2023 Illinois Compiled Statutes › Chapter 30 - FINANCE › 30 ILCS 167/ - Tobacco Products Manufacturers' Escrow Enforcement Act of 2003.

(30 ILCS 167/1)
Sec. 1. 
		Short title. 
		This Act may be cited as the Tobacco Products
Manufacturers' Escrow Enforcement Act of 2003.
(Source: P.A. 93-446, eff. 1-1-04.)
(30 ILCS 167/5)
Sec. 5. 
		Findings; purpose. 
		The General Assembly finds that violations of
the Tobacco
Product Manufacturers' Escrow Act threaten the integrity of the tobacco Master
Settlement
Agreement, the fiscal soundness of the State, and the public health. The
General Assembly finds
that enacting procedural enhancements will help prevent violations and aid the
enforcement of the
Tobacco Product Manufacturers' Escrow Act and thereby safeguard the Master
Settlement
Agreement, the fiscal soundness of the State, and the public health. The
provisions of this Act are
not intended to and shall not be interpreted to amend the Tobacco Product
Manufacturers' Escrow
Act.
(Source: P.A. 93-446, eff. 1-1-04.)
(30 ILCS 167/10)
Sec. 10. 
		Definitions. 
		As used in this Act:
"Brand family" means all styles of cigarettes sold under the same trade mark
and
differentiated from one another by means of additional modifiers or
descriptors, including, but not
limited to, menthol, lights, kings, and 100s and includes any brand name (alone
or in conjunction
with any other word) trademark, logo, symbol, motto, selling message,
recognizable pattern of
colors, or any other indicia of product identification identical or similar to,
or identifiable with, a
previously known brand of cigarettes.
"Cigarette" has the same meaning in Section 10 of the
Escrow Act.
"Director" means the Director of Revenue.
"Distributor" has the same meaning prescribed in Section 1 of the Cigarette
Tax Act,
Section 1 of the Cigarette Use Tax Act, and, in addition, means a distributor
of roll-your-own
tobacco in accordance with Section 10-5 of the Tobacco Products Tax Act of
1995, as appropriate.
"Escrow Act" means the Tobacco Product Manufacturers' Escrow Act.
"Non-participating manufacturer" means any Tobacco Product Manufacturer that
is not a participating manufacturer.
"Participating manufacturer" has the meaning given that term in Section
II(jj) of the Master Settlement Agreement and all amendments thereto.
"Qualified escrow fund" has the same meaning as that term is defined in
Section 10 of the Escrow Act.
"Tobacco product manufacturer" has the same meaning as that term is defined
in Section 10 of the Escrow Act.
"Units sold" has the same meaning as that term is defined in Section 10 of
the Escrow Act.
(Source: P.A. 93-446, eff. 1-1-04.)
(30 ILCS 167/15)
Sec. 15. Certifications; directory; tax stamps.
(a) Every tobacco product manufacturer whose cigarettes are sold in this
State whether
directly or through a distributor, retailer, or similar intermediary or
intermediaries shall execute and
deliver on a form prescribed by the Attorney General a certification to the
Attorney General, no
later than the thirtieth day of April each year, certifying under penalty of
perjury that, as of the date
of the certification, the tobacco product manufacturer either: (i) is a
participating manufacturer and has generally performed its financial
obligations under the Master Settlement Agreement; or
(ii) is in full compliance with the Escrow Act, including all quarterly
installment
payments.
(1) A participating manufacturer shall include in its     certification a list of its brand families. The participating manufacturer shall update the list 30 days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General.
(2) A non-participating manufacturer shall include in     its certification a complete list of all of its brand families: (i) separately listing brand families of cigarettes and the number of units sold for each brand family that were sold in the State during the preceding calendar year; (ii) listing all of its brand families that have been sold in the State at any time during the current calendar year; (iii) indicating by an asterisk, any brand family sold in the State during the preceding calendar year that is no longer being sold in the State as of the date of the certification; and (iv) identifying by name and address any other manufacturer of the brand families in the preceding calendar year. The non-participating manufacturer shall update the list 30 days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General.
