ASSEMBLY ACTION Initial and Date |SENATE ACTION Initial and Date
Adopted Lost | Adopted Lost
Concurred In Not |Concurred In Not
Receded Not | Receded Not
Amend sec. 4, page 2, line 36, by deleting “A” and inserting:
“1. Except as otherwise provided in subsection 2, a”.
Amend sec. 4, page 2, between lines 39 and 40, by inserting:
“2. Subsection 1 does not apply to a child who is assisting in an inspection pursuant to NRS 202.2496.”.
Amend the bill as a whole by deleting sec. 5 and adding:
“Sec. 5. (Deleted by amendment.)”.
Amend sec. 6, page 3, line 31, by deleting “described in” and inserting “prohibited by”.
Amend sec. 7, page 5, line 40, by deleting “described in” and inserting “prohibited by”.
Amend sec. 9, page 6, line 34, by deleting “37,” and inserting “58,”.
Amend sec. 12, page 7, by deleting lines 4 and 5 and inserting:
“1. Falsely depicts a stamp approved by the Department or a tax stamp authorized pursuant to the laws of any other state governing the taxation of cigarettes; or
2. Was not sold by the Department or its agents or pursuant to the laws of any other state governing the taxation of cigarettes.”.
Amend the bill as a whole by deleting sec. 15 and adding:
“Sec. 15. (Deleted by amendment.)”.
Amend sec. 18, page 7, by deleting lines 27 through 33 and inserting:
“Sec. 18. “Manufacturer” means any person who:
1. Manufactures, fabricates, assembles, processes or labels a finished cigarette; or
2. Imports, whether directly or indirectly, a finished cigarette for sale or distribution in”.
Amend sec. 24, page 8, by deleting lines 14 through 20 and inserting:
“(c) Has been convicted of a crime relating to the sale of stolen or counterfeit cigarettes or stamps or the receipt of stolen cigarettes;
(d) Is a manufacturer who has:”.
Amend sec. 24, page 8, by deleting lines 26 and 27 and inserting:
“(e) Is a nonparticipating manufacturer, as defined in section 46 of this act, who is not in full compliance with subsection 2 of NRS 370A.140.”.
Amend sec. 24, page 8, line 30, by deleting “NRS.” and inserting:
“NRS and sections 38 to 58, inclusive, of this act.”.
Amend sec. 26, page 8, lines 39 and 40, by deleting:
“manufacturer or importer,” and inserting:
“person who holds a current permit to engage in business as a manufacturer or importer of cigarettes issued pursuant to 26 U.S.C. § 5713,”.
Amend sec. 27, page 9, by deleting lines 21 through 34 and inserting:
“(a) The inventory of stamped and unstamped cigarette packages held by the wholesale dealer for sale or distribution within the borders of this state on hand at the beginning of the reporting period;
(b) The inventory of cigarette packages held by the wholesale dealer for sale or distribution outside of the borders of this state on hand at the beginning of the reporting period;
(c) The quantity of stamped cigarette packages held for sale or distribution within the borders of this state that were received by the wholesale dealer from another person during the reporting period, and the name and address of each person from whom those products were received;
(d) The quantity of cigarette packages held for sale or distribution outside of the borders of this state that were received by the wholesale dealer from another person during the reporting period, and the name and address of each person from whom those products were received;
(e) The quantity of cigarette packages to which Nevada stamps were affixed that were distributed or shipped to another wholesale dealer or to a retail dealer within the borders of this state during the reporting period, and the name and address of each person to whom those products were distributed or shipped;
(f) The quantity of cigarette packages to which Nevada stamps were affixed that were distributed or shipped to another facility of the same wholesale dealer within the borders of this state during the reporting period;
(g) The quantity of stamped cigarette packages that were distributed or shipped within the borders of this state to Indian tribal entities or instrumentalities of the Federal Government during the reporting period, and the name and address of each person to whom those products were distributed or shipped;
(h) The quantity of cigarette packages held for distribution outside of the borders of this state that were distributed or shipped outside of the borders of this state during the reporting period;
(i) The inventory of stamped and unstamped cigarette packages held for sale or distribution within the borders of this state on hand at the end of the reporting period;
(j) The inventory of cigarette packages held for sale or distribution outside of the borders of this state on hand at the end of the reporting period;
(k) The number of each type of stamp on hand at the beginning of the reporting period;
(l) The number of each type of stamp purchased or received during the reporting period;
(m) The number of each type of stamp applied during the reporting period; and
(n) The number of each type of stamp on hand at the end of the reporting period.”.
