H-4757              _______________________________________________

                                                   HOUSE BILL NO. 1977

                        _______________________________________________

State of Washington                              50th Legislature                              1988 Regular Session

By Representative Appelwick

Read first time 2/3/88 and referred to Committee on Commerce & Labor.

AN ACT Relating to simplifying the enforcement authority of the department of revenue; amending RCW 19.91.010, 19.91.030, and 19.91.910; adding a new section to chapter 19.91 RCW; and repealing section 14, chapter 321, Laws of 1986 (uncodified).

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

NEW SECTION. Sec. 1.  A new section is added to chapter 19.91 RCW to read as follows:

          The legislature intends to encourage fair and honest competition and to safeguard the public welfare against unfair, dishonest, deceptive, destructive, and fraudulent business practices such as "bait" or "loss leader" sales which force the wholesaler or retailer into passing these losses onto the public by increasing the price of nontobacco products existing in transactions involving the sale of, offer to sell, or inducement to sell cigarettes in the wholesale and retail trades in this state.  The legislature finds that the advertising, offering for sale, or sale of cigarettes below cost in the wholesale or retail trades with the intent of injuring competitors or destroying or substantially lessening competition is an unfair and deceptive trade practice.  The policy of the state is to promote the general welfare through prohibition of such sales, and the purpose of the Washington state cigarette marketing standards act is to carry out that policy in the public interest.

        Sec. 2.  Section 3, chapter 2, Laws of 1983 as last amended by section 2, chapter 321, Laws of 1986 and RCW 19.91.010 are each amended to read as follows:

          When used in this chapter, the following words and phrases shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning:

          (1) "Person" means and includes any individual, firm, association, company, partnership, corporation, joint stock company, club, agency, syndicate, municipal corporation, or other political subdivision of this state, trust, receiver, trustee, fiduciary and conservator.

          (2) "Wholesaler" includes any person who:

          (a) Purchases cigarettes directly from the manufacturer, or

          (b) Purchases cigarettes from any other person who purchases from or through the manufacturer, for the purpose of bona fide resale to retail dealers or to other persons for the purpose of resale only, or

          (c) Services retail outlets by the maintenance of an established place of business for the purchase of cigarettes, including, but not limited to, the maintenance of warehousing facilities for the storage and distribution of cigarettes.

          Nothing contained herein shall prevent a person from qualifying in different capacities as both a "wholesaler" and "retailer" under the applicable provisions of this chapter.

          (3) "Retailer" means and includes any person who operates a store, stand, booth, concession, or vending machine for the purpose of making sales of cigarettes at retail.

          (4) "Cigarettes" means any roll for smoking made wholly or in part of tobacco, irrespective of size or shape and whether or not such tobacco is flavored, adulterated, or mixed with any other ingredient, the wrapper or cover of which is made of paper or any other substance or material except tobacco.

          (5) "Sale" means any transfer for a consideration, exchange, barter, gift, offer for sale and distribution, in any manner, or by any means whatsoever.

          (6) "Sell at wholesale", "sale at wholesale" and "wholesale" sales mean and include any bona fide transfer of title to cigarettes for a valuable consideration, made in the ordinary course of trade or in the usual conduct of the wholesaler's business, to a retailer for the purpose of resale.

          (7) "Sell at retail", "sale at retail" and "retail sales" mean and include any transfer of title to cigarettes for a valuable consideration, made in the ordinary course of trade or usual conduct of the seller's business, to the purchaser for consumption or use.