(3) In the case of a non-participating manufacturer,     the certification shall further certify:
(A) that the non-participating manufacturer is         registered to do business in this State or has appointed a resident agent for service of process and provided notice thereof as required by Section 20;
(B) that the non-participating manufacturer has         (i) established and continues to maintain a qualified escrow fund as that term is defined in Section 10 of the Escrow Act, and (ii) executed a qualified escrow agreement that has been reviewed and approved by the Attorney General and that governs the qualified escrow fund;
(C) that the non-participating manufacturer is in         full compliance with the Escrow Act and this Act, and any regulations promulgated pursuant thereto;
(D) the name, address and telephone number of the         financial institution where the non-participating manufacturer has established the qualified escrow fund required pursuant to Section 15 of the Escrow Act and all regulations promulgated thereto;
(E) the account number of the qualified escrow         fund and sub-account number for this State;
(F) the amount the non-participating manufacturer         placed in the fund for cigarettes sold in the State during the preceding calendar year, including the dates and amount of each deposit, and such evidence or verification as may be deemed necessary by the Attorney General to confirm the foregoing; and
(G) the amounts of and dates of any withdrawal or         transfer of funds the non-participating manufacturer made at any time from the fund or from any other qualified escrow fund into which it ever made escrow payments pursuant to Section 15 of the Escrow Act and all regulations promulgated thereto.
(4) A tobacco product manufacturer may not include a     brand family in its certification unless: (i) in the case of a participating manufacturer, the participating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of calculating its payments under the master settlement agreement for the relevant year, in the volume and shares determined pursuant to the master settlement agreement; and (ii) in the case of a non-participating manufacturer, the non-participating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of Section 15 of the Escrow Act.
Nothing in this Section shall be construed as     limiting or otherwise affecting the State's right to maintain that a brand family constitutes cigarettes of a different tobacco product manufacturer for purposes of calculating payments under the master settlement agreement or for purposes of Section 15 of the Escrow Act.
(5) The tobacco product manufacturers shall maintain     all invoices and documentation of sales and other information relied upon for certification for a period of 5 years, unless otherwise required by law to maintain them for a greater period of time.
(b) Not later than 6 months after the effective date of this Act, the
Attorney General shall
develop and make available for public inspection, through publishing on its
website, a directory
listing all tobacco product manufacturers that have provided current and
accurate certifications
conforming to the requirements of subsection (a) of Section 15 and all brand
families that are listed in the certifications, except for the following:
(1) The Attorney General shall not include or retain     in the directory the name or brand families of any non-participating manufacturer that fails to provide the required certification or whose certification the Attorney General determines is not in compliance with subsections (a)(2) or (a)(3) of Section 15, unless the Attorney General has determined that the violation has been cured to the satisfaction of the Attorney General.
(2) Neither a tobacco product manufacturer nor brand     family shall be included or retained in the directory if the Attorney General concludes that: (i) in the case of a non-participating manufacturer all escrow payments required pursuant to Section 15 of the Escrow Act for any period for any brand family, whether or not listed by the non-participating manufacturer, have not been fully paid into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the Attorney General; or (ii) all outstanding final judgments, including interest thereon, for violations of Section 15 of the Escrow Act have not been fully satisfied for that brand family and manufacturer.
(c) The Attorney General shall update the directory as necessary in order
to correct
mistakes and to add or remove a tobacco product manufacturer or brand families
to keep the directory in conformity with the requirements of this Act.
(d) Every distributor shall provide and update as necessary an electronic
mail
address to the Attorney General for the purpose of receiving any notifications
as may be required by this Act.
(e) It shall be unlawful for any person: (i) to affix a stamp to a package
or other container of
cigarettes of a tobacco product manufacturer or brand family not included in
the directory; or (ii) to
sell, offer for sale, or possess for sale in this State, or import for personal
consumption in this State,
cigarettes of a tobacco product manufacturer or brand family not included in
the directory.
(Source: P.A. 93-446, eff. 1-1-04; 93-930, eff. 1-1-05; 94-575, eff. 8-12-05.)
(30 ILCS 167/20)
Sec. 20. Agent for service of process.
(a) Any non-resident or foreign non-participating manufacturer that has not
registered to do
business in this State as a foreign corporation or business entity shall, as a
condition precedent to
having its brand families listed or retained in the directory, appoint and
continually engage without
interruption the services of an agent in this State to act as agent for the
service of process on whom
all process, and any action or proceeding against it concerning or arising out
of the enforcement of
this Act and the Escrow Act, may be served in any manner authorized by law. The
service shall
constitute legal and valid service of process on the non-participating
manufacturer. The non-participating manufacturer shall provide the name,
address, phone number, and proof of the
appointment and availability of the agent to and to the satisfaction of the
 Attorney General.
