Public Law 111-154 - Prevent All Cigarette Trafficking Act of 2009

PUBLIC LAW 111–154—MAR. 31, 2010

124 STAT. 1087

Public Law 111–154
111th Congress
An Act
To prevent tobacco smuggling, to ensure the collection of all tobacco taxes, and
for other purposes.

Mar. 31, 2010
[S. 1147]

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

ebenthall on DSK9Q6SHH1PROD with PUBLAW

SECTION 1. SHORT TITLE; FINDINGS; PURPOSES.

(a) SHORT TITLE.—This Act may be cited as the ‘‘Prevent All
Cigarette Trafficking Act of 2009’’ or ‘‘PACT Act’’.
(b) FINDINGS.—Congress finds that—
(1) the sale of illegal cigarettes and smokeless tobacco
products significantly reduces Federal, State, and local government revenues, with Internet sales alone accounting for billions
of dollars of lost Federal, State, and local tobacco tax revenue
each year;
(2) Hezbollah, Hamas, al Qaeda, and other terrorist
organizations have profited from trafficking in illegal cigarettes
or counterfeit cigarette tax stamps;
(3) terrorist involvement in illicit cigarette trafficking will
continue to grow because of the large profits such organizations
can earn;
(4) the sale of illegal cigarettes and smokeless tobacco
over the Internet, and through mail, fax, or phone orders,
makes it cheaper and easier for children to obtain tobacco
products;
(5) the majority of Internet and other remote sales of
cigarettes and smokeless tobacco are being made without adequate precautions to protect against sales to children, without
the payment of applicable taxes, and without complying with
the nominal registration and reporting requirements in existing
Federal law;
(6) unfair competition from illegal sales of cigarettes and
smokeless tobacco is taking billions of dollars of sales away
from law-abiding retailers throughout the United States;
(7) with rising State and local tobacco tax rates, the incentives for the illegal sale of cigarettes and smokeless tobacco
have increased;
(8) the number of active tobacco investigations being conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives rose to 452 in 2005;
(9) the number of Internet vendors in the United States
and in foreign countries that sell cigarettes and smokeless
tobacco to buyers in the United States increased from only
about 40 in 2000 to more than 500 in 2005; and

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00001

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

Prevent All
Cigarette
Trafficking Act of
2009.
15 USC 375 note.
15 USC 375 note.

GPO1

PsN: PUBL154

124 STAT. 1088

PUBLIC LAW 111–154—MAR. 31, 2010
(10) the intrastate sale of illegal cigarettes and smokeless
tobacco over the Internet has a substantial effect on interstate
commerce.
(c) PURPOSES.—It is the purpose of this Act to—
(1) require Internet and other remote sellers of cigarettes
and smokeless tobacco to comply with the same laws that
apply to law-abiding tobacco retailers;
(2) create strong disincentives to illegal smuggling of
tobacco products;
(3) provide government enforcement officials with more
effective enforcement tools to combat tobacco smuggling;
(4) make it more difficult for cigarette and smokeless
tobacco traffickers to engage in and profit from their illegal
activities;
(5) increase collections of Federal, State, and local excise
taxes on cigarettes and smokeless tobacco; and
(6) prevent and reduce youth access to inexpensive cigarettes and smokeless tobacco through illegal Internet or contraband sales.

SEC. 2. COLLECTION OF STATE CIGARETTE AND SMOKELESS TOBACCO
TAXES.

15 USC 375.

(a) DEFINITIONS.—The Act of October 19, 1949 (15 U.S.C. 375
et seq.; commonly referred to as the ‘‘Jenkins Act’’) (referred to
in this Act as the ‘‘Jenkins Act’’), is amended by striking the
first section and inserting the following:

ebenthall on DSK9Q6SHH1PROD with PUBLAW

‘‘SECTION 1. DEFINITIONS.

‘‘As used in this Act, the following definitions apply:
‘‘(1) ATTORNEY GENERAL.—The term ‘attorney general’, with
respect to a State, means the attorney general or other chief
law enforcement officer of the State.
‘‘(2) CIGARETTE.—
‘‘(A) IN GENERAL.—The term ‘cigarette’—
‘‘(i) has the meaning given that term in section
2341 of title 18, United States Code; and
‘‘(ii) includes roll-your-own tobacco (as defined in
section 5702 of the Internal Revenue Code of 1986).
‘‘(B) EXCEPTION.—The term ‘cigarette’ does not include
a cigar (as defined in section 5702 of the Internal Revenue
Code of 1986).
‘‘(3) COMMON CARRIER.—The term ‘common carrier’ means
any person (other than a local messenger service or the United
States Postal Service) that holds itself out to the general public
as a provider for hire of the transportation by water, land,
or air of merchandise (regardless of whether the person actually
operates the vessel, vehicle, or aircraft by which the transportation is provided) between a port or place and a port or
place in the United States.
‘‘(4) CONSUMER.—The term ‘consumer’—
‘‘(A) means any person that purchases cigarettes or
smokeless tobacco; and
‘‘(B) does not include any person lawfully operating
as a manufacturer, distributor, wholesaler, or retailer of
cigarettes or smokeless tobacco.
‘‘(5) DELIVERY SALE.—The term ‘delivery sale’ means any
sale of cigarettes or smokeless tobacco to a consumer if—

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00002

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

ebenthall on DSK9Q6SHH1PROD with PUBLAW

PUBLIC LAW 111–154—MAR. 31, 2010

124 STAT. 1089

‘‘(A) the consumer submits the order for the sale by
means of a telephone or other method of voice transmission,
the mails, or the Internet or other online service, or the
seller is otherwise not in the physical presence of the
buyer when the request for purchase or order is made;
or
‘‘(B) the cigarettes or smokeless tobacco are delivered
to the buyer by common carrier, private delivery service,
or other method of remote delivery, or the seller is not
in the physical presence of the buyer when the buyer
obtains possession of the cigarettes or smokeless tobacco.
‘‘(6) DELIVERY SELLER.—The term ‘delivery seller’ means
a person who makes a delivery sale.
‘‘(7) INDIAN COUNTRY.—The term ‘Indian country’—
‘‘(A) has the meaning given that term in section 1151
of title 18, United States Code, except that within the
State of Alaska that term applies only to the Metlakatla
Indian Community, Annette Island Reserve; and
‘‘(B) includes any other land held by the United States
in trust or restricted status for one or more Indian tribes.
‘‘(8) INDIAN TRIBE.—The term ‘Indian tribe’, ‘tribe’, or ‘tribal’
refers to an Indian tribe as defined in section 4(e) of the
Indian Self-Determination and Education Assistance Act (25
U.S.C. 450b(e)) or as listed pursuant to section 104 of the
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C.
479a–1).
‘‘(9) INTERSTATE COMMERCE.—
‘‘(A) IN GENERAL.—The term ‘interstate commerce’
means commerce between a State and any place outside
the State, commerce between a State and any Indian
country in the State, or commerce between points in the
same State but through any place outside the State or
through any Indian country.
‘‘(B) INTO A STATE, PLACE, OR LOCALITY.—A sale, shipment, or transfer of cigarettes or smokeless tobacco that
is made in interstate commerce, as defined in this paragraph, shall be deemed to have been made into the State,
place, or locality in which such cigarettes or smokeless
tobacco are delivered.
‘‘(10) PERSON.—The term ‘person’ means an individual, corporation, company, association, firm, partnership, society, State
government, local government, Indian tribal government,
governmental organization of such a government, or joint stock
company.
‘‘(11) STATE.—The term ‘State’ means each of the several
States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, or any territory or possession
of the United States.
‘‘(12) SMOKELESS TOBACCO.—The term ‘smokeless tobacco’
means any finely cut, ground, powdered, or leaf tobacco, or
other product containing tobacco, that is intended to be placed
in the oral or nasal cavity or otherwise consumed without
being combusted.
‘‘(13) TOBACCO TAX ADMINISTRATOR.—The term ‘tobacco tax
administrator’ means the State, local, or tribal official duly
authorized to collect the tobacco tax or administer the tax
law of a State, locality, or tribe, respectively.

