 (e) AMBIGUITY.—Any ambiguity between the language 

12 of this section or its application and any other provision 

13 of this Act shall be resolved in favor of this section. 

14 (f) DEFINITIONS.—In this section— 

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

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

17 amended by this Act; and 

18 (2) the term ‘‘tribal enterprise’’ means any busi19 ness enterprise, regardless of whether incorporated or 

20 unincorporated under Federal or tribal law, of an In21 dian tribe or group of Indian tribes. 

22 SEC. 6. EFFECTIVE DATE. 

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

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

25 after the date of enactment of this Act. 


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

2 section 4 shall take effect on the date of enactment of this 

3 Act. 

4 SEC. 7. SEVERABILITY. 

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

6 by this Act, or the application thereof to any person or cir7 cumstance, 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. 8. SENSE OF CONGRESS CONCERNING THE PRECE11 DENTIAL EFFECT OF THIS ACT. 

12 It is the sense of Congress that unique harms are asso13 ciated with online cigarette sales, including problems with 

14 verifying the ages of consumers in the digital market and 

15 the long-term health problems associated with the use of cer16 tain tobacco products. This Act was enacted recognizing the 

17 longstanding interest of Congress in urging compliance 

18 with States’ laws regulating remote sales of certain tobacco 

19 products to citizens of those States, including the passage 

20 of the Jenkins Act over 50 years ago, which established re21 porting requirements for out-of-State companies that sell 

22 certain tobacco products to citizens of the taxing States, and 

23 which gave authority to the Department of Justice and the 

24 Bureau of Alcohol, Tobacco, Firearms, and Explosives to 

25 enforce the Jenkins Act. In light of the unique harms and 


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1 circumstances surrounding the online sale of certain tobacco 

2 products, this Act is intended to help collect cigarette excise 

3 taxes, to stop tobacco sales to underage youth, and to help 

4 the States enforce their laws that target the online sales of 

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

6 to create a precedent regarding the collection of State sales 

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

8 types of taxes on, out-of-State entities that do not have a 

9 physical presence within the taxing State. 


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Calendar No. 216 

111TH CONGRESS 

1ST SESSION S. 1147 

A BILL 

To prevent tobacco smuggling, to ensure the collection of all tobacco taxes, and for other purposes. 

NOVEMBER 19, 2009 

Reported with an amendment 


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