BILL REQ. #:  S-2112.1 

READ FIRST TIME 03/04/03.   

     AN ACT Relating to seizing, shipping, and delivery of cigarettes through internet, telephonic, or other delivery services; amending RCW 70.155.010; adding a new section to chapter 70.155 RCW; and prescribing penalties.

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

Sec. 1   RCW 70.155.010 and 1993 c 507 s 2 are each amended to read as follows:
     The definitions set forth in RCW 82.24.010 shall apply to RCW 70.155.020 through 70.155.130. In addition, for the purposes of this chapter, unless otherwise required by the context:
     (1) "Board" means the Washington state liquor control board.
     (2) "Delivery sale" means any sale of cigarettes to a consumer in the state where either: (a) The purchaser submits an order for a sale by means of a telephonic or other method of voice transmission, mail delivery, any other delivery service, or the internet or other online service; or (b) the cigarettes are delivered by use of mail delivery or any other delivery service. A sale of cigarettes shall be a delivery sale regardless of whether the seller is located within or without the state. A sale of cigarettes not for personal consumption to a person who is a wholesaler licensed pursuant to chapter 82.24 RCW or a retailer pursuant to chapter 82.24 RCW is not a delivery sale.
     (3) "Delivery service" means any private carrier engaged in the commercial delivery of letters, packages, or other containers that requires the recipient of that letter, package, or container to sign to accept delivery.
     (4) "Minor" refers to an individual who is less than eighteen years old.
     (((3))) (5) "Public place" means a public street, sidewalk, or park, or any area open to the public in a publicly owned and operated building.
     (((4))) (6) "Sample" means a tobacco product distributed to members of the general public at no cost or at nominal cost for product promotion purposes.
     (((5))) (7) "Sampler" means a person engaged in the business of sampling other than a retailer.
     (((6))) (8) "Sampling" means the distribution of samples to members of the general public in a public place.
     (((7))) (9) "Shipping container" means a container in which cigarettes are shipped in connection with a delivery sale.
     (10) "Shipping documents" means bills of lading, airbills, or any other documents used to evidence the undertaking by a delivery service to deliver letters, packages, or other containers.
     (11) "Tobacco product" means a product that contains tobacco and is intended for human consumption.

NEW SECTION.  Sec. 2   A new section is added to chapter 70.155 RCW to read as follows:
     (1) It is the responsibility of the person who mails, ships, or otherwise delivers cigarettes before the first delivery sale of cigarettes to:
     (a) Verify the age of the receiver of the cigarettes upon delivery; and
     (b) Obtain in writing verification of the receiver's address and that the receiver of the cigarettes is not a minor. The statement must also confirm if the prospective consumer understands: (i) That signing another person's name to the certification is a violation of RCW 9A.60.040 (1)(a); (ii) that the sale of cigarettes to a minor is a violation of RCW 26.28.080; (iii) that the purchase of cigarettes by minors is a violation of RCW 70.155.080; and (iv) that he or she has the option to receive mailings from a tobacco company about tobacco products.
     (2) No person shall mail, ship, or otherwise deliver cigarettes in connection with a delivery sale unless before the first delivery sale to the consumer that person:
     (a) Makes a good faith effort to verify the information contained in the certification provided by the prospective consumer in subsection (1) of this section against a commercially available data base, or obtains a photocopy of an officially issued identification containing the bearer's age, signature, and photograph. The only forms of identification that are acceptable as proof of age for the purchase for tobacco products are: (i) A liquor control authority card of identification issued by a state of the United States or Canada, (ii) a driver's license, instruction permit, or identification card issued by a state of the United States or Province of Canada, (iii) a United States military identification card, (iv) a passport, or (v) a merchant marine identification card issued by the United States coast guard;
     (b) Provides to the prospective consumer through electronic mail or other means a notice that meets the requirements of subsection (3) of this section;
     (c) In the case of an order for cigarettes pursuant to an advertisement on the internet, receives payment for the delivery sale from the prospective consumer by a credit card or debit card, or by check that has been issued in the prospective consumer's name.
     (3) The notice required under subsection (2)(b) of this section must include:
     (a) A prominent and clearly legible statement that cigarette sales to minors are illegal;
     (b) A prominent and clearly legible statement that consists of one of the warnings set forth in section 4(a)(1) of the federal cigarette labeling and advertising act (15 U.S.C. Sec. 1333(a)(1)) rotated on a quarterly basis;
     (c) A prominent and clearly legible statement that sales of cigarettes are restricted to those consumers who provide verifiable proof of age in accordance with subsection (1) of this section; and
     (d) A prominent and clearly legible statement that cigarette sales are subject to tax pursuant to chapters 82.24 and 82.12 RCW, with an explanation of how the tax has been, or is to be, paid with respect to a delivery sale.
     (4) It is the responsibility of the person who mails, ships, or otherwise delivers cigarettes in connection with a delivery sale to:
     (a) Include as part of the bill of lading, or other shipping documents, a clear and conspicuous statement that states: "Cigarettes: Washington Law Prohibits Shipping to Individuals Under 18, and Requires the Payment of all Applicable Taxes";
     (b) Contract only with private carriers who employ delivery agents who will verify the receiver of the cigarettes is not a minor upon delivery. The only forms of identification that are acceptable as proof of age for the purchase for tobacco products are: (i) A liquor control authority card of identification issued by a state of the United States or Canada, (ii) a driver's license, instruction permit, or identification card issued by a state of the United States or Province of Canada, (iii) a United States military identification card, (iv) a passport, or (v) a merchant marine identification card issued by the United States coast guard;
     (c) Provide to the delivery service retained for the delivery sale evidence of full compliance with subsection (6) of this section.
     (5)(a) Before making delivery sales or mailings, shipping, or otherwise delivering cigarettes to a Washington address in connection with any sales, any person who mails, ships, or otherwise delivers cigarettes shall file with the board a statement setting forth the person's name, trade name, and the address of the person's principal place of business and any other place of business.
     (b) Any person who mails, ships, or otherwise delivers cigarettes in connection with a delivery sale shall within fifteen days after the first of each month file with the board a report of all delivery sales made by the person within this state for the preceding month. The report shall show the name and address of the consumer to whom the cigarettes were sold, the kind and quality, and the date of delivery thereof.
     (6)(a) Any person failing to collect or remit to the department of revenue any tax required under chapter 82.24 RCW in connection with a delivery sale shall be assessed, in addition to any other penalty, a penalty of five times the retail value of the cigarettes involved.
     (b) Cigarettes sold or attempted to be sold in a delivery sale that do not meet the requirements of this chapter shall be forfeited to the state and destroyed as prescribed in chapter 82.24 RCW.
     (c) Cigarettes delivered or attempted to be delivered in a delivery sale that do not meet the requirements of this chapter shall be forfeited to the state and destroyed as prescribed in chapter 82.24 RCW.
     (d) All fixtures, equipment, and all other materials and personal property on the premises of any person who, with the intent to defraud the state, violates any of the requirements of this chapter, shall be forfeited to the state as prescribed in chapter 82.24 RCW.