Chapter 346

2005 -- S 0721

Enacted 07/19/05

A N A C T

RELATING TO CRIMINAL OFFENSES -- CHILDREN

Introduced By: Senators Felag, and Paiva-Weed

Date Introduced: February 17, 2005

It is enacted by the General Assembly as follows:

     SECTION 1. Section 11-9-13.11 of the General Laws in Chapter 11-9 entitled "Children"

is hereby amended to read as follows:

11-9-13.11. Prohibition on the sale or distribution of tobacco products through the

mail conveyance of tobacco products through the mail to children under eighteen (18) --

Proof of age of purchaser required -- General rule. -- (a) The distribution, or sale or

conveyance of tobacco products to children under the age of eighteen (18) via the United States

Postal Service, or by any other public or private postal or package delivery service, shall be

prohibited.

      (b) Any person selling or distributing tobacco products in the form of cigarettes, cigars,

pipe tobacco, chewing tobacco, or snuff directly to a consumer via the United States Postal

Service, or by any other public or private postal or package delivery service, including orders

placed by mail, telephone, facsimile, or internet, shall: (1) before distributing or selling the

tobacco product through any of these means, receive both a copy of a valid form of government

identification showing date of birth to verify the purchaser is age eighteen (18) years or over and

an attestation from the purchaser certifying that the information on the government identification

truly and correctly identifies the purchaser and the purchaser's current address, and (2) deliver the

tobacco product to the address of the purchaser given on the valid form of government

identification and by a postal or package delivery service method that either limits delivery to that

purchaser and requires the purchaser to sign personally to receive the delivery or requires a

signature of an adult at the purchaser's address to deliver the package.

      (c) The attorney general shall bring an action for any violation of this chapter. Any

distribution, or sale or conveyance of a tobacco product to a child under eighteen (18) years of

age via the United States Postal Service, or by any other public or private postal or package

delivery service, shall be subject to an action against the distributor, or seller or conveyor by the

attorney general of the state of Rhode Island. A minimum fine of one thousand dollars ($1,000)

shall be assessed against any distributor, or seller or conveyor convicted of distributing, or selling

or conveying tobacco products via the United States postal service, or by any other public or

private postal or package delivery service, for each delivery, or sale or conveyance of a tobacco

product to a child under eighteen (18) years of age.

      (d) For the purpose of this section, "distribution," distributing," selling" and "sale" do not

include the acts of the United States Postal Service or other common carrier when engaged in the

business of transporting and delivering packages for others or the acts of a person, whether

compensated or not, who transports or delivers a package for another person without any reason

to know of the package's contents.

(e) Any delivery sale of cigarettes shall be made pursuant to the provisions of chapter

20.1 of title 44. The provisions of this section (11-9-13.11) shall apply to each tobacco product

listed in subsection (b) herein, but shall not apply to any delivery sale of cigarettes.

     SECTION 2. Title 44 of the General Laws entitled "Taxation" is hereby amended by

adding thereto the following chapter:

CHAPTER 20.1

DELIVERY SALES OF CIGARETTES

44-20.1-1. Definitions. -- For purposes of this chapter:

(1) “Adult” means a person who is at least the legal minimum purchase age.

(2) “Consumer” means an individual who is not licensed as a wholesaler or retailer

pursuant to the provisions of section 44-20-2.

(3) “Delivery sale” means any sale of cigarettes to a consumer in the state where either:

(i) the purchaser submits the order for such sale by means of a telephonic or other method

of voice transmission, the mails or any other delivery service, or the internet or other online

service; or

(ii) the cigarettes are delivered by use of the mails or other delivery service. A sale of

cigarettes shall be a delivery sale regardless of whether the seller is located within or without the

state. A sale of cigarettes not for personal consumption to a person who is a wholesale dealer or a

retail dealer shall not be a delivery sale.

(4) “Delivery service” means any person who is engaged in the commercial delivery of

letters, packages, or other containers.

(5) “Administrator” means the tax administrator.

(6) “Legal minimum purchase age” is the minimum age at which an individual may

legally purchase cigarettes in the state.

(7) “Mails” or “mailing” means the shipment of cigarettes through the United States

Postal Service.

(8) “Person” means the same as that term is defined in section 44-20-1.

(9) “Shipping container” means bills of lading, airbills, or any other documents used to

evidence the undertaking by a delivery service to deliver letters, packages, or other containers.

44-20.1-2. Requirements for delivery sales. -- (a) No person shall make a delivery sale

of cigarettes to any individual who is under the legal minimum purchase age in the state.

(b) Each person accepting a purchase order for a delivery sale shall comply with:

(1) The age verification requirements set forth in section 44-20.1-3;

(2) The disclosure requirements set forth in section 44-20.1-4;

(3) The shipping requirements set forth in section 44-20.1-5;

(4) The registration and reporting requirements set forth in section 44-20.1-6;

(5) The tax collection requirements set forth in section 44-20.1-7; and

(6) All other laws of the state generally applicable to sales of cigarettes that occur entirely

within the state; including, but not limited to, those laws imposing: (i) excise taxes; (ii) sales

taxes; (iii) license and revenue-stamping requirements; and (iv) escrow payment obligations as set

forth in section 23-71-3.

44-20.1-3. Age verification requirements. -- (a) No person shall mail, ship, or otherwise

deliver cigarettes in connection with a delivery sale unless such person prior to the first delivery

sale to such consumer.

(1) Obtains from the prospective consumer a certification that includes: (i) a reliable

confirmation that the consumer is at least the legal minimum purchase age; and (ii) a statement

signed by the prospective consumer in writing that certifies the prospective consumer’s address

and that the consumer is at least eighteen (18) years of age. Such statement shall also confirm:

(A) that the prospective consumer understands that signing another person’s name to such

certification is illegal;

(B) that the sale of cigarettes to individuals under the legal minimum purchase age is

illegal;

(C) that the purchase of cigarettes by individuals under the legal minimum purchase age

is illegal under the laws of the state; and

(D) that the prospective consumer wants to receive mailings from a tobacco company.

