Section 6-12A-3

Tobacco product manufacturer certification; directory; stamping, sale, or import of cigarettes not in directory.

(a) Certification. Every tobacco product manufacturer whose cigarettes are sold in this state whether directly or through a distributor, retailer, or similar intermediary or intermediaries shall execute and deliver on a form prescribed by the commissioner, a certification to the commissioner no later than the thirtieth day of April each year, certifying that, as of the date of the certification, the tobacco product manufacturer either: Is a participating manufacturer or is in full compliance with Section 6-12-3, including all quarterly installment payments required by subsection (e) of Section 6-12A-5.

(1) Each participating manufacturer shall include in its certification a list of its brand families. The participating manufacturer shall update its list 30 days prior to any addition or modification to its brand families by executing and delivering a supplemental certification to the commissioner.

(2) Each non-participating manufacturer shall include in its certification:

a. A complete list of all of its brand families.

b. A separate listing containing the names of the brand families of cigarettes and the number of units sold for each brand family in the state during the preceding calendar year.

c. A separate listing containing the names of its brand families that have been sold in the state at any time during the current calendar year.

d. An indication by an asterisk of the names of any brand family sold in the state during the preceding calendar year that are no longer being sold in the state as of the date of the certification.

e. An identification by name and address of any other manufacturer of any of the listed brand families in the preceding or current calendar year.

f. In the case of cigarettes, brands, or brand families imported into the United States by one or more importers, an identification by name and address of any and all importers of the cigarettes.

Each non-participating manufacturer shall update its list at least 30 days prior to any addition or modification to its list of brand families by executing and delivering a supplemental certification to the commissioner.

(3) Additionally, each non-participating manufacturer shall further certify in its certification:

a. That both the non-participating manufacturer, and, if applicable, the importer of the cigarettes, are registered to do business in the state or has appointed an agent for service of process and provided notice thereof as required by Section 6-12A-4.

b. That it has:

1. Established and continues to maintain a qualified escrow fund.

2. Executed a qualified escrow agreement that has been reviewed and approved by the commissioner and that governs the qualified escrow fund.

c. That it is in full compliance with Section 6-12-3 and this chapter, and any regulations promulgated pursuant thereto.

d.1. The name, address, and telephone number of the financial institution where it has established the qualified escrow fund required pursuant to Section 6-12-3 and all regulations promulgated thereto.

2. The account number of the qualified escrow fund and any sub-account number for the State of Alabama.

3. The amount the non-participating manufacturer placed in the qualified escrow fund for cigarettes sold in the state during the preceding calendar year, the date and amount of each deposit, and any evidence or verification as may be deemed necessary by the commissioner to confirm the foregoing.

4. The amount and date of any withdrawal or transfer of funds the non-participating manufacturer made at any time from the qualified escrow fund or from any other qualified escrow fund into which escrow payments were ever made pursuant to Section 6-12-3 and all regulations promulgated thereto.

5. That it and, if applicable, the importer of the cigarettes, holds a current and valid permit under 26 U.S.C. § 5713.

(4) A participating manufacturer may not include a brand family in its certification unless it affirms that the brand family is to be deemed to be its cigarettes for purposes of calculating its payments under the Master Settlement Agreement for the relevant year, in the volume and shares determined pursuant to the Master Settlement Agreement.

(5) A non-participating manufacturer may not include a brand family in its certification unless it affirms that the brand family is to be deemed to be its cigarettes for purposes of Section 6-12-3.

(6) Nothing in this section shall be construed as limiting or otherwise affecting the state's right to maintain that a brand family constitutes cigarettes of a different tobacco product manufacturer for purposes of calculating payments under the Master Settlement Agreement or for purposes of Section 6-12-3.

(7) The tobacco product manufacturers shall maintain all invoices and documentation of sales and any other information relied upon for certification for a period of five years, unless otherwise required by law to maintain them for a greater period of time.

(b) Directory of cigarettes approved for stamping and sale. Not later than 90 days after August 1, 2003, the commissioner shall compile and make available for public inspection a directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of subsection (a), and all brand families that are listed in the certifications, except as noted below.

(1) The commissioner shall not include or retain in the directory the name or brand families of any non-participating manufacturer that fails or has failed to provide the required certification or whose certification the commissioner determines is not in compliance with subdivisions (2) and (3) of subsection (a), unless the commissioner has determined that each violation has been cured.

(2) Neither a tobacco product manufacturer nor a brand family shall be included or retained in the directory if the commissioner concludes either of the following:

a. Any escrow payment required pursuant to Section 6-12-3, for any period for any brand family, whether or not listed by the non-participating manufacturer, has not been fully paid into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the commissioner.

b. Any outstanding final judgment, including interest thereon, for a violation of Section 6-12-3, has not been fully satisfied for the brand family or the manufacturer.

c. That the non-participating manufacturer has not provided a bond in strict compliance with subsection (f) of Section 6-12A-5 and the rules relating thereto.

d. That the non-participating manufacturer has failed or refused to provide the documents or information requested by the commissioner in order to promote compliance with the requirements of this chapter.

(3) The commissioner shall update the directory as necessary in order to correct mistakes and to add or remove a tobacco product manufacturer or brand family to keep the directory in conformity with the requirements of this chapter. The commissioner, in addition to any notice requirements in Section 40-2A-8, shall transmit by electronic mail or other practicable means to each wholesaler, stamping agent, or distributor notice of any addition to or removal from the directory of any tobacco product manufacturer or brand family. The wholesaler, stamping agent, or distributor shall have 30 days from receipt of notice from the department regarding the change in the directory to sell the brand family that is delisted. No delisted brand family may be sold after the 30 day period.

(4) Every wholesaler and distributor shall provide and update as necessary an electronic mail address to the commissioner for the purpose of receiving any notifications as may be required by this chapter.

(c) Prohibition against stamping, sale, or import of cigarettes not in the directory. It shall be unlawful for any person to do either of the following:

(1) Affix a stamp to a package or other container of cigarettes of a tobacco product manufacturer or brand family not included in the directory.

(2) Sell, offer, or possess for sale in this state, or import for personal consumption in this state, cigarettes of a tobacco product manufacturer or brand family not included in the directory.

(Act 2003-372, p. 1049, §2; Act 2014-341, p. 1266, §1.)