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H.B. 132 Enrolled

                 

TOBACCO MANUFACTURERS RESPONSIBILITY ACT

                 
1999 GENERAL SESSION

                 
STATE OF UTAH

                 
Sponsor: Patrice M. Arent

                  Greg J. Curtis




                  AN ACT RELATING TO HEALTH; ENACTING THE MODEL TOBACCO SETTLEMENT
                  STATUTE; AND PROVIDING AN EFFECTIVE DATE.
                  This act affects sections of Utah Code Annotated 1953 as follows:
                  ENACTS:
                      26-44-101, Utah Code Annotated 1953
                      26-44-201, Utah Code Annotated 1953
                      26-44-202, Utah Code Annotated 1953
                      26-44-203, Utah Code Annotated 1953
                  Be it enacted by the Legislature of the state of Utah:
                      Section 1. Section 26-44-101 is enacted to read:
                 
CHAPTER 44. TOBACCO MANUFACTURERS RESPONSIBILITY ACT

                 
Part 1. Tobacco Manufacturers Responsibility Act

                      26-44-101. Title.
                      The chapter is known as the "Tobacco Manufacturers Responsibility Act."
                      Section 2. Section 26-44-201 is enacted to read:
                 
Part 2. Model Tobacco Settlement Statute

                      26-44-201. Findings and purpose.
                      (1) Cigarette smoking presents serious public health concerns to the State and to the
                  citizens of the State. The Surgeon General has determined that smoking causes lung cancer, heart
                  disease and other serious diseases, and that there are hundreds of thousands of tobacco-related
                  deaths in the United States each year. These diseases most often do not appear until many years
                  after the person in question begins smoking.
                      (2) Cigarette smoking also presents serious financial concerns for the State. Under certain
                  health-care programs, the State may have a legal obligation to provide medical assistance to


                  eligible persons for health conditions associated with cigarette smoking, and those persons may have
                  a legal entitlement to receive such medical assistance.
                      (3) Under these programs, the State pays millions of dollars each year to provide medical
                  assistance for these persons for health conditions associated with cigarette smoking.
                      (4) It is the policy of the State that financial burdens imposed on the State by cigarette
                  smoking be borne by tobacco product manufacturers rather than by the State to the extent that such
                  manufacturers either determine to enter into a settlement with the State or are found culpable by the
                  courts.
                      (5) On November 23, 1998, leading United States tobacco product manufacturers entered
                  into a settlement agreement, entitled the "Master Settlement Agreement," with the State. The Master
                  Settlement Agreement obligates these manufacturers, in return for a release of past, present, and
                  certain future claims against them as described therein, to pay substantial sums to the State (tied in
                  part to their volume of sales); to fund a national foundation devoted to the interests of public health;
                  and to make substantial changes in their advertising and marketing practices and corporate culture,
                  with the intention of reducing underage smoking.
                      (6) It would be contrary to the policy of the State if tobacco product manufacturers who
                  determine not to enter into such a settlement could use a resulting cost advantage to derive large,
                  short-term profits in the years before liability may arise without ensuring that the State will have an
                  eventual source of recovery from them if they are proven to have acted culpably. It is thus in the
                  interest of the State to require that such manufacturers establish a reserve fund to guarantee a source
                  of compensation and to prevent such manufacturers from deriving large, short-term profits and then
                  becoming judgment-proof before liability may arise.
                      Section 3. Section 26-44-202 is enacted to read:
                      26-44-202. Definitions.
                      As used in this part:
                      (1) "Adjusted for inflation" means increased in accordance with the formula for inflation
                  adjustment set forth in Exhibit C to the Master Settlement Agreement.
                      (2) "Affiliate" means a person who directly or indirectly owns or controls, is owned or

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                  controlled by, or is under common ownership or control with, another person. Solely for purposes
                  of this definition, the terms "owns," "is owned" and "ownership" mean ownership of an equity
                  interest, or the equivalent thereof, of 10% or more, and the term "person" means an individual,
                  partnership, committee, association, corporation or any other organization or group of persons.
                      (3) "Allocable share" means Allocable Share as that term is defined in the Master Settlement
                  Agreement.
                      (4) "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."
                      (5) "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.
                      (6) "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 least $1,000,000,000 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 Subsection 26-44-203 (2).
                      (7) "Released claims" means Released Claims as that term is defined in the Master