(b) The non-participating manufacturer shall provide notice to the

Attorney General 30 calendar days prior to termination of the authority of an
agent and shall further
provide proof to the satisfaction of the Attorney General of the appointment of
a new agent no less
than 5 calendar days prior to the termination of an existing agent appointment.
In the event an agent
terminates an agency appointment, the non-participating manufacturer shall
notify the
Director and Attorney General of the termination within 5 calendar days and
shall include
proof to the satisfaction of the Attorney General of the appointment of a new
agent.
(c) Any non-participating manufacturer whose products are sold in this
State, without
appointing or designating an agent as herein required shall be deemed to have
appointed the
Secretary of State as the agent and may be proceeded against in courts of this
State by service of
process upon the Secretary of State; however, the appointment of the Secretary
of State as an agent
shall not satisfy the condition precedent to having its brand families listed
or retained in the directory.
(Source: P.A. 93-446, eff. 1-1-04; 94-575, eff. 8-12-05.)
(30 ILCS 167/25)
Sec. 25. Reporting of information; escrow installments.
(a) Not later than 20 days after the end of each calendar quarter, and more
frequently if so
directed by the Attorney General, each distributor shall submit the information
as the Attorney
General requires to facilitate compliance with this Act, including, but not
limited to, a list by
brand family of the total number of cigarettes or in the case of roll-your-own,
the equivalent stick
count for which the distributor affixed stamps during the previous calendar
quarter or otherwise
paid the tax due for these cigarettes. The distributor shall maintain, and make
available to the
Attorney General, all invoices and documentation of sales of all
non-participating manufacturer
cigarettes and any other information relied upon in reporting to the Attorney
General for a period of 5 years.
(b) The Attorney General is authorized to disclose to the Director any
information received
under this Act for purposes of
determining compliance with
and enforcing the provisions of this Act. The Director and Attorney General
shall share with each
other the information received under this Act, and may share the information
with other federal,
State, or local agencies only for purposes of enforcement of this Act, the
Escrow Act, or corresponding laws of other states. The Director and Attorney General
shall also share with each
other the information received under the Cigarette Tax Act, the Cigarette Use Tax Act, the Tobacco Products Tax Act of 1995, the Cigarette Machine Operators' Occupation Tax Act, and the Retailers' Occupation Tax Act for the purposes of enforcement of this Act and the
Escrow Act.
(c) The Attorney General may require at any time, from the non-participating
manufacturer,
proof from the financial institution in which the manufacturer has established
a qualified escrow
fund for the purpose of compliance with the Escrow Act of the amount of money
in the fund being
held on behalf of the State and the dates of deposits, and listing the amounts
of all withdrawals from the fund and the dates thereof.
(d) In addition to the information required to be submitted pursuant to this
Act, the
Attorney General may require a distributor or tobacco product manufacturer to
submit any
additional information including, but not limited to, samples of the packaging
or labeling of each
brand family, as is necessary to enable the Attorney General to determine
whether a tobacco
product manufacturer is in compliance with this Act.
(e) To promote compliance with the provisions of this Act, the Attorney
General may
promulgate regulations requiring a tobacco product manufacturer subject to the
requirements of
subsection (a)(2) of Section 15 to make the escrow deposits required in
quarterly installments
during the year in which the sales covered by the deposits are made. The
Attorney General may
require production of information sufficient to enable the Attorney General to
determine the adequacy of the amount of the installment deposit.
(Source: P.A. 98-1163, eff. 1-9-15.)
(30 ILCS 167/30)
Sec. 30. Penalties and other remedies.
(a) In addition to or in lieu of any other civil or criminal remedy provided
by law, upon a
determination that a distributor has violated subsection (e) of Section 15 or
any regulation adopted
pursuant thereto, the Director may revoke or suspend the license of any distributor in the
manner provided by Section 6 of the Cigarette Tax Act, Section 6 of the
Cigarette Use Tax Act, or
Section 10-25 of the Tobacco Products Tax Act of 1995, as appropriate. Each
stamp affixed and
each offer to sell cigarettes in violation of subsection (e) of Section 15
shall constitute a separate
violation. For each violation, the Director may also impose a civil
penalty in an amount not
to exceed the greater of 500% of the retail value of the cigarettes sold or
$5,000 upon a
determination of violation of subsection (e) of Section 15 or any regulations
adopted pursuant thereto.