Amend sec. 29, page 11, by deleting lines 3 through 5.
Amend sec. 29, page 11, line 6, by deleting “(c)” and inserting “(b)”.
Amend sec. 29, page 11, line 9, by deleting “(d)” and inserting “(c)”.
Amend sec. 37, page 14, line 38, by deleting “1.”.
Amend sec. 37, page 14, line 39, by deleting “(a)” and inserting “1.”.
Amend sec. 37, page 14, line 41, by deleting “(b)” and inserting “2.”.
Amend sec. 37, page 15, by deleting lines 1 through 3.
Amend the bill as a whole by renumbering sections 38 through 56 as sections 59 through 77 and adding new sections designated sections 38 through 58, following sec. 37, to read as follows:
“Sec. 38. The Legislature finds that:
1. Violations of the provisions of chapter 370A of NRS threaten the integrity of the Master Settlement Agreement, the fiscal soundness of the State and the public health.
2. The enactment of the procedural enhancements set forth in sections 38 to 58, inclusive, of this act will aid in the enforcement of the provisions of chapter 370A of NRS and thereby safeguard the Master Settlement Agreement, the fiscal soundness of the State and the public health.
Sec. 39. As used in sections 38 to 58, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 40 to 50, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 40. “Brand family” means all styles of cigarettes sold under the same trademark and differentiated from one another by means of additional modifiers or descriptors, including, but not limited to, “menthol,” “lights,” “kings” and “100s,” and includes any brand name, whether occurring alone or in conjunction with any other word, any trademark, logo, symbol, motto, selling message or recognizable pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, a previously known brand of cigarettes.
Sec. 41. “Cigarette” has the meaning ascribed to it in NRS 370A.050.
Sec. 42. “Directory” means the directory created pursuant to section 53 of this act.
Sec. 43. “Distributor” means a person that is authorized to affix stamps to cigarette packages pursuant to this chapter or any person that is required to pay the taxes on cigarettes imposed pursuant to this chapter.
Sec. 44. “Manufacturer of tobacco products” has the meaning ascribed to it in NRS 370A.060.
Sec. 45. “Master Settlement Agreement” has the meaning ascribed to it in NRS 370A.070.
Sec. 46. “Nonparticipating manufacturer” means any manufacturer of tobacco products that is not a participating manufacturer.
Sec. 47. “Participating manufacturer” has the meaning ascribed to it in NRS 370A.080.
Sec. 48. “Qualified escrow fund” has the meaning ascribed to it in NRS 370A.090.
Sec. 49. “Stamp” means the indicia required to be placed on a cigarette package that evidences payment of the taxes on cigarettes imposed pursuant to this chapter.
Sec. 50. “Units sold” has the meaning ascribed to it in NRS 370A.120.
Sec. 51. 1. A manufacturer of tobacco products whose cigarettes are sold in this state, whether directly or through a distributor, retailer or similar intermediary or intermediaries, shall, not later than April 30 of each year, execute and deliver to the Attorney General and the Department, on a form provided by the Department, a certification which certifies under penalty of perjury that, as of the date of that certification, the manufacturer of tobacco products is either:
(a) A participating manufacturer; or
(b) In full compliance with subsection 2 of NRS 370A.140, including any quarterly installment payments required pursuant to section 56 of this act.
2. Except as otherwise provided in section 52 of this act:
(a) A participating manufacturer shall include in its certification pursuant to this section a list of its brand families. The participating manufacturer shall update that list at least 30 calendar days before it adds to or modifies its brand families by executing and delivering a supplemental certification to the Attorney General and the Department.
(b) A nonparticipating manufacturer shall, in its certification pursuant to this section:
(1) Include:
(I) 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; and
(II) A list of all of its brand families that have been sold in the State at any time during the current calendar year;
(2) Indicate, 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 the certification; and
(3) Identify, by name and address, any other manufacturer of those brand families in the preceding or current calendar year.
FLUSH
A nonparticipating
manufacturer shall update the information required by this paragraph at least
30 calendar days before it adds to or modifies its brand families by executing
and delivering a supplemental certification to the Attorney General and the
Department.