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00003

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

ebenthall on DSK9Q6SHH1PROD with PUBLAW

124 STAT. 1090

PUBLIC LAW 111–154—MAR. 31, 2010

‘‘(14) USE.—The term ‘use’ includes the consumption, storage, handling, or disposal of cigarettes or smokeless tobacco.’’.
(b) REPORTS TO STATE TOBACCO TAX ADMINISTRATORS.—Section
2 of the Jenkins Act (15 U.S.C. 376) is amended—
(1) by striking ‘‘cigarettes’’ each place it appears and
inserting ‘‘cigarettes or smokeless tobacco’’;
(2) in subsection (a)—
(A) in the matter preceding paragraph (1)—
(i) by inserting ‘‘CONTENTS.—’’ after ‘‘(a)’’;
(ii) by striking ‘‘or transfers’’ and inserting ‘‘, transfers, or ships’’;
(iii) by inserting ‘‘, locality, or Indian country of
an Indian tribe’’ after ‘‘a State’’;
(iv) by striking ‘‘to other than a distributor licensed
by or located in such State,’’; and
(v) by striking ‘‘or transfer and shipment’’ and
inserting ‘‘, transfer, or shipment’’;
(B) in paragraph (1)—
(i) by striking ‘‘with the tobacco tax administrator
of the State’’ and inserting ‘‘with the Attorney General
of the United States and with the tobacco tax administrators of the State and place’’; and
(ii) by striking ‘‘; and’’ and inserting the following:
‘‘, as well as telephone numbers for each place of business, a principal electronic mail address, any website
addresses, and the name, address, and telephone
number of an agent in the State authorized to accept
service on behalf of the person;’’;
(C) in paragraph (2), by striking ‘‘and the quantity
thereof.’’ and inserting ‘‘the quantity thereof, and the name,
address, and phone number of the person delivering the
shipment to the recipient on behalf of the delivery seller,
with all invoice or memoranda information relating to specific customers to be organized by city or town and by
zip code; and’’; and
(D) by adding at the end the following:
‘‘(3) with respect to each memorandum or invoice filed
with a State under paragraph (2), also file copies of the memorandum or invoice with the tobacco tax administrators and
chief law enforcement officers of the local governments and
Indian tribes operating within the borders of the State that
apply their own local or tribal taxes on cigarettes or smokeless
tobacco.’’;
(3) in subsection (b)—
(A) by inserting ‘‘PRESUMPTIVE EVIDENCE.—’’ after
‘‘(b)’’;
(B) by striking ‘‘(1) that’’ and inserting ‘‘that’’; and
(C) by striking ‘‘, and (2)’’ and all that follows and
inserting a period; and
(4) by adding at the end the following:
‘‘(c) USE OF INFORMATION.—A tobacco tax administrator or chief
law enforcement officer who receives a memorandum or invoice
under paragraph (2) or (3) of subsection (a) shall use the memorandum or invoice solely for the purposes of the enforcement of
this Act and the collection of any taxes owed on related sales
of cigarettes and smokeless tobacco, and shall keep confidential

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00004

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

PUBLIC LAW 111–154—MAR. 31, 2010

124 STAT. 1091

any personal information in the memorandum or invoice except
as required for such purposes.’’.
(c) REQUIREMENTS FOR DELIVERY SALES.—The Jenkins Act is
amended by inserting after section 2 the following:

ebenthall on DSK9Q6SHH1PROD with PUBLAW

‘‘SEC. 2A. DELIVERY SALES.

15 USC 376a.

‘‘(a) IN GENERAL.—With respect to delivery sales into a specific
State and place, each delivery seller shall comply with—
‘‘(1) the shipping requirements set forth in subsection (b);
‘‘(2) the recordkeeping requirements set forth in subsection
(c);
‘‘(3) all State, local, tribal, and other laws generally
applicable to sales of cigarettes or smokeless tobacco as if
the delivery sales occurred entirely within the specific State
and place, including laws imposing—
‘‘(A) excise taxes;
‘‘(B) licensing and tax-stamping requirements;
‘‘(C) restrictions on sales to minors; and
‘‘(D) other payment obligations or legal requirements
relating to the sale, distribution, or delivery of cigarettes
or smokeless tobacco; and
‘‘(4) the tax collection requirements set forth in subsection
(d).
‘‘(b) SHIPPING AND PACKAGING.—
‘‘(1) REQUIRED STATEMENT.—For any shipping package containing cigarettes or smokeless tobacco, the delivery seller shall
include on the bill of lading, if any, and on the outside of
the shipping package, on the same surface as the delivery
address, a clear and conspicuous statement providing as follows:
‘CIGARETTES/SMOKELESS TOBACCO: FEDERAL LAW
REQUIRES THE PAYMENT OF ALL APPLICABLE EXCISE
TAXES,
AND
COMPLIANCE
WITH
APPLICABLE
LICENSING AND TAX-STAMPING OBLIGATIONS’.
‘‘(2) FAILURE TO LABEL.—Any shipping package described
in paragraph (1) that is not labeled in accordance with that
paragraph shall be treated as nondeliverable matter by a
common carrier or other delivery service, if the common carrier
or other delivery service knows or should know the package
contains cigarettes or smokeless tobacco. If a common carrier
or other delivery service believes a package is being submitted
for delivery in violation of paragraph (1), it may require the
person submitting the package for delivery to establish that
it is not being sent in violation of paragraph (1) before accepting
the package for delivery. Nothing in this paragraph shall
require the common carrier or other delivery service to open
any package to determine its contents.
‘‘(3) WEIGHT RESTRICTION.—A delivery seller shall not sell,
offer for sale, deliver, or cause to be delivered in any single
sale or single delivery any cigarettes or smokeless tobacco
weighing more than 10 pounds.
‘‘(4) AGE VERIFICATION.—
‘‘(A) IN GENERAL.—A delivery seller who mails or ships
tobacco products—
‘‘(i) shall not sell, deliver, or cause to be delivered
any tobacco products to a person under the minimum
age required for the legal sale or purchase of tobacco

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00005

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

ebenthall on DSK9Q6SHH1PROD with PUBLAW

124 STAT. 1092

PUBLIC LAW 111–154—MAR. 31, 2010
products, as determined by the applicable law at the
place of delivery;
‘‘(ii) shall use a method of mailing or shipping
that requires—
‘‘(I) the purchaser placing the delivery sale
order, or an adult who is at least the minimum
age required for the legal sale or purchase of
tobacco products, as determined by the applicable
law at the place of delivery, to sign to accept
delivery of the shipping container at the delivery
address; and
‘‘(II) the person who signs to accept delivery
of the shipping container to provide proof, in the
form of a valid, government-issued identification
bearing a photograph of the individual, that the
person is at least the minimum age required for
the legal sale or purchase of tobacco products,
as determined by the applicable law at the place
of delivery; and
‘‘(iii) shall not accept a delivery sale order from
a person without—
‘‘(I) obtaining the full name, birth date, and
residential address of that person; and
‘‘(II) verifying the information provided in subclause (I), through the use of a commercially available database or aggregate of databases, consisting
primarily of data from government sources, that
are regularly used by government and businesses
for the purpose of age and identity verification
and authentication, to ensure that the purchaser
is at least the minimum age required for the legal
sale or purchase of tobacco products, as determined
by the applicable law at the place of delivery.
‘‘(B) LIMITATION.—No database being used for age and
identity verification under subparagraph (A)(iii) shall be
in the possession or under the control of the delivery seller,
or be subject to any changes or supplementation by the
delivery seller.
‘‘(c) RECORDS.—
‘‘(1) IN GENERAL.—Each delivery seller shall keep a record
of any delivery sale, including all of the information described
in section 2(a)(2), organized by the State, and within the State,
by the city or town and by zip code, into which the delivery
sale is so made.
‘‘(2) RECORD RETENTION.—Records of a delivery sale shall
be kept as described in paragraph (1) until the end of the
4th full calendar year that begins after the date of the delivery
sale.
‘‘(3) ACCESS FOR OFFICIALS.—Records kept under paragraph
(1) shall be made available to tobacco tax administrators of
the States, to local governments and Indian tribes that apply
local or tribal taxes on cigarettes or smokeless tobacco, to
the attorneys general of the States, to the chief law enforcement
officers of the local governments and Indian tribes, and to
the Attorney General of the United States in order to ensure
the compliance of persons making delivery sales with the
requirements of this Act.

