BILL REQ. #:  H-2193.1 

Read first time 03/04/2005.   Referred to Committee on Health Care.

     AN ACT Relating to unlawful shipment of tobacco products to state consumers; adding a new chapter to Title 70 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Person" means an individual, partnership, franchise holder, association, corporation, state, city, county, or a subdivision or instrumentality of a state, and its employees, agents, or legal representatives.
     (2) "Tobacco products" means one or more cigarettes or cigars, bidis, chewing tobacco, powdered tobacco, or any other tobacco products.
     (3) "Tobacco business" means a sole proprietorship, corporation, limited liability company, partnership, or other enterprise in which the primary activity is the sale, manufacture, or promotion of tobacco, tobacco products, and accessories, either at wholesale or retail, and in which the sale, manufacture, or promotion of other products is merely incidental.

NEW SECTION.  Sec. 2   It is unlawful for a person in the business of manufacturing, distributing, or selling tobacco products, including those selling tobacco products over the internet or through mail-order sales, to deliver or cause to be delivered any tobacco products to a person in this state except in a face-to-face transaction at the time of purchase, unless the tobacco products being delivered are in a container or in wrapping plainly and visibly marked on the exterior with the word "tobacco products" and the delivery is made to one of the following persons for purposes other than personal consumption by the recipient:
     (1) A person who holds a license under RCW 82.24.520 or 82.24.530;
     (2) An export warehouse proprietor under chapter 52 of the internal revenue code or an operator of a customs bonded warehouse; or
     (3) A person who is an officer, employee, or agent of the United States government, this state, or a department, agency, instrumentality, or political subdivision of the United States or this state, when the person is acting in accordance with his or her official duties.

NEW SECTION.  Sec. 3   It is unlawful for a person in the business of manufacturing, distributing, or selling tobacco products, including those selling tobacco products over the internet or through mail-order sales, to deliver or cause to be delivered, any tobacco products to a person in this state under eighteen years of age or to any home or residence in this state.

NEW SECTION.  Sec. 4   It is unlawful for a person within the jurisdiction of this state's laws, including all common carriers or commercial delivery services, to knowingly transport tobacco products on behalf of another person for commercial or business purposes to:
     (1) A person in this state under eighteen years of age;
     (2) A home or residence in this state; or
     (3) A person in this state other than a person described in section 2 of this act. It is unlawful for a common or contract carrier to knowingly transport cigarettes to a person in this state reasonably believed by the carrier to be other than a person described in section 2 of this act.

NEW SECTION.  Sec. 5   (1) The department of licensing shall make public, by posting on the internet and by other means, a list of all persons currently licensed or registered by the state as agents, dealers, or distributors, as described in section 2 of this act.
     (2) The department of licensing shall provide to the United States postal service, common carriers, commercial delivery services operating in the state, and any other persons that deliver tobacco products into or in the state a copy of this chapter and a list of persons making or offering tobacco product sales or deliveries in or into the state in violation of this chapter. Ten days before putting a person on this list, the department shall send notice to that person, by letter or e-mail, that the interstate seller is being placed on the department's list with that notice including the text of this chapter. This list shall be kept confidential by all parties that receive it and shall be used only to comply with this chapter.
     (3) It is unlawful for a person within the jurisdiction of this state's laws that receives a list provided by the department of licensing, under this section, to make any deliveries in the state on behalf of a person who is identified by that list unless:
     (a) The delivery service or other person making the delivery knows or affirmatively believes in good faith that the package does not contain tobacco products; or
     (b) The delivery is made to a person lawfully engaging in the business of distributing or selling tobacco products.
     (4) A delivery service or other person receiving a list from the department of licensing under this section:
     (a) Has no obligation to inspect any package to determine whether or not it contains tobacco products, determine whether the list provided by a state is complete, accurate, or up to date, or determine whether a person ordering a delivery is in compliance with this chapter.
     (b) Is not subject to a penalty for:
     (i) Not making any specific delivery on behalf of a person on the list provided under this section;
     (ii) Establishing and following a policy of not making deliveries in the state on behalf of a person on the list provided under this section, not making deliveries of tobacco products in the state, or not making deliveries of tobacco products in the state for a person, or for a person not in the business of manufacturing, distributing, or selling tobacco products.
     (5) A delivery service or other person receiving a list from the department of licensing under this section may collect an additional fee from its customers that order deliveries of tobacco products in order to cover any costs incurred by the delivery service or other person related to complying with this chapter.
     (6) A delivery service or other person receiving a list from the department of licensing under this section is not subject to criminal penalties for a violation of this chapter unless that violation is done knowingly and for the specific purpose of:
     (a) Assisting a person engaged in the business of manufacturing, distributing, or selling tobacco products to violate this chapter; or
     (b) Profiting from the violation of this chapter by another person.
     (7) No employee of a delivery service or of another person making deliveries on behalf of a delivery seller is subject to criminal penalties or civil fines for violating this chapter unless that violation is done knowingly and for the specific purpose of assisting a person engaged in the business of manufacturing, distributing, or selling tobacco products to violate this chapter.

