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116th Congress }                                            { Report
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                            { 116-260

======================================================================

 
        PREVENTING ONLINE SALES OF E-CIGARETTES TO CHILDREN ACT

                                _______
                                

October 28, 2019.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Nadler, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 3942]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 3942) to apply requirements relating to delivery 
sales of cigarettes to delivery sales of electronic nicotine 
delivery systems, and for other purposes, having considered the 
same, report favorably thereon without amendment and recommend 
that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     4
New Budget Authority and Tax Expenditures and Congressional 
  Budget Office Cost Estimate....................................     4
Duplication of Federal Programs..................................     4
Performance Goals and Objectives.................................     5
Advisory on Earmarks.............................................     5
Section-by-Section Analysis......................................     5
Changes in Existing Law Made by the Bill, as Reported............     5

                          Purpose and Summary

    H.R. 3942, the ``Preventing Online Sales of E-Cigarettes to 
Children Act'' would amend current law to tackle problems that 
have arisen from the online sale of e-cigarettes. Specifically, 
the bill would amend the Jenkins Act to extend the statute that 
regulates the ``delivery sale'' of cigarettes to minors to 
cover e-cigarettes, broadly defined.\1\
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    \1\Pub. L. No. 81-363, 63 Stat. 884 (1949), as amended by the 
Prevent All Cigarette Trafficking Act, or ``PACT Act,'' Pub. L. No. 
111-154, 124 Stat. 1087 (2010).
---------------------------------------------------------------------------