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00006

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

ebenthall on DSK9Q6SHH1PROD with PUBLAW

PUBLIC LAW 111–154—MAR. 31, 2010

124 STAT. 1093

‘‘(d) DELIVERY.—
‘‘(1) IN GENERAL.—Except as provided in paragraph (2),
no delivery seller may sell or deliver to any consumer, or
tender to any common carrier or other delivery service, any
cigarettes or smokeless tobacco pursuant to a delivery sale
unless, in advance of the sale, delivery, or tender—
‘‘(A) any cigarette or smokeless tobacco excise tax that
is imposed by the State in which the cigarettes or smokeless
tobacco are to be delivered has been paid to the State;
‘‘(B) any cigarette or smokeless tobacco excise tax that
is imposed by the local government of the place in which
the cigarettes or smokeless tobacco are to be delivered
has been paid to the local government; and
‘‘(C) any required stamps or other indicia that the
excise tax has been paid are properly affixed or applied
to the cigarettes or smokeless tobacco.
‘‘(2) EXCEPTION.—Paragraph (1) does not apply to a delivery
sale of smokeless tobacco if the law of the State or local government of the place where the smokeless tobacco is to be delivered
requires or otherwise provides that delivery sellers collect the
excise tax from the consumer and remit the excise tax to
the State or local government, and the delivery seller complies
with the requirement.
‘‘(e) LIST OF UNREGISTERED OR NONCOMPLIANT DELIVERY
SELLERS.—
‘‘(1) IN GENERAL.—
‘‘(A) INITIAL LIST.—Not later than 90 days after this
subsection goes into effect under the Prevent All Cigarette
Trafficking Act of 2009, the Attorney General of the United
States shall compile a list of delivery sellers of cigarettes
or smokeless tobacco that have not registered with the
Attorney General of the United States pursuant to section
2(a), or that are otherwise not in compliance with this
Act, and—
‘‘(i) distribute the list to—
‘‘(I) the attorney general and tax administrator
of every State;
‘‘(II) common carriers and other persons that
deliver small packages to consumers in interstate
commerce, including the United States Postal
Service; and
‘‘(III) any other person that the Attorney General of the United States determines can promote
the effective enforcement of this Act; and
‘‘(ii) publicize and make the list available to any
other person engaged in the business of interstate
deliveries or who delivers cigarettes or smokeless
tobacco in or into any State.
‘‘(B) LIST CONTENTS.—To the extent known, the
Attorney General of the United States shall include, for
each delivery seller on the list described in subparagraph
(A)—
‘‘(i) all names the delivery seller uses or has used
in the transaction of its business or on packages delivered to customers;

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00007

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

Deadline.

GPO1

PsN: PUBL154

124 STAT. 1094

Deadlines.

Distribution.

Deadline.
Notice.

Deadline.

ebenthall on DSK9Q6SHH1PROD with PUBLAW

Determination.
Notification.

VerDate Nov 24 2008

20:05 Apr 22, 2010

Jkt 089139

PUBLIC LAW 111–154—MAR. 31, 2010
‘‘(ii) all addresses from which the delivery seller
does or has done business, or ships or has shipped
cigarettes or smokeless tobacco;
‘‘(iii) the website addresses, primary e-mail
address, and phone number of the delivery seller; and
‘‘(iv) any other information that the Attorney General of the United States determines would facilitate
compliance with this subsection by recipients of the
list.
‘‘(C) UPDATING.—The Attorney General of the United
States shall update and distribute the list described in
subparagraph (A) at least once every 4 months, and may
distribute the list and any updates by regular mail, electronic mail, or any other reasonable means, or by providing
recipients with access to the list through a nonpublic
website that the Attorney General of the United States
regularly updates.
‘‘(D) STATE, LOCAL, OR TRIBAL ADDITIONS.—The
Attorney General of the United States shall include in
the list described in subparagraph (A) any noncomplying
delivery sellers identified by any State, local, or tribal
government under paragraph (6), and shall distribute the
list to the attorney general or chief law enforcement official
and the tax administrator of any government submitting
any such information, and to any common carriers or other
persons who deliver small packages to consumers identified
by any government pursuant to paragraph (6).
‘‘(E) ACCURACY AND COMPLETENESS OF LIST OF NONCOMPLYING DELIVERY SELLERS.—In preparing and revising the
list described in subparagraph (A), the Attorney General
of the United States shall—
‘‘(i) use reasonable procedures to ensure maximum
possible accuracy and completeness of the records and
information relied on for the purpose of determining
that a delivery seller is not in compliance with this
Act;
‘‘(ii) not later than 14 days before including a
delivery seller on the list, make a reasonable attempt
to send notice to the delivery seller by letter, electronic
mail, or other means that the delivery seller is being
placed on the list, which shall cite the relevant provisions of this Act and the specific reasons for which
the delivery seller is being placed on the list;
‘‘(iii) provide an opportunity to the delivery seller
to challenge placement on the list;
‘‘(iv) investigate each challenge described in clause
(iii) by contacting the relevant Federal, State, tribal,
and local law enforcement officials, and provide the
specific findings and results of the investigation to
the delivery seller not later than 30 days after the
date on which the challenge is made; and
‘‘(v) if the Attorney General of the United States
determines that the basis for including a delivery seller
on the list is inaccurate, based on incomplete information, or cannot be verified, promptly remove the
delivery seller from the list as appropriate and notify

PO 00154

Frm 00008

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

PUBL154

ebenthall on DSK9Q6SHH1PROD with PUBLAW

PUBLIC LAW 111–154—MAR. 31, 2010

124 STAT. 1095

each appropriate Federal, State, tribal, and local
authority of the determination.
‘‘(F) CONFIDENTIALITY.—The list described in subparagraph (A) shall be confidential, and any person receiving
the list shall maintain the confidentiality of the list and
may deliver the list, for enforcement purposes, to any
government official or to any common carrier or other
person that delivers tobacco products or small packages
to consumers. Nothing in this section shall prohibit a
common carrier, the United States Postal Service, or any
other person receiving the list from discussing with a listed
delivery seller the inclusion of the delivery seller on the
list and the resulting effects on any services requested
by the listed delivery seller.
‘‘(2) PROHIBITION ON DELIVERY.—
‘‘(A) IN GENERAL.—Commencing on the date that is
60 days after the date of the initial distribution or availability of the list described in paragraph (1)(A), no person
who receives the list under paragraph (1), and no person
who delivers cigarettes or smokeless tobacco to consumers,
shall knowingly complete, cause to be completed, or complete its portion of a delivery of any package for any person
whose name and address are on the list, unless—
‘‘(i) the person making the delivery knows or
believes in good faith that the item does not include
cigarettes or smokeless tobacco;
‘‘(ii) the delivery is made to a person lawfully
engaged in the business of manufacturing, distributing,
or selling cigarettes or smokeless tobacco; or
‘‘(iii) the package being delivered weighs more than
100 pounds and the person making the delivery does
not know or have reasonable cause to believe that
the package contains cigarettes or smokeless tobacco.
‘‘(B) IMPLEMENTATION OF UPDATES.—Commencing on
the date that is 30 days after the date of the distribution
or availability of any updates or corrections to the list
described in paragraph (1)(A), all recipients and all common
carriers or other persons that deliver cigarettes or smokeless tobacco to consumers shall be subject to subparagraph
(A) in regard to the corrections or updates.
‘‘(3) EXEMPTIONS.—
‘‘(A) IN GENERAL.—Subsection (b)(2) and any requirements or restrictions placed directly on common carriers
under this subsection, including subparagraphs (A) and
(B) of paragraph (2), shall not apply to a common carrier
that—
‘‘(i) is subject to a settlement agreement described
in subparagraph (B); or
‘‘(ii) if a settlement agreement described in
subparagraph (B) to which the common carrier is a
party is terminated or otherwise becomes inactive, is
administering and enforcing policies and practices
throughout the United States that are at least as stringent as the agreement.
‘‘(B) SETTLEMENT AGREEMENT.—A settlement agreement described in this subparagraph—

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00009

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

Effective dates.

