(A) Each 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 or in the manner prescribed by the Attorney General a certification to the Attorney General no later than the thirtieth day of April each year, certifying under penalty of perjury that, as of the date of this certification, the tobacco product manufacturer either is a participating manufacturer or is in full compliance with Section 11-47-30.

(1) A participating manufacturer shall include in its certification a list of its brand families. The participating manufacturer shall update the list thirty days before any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General.

(2) A nonparticipating manufacturer shall include in its certification a complete list of all of its brand families:

(a) separately listing brand families of cigarettes and the number of units sold for each brand family in the State during the preceding calendar year;

(b) listing all of its brand families that have been sold in the State at any time during the current calendar year;

(c) indicating by an asterisk a 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 the certification; and

(d) identifying by name and address any other manufacturer of the brand families in the preceding or current calendar year. The nonparticipating manufacturer shall update the list thirty days before any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General.

(3) In the case of a nonparticipating manufacturer, the certification must certify further that:

(a) it is registered to do business in the State or has appointed an agent resident within South Carolina for service of process and provided notice of the appointment;

(b) it has established and continues to maintain a qualified escrow fund governed by an executed qualified escrow fund agreement that has been reviewed and approved by the Attorney General;

(c) it is in full compliance with Section 11-47-30 and this chapter and regulations promulgated pursuant to them; and

(d) the following information is accurate and complete:

(i) name, address, and telephone number of the financial institution where the nonparticipating manufacturer has established the qualified escrow fund required pursuant to Section 11-47-30(b) and its regulations;

(ii) the account number of the qualified escrow fund and subaccount number for the State of South Carolina;

(iii) amount the nonparticipating manufacturer placed in the qualified escrow fund for cigarettes sold in the State during the preceding calendar year, the date, and amount of each deposit, and evidence or verification considered necessary by the Attorney General to confirm that information; and

(iv) amounts of and dates of a withdrawal or transfer of funds the nonparticipating manufacturer made at any time from the qualified escrow fund or from another qualified escrow fund into which it made qualified escrow fund payments pursuant to Section 11-47-30(b) and its regulations.

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

(i) in the case of a participating manufacturer, it affirms that the brand family is to be considered 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; and

(ii) in the case of a nonparticipating manufacturer, it affirms that the brand family is considered its cigarettes for purposes of Chapter 47 of this title.

(b) This item does not limit or otherwise affect 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 47 of this title.

(5) The tobacco product manufacturers shall maintain all invoices and documentation of sales and other information relied upon for the certification for a period of five years, unless otherwise required by law to maintain them for a greater period of time.

(B) The Attorney General shall develop and make available for public inspection or publish on the office web site 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 that are listed in the certifications except:

(1) The Attorney General shall not include or retain in the directory the name or brand families of a nonparticipating manufacturer that fails to provide the required certification or whose certification the Attorney General determines is not in compliance with items (2) and (3) of subsection (A), unless the Attorney General determines that the violation is cured to his satisfaction.

(2) Neither a tobacco product manufacturer nor brand family may be included or retained in the directory if the Attorney General concludes in the case of a nonparticipating manufacturer that:

(a) all qualified escrow fund payments required pursuant to Section 11-47-30(b) for any period for a brand family, whether or not listed by the nonparticipating manufacturer, have not been paid fully into a qualified escrow fund governed by a qualified escrow fund agreement approved by the Attorney General; or

(b) all outstanding final judgments, including interest on them, for violations of Section 11-47-30(b) have not been fully satisfied for the brand family and the manufacturer.

(3) The Attorney General shall update the directory as necessary to correct mistakes, to add or remove a tobacco product manufacturer or brand families, and to keep the directory in conformity with the requirements of this chapter.

(4) A cigarette distributor shall provide and update as necessary an electronic mail address to the Attorney General for the purpose of receiving notifications required by this chapter.

(5) Notwithstanding the provisions of items (1) and (2) of this subsection, in the case of a nonparticipating manufacturer who has established a qualified escrow fund account that has been approved by the Attorney General, the manufacturer or its brand families must not be removed from the directory unless the manufacturer has been given at least fourteen days notice of the intended action. For the purposes of this section, notice is considered sufficient if it is sent either electronically to an electronic-mail address or by first class to a postal mailing address provided by the manufacturer in its most recent certification filed pursuant to this section. The notified nonparticipating manufacturer has fourteen days from the receipt of the notice to comply. At the time that the Attorney General sends notice of its intent to remove the manufacturer from the directory, the Attorney General shall post the notice directly.

(C)(1) It is unlawful for any person to:

(a) affix a stamp to a package or other container of cigarettes of a tobacco product manufacturer or brand family not included in the directory if such a stamp is required by law; or

(b) sell, offer, acquire, hold, own, possess, transport, import or cause to be imported, for sale in this State cigarettes of a tobacco product manufacturer or brand family not included in the directory, or to import such cigarettes for personal consumption.

(2) A person who violates the provisions of item (1) of this subsection engages in an unfair and deceptive trade practice in violation of Chapter 5, Title 39.

(3) A person who, with knowledge of the prohibitions provided in item (1) of this section violates the provisions of item (1) of this section, is guilty of a misdemeanor and, upon conviction, must be punished by a fine not to exceed one thousand dollars or imprisoned for not more than one year, or both. Each day a violation occurs constitutes a separate offense.

HISTORY: 2005 Act No. 61, Section 1.A.