(b) Any cigarettes that have been sold, offered for sale, or possessed for
sale in this State,
or imported for personal consumption in this State in violation of subsection (e) of Section 15 shall
be subject to seizure and forfeiture as provided in Sections 18, 18a, and 20 of
the Cigarette Tax Act
and Sections 24, 25, 25a and 26 of the Cigarette Use Tax Act, and all
cigarettes so seized and forfeited shall be destroyed and not resold.
(c) The Attorney General may seek an injunction to restrain a threatened or
actual violation
of subsection (e) of Section 15, subsection (a) of Section 25, or subsection
(d) of Section 25 by a distributor and to compel the distributor to comply with such
subsections. In any action
brought pursuant to this Section, the State shall be entitled to recover the
costs of investigation,
costs of the action, and reasonable attorney fees.
(d) It shall be unlawful for a person to: (i) sell or distribute cigarettes;
or (ii) acquire, hold,
own, possess, transport, import, or cause to be imported cigarettes that the
person knows or should
know are intended for distribution or sale in the State in violation of
subsection (e) of Section 15. A
violation of this Section shall be a Class 2 felony.
(e) A person who violates subsection (e) of Section 15 engages in an unfair
and deceptive
trade practice in violation of the Uniform Deceptive Trade Practices Act.
(Source: P.A. 93-446, eff. 1-1-04; 93-930, eff. 1-1-05; 94-575, eff. 8-12-05.)
(30 ILCS 167/35)
Sec. 35. Miscellaneous provisions.
(a) Every final administrative decision of the Attorney General to not list or to remove from
the directory a
brand family or tobacco product manufacturer shall be subject to judicial review only under and in accordance with the Administrative Review Law.  The provisions of the Administrative Review Law,  and the rules adopted pursuant thereto, apply to and govern all proceedings for the judicial review of final administrative decisions of the Attorney General under this subsection.  The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.
(b) No person shall be issued a license or granted a renewal of a license to
act as a
distributor unless the person has certified in writing, under penalty of
perjury, that the person will comply fully with this Act.
(c) The Attorney General may promulgate rules necessary to effect the
purposes of this Act.
(d) In any action brought by the State to enforce this Act, the State shall
be entitled to
recover the costs of investigation, expert witness fees, costs of the action,
and reasonable attorney fees.
(e) If a court determines that a person has violated this Act, the court
shall order any
profits, gain, gross receipts, or other benefit from the violation to be
disgorged and paid to the General Revenue Fund.
(f) Unless otherwise expressly provided the remedies or penalties provided
by this Act are
cumulative to each other and to the remedies or penalties available under all
other laws of this State.
(Source: P.A. 93-446, eff. 1-1-04; 94-575, eff. 8-12-05.)
(30 ILCS 167/40)
Sec. 40. 
		Severability.
(a) If any provision of this Act or its application to any person or
circumstance is held
invalid, the invalidity does not affect other provisions or applications of
this Act that can be given
effect without the invalid provision or application.
(b) If a court of competent jurisdiction finds that the provisions of this
Act and of the
Escrow Act conflict and cannot be harmonized, then the provisions of the Escrow
Act shall control.
(c) If any Section, subsection, subdivision, paragraph, sentence, clause, or
phrase of this Act (excluding the amendatory provisions of Section 300)
causes the Escrow Act to no longer constitute a qualifying or model statute, as
those terms are
defined in the Master Settlement Agreement, then that portion of this Act
shall not be valid.
(Source: P.A. 93-446, eff. 1-1-04.)
(30 ILCS 167/200)
Sec. 200. 
		
		The Tobacco Products Manufacturers' Escrow Enforcement Act is
repealed.
(Source: P.A. 93-446, eff. 1-1-04.)
(30 ILCS 167/300)
Sec. 300. 
		(Amendatory provisions; text omitted).
(Source: P.A. 93-446, eff. 1-1-04; text omitted.)