GPO1

PsN: PUBL154

124 STAT. 1096

‘‘(i) is a settlement agreement relating to tobacco
product deliveries to consumers; and
‘‘(ii) includes—
‘‘(I) the Assurance of Discontinuance entered
into by the Attorney General of New York and
DHL Holdings USA, Inc. and DHL Express (USA),
Inc. on or about July 1, 2005, the Assurance of
Discontinuance entered into by the Attorney General of New York and United Parcel Service, Inc.
on or about October 21, 2005, and the Assurance
of Compliance entered into by the Attorney General of New York and Federal Express Corporation
and FedEx Ground Package Systems, Inc. on or
about February 3, 2006, if each of those agreements is honored throughout the United States
to block illegal deliveries of cigarettes or smokeless
tobacco to consumers; and
‘‘(II) any other active agreement between a
common carrier and a State that operates throughout the United States to ensure that no deliveries
of cigarettes or smokeless tobacco shall be made
to consumers or illegally operating Internet or
mail-order sellers and that any such deliveries
to consumers shall not be made to minors or without payment to the States and localities where
the consumers are located of all taxes on the
tobacco products.
‘‘(4) SHIPMENTS FROM PERSONS ON LIST.—
‘‘(A) IN GENERAL.—If a common carrier or other
delivery service delays or interrupts the delivery of a package in the possession of the common carrier or delivery
service because the common carrier or delivery service
determines or has reason to believe that the person
ordering the delivery is on a list described in paragraph
(1)(A) and that clauses (i), (ii), and (iii) of paragraph (2)(A)
do not apply—
‘‘(i) the person ordering the delivery shall be obligated to pay—
‘‘(I) the common carrier or other delivery
service as if the delivery of the package had been
timely completed; and
‘‘(II) if the package is not deliverable, any
reasonable additional fee or charge levied by the
common carrier or other delivery service to cover
any extra costs and inconvenience and to serve
as a disincentive against such noncomplying
delivery orders; and
‘‘(ii) if the package is determined not to be deliverable, the common carrier or other delivery service shall
offer to provide the package and its contents to a
Federal, State, or local law enforcement agency.
‘‘(B) RECORDS.—A common carrier or other delivery
service shall maintain, for a period of 5 years, any records
kept in the ordinary course of business relating to any
delivery interrupted under this paragraph and provide that
information, upon request, to the Attorney General of the
United States or to the attorney general or chief law

ebenthall on DSK9Q6SHH1PROD with PUBLAW

Time period.

VerDate Nov 24 2008

13:12 Apr 09, 2010

PUBLIC LAW 111–154—MAR. 31, 2010

Jkt 089139

PO 00000

Frm 00010

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

ebenthall on DSK9Q6SHH1PROD with PUBLAW

PUBLIC LAW 111–154—MAR. 31, 2010

124 STAT. 1097

enforcement official or tax administrator of any State, local,
or tribal government.
‘‘(C) CONFIDENTIALITY.—Any person receiving records
under subparagraph (B) shall—
‘‘(i) use the records solely for the purposes of the
enforcement of this Act and the collection of any taxes
owed on related sales of cigarettes and smokeless
tobacco; and
‘‘(ii) keep confidential any personal information in
the records not otherwise required for such purposes.
‘‘(5) PREEMPTION.—
‘‘(A) IN GENERAL.—No State, local, or tribal government, nor any political authority of 2 or more State, local,
or tribal governments, may enact or enforce any law or
regulation relating to delivery sales that restricts deliveries
of cigarettes or smokeless tobacco to consumers by common
carriers or other delivery services on behalf of delivery
sellers by—
‘‘(i) requiring that the common carrier or other
delivery service verify the age or identity of the consumer accepting the delivery by requiring the person
who signs to accept delivery of the shipping container
to provide proof, in the form of a valid, governmentissued identification bearing a photograph of the individual, that the person is at least the minimum age
required for the legal sale or purchase of tobacco products, as determined by either State or local law at
the place of delivery;
‘‘(ii) requiring that the common carrier or other
delivery service obtain a signature from the consumer
accepting the delivery;
‘‘(iii) requiring that the common carrier or other
delivery service verify that all applicable taxes have
been paid;
‘‘(iv) requiring that packages delivered by the
common carrier or other delivery service contain any
particular labels, notice, or markings; or
‘‘(v) prohibiting common carriers or other delivery
services from making deliveries on the basis of whether
the delivery seller is or is not identified on any list
of delivery sellers maintained and distributed by any
entity other than the Federal Government.
‘‘(B) RELATIONSHIP TO OTHER LAWS.—Except as provided in subparagraph (C), nothing in this paragraph shall
be construed to nullify, expand, restrict, or otherwise
amend or modify—
‘‘(i) section 14501(c)(1) or 41713(b)(4) of title 49,
United States Code;
‘‘(ii) any other restrictions in Federal law on the
ability of State, local, or tribal governments to regulate
common carriers; or
‘‘(iii) any provision of State, local, or tribal law
regulating common carriers that is described in section
14501(c)(2) or 41713(b)(4)(B) of title 49 of the United
States Code.
‘‘(C) STATE LAWS PROHIBITING DELIVERY SALES.—

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00011

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

124 STAT. 1098

‘‘(i) IN GENERAL.—Except as provided in clause
(ii), nothing in the Prevent All Cigarette Trafficking
Act of 2009, the amendments made by that Act, or
in any other Federal statute shall be construed to
preempt, supersede, or otherwise limit or restrict State
laws prohibiting the delivery sale, or the shipment
or delivery pursuant to a delivery sale, of cigarettes
or other tobacco products to individual consumers or
personal residences.
‘‘(ii) EXEMPTIONS.—No State may enforce against
a common carrier a law prohibiting the delivery of
cigarettes or other tobacco products to individual consumers or personal residences without proof that the
common carrier is not exempt under paragraph (3)
of this subsection.
‘‘(6) STATE, LOCAL, AND TRIBAL ADDITIONS.—
‘‘(A) IN GENERAL.—Any State, local, or tribal government shall provide the Attorney General of the United
States with—
‘‘(i) all known names, addresses, website addresses,
and other primary contact information of any delivery
seller that—
‘‘(I) offers for sale or makes sales of cigarettes
or smokeless tobacco in or into the State, locality,
or tribal land; and
‘‘(II) has failed to register with or make reports
to the respective tax administrator as required
by this Act, or that has been found in a legal
proceeding to have otherwise failed to comply with
this Act; and
‘‘(ii) a list of common carriers and other persons
who make deliveries of cigarettes or smokeless tobacco
in or into the State, locality, or tribal land.
‘‘(B) UPDATES.—Any government providing a list to
the Attorney General of the United States under subparagraph (A) shall also provide updates and corrections every
4 months until such time as the government notifies the
Attorney General of the United States in writing that the
government no longer desires to submit information to
supplement the list described in paragraph (1)(A).
‘‘(C) REMOVAL AFTER WITHDRAWAL.—Upon receiving
written notice that a government no longer desires to
submit information under subparagraph (A), the Attorney
General of the United States shall remove from the list
described in paragraph (1)(A) any persons that are on
the list solely because of the prior submissions of the
government of the list of the government of noncomplying
delivery sellers of cigarettes or smokeless tobacco or a
subsequent update or correction by the government.
‘‘(7) DEADLINE TO INCORPORATE ADDITIONS.—The Attorney
General of the United States shall—
‘‘(A) include any delivery seller identified and submitted by a State, local, or tribal government under paragraph (6) in any list or update that is distributed or made
available under paragraph (1) on or after the date that
is 30 days after the date on which the information is

Lists.

ebenthall on DSK9Q6SHH1PROD with PUBLAW

Deadlines.
Notification.

VerDate Nov 24 2008

13:12 Apr 09, 2010

PUBLIC LAW 111–154—MAR. 31, 2010

Jkt 089139

PO 00000

Frm 00012

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

ebenthall on DSK9Q6SHH1PROD with PUBLAW

PUBLIC LAW 111–154—MAR. 31, 2010

124 STAT. 1099

received by the Attorney General of the United States;
and
‘‘(B) distribute any list or update described in subparagraph (A) to any common carrier or other person who
makes deliveries of cigarettes or smokeless tobacco that
has been identified and submitted by a government pursuant to paragraph (6).
‘‘(8) NOTICE TO DELIVERY SELLERS.—Not later than 14 days
before including any delivery seller on the initial list described
in paragraph (1)(A), or on an update to the list for the first
time, the Attorney General of the United States shall make
a reasonable attempt to send notice to the delivery seller by
letter, electronic mail, or other means that the delivery seller
is being placed on the list or update, with that notice citing
the relevant provisions of this Act.
‘‘(9) LIMITATIONS.—
‘‘(A) IN GENERAL.—Any common carrier or other person
making a delivery subject to this subsection shall not be
required or otherwise obligated to—
‘‘(i) determine whether any list distributed or made
available under paragraph (1) is complete, accurate,
or up-to-date;
‘‘(ii) determine whether a person ordering a
delivery is in compliance with this Act; or
‘‘(iii) open or inspect, pursuant to this Act, any
package being delivered to determine its contents.
‘‘(B) ALTERNATE NAMES.—Any common carrier or other
person making a delivery subject to this subsection—
‘‘(i) shall not be required to make any inquiries
or otherwise determine whether a person ordering a
delivery is a delivery seller on the list described in
paragraph (1)(A) who is using a different name or
address in order to evade the related delivery restrictions; and
‘‘(ii) shall not knowingly deliver any packages to
consumers for any delivery seller on the list described
in paragraph (1)(A) who the common carrier or other
delivery service knows is a delivery seller who is on
the list and is using a different name or address to
evade the delivery restrictions of paragraph (2).
‘‘(C) PENALTIES.—Any common carrier or person in the
business of delivering packages on behalf of other persons
shall not be subject to any penalty under section 14101(a)
of title 49, United States Code, or any other provision
of law for—
‘‘(i) not making any specific delivery, or any deliveries at all, on behalf of any person on the list described
in paragraph (1)(A);
‘‘(ii) refusing, as a matter of regular practice and
procedure, to make any deliveries, or any deliveries
in certain States, of any cigarettes or smokeless tobacco
for any person or for any person not in the business
of manufacturing, distributing, or selling cigarettes or
smokeless tobacco; or
‘‘(iii) delaying or not making a delivery for any
person because of reasonable efforts to comply with
this Act.

