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| Public Act 094-0575 |
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AN ACT concerning finance.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Tobacco Products Manufacturers' Escrow | ||||
Enforcement Act of 2003 is amended by changing Sections 15, 20, | ||||
25, 30, and 35 as follows:
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(30 ILCS 167/15)
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Sec. 15. Certifications; directory; tax stamps.
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(a) Every tobacco product manufacturer whose cigarettes | ||||
are sold in this
State whether
directly or through a | ||||
distributor, retailer, or similar intermediary or
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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.
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(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
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certification to the
Attorney General.
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(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
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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
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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
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the Attorney General.
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(3) In the case of a non-participating manufacturer, | ||
the certification
shall further certify:
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(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
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provided notice thereof as
required by Section 20
item | ||
4 of subsection (a) of this Section;
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(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
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Attorney General and that governs the qualified escrow | ||
fund;
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(C) that the non-participating manufacturer is in | ||
full compliance with
the Escrow Act and this Act, and | ||
any regulations promulgated pursuant thereto;
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(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;
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(E) the account number of the qualified escrow fund | ||
and sub-account
number for this State;
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(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
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(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
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qualified escrow
fund into which it ever made escrow | ||
payments pursuant to Section 15 of the
Escrow Act and | ||
all regulations promulgated thereto.
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(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
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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
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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.
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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
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product manufacturer
for purposes of calculating payments | ||
under the master settlement agreement or
for purposes of | ||
Section 15 of the Escrow Act.
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(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.
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(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
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families that are listed in the certifications, except for the | ||
following:
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(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
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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.
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(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
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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.
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(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.
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(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.
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(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
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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.
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(Source: P.A. 93-446, eff. 1-1-04; 93-930, eff. 1-1-05.)
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(30 ILCS 167/20)
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Sec. 20. Agent for service of process.
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(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
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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
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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
Director and Attorney General.
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(b) The non-participating manufacturer shall provide | ||
notice to the
Director and
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.
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(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
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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.
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(Source: P.A. 93-446, eff. 1-1-04.)
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(30 ILCS 167/25)
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Sec. 25. Reporting of information; escrow installments.
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(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,
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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.
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(b) The Attorney General
Director is authorized to disclose | ||
to the Director
Attorney General any
information received
under | ||
this Act and requested by the Attorney General for purposes of
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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
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Escrow Act, or corresponding laws of other states.
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(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.
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(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
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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.
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(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
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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.
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(Source: P.A. 93-446, eff. 1-1-04.)
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(30 ILCS 167/30)
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Sec. 30. Penalties and other remedies.
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(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
stamping agent in the
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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
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adopted pursuant thereto.
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(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
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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.
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(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
stamping agent and to compel the | ||
distributor
stamping agent 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.
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(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
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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.
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(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.
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(Source: P.A. 93-446, eff. 1-1-04; 93-930, eff. 1-1-05.)
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(30 ILCS 167/35)
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Sec. 35. Miscellaneous provisions.
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(a) Every final administrative decision
A determination 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
in the
manner prescribed
by rule.
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(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.
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(c) The Attorney General may promulgate rules necessary to | ||
effect the
purposes of this Act.
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(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.
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(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.
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(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.
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(Source: P.A. 93-446, eff. 1-1-04.)
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Section 99. Effective date. This Act takes effect upon | ||
becoming law.
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