                Background and Need for the Legislation

    Excise taxes are imposed on the sale of tobacco products at 
the federal, state, and local levels.\2\ The Jenkins Act 
regulates sales of tobacco products via interstate shipment. 
Congress passed the Act in 1949 in part to reduce state tax 
losses resulting from tax arbitrage through mail order 
interstate cigarette sales.\3\ The Act requires an interstate 
cigarette retailer to register with states in which it 
advertises or sells cigarettes and to file a report with the 
state tax administrator providing the quantity of cigarettes 
sold to a customer, as well as the customer's name and 
address.\4\ Violation of the Act is a federal felony punishable 
by up to three years in prison.\5\
---------------------------------------------------------------------------
    \2\U.S. Dep't of Just., Off. of the Inspector Gen., Report Number 
I-2009-005, The Bureau of Alcohol, Tobacco, Firearms and Explosives' 
Efforts to Prevent the Diversion of Tobacco, at i (2009), available at 
https://www.oversight.gov/report/doj/review-bureau-alcohol-tobacco-
firearms-and-explosives-efforts-prevent-diversion-tobacco.
    \3\City of New York v. Smoke-Spirits.com, 541 F.3d 425, 433 (2d 
Cir. 2008), rev'd sub nom. Hemi Group v. City of New York, 559 U.S. 1 
(2010).
    \4\15 U.S.C. Sec. 376 (2019).
    \5\15 U.S.C. Sec. 377 (2019).
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    Starting in the mid-1990s, the Internet became a popular 
shopping destination for cigarette buyers because of the 
ability to evade regulation. A 1997 survey identified 13 online 
cigarette vendors.\6\ A decade later, that number had 
multiplied to over 700.\7\ To address issues pertaining to 
internet sales of cigarettes, Congress enacted the PACT Act.
---------------------------------------------------------------------------
    \6\Kurt M. Ribisi, et al., Are the Sales Practices of Cigarette 
Vendors Good Enough to Prevent Sales to Minors?, Am. J. Pub. Health 
940-941 (June 2002) (citation omitted).
    \7\Christopher Banthin, Tobacco Control Legal Consortium, Public 
Health Policy for Internet Cigarette Retailers, at 1 (2006).
---------------------------------------------------------------------------
    The PACT Act became law in 2010 with broad bipartisan 
support. It passed the Senate by unanimous consent\8\ and then 
the House by a vote of 387 to 25.\9\ The PACT Act was enacted 
to help deal with problems stemming from the internet sales of 
cigarettes. There were two principal problems with these 
sales--deficiencies in verifying the age of purchasers to 
prevent underage sales and evasion of state and local taxes on 
the sales. The PACT Act addressed each of these problems. It 
required internet sellers of cigarettes to ensure that delivery 
agents checked identification in person on the delivery of the 
product.\10\ It also required internet sellers to collect and 
remit state and local taxes on their sales of cigarettes.\11\ 
In addition, the PACT Act increased the penalty for violation 
of the Jenkins Act from a misdemeanor with a statutory maximum 
of six months to a felony punishable by up to three years in 
prison.\12\ The PACT Act also added civil penalties.\13\ The 
PACT Act also made it possible to levy criminal fines under 
title 18,\14\ in addition to any civil penalties.\15\
---------------------------------------------------------------------------
    \8\156 Cong. Rec. S1480-S1487 (daily ed. Mar. 11, 2010).
    \9\See http://clerk.house.gov/evs/2010/roll124.xml.
    \10\PACT Act, 124 Stat. 1091-92, Sec. 2A (codified at 15 U.S.C. 
Sec. 376a(b)(4)).
    \11\PACT Act, 124 Stat. 1093, Sec. 2A (codified at 15 U.S.C. 
Sec. 376a(d)).
    \12\PACT Act, 124 Stat. 1100, Sec. 3 (codified at 15 U.S.C. 
Sec. 377(a)(1)) (``Except as provided in paragraph (2), whoever 
knowingly violates this chapter shall be imprisoned not more than 3 
years, fined under title 18, or both.'')
    \13\PACT Act, 124 Stat. 1100-01, Sec. 3 (codified at 15 U.S.C. 
Sec. 377). In the case of a delivery seller, civil penalties are the 
greater of $5,000 (for a first violation) or $10,000 (for subsequent 
violations), or 2% 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. 15 U.S.C. Sec. 377(b)(1)(A). In the case of a 
common carrier or other delivery service, $2,500 for a first violation, 
$5,000 for any violation within 1 year of a prior violation. 15 U.S.C. 
Sec. 377(b)(1)(B).
    \14\See 15 U.S.C. Sec. 377(a)(1).
    \15\15 U.S.C. Sec. 377(b)(2) (``A civil penalty . . . shall be 
imposed in addition to any criminal penalty . . . 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.'')
---------------------------------------------------------------------------
    The market for tobacco products has changed since enactment 
of the PACT Act in 2010 and there are particular concerns about 
the growing use of e-cigarettes among young people. According 
