I 
108TH CONGRESS 
2D SESSION 
H. R. 3749
To revise and reform the Act commonly called the Jenkins Act, and for 
other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JANUARY 28, 2004
Mr. WEINER introduced the following bill; which was referred to the 
Committee on the Judiciary 
A BILL 
To revise and reform the Act commonly called the Jenkins 
Act, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Local Government 
Internet Tobacco Sales Enforcement Act of 2004’’. 
SEC. 2. REVISION OF ACT OF OCTOBER 19, 1949. 
The Act of October 19, 1949, entitled ‘‘An Act to 
assist States in collecting sales and use taxes on ciga-
rettes’’ (15 U.S.C. 375 et seq.) is amended by striking
‘‘That for the purposes of this Act’’ and all that follows 
through the end of the Act and inserting the following: 
‘‘SECTION 1. SHORT TITLE. 
‘‘This Act may be cited as the ‘Jenkins Act’. 
‘‘SEC. 2. INTERSTATE SALES OF CIGARETTES AND SMOKE-
LESS TOBACCO. 
‘‘(a) COMPLIANCE WITH LAWS.—
‘‘(1) Each person who engages in an interstate 
sale of cigarettes or smokeless tobacco or in an 
interstate distribution of cigarettes or smokeless to-
bacco shall comply with all the excise, sales, and use 
tax laws applicable to the sale or other transfer of 
cigarettes or smokeless tobacco in the State and 
place in which the cigarettes or smokeless tobacco 
are delivered as though the person were physically 
located in that State or place. 
‘‘(2) Unless State law requires otherwise, no 
cigarettes or smokeless tobacco may be delivered 
pursuant to an interstate sale unless in advance of 
delivery—
‘‘(A) any cigarette or smokeless tobacco ex-
cise tax that is imposed by the State in which 
the cigarettes or smokeless tobacco are to be 
delivered has been paid to the State;
‘‘(B) any cigarette or smokeless tobacco 
excise tax imposed by the local government of 
the place in which the cigarettes or smokeless 
tobacco are to be delivered has been paid to the 
local or tribal government; and 
‘‘(C) any required stamps or other indicia 
that the excise tax has been paid are properly 
affixed or applied to the cigarettes or smokeless 
tobacco. 
‘‘(3) The provisions of paragraph (2) do not 
apply to an interstate sale or distribution of smoke-
less tobacco when the law of the State or place 
where the smokeless tobacco is to be delivered re-
quires or otherwise provides that interstate sellers of 
smokeless tobacco collect the excise tax from the 
consumer and remit the excise tax to the State or 
place, and the interstate seller complies with such 
requirement. 
‘‘(4)(A) Each State may compile a list of inter-
state sellers of cigarettes or smokeless tobacco who 
are in compliance with this Act with respect to that 
State. If a State posts a list pursuant to this sub-
section that specifically refers to this subsection, no 
person may knowingly make an interstate distribu-
tion of cigarettes or smokeless tobacco into that
State other than to a person licensed or otherwise 
authorized by the State to engage in the business of 
manufacturing, distributing or selling cigarettes or 
smokeless tobacco unless the person initiating or or-
dering the delivery is on the list at the time of deliv-
ery. 
‘‘(B) Each State may also compile a list of 
interstate sellers of cigarettes or smokeless tobacco 
who are not in compliance with this Act with respect 
to that State. A State may provide such a list to a 
common carrier, the United States Postal Service, or 
to any other person, and make public the availability 
of the list to any person engaged in the delivery 
business in or into the State or who delivers ciga-
rettes or smokeless tobacco in or into the State. 
Such list shall be confidential, and any person re-
ceiving such a list from a State shall maintain the 
confidentiality of the list. If a State, pursuant to 
this subsection, provides such a list to any person 
and makes public its availability to persons who de-
liver cigarettes or smokeless tobacco in or into the 
State, no person who receives the list and no person 
who delivers cigarettes or smokeless tobacco in or 
into the State may knowingly make an interstate
distribution of any item in or into that State for a 
person on the list unless—
‘‘(i) the person in good faith determines 
that the item does not include cigarettes or 
smokeless tobacco; or 
‘‘(ii) the delivery is made to a person li-
censed or otherwise authorized by the State to 
engage in the business of manufacturing, dis-
tributing or selling cigarettes or smokeless to-
bacco. 