          (8) (a) "Basic cost of cigarettes to the wholesaler" means the ((invoice cost)) manufacturer's list price  of cigarettes to the ((retailer or)) wholesaler((, as the case may be,)) or the replacement cost of cigarettes to the ((retailer or)) wholesaler, ((as the case may be,)) in the quantity last purchased, whichever is lower, to which shall be added the full face value of any stamps which may be required by any cigarette tax act of this state and by ordinance of any municipality thereof, now in effect or hereafter enacted, if not already included by the manufacturer in ((his)) the manufacturer's list price.  ((The disposition of the manufacturers' cash discount is at the discretion of the wholesaler.  Any retailer or wholesaler who actually receives and sells cigarettes with trade or cash discounts shall execute a sworn affidavit and obtain a sworn affidavit from the person granting the discount, whether a manufacturer or wholesaler, which shows:  (a) Amount or rate of the discount, (b) date the discount was granted, (c) names of the persons granting and receiving the discount, and (d) whether the discount is for cash or trade purposes.  Sworn affidavits under this section are maintained for five years and available for inspection by the department of revenue's request.  The department of revenue may impose a civil penalty not to exceed two hundred fifty dollars for each failure to maintain affidavits under this section.

          Nothing in this section may be construed to require any retailer to obtain affidavits from retail purchasers of cigarettes.))

(b) "Basic cost of cigarettes to the retailer" means the wholesaler's list price of cigarettes to the retailer or the replacement cost of cigarettes to the retailer, in the quantity last purchased, whichever is lower, to which shall be added the full face value of any stamps which may be required by any cigarette tax act of this state and by ordinance of any municipality thereof, now in effect or hereafter enacted, if not already included by the wholesaler in the wholesaler's list price.

          (9) (((a))) The term "cost to the wholesaler" means the (("basic cost of cigarettes" to the wholesaler plus the "cost of doing business by the wholesaler" which said cost of doing business amount shall be expressed percentage-wise in the ratio that said wholesalers "cost of doing business" bears to said wholesalers dollar volume for all products sold by the wholesaler per annum, and said "cost of doing business by the wholesaler" shall be evidenced and determined by the standards and methods of accounting regularly employed by him for the purpose of federal income tax reporting for the total operation of his establishment in his allocation of overhead costs and expenses, paid or incurred, and must include, without limitation, labor costs (including reasonable salaries for partners, executives, and officers), rent, depreciation, selling cost, maintenance of equipment, delivery costs, all types of licenses, taxes, insurance and advertising, expressed as a percentage and applied to the "basic cost of cigarettes".  Any fractional part of a cent amounting to one-tenth of one cent or more in cost to the wholesaler per carton of ten packages of cigarettes shall be rounded off to the next higher cent.

          (b) For the purposes of this chapter the "cost of doing business" may not be computed using a percentage less than the overall percentage shown in subsection (9)(a) of this section or in the absence of the filing with the department of revenue of satisfactory proof of a lesser or higher cost of doing business by the wholesaler making the sale, the "cost of doing business by the wholesaler" shall be presumed to be the percentage of the "basic cost of cigarettes" to the wholesaler specified in (c) of this subsection, plus cartage to the retail outlet, if performed or paid for by the wholesaler, which cartage cost, in the absence of the filing with the department of revenue of satisfactory proof of a lesser or higher cost, shall be deemed to be one-half of one percent of the "basic cost of cigarettes" to the wholesaler.

          (c) For the purposes of (b) of this subsection, the percentage of the basic cost of cigarettes to the wholesaler shall be:

          (i) Four percent until July 1, 1987;

          (ii) Three and one-half percent from July 1, 1987, until July 1, 1988;

          (iii) Three percent from July 1, 1988, until July 1, 1989;

          (iv) Two and one-half percent from July 1, 1989, until July 1, 1990; and

          (v) Two percent from July 1, 1990, until July 1, 1991)) manufacturer's list price, excluding any or all discounts for terms or cash, to which shall be added any and all cigarette excise taxes, and to this amount a markup of three and one-half percent shall be added, plus cartage to the retail outlet, if performed or paid for by the wholesaler, which cartage cost shall be deemed to be one-half of one percent of the basic cost of cigarettes to the wholesaler.