3. In addition to the requirements of subsection 2, the certification of a nonparticipating manufacturer pursuant to this section must certify:
(a) That the 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 section 54 of this act;
(b) That the nonparticipating manufacturer has:
(1) Established and continues to maintain a qualified escrow fund; and
(2) Executed a qualified escrow agreement governing the qualified escrow fund that has been reviewed and approved by the Attorney General;
(c) That the nonparticipating manufacturer is in full compliance with chapter 370A of NRS and any regulations adopted pursuant thereto;
(d) The name, address and telephone number of the financial institution where the nonparticipating manufacturer has established the qualified escrow fund required pursuant to chapter 370A of NRS and any regulations adopted pursuant thereto;
(e) The account number of that qualified escrow fund and any sub-account number for this state;
(f) The amount the nonparticipating manufacturer placed in that qualified escrow 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 Department to confirm the information required by this paragraph; and
(g) The amount and date of any withdrawal or transfer of money the nonparticipating manufacturer made at any time from that qualified escrow fund or from any other qualified escrow fund into which it ever made escrow payments pursuant to chapter 370A of NRS and any regulations adopted pursuant thereto.
Sec. 52. A manufacturer of tobacco products:
1. Shall not include a brand family in its certification pursuant to section 51 of this act unless, if the manufacturer is:
(a) A participating manufacturer, the 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; or
(b) A nonparticipating manufacturer, the manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of chapter 370A of NRS.
FLUSH
This subsection must not
be construed as limiting or otherwise affecting the right of the State to
maintain that a brand family constitutes cigarettes of a different manufacturer
of tobacco products for purposes of calculating payments under the Master
Settlement Agreement or for purposes of chapter 370A of NRS.
2. Shall maintain all invoices and documentation of sales, and any other information relied upon by the manufacturer for its certification pursuant to section 51 of this act, for at least 5 years, unless the manufacturer is otherwise required by law to maintain them for a greater period.
Sec. 53. 1. The Department shall create and maintain on its Internet website and otherwise make available for public inspection a directory that lists, except as otherwise provided in sections 38 to 58, inclusive, of this act, all manufacturers of tobacco products that have provided current and accurate certifications conforming to the requirements of sections 38 to 58, inclusive, of this act and all brand families that are listed in those certifications. The Department:
(a) Shall not include or retain in the directory the name or brand families of any nonparticipating manufacturer that has failed to provide the required certification or whose certification the Department determines is not in compliance with sections 38 to 58, inclusive, of this act, unless the Department has determined that such violation has been cured to its satisfaction.
(b) Shall not include or retain in the directory a manufacturer of tobacco products or brand family if the Department concludes, for a nonparticipating manufacturer, that:
(1) Any escrow payment required pursuant to chapter 370A of NRS for any period for any brand family, whether or not listed by the nonparticipating manufacturer, has not been fully paid into a qualified escrow fund governed by a qualified escrow agreement which has been approved by the Attorney General; or
(2) Any outstanding final judgment, including any interest thereon, for a violation of chapter 370A of NRS has not been fully satisfied for that manufacturer or brand family.
2. The Department shall update the directory as necessary to correct mistakes and to add or remove a manufacturer of tobacco products or brand family to keep the directory in conformity with the requirements of sections 38 to 58, inclusive, of this act.
3. Any determination of the Department not to include in or to remove from the directory a manufacturer of tobacco products or brand family is a final decision for the purposes of judicial review.
Sec. 54. 1. Any nonresident or foreign nonparticipating manufacturer that has not registered to do business in the State as a foreign corporation or other business entity must, as a condition precedent to having its brand families included or retained in the directory, appoint and continually engage without interruption the services of an agent in this state to act as its agent for the service of process on whom all process, in any action or proceeding against it concerning or arising out of the enforcement of this chapter, may be served in any manner authorized by law. Such service constitutes legal and valid service of process on the nonparticipating manufacturer. The nonparticipating manufacturer shall provide the name, address, phone number and proof of the appointment and availability of such agent to, and to the satisfaction of, the Attorney General and the Department.
2. A nonparticipating manufacturer shall provide notice to the Attorney General and the Department at least 30 calendar days before the termination of the authority of an agent appointed pursuant to this section and shall provide proof to the satisfaction of the Attorney General and the Department of the appointment of a new agent not less than 5 calendar days before the termination of appointment of an existing agent. If an agent terminates his appointment as an agent, the nonparticipating manufacturer shall notify the Attorney General and the Department of that termination within 5 calendar days and include with that notification proof to the satisfaction of the Attorney General and the Department of the appointment of a new agent.