‘‘(b) RECORDKEEPING AND REPORTING.—Each per-
son who engages in an interstate sale of cigarettes or 
smokeless tobacco, or who advertises, or offers to engage 
in, such a sale, shall—
‘‘(1) first file with the tobacco tax adminis-
trator of the State and place in which the cigarettes 
or smokeless tobacco are to be offered, advertised, or 
delivered, a statement setting forth the person’s 
name and trade name (if any), and the address of 
that person’s principal place of business and any 
other place of business, as well as telephone numbers 
for each place of business, a principal electronic mail 
address, any website addresses, and the name, ad-
dress and telephone number of an agent authorized
to accept service in the State on behalf of that per-
son; 
‘‘(2) not later than the 10th day of each cal-
endar month, file with that tobacco tax adminis-
trator a memorandum or copy of the invoice cov-
ering each and every interstate sale of cigarettes or 
smokeless tobacco by the filer into that State or 
place, and each interstate distribution of cigarettes 
or smokeless tobacco pursuant to that sale, during 
the previous calendar month, and such memorandum 
or invoice shall include the name and address of the 
person to whom the cigarettes or smokeless tobacco 
are delivered, the brand, and the type, the quantity 
delivered, and the name, address, and phone number 
of the person delivering; and 
‘‘(3) maintain records, including the informa-
tion specified in paragraph (2), for not less than 5 
years after the date of an interstate sale of ciga-
rettes or smokeless tobacco and of each interstate 
distribution of cigarettes or smokeless tobacco pur-
suant to that sale, and make those records available 
for inspection upon the lawful demand of the Attor-
ney General of the United States, an attorney gen-
eral of a State, the Commissioner of Internal Rev-
enue, or the chief tax collection official of a State or
place that levies an excise tax on cigarettes or 
smokeless tobacco. 
‘‘(c) Personally identifiable information—
‘‘(1) relating to an individual to whom 
cirgarettes or smokeless tobacco are delivered; and 
‘‘(2) filed, or maintained in records, under 
paragraph (2) or (3) of subsection (b); 
shall not be made available to the public and shall be used 
solely for the purposes of tax collection or law enforce-
ment. 
‘‘(d) DEEMING RULE.—For the purposes of this sec-
tion—
‘‘(1) an interstate sale or delivery of cigarettes 
or smokeless tobacco shall be deemed to have oc-
curred in the State and place where the buyer ob-
tains personal possession of the cigarettes or smoke-
less tobacco; and 
‘‘(2) a delivery pursuant to an interstate sale is 
deemed to have been initiated or ordered by the sell-
er. 
‘‘SEC. 3. CIVIL ACTION. 
‘‘(a) IN GENERAL.—In addition to any other rem-
edies available under other Federal or State or local law, 
the attorney general of a State or the chief law enforce-
ment officer of a local government that imposes an excise
tax on cigarettes or smokeless tobacco may in a civil action 
obtain any appropriate relief, including money damages, 
civil penalties, and injunctive or other equitable relief 
where appropriate, against—
‘‘(1) any person who violates, or is about to en-
gage in a violation of, section 2; or 
‘‘(2) any person who knowingly assists or par-
ticipates, or knowingly is about to engage, in such 
a violation. 
‘‘(b) NOTICE.—No attorney general of a State or 
chief law enforcement officer of a local government may 
commence an action pursuant to subsection (a) prior to 
60 days after the State attorney general has given notice 
of his intent to commence the action to the Attorney Gen-
eral of the United States. If the Attorney General of the 
United States has commenced and is diligently pros-
ecuting a civil action against the persons named in the 
notice for the violation described in the notice, then the 
State attorney general may not commence an action 
against that defendant for that violation but may join the 
United States Attorney General’s action solely for the pur-
pose of establishing and collecting State damages. 
‘‘(c) LIMITATIONS
ON CIVIL ACTIONS
BY LOCAL 
GOVERNMENTS.—The chief law enforcement officer of a 
local government may not bring any unconsented suit pur-
suant to this Act against any Federal, State, local, or trib-
al governmental entity. 
‘‘(d) REFERRALS OF LOCAL VIOLATIONS FOR EN-
FORCEMENT.—The chief law enforcement officer of a local 
government may provide evidence of a violation of its ex-
cise tax on cigarettes or smokeless tobacco under section 
2(a) of this Act to the Attorney General of the United 
States, the United States Attorney with jurisdiction over 
the locality, or the attorney general of the State in which 
the local government is located. Upon referral, the Attor-
ney General of the United States or the United States At-
torney shall take appropriate actions to enforce this Act. 
‘‘(e) AVAILABILITY OF INFORMATION.—The Attorney 
General of the United States shall make information about 
Federal, State, and other efforts to enforce this Act pub-
licly available, through posting the information on the 
Internet and through other means. 
‘‘SEC. 4. CIVIL PENALTY. 
‘‘Whoever violates section 2 is subject to a civil pen-
alty not to exceed $5,000 in the case of a first violation, 
and, in any other case, not to exceed $10,000 or, if it is 
higher, 5 percent of the gross revenue from interstate 
sales or distributions of cigarettes or smokeless tobacco 
by such person during the 1-year period ending on the 
date of the violation.
‘‘SEC. 5. CRIMINAL PENALTIES. 
‘‘(a) SECTION 2(a) VIOLATIONS.—Whoever violates 
section 2(a) shall be fined under title 18, United States 
Code, or imprisoned not more than 3 years, or both. 
‘‘(b) SECTION 2(b) VIOLATIONS.—Whoever violates 
section 2(b) shall be guilty, fined under title 18, United 
States Code, or imprisoned not more than 6 months, or 
both. 
‘‘SEC. 6. NONPREEMPTION. 