          (10) (((a))) The term "cost to the retailer" means the (("basic cost of cigarettes" to the retailer plus the "cost of doing business by the retailer" which said cost of doing business amount shall be expressed percentage-wise in the ratio that said retailers "cost of doing business" bears to said retailers dollar volume per annum, and said "cost of doing business by the retailer" shall be evidenced and determined by the standards and methods of accounting regularly employed by him for the purpose of federal income tax reporting for the total operation of his establishment in his allocation of overhead costs and expenses, paid or incurred, and must include, without limitation, labor (including reasonable salaries for partners, executives, and officers), rent, depreciation, selling costs, maintenance of equipment, delivery costs, all types of licenses, taxes, insurance and advertising, expressed as a percentage and applied to the "basic cost of cigarettes":  PROVIDED, That any retailer who, in connection with the retailer's purchase, receives not only the discounts ordinarily allowed upon purchases by a retailer but also, in whole or in part, discounts ordinarily allowed upon purchases by a wholesaler shall, in determining "cost to the retailer", pursuant to this subdivision, add the "cost of doing business by the wholesaler," as defined in subdivision (9) of this section, to the "basic cost of cigarettes" to said retailer, as well as the "cost of doing business by the retailer".  Any fractional part of a cent amounting to one-tenth of one cent or more in cost to the retailer per carton of ten packages of cigarettes shall be rounded off to the next higher cent.

          (b) In the absence of the filing with the department of revenue of satisfactory proof of a lesser or higher cost of doing business by the retailer making the sale, the "cost of doing business by the retailer" shall be presumed to be the percentage of the "basic cost of cigarettes" to the retailer specified in (d) of this subsection.

          (c) In the absence of the filing with the department of revenue of satisfactory proof of a lesser or higher cost of doing business, the "cost of doing business by the retailer", who, in connection with the retailer's purchase, receives not only the discounts ordinarily allowed upon purchases by a retailer but also, in whole or in part, the discounts ordinarily allowed upon purchases by a wholesaler, shall be presumed to be the percentage of the sum of the "basic cost of cigarettes" and the "cost of doing business by the wholesaler" specified in (d) of this subsection.

          (d) For the purposes of (b) and (c) of this subsection, the percentage shall be:

          (i) Eleven and one-half percent until July 1, 1987;

          (ii) Ten and one-half percent from July 1, 1987, until July 1, 1988;

          (iii) Nine and one-half percent from July 1, 1988, until July 1, 1989;

          (iv) Eight and one-half percent from July 1, 1989, until July 1, 1990;

          (v) Seven and one-half percent from July 1, 1990, until July 1, 1991)) wholesaler's list price, excluding any and all discounts for terms or cash, to which shall be added any and all cigarette excise taxes, and to this amount a markup of fifteen percent shall be added.

          (11) "Business day" means any day other than a Sunday or a legal holiday.

          (12) "Master license system" means the mechanism established by chapter 19.02 RCW by which master licenses, endorsed for individual state-issued licenses, are issued and renewed utilizing a master application and a master license expiration date common to each renewable license endorsement.

        Sec. 3.  Section 3, chapter 286, Laws of 1957 and RCW 19.91.030 are each amended to read as follows:

          When one wholesaler sells cigarettes to any other wholesaler, the former shall not be required to include in his selling price to the latter, "cost to the wholesaler", as provided by RCW 19.91.010(((10)))(9), except that no such sale shall be made at a price less than the "basic cost of cigarettes to the wholesaler" as defined in RCW 19.91.010(((9)))(8), but the latter wholesaler, upon resale to a retailer, shall be deemed to be the wholesaler governed by the provisions of RCW 19.91.010(((10)))(9).

        Sec. 4.  Section 21, chapter 286, Laws of 1957 as amended by section 5, chapter 16, Laws of 1982 1st ex. sess. and RCW 19.91.910 are each amended to read as follows:

          This chapter may be known and cited as the ((unfair)) cigarette ((sales below cost)) marketing standards act.

NEW SECTION. Sec. 5.  Section 14, chapter 321, Laws of 1986(uncodified) is repealed.