§ 1918. Directory of cigarettes approved for stamping and sale

(a) The Attorney General shall develop and publish on its website a directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of this subchapter (the "directory") and all brand families that are listed in such certifications, except as noted in this subsection.

(1) The Attorney General shall not include or retain in such directory any brand family of any tobacco product manufacturer that has failed to provide the required certification or whose certification the Attorney General determines is not in compliance with this subchapter, unless the Attorney General determines that such violation has been cured to the satisfaction of the Attorney General.

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

(A) any escrow funds required to be deposited pursuant to subchapter 1A of this chapter for any period related to any brand family, whether or not listed by such tobacco product manufacturer in its certification, have not been placed into a qualified escrow fund governed by an escrow agreement that has been approved by the Attorney General; or

(B) any outstanding judgment, including interest thereon, obtained pursuant to subchapter 1A of this chapter related to that tobacco product manufacturer or any brand family of the tobacco product manufacturer has not been fully satisfied.

(b) The Attorney General shall update the directory in order to correct mistakes and add or remove a tobacco product manufacturer or brand family to keep the directory in conformity with the requirements of this subchapter, and the Attorney General shall transmit by e-mail or other practicable means to each stamping agent, and to any other entity that registers with the Department of Taxes or the Attorney General requesting receipt of the same, notice at least 30 days prior to any removal from the directory of any tobacco product manufacturer or brand family.

(c) Unless otherwise provided by agreement between a licensed wholesale dealer and a tobacco product manufacturer, a licensed wholesale dealer shall be entitled to a refund from a tobacco product manufacturer for any money paid by the licensed wholesale dealer to the tobacco product manufacturer for any cigarettes of that tobacco product manufacturer still in the possession of the licensed wholesale dealer on the date of the Attorney General's removal from the directory of that tobacco product manufacturer or the individual styles or brands of cigarettes of that tobacco product manufacturer. Also, unless otherwise provided by agreement between a retail dealer and a licensed wholesale dealer or a tobacco product manufacturer, a retail dealer shall be entitled to a refund from either a licensed wholesale dealer or a tobacco product manufacturer for any money paid by the retail dealer to the licensed wholesale dealer or tobacco product manufacturer for any cigarettes of that licensed wholesale dealer or tobacco product manufacturer still in the possession of the retail dealer on the date of the Attorney General's removal from the directory of that tobacco product manufacturer or the individual styles or brands of cigarettes of that tobacco product manufacturer. The Attorney General shall not restore to the directory a tobacco product manufacturer or any individual styles or brands or cigarettes or, if applicable, brand families of that tobacco product manufacturer until the tobacco product manufacturer has paid all licensed wholesale dealers any refund due pursuant to this section.

(d) The Commissioner shall refund to a licensed wholesale dealer any tax paid under 32 V.S.A. chapter 205 on products no longer saleable in the State under this subchapter.

(e) A determination of the Attorney General not to list or to remove from the directory a tobacco product manufacturer, an individual style or brand of cigarette or, if applicable, brand family is a final agency decision with the same status as an agency decision or order in a contested case under the Vermont Administrative Procedure Act. A tobacco product manufacturer aggrieved by a determination of the Attorney General under this section may appeal to the Superior Court in Washington County, which shall review the matter pursuant to 3 V.S.A. § 815.

(f) If a nonparticipating manufacturer who has not been listed on the directory for the previous three years files a certification pursuant to this section, or if the Attorney General determines that a nonparticipating manufacturer who has filed a certification pursuant to this section poses an elevated risk for noncompliance with sections 1912-1914 of this title, neither the nonparticipating manufacturer nor any of its brand families shall be included or retained on the directory unless and until the nonparticipating manufacturer or its U.S. importer that undertakes joint and several liability for the manufacturer's performance in accordance with section 1925 of this title and amendments thereto has posted a bond in accordance with this subsection. Proof of the bond shall be submitted with the certification on a form approved by the Attorney General.

(1) The bond required under this subsection shall be written in favor of the State of Vermont and shall be conditioned on the performance by the nonparticipating manufacturer or its U.S. importer that undertakes joint and several liability for the manufacturer's performance in accordance with sections 1912-1914 and 1925 of this title. The bond shall be issued by a surety company in good standing and authorized to transact business in this State to secure the payment of any escrow due or which may become due from the nonparticipating manufacturer or its U.S. importer. The bond shall be maintained as a condition to the nonparticipating manufacturer and its brand families being included on the directory and shall remain in place for the pendency of such listing.

(2) The bond required shall be $20,000.00 for a nonparticipating manufacturer that has not been listed on the Vermont directory for at least three years prior to the nonparticipating manufacturer's application for certification.

(3) The bond required shall be $50,000.00 for a nonparticipating manufacturer that poses an elevated risk for noncompliance with sections 1912-1914 of this title.

(4) A nonparticipating manufacturer shall be deemed to pose an elevated risk for noncompliance with sections 1912-1914 of this title if it:

(A) failed in the previous three years to make a full and timely escrow deposit due pursuant to section 1914 of this title, unless the failure was promptly cured upon notice;

(B) was involuntarily removed from any state's directory, unless the removal was determined to have been erroneous or illegal; or

(C) has litigation pending against it in any state for escrow or for penalties, costs, or attorney's fees related to noncompliance with any state's escrow laws.

(5) If a nonparticipating manufacturer that has posted a bond has failed to make or to have made on its behalf by an entity with joint and several liability escrow deposits equal to the full amount owed for a quarter within 15 days following the due date for the quarter under sections 1914 and 1925 of this title, the State may execute upon the bond first to recover delinquent escrow, which amount shall be deposited into a qualified escrow account under section 1914, and then to recover civil penalties and costs authorized under that section. Escrow obligations above the amount collected on the bond remain due from that nonparticipating manufacturer and, as provided in section 1925 of this title, from importers that sold its cigarettes in the calendar quarter. (Added 2003, No. 14, § 1; amended 2003, No. 113 (Adj. Sess.), § 2; 2013, No. 14, § 22; 2015, No. 57, § 85, eff. June 11, 2015.)