to the Centers for Disease Control and Prevention (CDC), e-
cigarettes have been the most commonly used tobacco product 
among youth since 2014.\16\ The Surgeon General has concluded 
that e-cigarette use among youth and young adults is a public 
health concern; exposure to nicotine during adolescence can 
cause addiction and can harm the developing adolescent 
brain.\17\ The 2018 National Youth Tobacco Survey (NYTS)\18\ 
found an alarming surge in the use of e-cigarettes by youth in 
just one year: between 2017 and 2018, there was a 78% increase 
in e-cigarette use among high school students and a 48% 
increase among middle school students.\19\ This increase is 
likely a result of the recent popularity of e-cigarettes shaped 
like a USB flash drive; these products can be used discreetly, 
have a high nicotine content, and come in flavors that appeal 
to young people.\20\ Of the 5 million youth who used any 
tobacco product in 2018, over 3.6 million youth used e-
cigarettes in 2018.\21\
---------------------------------------------------------------------------
    \16\See Karen A. Cullen et al., Ctrs. for Disease Control & 
Prevention, Notes from the Field: Use of Electronic Cigarettes and Any 
Tobacco Product Among Middle and High School Students--United States, 
2011-2018, Morbidity and Mortality Weekly Report (Nov. 16, 2018), 
available at https://www.cdc.gov/mmwr/volumes/67/wr/mm6745a5.htm.
    \17\See U.S. Dep't Health & Human Svcs., Ctrs. for Disease Control 
& Prevention, E-Cigarette Use Among Youth and Young Adults: A Report of 
the Surgeon General (2016), at 5.
    \18\The National Youth Tobacco Survey is a cross-sectional, 
voluntary, school-based, self-administered, pencil-and-paper survey of 
middle school and high school students. Id.
    \19\See U.S. Food & Drug Admin., Youth Tobacco Use: Results from 
the National Youth Tobacco Survey, available at https://www.fda.gov/
tobacco-products/youth-and-tobacco/youth-tobacco-use-results-national-
youth-tobacco-survey#2.
    \20\Cullen, et al. supra note 19.
    \21\See id.
---------------------------------------------------------------------------
    Alarmingly, in the summer of 2019, doctors began to see 
hundreds of cases where patients--often previously healthy 
young adults--showed up in emergency rooms, suddenly stricken 
with dangerous respiratory damage. As of October 1, 2019, 1,080 
lung injury cases associated with using e-cigarette or vaping 
products had been reported to the CDC from 48 states and one 
U.S. territory.\22\ Eighteen deaths have been confirmed in 15 
states.\23\
---------------------------------------------------------------------------
    \22\Ctrs. for Disease Control & Prevention, Outbreak of Lung Injury 
Associated with E-Cigarette Use, or Vaping (Oct. 3, 2019), available at 
https://www.cdc.gov/tobacco/basic_information/e-cigarettes/severe-lung-
disease.html.
    \23\Id.
---------------------------------------------------------------------------
    Data from the CDC, as well as the Food and Drug 
Administration and the National Institutes of Health, suggest 
that an overwhelming majority of young people who use e-
cigarettes do not get them from brick and mortar retail 
establishments.\24\ Given the evidence that internet e-
cigarette vendors do not reliably screen underage purchasers, 
this data suggests that many young people purchase these 
products online. Curbing internet sales is, therefore, one way 
for Congress to address the prevalent use of e-cigarettes by 
young people. Because the Jenkins Act regulates the delivery 
sale of cigarettes to minors--and the PACT Act extended the 
Jenkins Act to cover Internet sales--the amendments proposed by 
H.R. 3942 are an appropriate and effective vehicle to extend 
coverage of the Jenkins Act to regulating the delivery sale of 
e-cigarettes.
---------------------------------------------------------------------------
    \24\See Laura Kann, et al. Ctrs. for Disease Control & Prevention, 
Youth Risk Behavior Surveillance--United States, 2017, Morbidity and 
Mortality Weekly Report (Jun 15, 2018), available at https://
www.cdc.gov/mmwr/volumes/67/ss/ss6708a1.htm (among the students who 
used ``electronic vapor products,'' only 13.6% had usually gotten their 
products by buying them in a store during the 30 days before the 
survey); U.S. Food & Drug Admin. and Nat'l Insts. of Health, Population 
Assessment of Tobacco and Health (PATH) Study, DS3002 Wave 3: Youth/
Parent Questionnaire Data [Public-Use Files (ICPSR 36498)] (Sep. 28, 
2018), available at https://www.icpsr.umich.edu/icpsrweb/NAHDAP/
studies/36498/datadocumentation# (question R03_YV1118: In past 30 days, 
how you usually got your own [electronic nicotine products/cartridges/
e-liquid]; answer: 86.1% of respondents did not get them from a store).
---------------------------------------------------------------------------