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00013

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

Deadline.

GPO1

PsN: PUBL154

124 STAT. 1100

15 USC 377.

PUBLIC LAW 111–154—MAR. 31, 2010

‘‘(D) OTHER LIMITS.—Section 2 and subsections (a), (b),
(c), and (d) of this section shall not be interpreted to impose
any responsibilities, requirements, or liability on common
carriers.
‘‘(f) PRESUMPTION.—For purposes of this Act, a delivery sale
shall be deemed to have occurred in the State and place where
the buyer obtains personal possession of the cigarettes or smokeless
tobacco, and a delivery pursuant to a delivery sale is deemed
to have been initiated or ordered by the delivery seller.’’.
(d) PENALTIES.—The Jenkins Act is amended by striking section
3 and inserting the following:

ebenthall on DSK9Q6SHH1PROD with PUBLAW

‘‘SEC. 3. PENALTIES.

‘‘(a) CRIMINAL PENALTIES.—
‘‘(1) IN GENERAL.—Except as provided in paragraph (2),
whoever knowingly violates this Act shall be imprisoned for
not more than 3 years, fined under title 18, United States
Code, or both.
‘‘(2) EXCEPTIONS.—
‘‘(A) GOVERNMENTS.—Paragraph (1) shall not apply to
a State, local, or tribal government.
‘‘(B) DELIVERY VIOLATIONS.—A common carrier or independent delivery service, or employee of a common carrier
or independent delivery service, shall be subject to criminal
penalties under paragraph (1) for a violation of section
2A(e) only if the violation is committed knowingly—
‘‘(i) as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything
of pecuniary value; or
‘‘(ii) for the purpose of assisting a delivery seller
to violate, or otherwise evading compliance with, section 2A.
‘‘(b) CIVIL PENALTIES.—
‘‘(1) IN GENERAL.—Except as provided in paragraph (3),
whoever violates this Act shall be subject to a civil penalty
in an amount not to exceed—
‘‘(A) in the case of a delivery seller, the greater of—
‘‘(i) $5,000 in the case of the first violation, or
$10,000 for any other violation; or
‘‘(ii) for any violation, 2 percent of the gross sales
of cigarettes or smokeless tobacco of the delivery seller
during the 1-year period ending on the date of the
violation.
‘‘(B) in the case of a common carrier or other delivery
service, $2,500 in the case of a first violation, or $5,000
for any violation within 1 year of a prior violation.
‘‘(2) RELATION TO OTHER PENALTIES.—A civil penalty
imposed under paragraph (1) for a violation of this Act shall
be imposed in addition to any criminal penalty under subsection
(a) and any other damages, equitable relief, or injunctive relief
awarded by the court, including the payment of any unpaid
taxes to the appropriate Federal, State, local, or tribal governments.
‘‘(3) EXCEPTIONS.—
‘‘(A) DELIVERY VIOLATIONS.—An employee of a common
carrier or independent delivery service shall be subject
to civil penalties under paragraph (1) for a violation of

VerDate Nov 24 2008

20:05 Apr 22, 2010

Jkt 089139

PO 00154

Frm 00014

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

PUBL154

PUBLIC LAW 111–154—MAR. 31, 2010

124 STAT. 1101

section 2A(e) only if the violation is committed intentionally—
‘‘(i) as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything
of pecuniary value; or
‘‘(ii) for the purpose of assisting a delivery seller
to violate, or otherwise evading compliance with, section 2A.
‘‘(B) OTHER LIMITATIONS.—No common carrier or independent delivery service shall be subject to civil penalties
under paragraph (1) for a violation of section 2A(e) if—
‘‘(i) the common carrier or independent delivery
service has implemented and enforces effective policies
and practices for complying with that section; or
‘‘(ii) the violation consists of an employee of the
common carrier or independent delivery service who
physically receives and processes orders, picks up packages, processes packages, or makes deliveries, taking
actions that are outside the scope of employment of
the employee, or that violate the implemented and
enforced policies of the common carrier or independent
delivery service described in clause (i).’’.
(e) ENFORCEMENT.—The Jenkins Act is amended by striking
section 4 and inserting the following:

15 USC 378.

ebenthall on DSK9Q6SHH1PROD with PUBLAW

‘‘SEC. 4. ENFORCEMENT.

‘‘(a) IN GENERAL.—The United States district courts shall have
jurisdiction to prevent and restrain violations of this Act and to
provide other appropriate injunctive or equitable relief, including
money damages, for the violations.
‘‘(b) AUTHORITY OF THE ATTORNEY GENERAL.—The Attorney
General of the United States shall administer and enforce this
Act.
‘‘(c) STATE, LOCAL, AND TRIBAL ENFORCEMENT.—
‘‘(1) IN GENERAL.—
‘‘(A) STANDING.—A State, through its attorney general,
or a local government or Indian tribe that levies a tax
subject to section 2A(a)(3), through its chief law enforcement officer, may bring an action in a United States district
court to prevent and restrain violations of this Act by
any person or to obtain any other appropriate relief from
any person for violations of this Act, including civil penalties, money damages, and injunctive or other equitable
relief.
‘‘(B) SOVEREIGN IMMUNITY.—Nothing in this Act shall
be deemed to abrogate or constitute a waiver of any sovereign immunity of a State or local government or Indian
tribe against any unconsented lawsuit under this Act, or
otherwise to restrict, expand, or modify any sovereign
immunity of a State or local government or Indian tribe.
‘‘(2) PROVISION OF INFORMATION.—A State, through its
attorney general, or a local government or Indian tribe that
levies a tax subject to section 2A(a)(3), through its chief law
enforcement officer, may provide evidence of a violation of
this Act by any person not subject to State, local, or tribal
government enforcement actions for violations of this Act to
the Attorney General of the United States or a United States

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00015

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

Courts.

GPO1

PsN: PUBL154

ebenthall on DSK9Q6SHH1PROD with PUBLAW

124 STAT. 1102

PUBLIC LAW 111–154—MAR. 31, 2010

attorney, who shall take appropriate actions to enforce this
Act.
‘‘(3) USE OF PENALTIES COLLECTED.—
‘‘(A) IN GENERAL.—There is established a separate
account in the Treasury known as the ‘PACT Anti-Trafficking Fund’. Notwithstanding any other provision of law
and subject to subparagraph (B), an amount equal to 50
percent of any criminal and civil penalties collected by
the Federal Government in enforcing this Act shall be
transferred into the PACT Anti-Trafficking Fund and shall
be available to the Attorney General of the United States
for purposes of enforcing this Act and other laws relating
to contraband tobacco products.
‘‘(B) ALLOCATION OF FUNDS.—Of the amount available
to the Attorney General of the United States under
subparagraph (A), not less than 50 percent shall be made
available only to the agencies and offices within the Department of Justice that were responsible for the enforcement
actions in which the penalties concerned were imposed
or for any underlying investigations.
‘‘(4) NONEXCLUSIVITY OF REMEDY.—
‘‘(A) IN GENERAL.—The remedies available under this
section and section 3 are in addition to any other remedies
available under Federal, State, local, tribal, or other law.
‘‘(B) STATE COURT PROCEEDINGS.—Nothing in this Act
shall be construed to expand, restrict, or otherwise modify
any right of an authorized State official to proceed in
State court, or take other enforcement actions, on the basis
of an alleged violation of State or other law.
‘‘(C) TRIBAL COURT PROCEEDINGS.—Nothing in this Act
shall be construed to expand, restrict, or otherwise modify
any right of an authorized Indian tribal government official
to proceed in tribal court, or take other enforcement actions,
on the basis of an alleged violation of tribal law.
‘‘(D) LOCAL GOVERNMENT ENFORCEMENT.—Nothing in
this Act shall be construed to expand, restrict, or otherwise
modify any right of an authorized local government official
to proceed in State court, or take other enforcement actions,
on the basis of an alleged violation of local or other law.
‘‘(d) PERSONS DEALING IN TOBACCO PRODUCTS.—Any person
who holds a permit under section 5712 of the Internal Revenue
Code of 1986 (regarding permitting of manufacturers and importers
of tobacco products and export warehouse proprietors) may bring
an action in an appropriate United States district court to prevent
and restrain violations of this Act by any person other than a
State, local, or tribal government.
‘‘(e) NOTICE.—
‘‘(1) PERSONS DEALING IN TOBACCO PRODUCTS.—Any person
who commences a civil action under subsection (d) shall inform
the Attorney General of the United States of the action.
‘‘(2) STATE, LOCAL, AND TRIBAL ACTIONS.—It is the sense
of Congress that the attorney general of any State, or chief
law enforcement officer of any locality or tribe, that commences
a civil action under this section should inform the Attorney
General of the United States of the action.
‘‘(f) PUBLIC NOTICE.—

