Definitions

As used in this chapter, the term: (1) “Brand family” means all styles of cigarettes sold under the same trademark and differentiated from one another by means of additional modifiers or descriptors, including, but not limited to, “menthol,” “lights,” “kings,” and “100s,” and includes any brand name, alone or in conjunction with any other word, trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or any other indicia of product identification identical or similar to or identifiable with a previously known brand of cigarettes. (2) “Cigarette” means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains (A) any roll of tobacco wrapped in paper or in any substance not containing tobacco; or (B) tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or (C) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in clause (A) of this definition. The term “cigarette” includes “roll-your-own” (i.e., any tobacco which, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes). For purposes of this definition of “cigarette,” 0.09 ounces of “roll-your-own” tobacco shall constitute one individual “cigarette.” (3) “Commissioner” means the state revenue commissioner. (4) “Dealer” means cigarette and loose and smokeless dealers as defined in paragraphs (7) and (17) of Code Section 48-11-1. (5) “Directory” means the directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of Code Section 10-13A-3 and all brand families that are listed in such certifications developed by the Attorney General pursuant to Code Section 10-13A-4, or in the case of reference to another state’s directory, the directory compiled under the similar law of the other state. 1320 10-13A-2 MASTER SETTLEMENT AGREEMENT ENHANCE. 10-13A-2 (6) “Distributor” means any person who: (A) Maintains a warehouse, warehouse personnel, and salespersons who regularly contact and call on dealers; and (B) Is engaged in the business of: (i) Manufacturing cigarettes in this state, importing cigarettes into this state, or purchasing cigarettes from other manufacturers or distributors; and (ii) Selling the cigarettes to dealers in this state for resale but is not in the business of selling the cigarettes directly to the ultimate consumer of the cigarettes. (7) “Importer” means any person in the United States to whom nonfederal excise tax-paid cigarettes manufactured in a foreign country are shipped or consigned, any person who removes cigarettes for sale or consumption in the United States from a customs bonded manufacturing warehouse, or any person who smuggles or otherwise unlawfully brings cigarettes into the United States. (8) “Master Settlement Agreement” means the settlement agreement (and related documents) entered into on November 23, 1998, by the state and leading United States tobacco product manufacturers. (9) “Nonparticipating manufacturer” means any tobacco product manufacturer that is not a participating manufacturer. (10) “Package” means any pack or other container on which a state stamp could be applied consistent with and as required by Code Section 48-11-3 that contains one or more individual cigarettes for sale. Nothing in this paragraph shall alter any other applicable requirements with respect to the minimum number of cigarettes that may be contained in a pack or other container of cigarettes. References to package do not include a container of multiple packages. (11) “Participating manufacturer” has the meaning given that term in subsection II(jj) of the Master Settlement Agreement and all amendments thereto. (12) “Person” means any natural person, trustee, company, partnership, corporation, or other legal entity. (13) “Purchase” means any acquisition in any manner or by any means for any consideration. The term includes transporting or receiving product in connection with a purchase. (14) “Qualified escrow fund” means an escrow arrangement with a federally or state chartered financial institution having no affiliation with any tobacco product manufacturer and having assets of at 1321 10-13A-2 least $1 billion where such arrangement requires that such financial institution hold the escrowed funds’ principal for the benefit of releasing parties and prohibits the tobacco product manufacturer placing the funds into escrow from using, accessing, or directing the use of the funds’ principal except as consistent with subparagraph (B) of paragraph (2) of Code Section 10-13-3. The principal balance in the qualified escrow fund must always be maintained so that both the face value and the cost basis of the account are each equal to or greater than the accumulated principal deposits. (15) “Sale or sell” means any transfer, exchange, or barter in any manner or by any means for any consideration. Sale or sell includes distributing or shipping product in connection with a sale. References to sale “in” or “into” a state refers to the state of the destination point of the product in the sale, without regard to where title was transferred. References to sale “from” the state refers to the sale of cigarettes that are located in the state to the destination in question without regard to where title was transferred. (16) “Stamping agent” means any person that is authorized to affix stamps to packages or other containers of cigarettes under Code Section 48-11-3 or any person that is required to pay the excise tax under the alternate method of taxation, if so prescribed pursuant to Code Section 48-11-3 on “roll-your-own” tobacco. (17) “Tobacco product manufacturer” means an entity that after April 28, 1999: (A) Manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer (except where such importer is an original participating manufacturer (as that term is defined in the Master Settlement Agreement) that will be responsible for the payments under the Master Settlement Agreement with respect to such cigarettes as a result of the provisions of subsection II(mm) of the Master Settlement Agreement and that pays the taxes specified in subsection II(z) of the Master Settlement Agreement, and provided that the manufacturer of such cigarettes does not market or advertise such cigarettes in the United States); (B) Is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or (C) Becomes a successor of an entity described in subparagraph (A) or (B) of this paragraph. The term tobacco product manufacturer shall not include an affiliate 1322 10-13A-2 MASTER SETTLEMENT AGREEMENT ENHANCE. 10-13A-3 of a tobacco product manufacturer unless such affiliate itself falls within subparagraphs (A) through (C) of this paragraph. (18) “Units sold” means the number of individual cigarettes sold in the state by the applicable tobacco product manufacturer (whether directly or through a distributor, retailer, or similar intermediary or intermediaries) during the year in question on cigarette packs required to bear a tax stamp pursuant to Code Section 48-11-3 and on “roll-your-own” tobacco on which excise tax is due either by tax stamp or pursuant to an alternate method of taxation. “Units sold” does not include cigarettes the purchase or use of which the state is prohibited from taxing under the Constitution or statutes of the United States. The state revenue commissioner and the Attorney General may promulgate such regulations as are necessary to ascertain the amount of state excise tax paid on cigarettes of such tobacco product manufacturer for each year. History. Code 1981, § 10-13A-2, enacted by Ga. L. 2003, p. 829, § 1; Ga. L. 2004, p. 631, § 10; Ga. L. 2016, p. 528, § 3/HB 899. 