                                Hearings

    The Committee held no hearings on H.R. 3942.

                        Committee Consideration

    On Tuesday, October 16, 2019, the Committee met in open 
session and ordered H.R. 3942 favorably reported by a voice 
vote, a quorum being present.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives is inapplicable because no recorded votes were 
taken regarding this legislation.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

  New Budget Authority and Tax Expenditures and Congressional Budget 
                          Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has requested 
but not received a cost estimate for this Report from the 
Director of the Congressional Budget Office. The Committee has 
requested but not received from the Director of the 
Congressional Budget Office a statement as to whether this 
Report contains any new budget authority, spending authority, 
credit authority, or an increase or decrease in revenues or tax 
expenditures.

                    Duplication of Federal Programs

    No provision of H.R. 3942 establishes or reauthorizes a 
program of the federal government known to be duplicative of 
another federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
3942 would amend the statute that regulates the ``delivery 
sale'' of cigarettes to minors to cover e-cigarettes, thereby 
protecting the health and safety of minors.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 3942 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short title. Section 1 sets forth the short title 
of the bill as the ``Preventing Online Sales of E-Cigarettes to 
Children Act.''
    Sec 2. Amendments to the Jenkins Act. Section 2 would amend 
the Jenkins Act by redefining the term ``cigarette'' to include 
``an electronic nicotine delivery system.'' Section 2 would 
further define ``electronic nicotine delivery system'' as a 
``any electronic device that, through an aerosolized solution, 
delivers nicotine, flavor, or any other substance to the user 
inhaling the device and includes e-cigarettes, e-hookahs, e-
cigars, vape pens, advanced refillable personal vaporizers, 
electronic pipes,'' and any component thereof. Section 2 
includes exceptions for products approved by the FDA for sale 
as tobacco cessation products or for other therapeutic 
purposes, and marketed and sold solely for such purposes. 
Section 2 would also mandate that any seller shipping a package 
containing cigarettes or smokeless tobacco include on any bill 
of lading and on the outside of the shipping package a label 
stating that the contents may include nicotine. Section 2 would 
take effect 90 days after the date of enactment of the bill.
    Sec 3. Nonmailability of Electronic Nicotine Delivery 
Systems. Section 3 would direct the U.S. Postal Service to 
promulgate regulations to clarify the applicability of the 
prohibition on mailing cigarettes under 18 U.S.C. Sec. 1716E to 
electronic nicotine delivery systems. Section 3 would make 18 
U.S.C. Sec. 1716E applicable to electronic nicotine delivery 
systems on and after the date the U.S. Postal Service 
promulgates these regulations.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, H.R. 3942, as reported, are shown as follows:

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                        ACT OF OCTOBER 19, 1949

     AN ACT To assist States in collecting sales and use taxes on 
                              cigarettes.

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] 
                        includes--
                                  (I) roll-your-own tobacco  
                                (as defined in section 5702 of 
                                the Internal Revenue Code of 
                                1986)[.]; and
                                  (II) an electronic nicotine 
                                delivery system.
                  (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--
                  (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) Electronic nicotine delivery system.--The term 
        ``electronic nicotine delivery system''-- 
                  (A) means any electronic device that, through 
                an aerosolized solution, delivers nicotine, 
                flavor, or any other substance to the user 
                inhaling from the device;
                  (B) includes--
                          (i) an e-cigarette;
                          (ii) an e-hookah;
                          (iii) an e-cigar;
                          (iv) a vape pen;
                          (v) an advanced refillable personal 
                        vaporizer;
                          (vi) an electronic pipe; and
                          (vii) any component, liquid, part, or 
                        accessory of a device described in 
                        subparagraph (A), without regard to 
                        whether the component, liquid, part, or 
                        accessory is sold separately from the 
                        device; and
                  (C) does not include a product that is--
                          (i) approved by the Food and Drug 
                        Administration for--
                                  (I) sale as a tobacco 
                                cessation product; or
                                  (II) any other therapeutic 
                                purpose; and
                          (ii) marketed and sold solely for a 
                        purpose described in clause (i).
          [(7)] (8) 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)] (9) 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)] (10) 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)] (11) 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)] (12) 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)] (13) 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)] (14) 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.
          [(14)] (15) Use.--The term ``use'' includes the 
        consumption, storage, handling, or disposal of 
        cigarettes or smokeless tobacco.

           *       *       *       *       *       *       *


SEC. 2A. DELIVERY SALES.

  (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/NICOTINE/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 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.
  (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;
                          (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 
                        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--
                          (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 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, 
                        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 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.--
                          (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 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.
                  (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.

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