(2) Makes a good faith effort to verify the information contained in the certification

provided by the prospective consumer pursuant to subsection (1) against a commercially available

database or obtains a photocopy or other image of the valid, government-issued identification

stating the date of birth or age of the individual placing the order;

(3) Provides to the prospective consumer, via e-mail or other means, a notice that meets

the requirements of section 44-20.1-4; and

(4) In the case of an order for cigarettes pursuant to an advertisement on the Internet,

receives payment for the delivery sale from the prospective consumer by a credit or debit card

that has been issued in such consumer’s name, or by check.

(b) Persons accepting purchase orders for delivery sales may request that prospective

consumers provide their e-mail addresses.

44-20.1-4. Disclosure requirements. -- The notice required under subdivision 44-20.1-

3(a)(3) shall include:

(a) A prominent and clearly legible statement that cigarette sales to consumers below the

legal minimum purchase age are illegal;

(b) A prominent and clearly legible statement that sales of cigarettes are restricted to

those consumers who provide verifiable proof of age in accordance with section 44-20.1-3; and

(c) A prominent and clearly legible statement that cigarette sales are subject to tax under

the provisions of section 44-20-12 and an explanation of how such tax has been, or is to be, paid

with respect to such delivery sale.

44-20.1-5. Shipping requirements. -- (a) Each person who mails, ships, or otherwise

delivers cigarettes in connection with a delivery sale;

(1) Shall include as part of the bill of lading or other shipping documents a clear and

conspicuous statement providing as follows: “Cigarettes: Rhode Island law prohibits shipping to

individuals under eighteen (18) and requires the payment of all applicable taxes”;

(2) Shall use a method of mailing, shipping or delivery that obligates the delivery service

to require: (i) the consumer placing the purchase order for the delivery sale or another adult of

legal minimum purchase age residing at the consumer’s address, to sign to accept delivery of the

shipping container; and (ii) proof, in the form of a valid, government-issued identification bearing

a photograph of the individual who signs to accept delivery of the shipping container,

demonstrating that he/she either the addressee or another adult of legal minimum purchase age

residing at the consumer’s address. However, proof of the legal minimum purchase age shall be

required only if such individual appears to be under twenty-seven (27) years of age; and

(3) Shall provide to the delivery service retained for such delivery sale evidence of full

compliance with section 44-20.1-7.

(b) If the person accepting a purchase order for a delivery sale delivers the cigarettes

without using a delivery service, such person shall comply with all requirements of this chapter

applicable to a delivery service and shall be in violation of the provisions of this chapter if he/she

fails to comply with any such requirement.

44-20.1-6. Registration and reporting requirements. -- (a) Prior to making delivery

sales or mailing, shipping or otherwise delivering cigarettes in connection with any such sales,

every person shall file with the administrator a statement setting forth such person’s name, trade

name, and the address of such person’s principal place of business and any other place of

business.

(b) Not later than the tenth (10th) of each calendar month, each person that has made a

delivery sale or mailed, shipped, or otherwise delivered cigarettes in connection with any such

sale during the previous calendar month shall file with the administrator a memorandum or a

copy of the invoice that provides for and every such delivery sale:

(1) The name and address of the consumer to whom such delivery sale was made;

(2) The brand or brands of the cigarettes that were sold in such delivery sale; and

(3) The quantity of cigarettes that were sold in such delivery sale.

(c) Any person that satisfies the requirements of section 376 of title 15 of the United

States Code shall be deemed to satisfy the requirements of this section.

44-20.1-7. Collection of taxes. -- Each person accepting a purchase order for a delivery

sale shall collect and remit to the administrator all cigarette taxes imposed by the state with

respect to such delivery sale, except that such collection and remission shall not be required to the

extent such person has obtained proof (in the form of the presence of applicable tax stamps or

otherwise) that such taxes already have been paid to the state.

44-20.1-8. Penalties. -- (a) Except as otherwise provided in this section, a first violation

of any provision of this chapter shall be punishable by a fine of one thousand dollars ($1,000) or

five (5) times the retail value of the cigarettes involved, whichever is greater. A second or

subsequent violation of any provision of this chapter shall be punishable by a fine of five

thousand dollars ($5,000) or five (5) times the retail value of the cigarettes involved, whichever is

greater.

(b) Any person who knowingly violates any provision of this chapter, or who knowingly

and falsely submits a certification under subsection 44-20.1-3(a)(1) in another person’s name’s

shall, for each such offense, be fined ten thousand dollars ($10,000) or five (5) times the retail

value of the cigarettes involved, whichever is greater, or imprisoned not more than five (5) years,

or both.

(c) Any person failing to collect or remit to the administrator any tax required in

connection with a delivery sale shall be assessed, in addition to any other penalty, a penalty of

five (5) times the retail value of the cigarettes involved.

(d)(1) Any cigarettes sold or attempted to be sold in a delivery sale that does not meet the

requirements of this chapter shall be forfeited to the state and destroyed.

(2) All fixtures, equipment, and all other materials and personal property on the premises

of any person who, with the intent to defraud the state, violates any of the requirements of this

chapter, shall be forfeited to the state.

44-20.1-9. Enforcement. -- The attorney general, or his or her designee, or any person

who holds a valid permit under section 26 U.S.C. section 5712, may bring an action in the

appropriate court in the state to prevent or restrain violation of this chapter by any person, or any

person controlling such person.

SECTION 3. This act shall take effect upon passage.     

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LC01618

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