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                  Settlement Agreement.
                      (8) "Releasing parties" means Releasing Parties as that term is defined in the Master
                  Settlement Agreement.
                      (9) (a) "Tobacco product manufacturer" means an entity that after the date of enactment of
                  this Act directly (and not exclusively through any affiliate):
                      (i) 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);
                      (ii) 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
                      (iii) becomes a successor of an entity described in Subsection (9)(a)(i) or (ii).
                      (b) "Tobacco product manufacturer" shall not include an affiliate of a tobacco product
                  manufacturer unless such affiliate itself falls within any Subsection (9)(a)(i) through (iii).
                      (10) "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, as measured by excise taxes collected
                  by the State on packs (or "roll-your-own" tobacco containers) bearing the excise tax stamp of the
                  State. The State Tax Commission shall promulgate such regulations as are necessary to ascertain
                  the amount of State excise tax paid on the cigarettes of such tobacco product manufacturer for each
                  year.
                      Section 4. Section 26-44-203 is enacted to read:
                      26-44-203. Requirements.
                      (1) Any tobacco product manufacturer selling cigarettes to consumers within the State

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                  (whether directly or through a distributor, retailer or similar intermediary or intermediaries) after the
                  date of enactment of this Act shall do one of the following:
                      (a) become a participating manufacturer (as that term is defined in Section II(jj) of the
                  Master Settlement Agreement) and generally perform its financial obligations under the Master
                  Settlement Agreement; or
                      (b) place into a qualified escrow fund by April 15 of the year following the year in question
                  the following amounts (as such amounts are adjusted for inflation):
                      (i) 1999: $.0094241 per unit sold after the date of enactment of this Act;
                      (ii) 2000: $.0104712 per unit sold;
                      (iii) for each of 2001 and 2002: $.0136125 per unit sold;
                      (iv) for each of 2003 through 2006: $.0167539 per unit sold; and
                      (v) for each of 2007 and each year thereafter: $.0188482 per unit sold.
                      (2) A tobacco product manufacturer that places funds into escrow pursuant to Subsection
                  (1)(b) shall receive the interest or other appreciation on such funds as earned. Such funds themselves
                  shall be released from escrow only under the following circumstances:
                      (a) to pay a judgment or settlement on any released claim brought against such tobacco
                  product manufacturer by the State or any releasing party located or residing in the State. Funds shall
                  be released from escrow under this Subsection (2)(a):
                      (i) in the order in which they were placed into escrow; and
                      (ii) only to the extent and at the time necessary to make payments required under such
                  judgment or settlement;
                      (b) to the extent that a tobacco product manufacturer establishes that the amount it was
                  required to place into escrow in a particular year was greater than the State's allocable share of the
                  total payments that such manufacturer would have been required to make in that year under the
                  Master Settlement Agreement (as determined pursuant to Section IX(i)(2) of the Master Settlement
                  Agreement, and before any of the adjustments or offsets described in Section IX(i)(3) of that
                  Agreement other than the Inflation Adjustment) had it been a participating manufacturer, the excess
                  shall be released from escrow and revert back to such tobacco product manufacturer; or

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                      (c) to the extent not released from escrow under Subsection (2)(a) or (b), funds shall be
                  released from escrow and revert back to such tobacco product manufacturer 25 years after the date
                  on which they were placed into escrow.
                      (3) Each tobacco product manufacturer that elects to place funds into escrow pursuant to
                  Subsection (1)(b) shall annually certify to the executive director that it is in compliance with
                  Subsection (1)(b) and Subsection (2). The executive director may bring a civil action on behalf of
                  the State against any tobacco product manufacturer that fails to place into escrow the funds required
                  under Subsection (1)(b) and Subsection (2). Any tobacco product manufacturer that fails in any year
                  to place into escrow the funds required under this Subsection (1)(b) and Subsection (2) shall:
                      (a) be required within 15 days to place such funds into escrow as shall bring it into
                  compliance with Subsection (1)(b) and Subsection (2). The court, upon a finding of a violation of
                  Subsection (1)(b) or Subsection (2), may impose a civil penalty to be paid to the General Fund in an
                  amount not to exceed 5% of the amount improperly withheld from escrow per day of the violation
                  and in a total amount not to exceed 100% of the original amount improperly withheld from escrow;
                      (b) in the case of a knowing violation, be required within 15 days to place such funds into
                  escrow as shall bring it into compliance with Subsection (1)(b) and Subsection (2). The court, upon
                  a finding of a knowing violation of Subsection (1)(b) or Subsection (2), may impose a civil penalty
                  to be paid to the General Fund of the State in an amount not to exceed 15% of the amount
                  improperly withheld from escrow per day of the violation and in a total amount not to exceed 300%
                  of the original amount improperly withheld from escrow; and
                      (c) in the case of a second knowing violation, be prohibited from selling cigarettes to
                  consumers within the State (whether directly or through a distributor, retailer or similar intermediary)
                  for a period not to exceed 2 years.
                      (4) Each failure to make an annual deposit required under Subsection (1)(b) shall constitute
                  a separate violation.
                      (5) A court shall award the State its costs and attorneys fees incurred in bringing any action
                  in which the State establishes that a tobacco product manufacturer has violated this section.
                      Section 5. Effective date.

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                      This act takes effect on July 1, 1999.

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