‘‘This Act does not limit the remedies provided by 
State, tribal, Federal, or other law with respect to alleged 
violations of State, tribal, Federal, or other law relating 
to a sale or distribution of cigarettes or smokeless tobacco 
in connection with an interstate sale or distribution of 
cigarettes or smokeless tobacco. Nothing in this Act shall 
be construed to prohibit an authorized State or local gov-
ernment official from proceeding in State court or taking 
other enforcement actions on the basis of alleged violations 
of State or other law, or an authorized tribal government 
official from proceeding in tribal court or taking other en-
forcement action, on the basis of alleged violations of trib-
al or other law. 
‘‘SEC. 7. EXCLUSIONS REGARDING INDIAN TRIBES AND 
TRIBAL MATTERS. 
‘‘(a) INDIAN COUNTRY.—The provisions of this Act 
relating to State tax collection do not apply to a sale of
cigarettes or smokeless tobacco that occurs exclusively in 
Indian country (as defined in section 1151 of title 18, 
United States Code) owned or occupied by an Indian tribe 
to a consumer located in that Indian Country who is an 
individual member of the same Indian tribe. 
‘‘(b) 
INTERGOVERNMENTAL
ARRANGEMENTS.—
Nothing in this Act is intended nor shall be construed to 
affect, amend, or modify—
‘‘(1) any agreement, compact, or other intergov-
ernmental arrangement between any State or local 
government and any Indian tribe relating to the col-
lection of taxes on cigarettes or smokeless tobacco 
sold on tribal lands; or 
‘‘(2) any State law that pertains to any such 
intergovernmental arrangement or creates special 
rules or procedures for the collection of State, local, 
or tribal taxes on cigarettes or smokeless tobacco 
sold on tribal lands. 
‘‘(c) 
COORDINATED
LAW
ENFORCEMENT
EF-
FORTS.—Nothing in this Act shall be construed to inhibit 
or otherwise affect any coordinated law enforcement effort 
by one or more States or other jurisdictions, including In-
dian tribes, through interstate compact or otherwise, 
that—
‘‘(1) provides for the administration of tobacco 
product laws or laws pertaining to interstate sales or 
other sales of tobacco products; 
‘‘(2) provides for the seizure of tobacco prod-
ucts or other property related to a violation of such 
laws; or 
‘‘(3) establishes cooperative programs for the 
administration of such laws. 
‘‘SEC. 8. DEFINITIONS. 
‘‘As used in this Act—
‘‘(1) the term ‘attorney general’, with respect to 
a State, means the chief law enforcement officer of 
that State, or the designee of that officer; 
‘‘(2) the term ‘cigarette’ means—
‘‘(A) any roll of tobacco wrapped in paper 
or in any substance not containing tobacco 
which is to be heated or burned; 
‘‘(B) any roll of tobacco wrapped in any 
substance containing tobacco that, because of 
its appearance, the type of tobacco used in the 
filler, or its packaging or labeling is likely to be 
offered to, or purchased by consumers as a cig-
arette described in subparagraph (A); 
‘‘(C) any roll of tobacco wrapped in any 
substance that because of its appearance, the
type of tobacco used in the filler, or its pack-
aging or labeling is likely to be offered to, or 
purchased by consumers as a cigarette; or 
‘‘(D) loose rolling tobacco that, because of 
its appearance, type, packaging, or labeling, is 
likely to be offered to, or purchased by, con-
sumers as tobacco for making cigarettes; 
‘‘(3) the term ‘smokeless tobacco’ means any 
product intended or marketed for human consump-
tion containing finely cut, ground, powdered, leaf, or 
other tobacco that is intended to be placed in the 
oral or nasal cavity or otherwise consumed without 
being combusted; 
‘‘(4) the term ‘interstate sale of cigarettes or 
smokeless tobacco’ means any sale of cigarettes or 
smokeless tobacco in interstate or foreign commerce 
to a person, other than a person licensed or other-
wise authorized as a distributor, wholesaler, or re-
tailer in the State where the cigarettes or smokeless 
tobacco is delivered, in which—
‘‘(A) the buyer submits the order for such 
sale by means of a telephone or other method 
of voice transmission, the mails, or the Internet 
or other online service, or the seller is not in
the physical presence of the buyer when the re-
quest for purchase or order is made; or 
‘‘(B) the cigarettes or smokeless tobacco 
are delivered by use of a common carrier, pri-
vate delivery service, or the mails, or the seller 
is not in the physical presence of the buyer 
when the buyer obtains physical possession of 
the delivered cigarettes or smokeless tobacco; 
‘‘(5) the term ‘interstate or foreign commerce’ 
means commerce between a State and any place out-
side that State, commerce between a State and any 
Indian lands in that State, or commerce between 
points in the same State but through any place out-
side that State; 
‘‘(6) the term ‘interstate distribution of ciga-
rettes or smokeless tobacco’ means a delivery or 
other distribution of cigarettes or smokeless tobacco 
pursuant to an interstate sale of cigarettes or 
smokeless tobacco; 
‘‘(7) the term ‘State’ means a State of the 
United States, the District of Columbia, the Com-
monwealth of Puerto Rico, or any territory or pos-
session of the United States; 
‘‘(8) the term ‘person’ means an individual, a 
corporation, company, association, firm, partnership,