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00016

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

PUBLIC LAW 111–154—MAR. 31, 2010

124 STAT. 1103

‘‘(1) IN GENERAL.—The Attorney General of the United
States shall make available to the public, by posting information on the Internet and by other appropriate means, information regarding all enforcement actions brought by the United
States, or reported to the Attorney General of the United States,
under this section, including information regarding the resolution of the enforcement actions and how the Attorney General
of the United States has responded to referrals of evidence
of violations pursuant to subsection (c)(2).
‘‘(2) REPORTS TO CONGRESS.—Not later than 1 year after
the date of enactment of the Prevent All Cigarette Trafficking
Act of 2009, and every year thereafter until the date that
is 5 years after such date of enactment, the Attorney General
of the United States shall submit to Congress a report containing the information described in paragraph (1).’’.
SEC. 3. TREATMENT OF CIGARETTES AND SMOKELESS TOBACCO AS
NONMAILABLE MATTER.

ebenthall on DSK9Q6SHH1PROD with PUBLAW

(a) IN GENERAL.—Chapter 83 of title 18, United States Code,
is amended by inserting after section 1716D the following:
‘‘§ 1716E. Tobacco products as nonmailable
‘‘(a) PROHIBITION.—
‘‘(1) IN GENERAL.—All cigarettes and smokeless tobacco (as
those terms are defined in section 1 of the Act of October
19, 1949, commonly referred to as the Jenkins Act) are nonmailable and shall not be deposited in or carried through the
mails. The United States Postal Service shall not accept for
delivery or transmit through the mails any package that it
knows or has reasonable cause to believe contains any cigarettes
or smokeless tobacco made nonmailable by this paragraph.
‘‘(2) REASONABLE CAUSE.—For the purposes of this subsection reasonable cause includes—
‘‘(A) a statement on a publicly available website, or
an advertisement, by any person that the person will mail
matter which is nonmailable under this section in return
for payment; or
‘‘(B) the fact that the person is on the list created
under section 2A(e) of the Jenkins Act.
‘‘(b) EXCEPTIONS.—
‘‘(1) CIGARS.—Subsection (a) shall not apply to cigars (as
defined in section 5702(a) of the Internal Revenue Code of
1986).
‘‘(2) GEOGRAPHIC EXCEPTION.—Subsection (a) shall not
apply to mailings within the State of Alaska or within the
State of Hawaii.
‘‘(3) BUSINESS PURPOSES.—
‘‘(A) IN GENERAL.—Subsection (a) shall not apply to
tobacco products mailed only—
‘‘(i) for business purposes between legally operating
businesses that have all applicable State and Federal
Government licenses or permits and are engaged in
tobacco product manufacturing, distribution, wholesale,
export, import, testing, investigation, or research; or
‘‘(ii) for regulatory purposes between any business
described in clause (i) and an agency of the Federal
Government or a State government.

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00017

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

Alaska.
Hawaii.

GPO1

PsN: PUBL154

124 STAT. 1104

‘‘(B) RULES.—
‘‘(i) IN GENERAL.—Not later than 180 days after
the date of enactment of the Prevent All Cigarette
Trafficking Act of 2009, the Postmaster General shall
issue a final rule which shall establish the standards
and requirements that apply to all mailings described
in subparagraph (A).
‘‘(ii) CONTENTS.—The final rule issued under clause
(i) shall require—
‘‘(I) the United States Postal Service to verify
that any person submitting an otherwise nonmailable tobacco product into the mails as authorized under this paragraph is a business or government agency permitted to make a mailing under
this paragraph;
‘‘(II) the United States Postal Service to ensure
that any recipient of an otherwise nonmailable
tobacco product sent through the mails under this
paragraph is a business or government agency that
may lawfully receive the product;
‘‘(III) that any mailing described in subparagraph (A) shall be sent through the systems of
the United States Postal Service that provide for
the tracking and confirmation of the delivery;
‘‘(IV) that the identity of the business or
government entity submitting the mailing containing otherwise nonmailable tobacco products for
delivery and the identity of the business or government entity receiving the mailing are clearly set
forth on the package;
‘‘(V) the United States Postal Service to maintain identifying information described in subclause
(IV) during the 3-year period beginning on the
date of the mailing and make the information
available to the Postal Service, the Attorney General of the United States, and to persons eligible
to bring enforcement actions under section 3(d)
of the Prevent All Cigarette Trafficking Act of
2009;
‘‘(VI) that any mailing described in subparagraph (A) be marked with a United States Postal
Service label or marking that makes it clear to
employees of the United States Postal Service that
it is a permitted mailing of otherwise nonmailable
tobacco products that may be delivered only to
a permitted government agency or business and
may not be delivered to any residence or individual
person; and
‘‘(VII) that any mailing described in subparagraph (A) be delivered only to a verified employee
of the recipient business or government agency,
who is not a minor and who shall be required
to sign for the mailing.
‘‘(C) DEFINITION.—In this paragraph, the term ‘minor’
means an individual who is less than the minimum age
required for the legal sale or purchase of tobacco products

Deadline.

ebenthall on DSK9Q6SHH1PROD with PUBLAW

Time period.

VerDate Nov 24 2008

13:12 Apr 09, 2010

PUBLIC LAW 111–154—MAR. 31, 2010

Jkt 089139

PO 00000

Frm 00018

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

ebenthall on DSK9Q6SHH1PROD with PUBLAW

PUBLIC LAW 111–154—MAR. 31, 2010

124 STAT. 1105

as determined by applicable law at the place the individual
is located.
‘‘(4) CERTAIN INDIVIDUALS.—
‘‘(A) IN GENERAL.—Subsection (a) shall not apply to
tobacco products mailed by individuals who are not minors
for noncommercial purposes, including the return of a damaged or unacceptable tobacco product to the manufacturer.
‘‘(B) RULES.—
‘‘(i) IN GENERAL.—Not later than 180 days after
the date of enactment of the Prevent All Cigarette
Trafficking Act of 2009, the Postmaster General shall
issue a final rule which shall establish the standards
and requirements that apply to all mailings described
in subparagraph (A).
‘‘(ii) CONTENTS.—The final rule issued under clause
(i) shall require—
‘‘(I) the United States Postal Service to verify
that any person submitting an otherwise nonmailable tobacco product into the mails as authorized under this paragraph is the individual identified on the return address label of the package
and is not a minor;
‘‘(II) for a mailing to an individual, the United
States Postal Service to require the person submitting the otherwise nonmailable tobacco product
into the mails as authorized by this paragraph
to affirm that the recipient is not a minor;
‘‘(III) that any package mailed under this paragraph shall weigh not more than 10 ounces;
‘‘(IV) that any mailing described in subparagraph (A) shall be sent through the systems of
the United States Postal Service that provide for
the tracking and confirmation of the delivery;
‘‘(V) that a mailing described in subparagraph
(A) shall not be delivered or placed in the possession of any individual who has not been verified
as not being a minor;
‘‘(VI) for a mailing described in subparagraph
(A) to an individual, that the United States Postal
Service shall deliver the package only to a recipient
who is verified not to be a minor at the recipient
address or transfer it for delivery to an Air/Army
Postal Office or Fleet Postal Office number designated in the recipient address; and
‘‘(VII) that no person may initiate more than
10 mailings described in subparagraph (A) during
any 30-day period.
‘‘(C) DEFINITION.—In this paragraph, the term ‘minor’
means an individual who is less than the minimum age
required for the legal sale or purchase of tobacco products
as determined by applicable law at the place the individual
is located.
‘‘(5) EXCEPTION FOR MAILINGS FOR CONSUMER TESTING BY
MANUFACTURERS.—
‘‘(A) IN GENERAL.—Subject to subparagraph (B), subsection (a) shall not preclude a legally operating cigarette
manufacturer or a legally authorized agent of a legally

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00019

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

Deadline.

