§5073. Certifications; directory; tax stamps

A.(1) Every tobacco product manufacturer whose cigarettes are sold in this state, whether directly or through a distributor, retailer, or similar intermediary or intermediaries, shall execute and deliver on a form prescribed by the attorney general a certification to the secretary and attorney general, no later than the thirtieth day of April each year, certifying under penalty of perjury that, as of the date of such certification, such tobacco product manufacturer either: is a participating manufacturer; or is in full compliance with R.S. 13:5061 et seq., including all installment payments required by R.S. 13:5075(J). For the initial certification submitted no later than the thirtieth of April each year, a manufacturer shall pay to the attorney general a fee of five hundred dollars. The fees generated pursuant to this Section shall be deposited in the Tobacco Settlement Enforcement Fund and used solely and exclusively for purposes of enforcement of the Master Settlement Agreement, pursuant to R.S. 39:98.7.

(2) A participating manufacturer shall include in its certification a list of its brand families. The participating manufacturer shall update such list thirty 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 the secretary.

(3)(a) A nonparticipating manufacturer shall include in its certification:

(i) A list of all of its current and past brand families and the number of units sold for each brand family that were sold in the state during the preceding calendar year.

(ii) A list of all of its current and past brand families that have been sold in the state at any time during the current calendar year.

(iii) Indicating, by an asterisk, any brand family sold in the state during the preceding calendar year that is no longer being sold in the state as of the date of such certification.

(iv) Identifying by name and address any other manufacturer of such brand families in the preceding or current calendar year.

(v) Any other information required under R.S. 13:5075(I).

(vi) As a condition precedent to being listed and having its brand families listed on the state directory, a manufacturer must certify annually that it holds a valid permit under 26 U.S.C. 5713 and provide a copy of such permit to the attorney general.

(b) The nonparticipating manufacturer shall update such list thirty 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 the secretary.

(4) In the case of a nonparticipating manufacturer, such certification shall further certify:

(a) That such nonparticipating manufacturer is registered to do business in the state or has appointed a resident agent for service of process and provided notice thereof as required by R.S. 13:5074.

(b) That such nonparticipating manufacturer:

(i) Has established and continues to maintain a qualified escrow fund.

(ii) Has executed a qualified escrow agreement that has been reviewed and approved by the attorney general and that governs the qualified escrow fund.

(c) That such nonparticipating manufacturer is in full compliance with R.S. 13:5061 et seq., and this Part and any regulations promulgated pursuant thereto.

(d)(i) The name, address, and telephone number of the financial institution where the nonparticipating manufacturer has established such qualified escrow fund required pursuant to R.S. 13:5061 et seq., and all regulations promulgated thereto.

(ii) The account number of such qualified escrow fund and any subaccount number for Louisiana.

(iii) The amount such nonparticipating manufacturer placed in such fund for cigarettes sold in the 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.

(iv) The amount and date 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 R.S. 13:5061 et seq., and all regulations promulgated thereto.

(e) Sufficient information to establish that such nonparticipating manufacturer has posted the appropriate bond or cash equivalent pursuant to R.S. 13:5078.

(f) 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:

(i) The importer accepts joint and several liability with the nonparticipating manufacturer for all obligations to place funds into a qualified escrow fund, for payment of all civil penalties and for payment of all reasonable costs and expenses of investigation and prosecution, including attorney fees.

(ii) The importer consents to personal jurisdiction in Louisiana for the purposes of claims by the state for any obligation to place funds into a qualified escrow fund, for payment of any civil penalties and for payment of any reasonable costs and expenses of investigation or prosecution, including attorney fees.

(iii) The importer has appointed a registered agent for service of process in Louisiana according to the same requirements as established in this Part for any nonresident or foreign nonparticipating manufacturer that has not yet registered to do business in this state as a foreign corporation or business entity.

(5) A tobacco product manufacturer may not include a brand family in its certification unless:

(a) In the case of a participating manufacturer, said participating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of calculating its payments under the Master Settlement Agreement for the relevant year, in the volume and shares determined pursuant to the Master Settlement Agreement.

(b) In the case of a nonparticipating manufacturer, said nonparticipating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of R.S. 13:5061 et seq. Nothing in this Section shall be construed as limiting or otherwise affecting the right of the state 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 R.S. 13:5061 et seq.

(6) 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.

(7) Every tobacco product manufacturer shall include in its annual certification a list of the names and addresses of all sales entity affiliates that may transact business in the state on its behalf and shall provide supporting documentation to establish to the satisfaction of the attorney general its status as a "sales entity affiliate" pursuant to R.S. 13:5072.

B. Not later than ninety days after June 25, 2004, the attorney general shall develop and make available for public inspection or publish on its website a directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of Subsection A and all brand families, including country of origin, that are listed in such certifications (the directory), except as noted below.

(1) The attorney general shall not include or retain in such directory the name or brand families of any nonparticipating manufacturer that has failed to provide the required certification or whose certification the secretary or attorney general determines is not in compliance with Paragraphs (2) and (3) of Subsection A, unless the attorney general has determined that such violation has been cured to the satisfaction of the attorney general and the secretary.

(2) Neither a tobacco product manufacturer nor brand family shall be included or retained in the directory if the attorney general concludes, in the case of a nonparticipating manufacturer, that:

(a) Any escrow payment required pursuant to R.S. 13:5061 et seq., by the date due for any quarter for any brand family, whether or not listed by such nonparticipating manufacturer, has not been fully paid into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the attorney general; or

(b) Any outstanding final judgment, including interest thereon, for a violation of R.S. 13:5061 et seq. has not been fully satisfied for such brand family or such manufacturer.

(3) A manufacturer and its brand families may be removed from the state directory if they are removed from the directory of another state based on acts or omissions that, if they had occurred in this state, would be grounds for removal from the state directory under this Section, unless the manufacturer demonstrates that its removal from the other state's directory was effected without due process. Procedure for removal from the state directory shall be governed by the procedure set forth in R.S. 13:5077(A). A manufacturer that is removed from the state directory under this Subsection shall be eligible for reinstatement upon the earlier of the date on which it cures the violation or is reinstated to the directory in the other state.

(4) Failure to submit complete and accurate reports as required pursuant to R.S. 13:5075 shall result in the manufacturer and its brand families being removed from the state directory under the procedure set forth in R.S. 13:5077(A).

(5) The attorney general shall update the directory as necessary in order to correct mistakes and to list or de-list a tobacco product manufacturer or brand family to keep the directory in conformity with the requirements of this Part. Fifteen days prior to the listing or de-listing of a tobacco product manufacturer or brand family, the attorney general shall transmit a notification to every stamping agent.

(6) Every stamping agent shall provide and update as necessary an electronic mail address or facsimile telephone number to the secretary and the attorney general for the purpose of receiving any notifications as may be required by this Part.

C. It shall be unlawful for any person:

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

(2) To sell, offer, or possess for sale, in this state, or import for personal consumption in this state, cigarettes of a tobacco product manufacturer or brand family not included in the state directory; or, in the event of cigarettes subject to a de-listing notice described in this Section, sell, offer, or possess for sale, in this state, or import for personal consumption in this state, cigarettes received, imported, or stamped after the date of de-listing from the state directory.

(3) To order, purchase, or offer to purchase cigarettes of a tobacco product manufacturer or brand family identified by the attorney general to be de-listed from the directory, after receipt of the notice described in this Section.

Acts 2004, No. 544, §1, eff. June 25, 2004; Acts 2012, No. 456, §1; Acts 2013, No. 221, §1; Acts 2014, No. 358, §1.