10-13A-3. Certification of compliance with Master Settlement Agreement; requirements; retention of documentation of sales. (a) 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 in the manner prescribed by the Attorney General a certification to the commissioner and Attorney General, no later than the thirtieth day of April each year, certifying that, as of the date of such certification, such tobacco product manufacturer either is a participating manufacturer or is in full compliance with Chapter 13 of this title, including all annual deposits required by paragraph (2) of Code Section 10-13-3. (b) Every tobacco product manufacturer shall also certify that: (1) Such manufacturer or its importer holds a valid permit under 26 U.S.C. Section 5713; and (2) Such manufacturer is in compliance with all reporting and registration requirements of 15 U.S.C. Sections 376 and 376a. (c) In addition, participating manufacturer shall include in its certification a list of its brand families. A participating manufacturer shall update such list 30 calendar days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General and commissioner. A participating manufacturer may not include a brand family in its certification unless the participating manufacturer affirms that the brand family is to be 1323 10-13A-3 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. (d) A nonparticipating manufacturer shall include in its certification a list of all of its brand families and the number of units sold for each brand family that were sold in this state during the preceding calendar year and a list of all of its brand families that have been sold in this state at any time during the current calendar year. Such lists must indicate any brand family sold in this state during the preceding calendar year that is no longer being sold in this state as of the date of such certification, and identification by name and address of any other manufacturer of such brand families in the preceding or current calendar year. The nonparticipating manufacturer shall update such list 30 calendar days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General and commissioner. A nonparticipating manufacturer may not include a brand family in its certification unless such nonparticipating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of Chapter 13 of this title. Such certification must also certify: (1) That such nonparticipating manufacturer is registered to do business in this state and has appointed a resident agent for service of process and provided notice thereof as required by Code Section 10-13A-6; (2) That such nonparticipating manufacturer has established and continues to maintain a qualified escrow fund as required by Code Section 10-13-3 and has executed a qualified escrow agreement that has been reviewed and approved by the Attorney General and that governs the qualified escrow fund; (3) That such nonparticipating manufacturer is in full compliance with Chapter 13 of this title, this chapter, Chapter 11 of Title 48, and any regulations promulgated pursuant to such chapters; (4) The name, address, and telephone number of the financial institution where the nonparticipating manufacturer has established such qualified escrow fund required pursuant to Chapter 13 of this title and all regulations promulgated pursuant to such chapter; the account number of such qualified escrow fund and any subaccount number for this state; the amount such nonparticipating manufacturer placed in such fund for cigarettes sold in this state during the preceding calendar year, the date and amount of each such deposit, and such evidence or verification as may be deemed necessary by the Attorney General to confirm the foregoing; and the amount and date 1324 10-13A-3 MASTER SETTLEMENT AGREEMENT ENHANCE. 10-13A-3 of any withdrawal or transfer of funds the nonparticipating manufacturer made at any time from such fund or from any other qualified escrow fund into which it ever made escrow payments pursuant to Chapter 13 of this title and all regulations promulgated pursuant to such chapter; (5) That such nonparticipating manufacturer consents to be sued in the courts of the State of Georgia for purposes of the state: (A) Enforcing this chapter, Chapter 13 of this title, Title 48, and any regulations promulgated pursuant to these provisions; or (B) Bringing a released claim as defined in paragraph (8) of Code Section 10-13-2; (6) That such nonparticipating manufacturer has posted the appropriate bond required under Code Section 10-13A-7 and the information needed to establish the existence of such bond; and (7) In the case of a nonparticipating manufacturer located outside of the United States, the nonparticipating manufacturer shall provide a declaration from each of its importers into the United States of any of its brand families to be sold in this state. The declaration shall be on a form prescribed by the Attorney General and shall state the following: (A) The importer accepts joint and several liability with the nonparticipating manufacturer for all obligations to place funds into a qualified escrow fund and for payment of all civil penalties and all reasonable costs and expenses of investigation and prosecution, including attorney’s fees; (B) The importer consents to personal jurisdiction in Georgia for the purposes of claims by the state for any obligation to place funds into a qualified escrow fund and for payment of all civil penalties and all reasonable costs and expenses of investigation and prosecution, including attorney’s fees; and (C) The importer has appointed a registered agent for service of process in Georgia according to the same requirements as established in Code Section 10-13A-6 for any nonresident or foreign nonparticipating manufacturer. Certification in accordance with this subsection shall be deemed to be in compliance with subparagraph (C) of paragraph (2) of Code Section 10-13-3. (e) Nothing in this Code 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 Chapter 13 of this title. 1325 10-13A-4 (f) Tobacco product manufacturers shall maintain all invoices and documentation of sales and other such information relied upon for such certification for a period of five years, unless otherwise required by law to maintain them for a greater period of time. History. Code 1981, § 10-13A-3, enacted by Ga. L. 2003, p. 829, § 1; Ga. L. 2016, p. 528, § 3/HB 899.