GPO1

PsN: PUBL154

124 STAT. 1106

operating cigarette manufacturer from using the United
States Postal Service to mail cigarettes to verified adult
smoker solely for consumer testing purposes, if—
‘‘(i) the cigarette manufacturer has a permit, in
good standing, issued under section 5713 of the
Internal Revenue Code of 1986;
‘‘(ii) the package of cigarettes mailed under this
paragraph contains not more than 12 packs of cigarettes (240 cigarettes);
‘‘(iii) the recipient does not receive more than 1
package of cigarettes from any 1 cigarette manufacturer under this paragraph during any 30-day period;
‘‘(iv) all taxes on the cigarettes mailed under this
paragraph levied by the State and locality of delivery
are paid to the State and locality before delivery, and
tax stamps or other tax-payment indicia are affixed
to the cigarettes as required by law; and
‘‘(v)(I) the recipient has not made any payments
of any kind in exchange for receiving the cigarettes;
‘‘(II) the recipient is paid a fee by the manufacturer
or agent of the manufacturer for participation in consumer product tests; and
‘‘(III) the recipient, in connection with the tests,
evaluates the cigarettes and provides feedback to the
manufacturer or agent.
‘‘(B) LIMITATIONS.—Subparagraph (A) shall not—
‘‘(i) permit a mailing of cigarettes to an individual
located in any State that prohibits the delivery or
shipment of cigarettes to individuals in the State, or
preempt, limit, or otherwise affect any related State
laws; or
‘‘(ii) permit a manufacturer, directly or through
a legally authorized agent, to mail cigarettes in any
calendar year in a total amount greater than 1 percent
of the total cigarette sales of the manufacturer in the
United States during the calendar year before the date
of the mailing.
‘‘(C) RULES.—
‘‘(i) IN GENERAL.—Not later than 180 days after
the date of enactment of the Prevent All Cigarette
Trafficking Act of 2009, the Postmaster General shall
issue a final rule which shall establish the standards
and requirements that apply to all mailings described
in subparagraph (A).
‘‘(ii) CONTENTS.—The final rule issued under clause
(i) shall require—
‘‘(I) the United States Postal Service to verify
that any person submitting a tobacco product into
the mails under this paragraph is a legally operating cigarette manufacturer permitted to make
a mailing under this paragraph, or an agent legally
authorized by the legally operating cigarette manufacturer to submit the tobacco product into the
mails on behalf of the manufacturer;
‘‘(II) the legally operating cigarette manufacturer submitting the cigarettes into the mails
under this paragraph to affirm that—

Deadline.

ebenthall on DSK9Q6SHH1PROD with PUBLAW

Verification.

VerDate Nov 24 2008

13:12 Apr 09, 2010

PUBLIC LAW 111–154—MAR. 31, 2010

Jkt 089139

PO 00000

Frm 00020

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

ebenthall on DSK9Q6SHH1PROD with PUBLAW

PUBLIC LAW 111–154—MAR. 31, 2010

124 STAT. 1107

‘‘(aa) the manufacturer or the legally
authorized agent of the manufacturer has
verified that the recipient is an adult established smoker;
‘‘(bb) the recipient has not made any payment for the cigarettes;
‘‘(cc) the recipient has signed a written
statement that is in effect indicating that the
recipient wishes to receive the mailings; and
‘‘(dd) the manufacturer or the legally
authorized agent of the manufacturer has
offered the opportunity for the recipient to
withdraw the written statement described in
item (cc) not less frequently than once in every
3-month period;
‘‘(III) the legally operating cigarette manufacturer or the legally authorized agent of the manufacturer submitting the cigarettes into the mails
under this paragraph to affirm that any package
mailed under this paragraph contains not more
than 12 packs of cigarettes (240 cigarettes) on
which all taxes levied on the cigarettes by the
State and locality of delivery have been paid and
all related State tax stamps or other tax-payment
indicia have been applied;
‘‘(IV) that any mailing described in subparagraph (A) shall be sent through the systems of
the United States Postal Service that provide for
the tracking and confirmation of the delivery;
‘‘(V) the United States Postal Service to maintain records relating to a mailing described in
subparagraph (A) during the 3-year period beginning on the date of the mailing and make the
information available to persons enforcing this section;
‘‘(VI) that any mailing described in subparagraph (A) be marked with a United States Postal
Service label or marking that makes it clear to
employees of the United States Postal Service that
it is a permitted mailing of otherwise nonmailable
tobacco products that may be delivered only to
the named recipient after verifying that the
recipient is an adult; and
‘‘(VII) the United States Postal Service shall
deliver a mailing described in subparagraph (A)
only to the named recipient and only after
verifying that the recipient is an adult.
‘‘(D) DEFINITIONS.—In this paragraph—
‘‘(i) the term ‘adult’ means an individual who is
not less than 21 years of age; and
‘‘(ii) the term ‘consumer testing’ means testing limited to formal data collection and analysis for the specific purpose of evaluating the product for quality
assurance and benchmarking purposes of cigarette
brands or sub-brands among existing adult smokers.
‘‘(6) FEDERAL GOVERNMENT AGENCIES.—An agency of the
Federal Government involved in the consumer testing of tobacco

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00021

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

Records.
Time period.

GPO1

PsN: PUBL154

ebenthall on DSK9Q6SHH1PROD with PUBLAW

124 STAT. 1108

PUBLIC LAW 111–154—MAR. 31, 2010

products solely for public health purposes may mail cigarettes
under the same requirements, restrictions, and rules and procedures that apply to consumer testing mailings of cigarettes
by manufacturers under paragraph (5), except that the agency
shall not be required to pay the recipients for participating
in the consumer testing.
‘‘(c) SEIZURE AND FORFEITURE.—Any cigarettes or smokeless
tobacco made nonmailable by this subsection that are deposited
in the mails shall be subject to seizure and forfeiture, pursuant
to the procedures set forth in chapter 46 of this title. Any tobacco
products seized and forfeited under this subsection shall be
destroyed or retained by the Federal Government for the detection
or prosecution of crimes or related investigations and then
destroyed.
‘‘(d) ADDITIONAL PENALTIES.—In addition to any other fines
and penalties under this title for violations of this section, any
person violating this section shall be subject to an additional civil
penalty in the amount equal to 10 times the retail value of the
nonmailable cigarettes or smokeless tobacco, including all Federal,
State, and local taxes.
‘‘(e) CRIMINAL PENALTY.—Whoever knowingly deposits for
mailing or delivery, or knowingly causes to be delivered by mail,
according to the direction thereon, or at any place at which it
is directed to be delivered by the person to whom it is addressed,
anything that is nonmailable matter under this section shall be
fined under this title, imprisoned not more than 1 year, or both.
‘‘(f) USE OF PENALTIES.—There is established a separate account
in the Treasury, to be known as the ‘PACT Postal Service Fund’.
Notwithstanding any other provision of law, an amount equal to
50 percent of any criminal fines, civil penalties, or other monetary
penalties collected by the Federal Government in enforcing this
section shall be transferred into the PACT Postal Service Fund
and shall be available to the Postmaster General for the purpose
of enforcing this subsection.
‘‘(g) COORDINATION OF EFFORTS.—The Postmaster General shall
cooperate and coordinate efforts to enforce this section with related
enforcement activities of any other Federal agency or agency of
any State, local, or tribal government, whenever appropriate.
‘‘(h) ACTIONS BY STATE, LOCAL, OR TRIBAL GOVERNMENTS
RELATING TO CERTAIN TOBACCO PRODUCTS.—
‘‘(1) IN GENERAL.—A State, through its attorney general,
or a local government or Indian tribe that levies an excise
tax on tobacco products, through its chief law enforcement
officer, may in a civil action in a United States district court
obtain appropriate relief with respect to a violation of this
section. Appropriate relief includes injunctive and equitable
relief and damages equal to the amount of unpaid taxes on
tobacco products mailed in violation of this section to addressees
in that State, locality, or tribal land.
‘‘(2) SOVEREIGN IMMUNITY.—Nothing in this subsection
shall be deemed to abrogate or constitute a waiver of any
sovereign immunity of a State or local government or Indian
tribe against any unconsented lawsuit under paragraph (1),
or otherwise to restrict, expand, or modify any sovereign immunity of a State or local government or Indian tribe.
‘‘(3) ATTORNEY GENERAL REFERRAL.—A State, through its
attorney general, or a local government or Indian tribe that

