2016 Delaware Code
Title 29 - State Government
CHAPTER 60D. ENFORCEMENT PROVISIONS OF DELAWARE TOBACCO SETTLEMENT ACT OF 1999
§ 6085. Certifications; directory; tax stamps.

(a) Certification. — 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 Department and Attorney General, no later than April 30th of each year, certifying under penalty of perjury that, as of the date of such certification, such tobacco product manufacturer is either a participating manufacturer or is in full compliance with Chapter 60C of this title, including all quarterly installment payments required by § 6087(e) of this title.

(1) A participating manufacturer shall include in its certification a list of its brand families. The 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 Department.

(2) A non-participating manufacturer shall include in its certification:

a. A list of all of its brand families and the number of units sold for each brand family that were sold in the State during the preceding calendar year;

b. A list of all its brand families that have been sold in the State at any time during the current calendar year;

c. Indicating, by an asterisk, and 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; and

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

The non-participating manufacturer shall update such list thirty calendar days prior to any addition to or modification of its brand families by execution and delivering a supplemental certification to the Attorney General and Department.

(3) In the case of a non-participating manufacturer, such certification shall include representations that:

a. Such non-participating 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 § 6086 of this title; and

b. Such non-participating manufacturer:

1. Has established and continues to maintain a qualified escrow fund; and

2. Has executed a qualified escrow agreement that has been reviewed and approved by the Attorney General and that governs the qualified escrow fund; and

c. such non-participating manufacturer is in full compliance with Chapter 60C of this title and this chapter, and any regulations promulgated pursuant thereto; and

d.1. The name, address and telephone number of the financial institution where the non-participating manufacturer has established such qualified escrow fund required pursuant to Chapter 60C of this title and all regulations promulgated thereto;

2. The account number of such qualified escrow fund and any sub-account number for Delaware;

3. The amount such non-participating 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; and

4. The amount and date of any withdrawal or transfer of funds the non-participating 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 60C of this title and all regulations promulgated thereto.

(4) 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; and

b. In the case of a non-participating manufacturer, said non-participating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of Chapter 60C this title.

Nothing in this 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 60C of this title.

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

(b) Directory of cigarettes approved for stamping and sale. — Not later than August 7, 2003, 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 subsection (a) of this section and all brand families 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 non-participating manufacturer that has failed to provide the required certification or whose certification the Attorney General determines is not in compliance with subdivisions (a)(2) and (3) of this section, unless the Attorney General has determined that such violation has been cured to the satisfaction of the Attorney General.

(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 non-participating manufacturer, that

a. Any escrow payment required pursuant to Chapter 60C of this title for any period for any brand family, whether or not listed by such non-participating 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 Chapter 60C of this title has not been fully satisfied for such brand family or such manufacturer.

(3) The Attorney General shall update the Directory as necessary in order to correct mistakes and to add or remove a tobacco product manufacturer or brand family to keep the Directory in conformity with the requirements of this chapter. The Attorney General shall post in the Directory and transmit by e-mail or other practicable means to each affixing agent and tobacco product manufacturer notice of any removal from the Directory of that tobacco product manufacturer or brand family at least 30 days prior to removal from the Directory of such tobacco product manufacturer or brand family. Unless otherwise provided by agreement between an affixing agent and a tobacco product manufacturer, the affixing agent shall be entitled to a refund from a tobacco product manufacturer for any money paid by the affixing agent to the tobacco product manufacturer for any cigarettes of the tobacco product manufacturer in the possession of the affixing agent on the effective date of removal from the Directory, or as subsequently received from a retail dealer as provided herein, of that tobacco product manufacturer or brand family of cigarettes. Unless otherwise provided by agreement between a retail dealer and an affixing agent or a tobacco product manufacturer, a retail dealer shall be entitled to a refund from an affixing agent or a tobacco product manufacturer for any money paid by the retail dealer to such affixing agent or tobacco product manufacturer for any cigarettes of the tobacco product manufacturer still in the possession of the retail dealer on the effective date of removal from the Directory of that tobacco product manufacturer or brand family of cigarettes. The Attorney General shall not restore to the Directory the tobacco product manufacturer or the brand family until the tobacco product manufacturer has paid the affixing agent or retail dealer any refund due.

(4) Every affixing agent shall provide and update as necessary an electronic mail address to the Attorney General for the purpose of receiving any notifications as may be required by this chapter.

(c) Prohibition against stamping or sale of cigarettes not in the directory. — It shall be unlawful for any person:

(1) To affix a 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, cigarettes of a tobacco product manufacturer or brand family not included in the Directory.

74 Del. Laws, c. 124, § 1.;