NEW SECTION.  Sec. 6   This chapter does not apply to tobacco product sales by an Indian tribe, as defined by 25 U.S.C. Sec. 450b(e), or by members of the Indian tribe, to a consumer in this state if the consumer is a verified adult member of the Indian tribe, and the buyer and seller are located in Indian country, as defined by 18 U.S.C. Sec. 1151, that is owned or occupied by the Indian tribe.

NEW SECTION.  Sec. 7   (1) A person who violates this chapter is subject to a civil fine of not less than five hundred dollars and not more than five thousand dollars or five times the value of the tobacco products at issue, whichever is highest, for each violation.
     (2) A person engaged in the business of manufacturing or selling tobacco products who violates section 2 or 3 of this act must reimburse the state and its political subdivisions for all unpaid taxes of the state or its political subdivisions relating to the tobacco products at issue, plus interest, and for any other damages.
     (3) A person who violates this chapter must pay, in addition to any other damages or penalties, an amount equal to any profits, gain, gross receipts, or other benefits from the violation.
     (4) Except as provided in section 5 of this act, a person who knowingly violates section 2, 3, or 4 of this act shall be fined up to five thousand dollars or ten times the value of the tobacco products at issue, whichever is highest, or imprisoned for up to one year, or both for a first violation, and fined not less than ten thousand dollars or imprisoned for up to five years, or both for a second or subsequent violation.

NEW SECTION.  Sec. 8   An amount equal to fifty percent of all criminal and civil penalties recovered by the state under section 7 of this act shall be distributed to the state offices or agencies responsible for enforcing this chapter or making related investigations, in rough proportion to their participation in the enforcement of this chapter and related investigations, solely to increase and supplement, but not to replace, existing resources supporting state efforts to enforce this chapter and to enforce other state laws relating to contraband tobacco products, the collection of taxes on tobacco products, and the prohibition of tobacco product sales to persons under the legal minimum purchase age.

NEW SECTION.  Sec. 9   In an action brought to enforce this chapter, the state may recover the costs of the investigation, costs of the action, and reasonable attorneys' fees, plus interest. All recovered costs and fees, plus interest, shall be directed to and retained by the state agencies and offices that incurred the costs and fees.

NEW SECTION.  Sec. 10   Tobacco products sold or delivered or attempted to be sold or delivered in this state in a manner that does not meet the requirements of this chapter shall be forfeited to the state.

NEW SECTION.  Sec. 11   Unless otherwise expressly provided, the remedies or penalties provided by this chapter are cumulative to each other, and to any other damages, remedies, penalties, or relief available under this chapter or other laws of this state.

NEW SECTION.  Sec. 12   (1) The attorney general or his or her designee may bring an action in the appropriate court in the state to enforce this chapter, seek fines, penalties, and related damages and equitable relief, or to prevent or restrain violations of this chapter by a person, or any person controlling such person.
     (2) Upon providing at least fifteen days' notice to the attorney general, enforcement officials of any state political subdivision may bring an action in the appropriate court in the state, or join an action being brought by the attorney general or his or her designee, to seek damages and equitable relief or to prevent or restrain violations of this chapter by any person, or any person controlling such person.
     (3) Upon providing at least fifteen days' notice to the attorney general, a person who holds a valid permit under 26 U.S.C. Sec. 5712, may bring an action in the appropriate court in the state, or join an action being brought by the attorney general or his or her designee, to prevent or restrain violations of this chapter by a person, or any person controlling such person.
     (4) Upon receiving notice from a person of his or her intent to bring an action under this chapter in the appropriate court in the state, the attorney general or his or her designee may choose to join in the other person's action or bring an action by the state in its stead, and shall inform the person providing notice of how the attorney general or the designee will proceed within fifteen days of receiving the notice.
     (5) The attorney general shall make public, by posting on the internet and other means, a list of all actions taken to enforce this chapter and a list of all persons found to have violated this chapter, including those persons' names, addresses, and any other information the attorney general believes may be useful to other jurisdictions enforcing laws prohibiting or restricting tobacco product sales for personal consumption in which the seller and buyer do not initiate and complete the entire transaction when in each other's physical presence.

NEW SECTION.  Sec. 13   Sections 1 through 12 of this act constitute a new chapter in Title 70 RCW.