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00022

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

PUBLIC LAW 111–154—MAR. 31, 2010

124 STAT. 1109

levies an excise tax on tobacco products, through its chief
law enforcement officer, may provide evidence of a violation
of this section for commercial purposes by any person not
subject to State, local, or tribal government enforcement actions
for violations of this section to the Attorney General of the
United States, who shall take appropriate actions to enforce
this section.
‘‘(4) NONEXCLUSIVITY OF REMEDIES.—The remedies available under this subsection are in addition to any other remedies
available under Federal, State, local, tribal, or other law.
Nothing in this subsection shall be construed to expand,
restrict, or otherwise modify any right of an authorized State,
local, or tribal government official to proceed in a State, tribal,
or other appropriate court, or take other enforcement actions,
on the basis of an alleged violation of State, local, tribal, or
other law.
‘‘(5) OTHER ENFORCEMENT ACTIONS.—Nothing in this subsection shall be construed to prohibit an authorized State official from proceeding in State court on the basis of an alleged
violation of any general civil or criminal statute of the State.
‘‘(i) DEFINITION.—In this section, the term ‘State’ has the
meaning given that term in section 1716(k).’’.
(b) CLERICAL AMENDMENT.—The table of sections for chapter
83 of title 18 is amended by inserting after the item relating
to section 1716D the following:
‘‘1716E. Tobacco products as nonmailable.’’.
SEC. 4. INSPECTION BY BUREAU OF ALCOHOL, TOBACCO, FIREARMS,
AND EXPLOSIVES OF RECORDS OF CERTAIN CIGARETTE AND
SMOKELESS TOBACCO SELLERS; CIVIL PENALTY.

Section 2343(c) of title 18, United States Code, is amended
to read as follows:
‘‘(c)(1) Any officer of the Bureau of Alcohol, Tobacco, Firearms,
and Explosives may, during normal business hours, enter the premises of any person described in subsection (a) or (b) for the purposes
of inspecting—
‘‘(A) any records or information required to be maintained
by the person under this chapter; or
‘‘(B) any cigarettes or smokeless tobacco kept or stored
by the person at the premises.
‘‘(2) The district courts of the United States shall have the
authority in a civil action under this subsection to compel inspections authorized by paragraph (1).
‘‘(3) Whoever denies access to an officer under paragraph (1),
or who fails to comply with an order issued under paragraph (2),
shall be subject to a civil penalty in an amount not to exceed
$10,000.’’.

ebenthall on DSK9Q6SHH1PROD with PUBLAW

SEC. 5. EXCLUSIONS REGARDING INDIAN TRIBES AND TRIBAL MATTERS.

Courts.

15 USC 375 note.

(a) IN GENERAL.—Nothing in this Act or the amendments made
by this Act shall be construed to amend, modify, or otherwise
affect—
(1) any agreements, compacts, or other intergovernmental
arrangements between any State or local government and any
government of an Indian tribe (as that term is defined in
section 4(e) of the Indian Self-Determination and Education

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00023

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

124 STAT. 1110

PUBLIC LAW 111–154—MAR. 31, 2010

Assistance Act (25 U.S.C. 450b(e)) relating to the collection
of taxes on cigarettes or smokeless tobacco sold in Indian
country;
(2) any State laws that authorize or otherwise pertain
to any such intergovernmental arrangements or create special
rules or procedures for the collection of State, local, or tribal
taxes on cigarettes or smokeless tobacco sold in Indian country;
(3) any limitations under Federal or State law, including
Federal common law and treaties, on State, local, and tribal
tax and regulatory authority with respect to the sale, use,
or distribution of cigarettes and smokeless tobacco by or to
Indian tribes, tribal members, tribal enterprises, or in Indian
country;
(4) any Federal law, including Federal common law and
treaties, regarding State jurisdiction, or lack thereof, over any
tribe, tribal members, tribal enterprises, tribal reservations,
or other lands held by the United States in trust for one
or more Indian tribes; or
(5) any State or local government authority to bring
enforcement actions against persons located in Indian country.
(b) COORDINATION OF LAW ENFORCEMENT.—Nothing in this Act
or the amendments made by this Act shall be construed to inhibit
or otherwise affect any coordinated law enforcement effort by 1
or more States or other jurisdictions, including Indian tribes,
through interstate compact or otherwise, that—
(1) provides for the administration of tobacco product laws
or laws pertaining to interstate sales or other sales of tobacco
products;
(2) provides for the seizure of tobacco products or other
property related to a violation of such laws; or
(3) establishes cooperative programs for the administration
of such laws.
(c) TREATMENT OF STATE AND LOCAL GOVERNMENTS.—Nothing
in this Act or the amendments made by this Act shall be construed
to authorize, deputize, or commission States or local governments
as instrumentalities of the United States.
(d) ENFORCEMENT WITHIN INDIAN COUNTRY.—Nothing in this
Act or the amendments made by this Act shall prohibit, limit,
or restrict enforcement by the Attorney General of the United
States of this Act or an amendment made by this Act within
Indian country.
(e) AMBIGUITY.—Any ambiguity between the language of this
section or its application and any other provision of this Act shall
be resolved in favor of this section.
(f) DEFINITIONS.—In this section—
(1) the term ‘‘Indian country’’ has the meaning given that
term in section 1 of the Jenkins Act, as amended by this
Act; and
(2) the term ‘‘tribal enterprise’’ means any business enterprise, regardless of whether incorporated or unincorporated
under Federal or tribal law, of an Indian tribe or group of
Indian tribes.

ebenthall on DSK9Q6SHH1PROD with PUBLAW

15 USC 375 note.

SEC. 6. EFFECTIVE DATE.

(a) IN GENERAL.—Except as provided in subsection (b), this
Act shall take effect on the date that is 90 days after the date
of enactment of this Act.

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00024

Fmt 6580

Sfmt 6581

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154

PUBLIC LAW 111–154—MAR. 31, 2010

124 STAT. 1111

(b) BATFE AUTHORITY.—The amendments made by section 4
shall take effect on the date of enactment of this Act.
SEC. 7. SEVERABILITY.

15 USC 375 note.

If any provision of this Act, or any amendment made by this
Act, or the application thereof to any person or circumstance, is
held invalid, the remainder of the Act and the application of the
Act to any other person or circumstance shall not be affected
thereby.
SEC. 8. SENSE OF CONGRESS CONCERNING THE PRECEDENTIAL
EFFECT OF THIS ACT.

It is the sense of Congress that unique harms are associated
with online cigarette sales, including problems with verifying the
ages of consumers in the digital market and the long-term health
problems associated with the use of certain tobacco products. This
Act was enacted recognizing the longstanding interest of Congress
in urging compliance with States’ laws regulating remote sales
of certain tobacco products to citizens of those States, including
the passage of the Jenkins Act over 50 years ago, which established
reporting requirements for out-of-State companies that sell certain
tobacco products to citizens of the taxing States, and which gave
authority to the Department of Justice and the Bureau of Alcohol,
Tobacco, Firearms, and Explosives to enforce the Jenkins Act. In
light of the unique harms and circumstances surrounding the online
sale of certain tobacco products, this Act is intended to help collect
cigarette excise taxes, to stop tobacco sales to underage youth,
and to help the States enforce their laws that target the online
sales of certain tobacco products only. This Act is in no way meant
to create a precedent regarding the collection of State sales or
use taxes by, or the validity of efforts to impose other types of
taxes on, out-of-State entities that do not have a physical presence
within the taxing State.

ebenthall on DSK9Q6SHH1PROD with PUBLAW

Approved March 31, 2010.

LEGISLATIVE HISTORY—S. 1147:
CONGRESSIONAL RECORD, Vol. 156 (2010):
Mar. 11, considered and passed Senate.
Mar. 17, considered and passed House.

Æ

VerDate Nov 24 2008

13:12 Apr 09, 2010

Jkt 089139

PO 00000

Frm 00025

Fmt 6580

Sfmt 6580

E:\PUBLAW\PUBL154.111

GPO1

PsN: PUBL154