3. Any nonparticipating manufacturer whose cigarettes are sold in this state and who has not appointed and engaged an agent as required by this section shall be deemed to have appointed the Secretary of State as such agent and may be proceeded against in courts of this state by service of process upon the Secretary of State, except that the appointment of the Secretary of State as such agent does not satisfy the condition precedent for having the brand families of the nonparticipating manufacturer included or retained in the directory.
Sec. 55. 1. Not later than 20 calendar days after the end of each calendar quarter, and more frequently if so directed by the Department, each distributor shall submit such information as the Department requires to facilitate compliance with the provisions of sections 38 to 58, inclusive, of this act, including, without limitation, a list by brand family of the total number of cigarettes or, in the case of “roll-your-own” tobacco, the equivalent unit count, for which the distributor affixed stamps during the previous calendar quarter or otherwise paid the tax due for those cigarettes. The distributor shall maintain for at least 5 years, and make available to the Department, all invoices and documentation of sales of all cigarettes of nonparticipating manufacturers and any other information relied upon in reporting to the Department.
2. The Department may disclose to the Attorney General any information received pursuant to sections 38 to 58, inclusive, of this act and requested by the Attorney General for purposes of determining compliance with and enforcing the provisions of sections 38 to 58, inclusive, of this act. The Department and Attorney General shall share with each other the information received pursuant to the provisions of sections 38 to 58, inclusive, of this act, and may share such information with other federal, state or local agencies only for purposes of enforcement of those provisions, the provisions of chapter 370A of NRS or the corresponding laws of other states.
3. The Department may require at any time from a nonparticipating manufacturer proof, from the financial institution in which that manufacturer has established a qualified escrow fund for the purpose of compliance with chapter 370A of NRS, of the amount of money in that fund, exclusive of interest, the amount and date of each deposit to that fund, and the amount and date of each withdrawal from that fund.
4. In addition to the information otherwise required to be submitted pursuant to sections 38 to 58, inclusive, of this act, the Department may require a distributor or manufacturer of tobacco products to submit any additional information, including, without limitation, samples of the packaging or labeling of each brand family, as is necessary to enable the Department to determine whether a manufacturer of tobacco products is in compliance with the provisions of sections 38 to 58, inclusive, of this act.
5. Every distributor shall provide to the Department and update as necessary an electronic mail address for receiving any notifications as may be required to carry out sections 38 to 58, inclusive, of this act.
Sec. 56. 1. To promote compliance with the provisions of NRS 370A.140, the Department may adopt regulations requiring a manufacturer of tobacco products to make the escrow deposits required by NRS 370A.140 in quarterly installments during the year in which the sales covered by those deposits are made. The Department may require the production of information sufficient to enable the Department to determine the adequacy of the amount of each quarterly installment.
2. The Department may adopt such regulations as it deems necessary to carry out the provisions of sections 38 to 58, inclusive, of this act.
Sec. 57. 1. It is unlawful for any person to:
(a) Affix a stamp to a package or other container of cigarettes of a manufacturer of tobacco products or brand family which is not included in the directory; or
(b) Sell, or offer or possess for sale, in this state cigarettes of a manufacturer of tobacco products or brand family not included in the directory.
2. A person who violates any provision of subsection 1 is guilty of a gross misdemeanor.
3. In addition to any other penalty authorized by law, the Department may impose on each person who violates any provision of subsection 1 a civil penalty for each such violation of not more than $5,000 or 500 percent of the retail value of the cigarettes involved in the violation, whichever is greater.
4. Any violation of subsection 1 constitutes a deceptive trade practice for the purposes of NRS 598.0903 to 598.0999, inclusive.
5. For the purposes of this section, each stamp affixed to and each sale or offer to sell cigarettes in violation of subsection 1 constitutes a separate violation.
Sec. 58. 1. The Attorney General, on behalf of the Department, may bring an action in the district court of this state to:
(a) Enjoin any threatened or actual violation of the provisions of sections 38 to 58, inclusive, of this act by a distributor and to compel the distributor to comply with those provisions; or
(b) Enforce any of the provisions of sections 38 to 58, inclusive, of this act.
2. In any action brought by the State to enforce the provisions of sections 38 to 58, inclusive, of this act, the State is entitled to recover any costs of investigation, expert witness fees, costs of the action and reasonable attorney fees.
3. If a court determines that any person has violated any provision of sections 38 to 58, inclusive, of this act, the court shall order any profits, gain, gross receipts or other benefit from the violation to be disgorged and paid to the State Treasurer for deposit in the State General Fund.
4. The remedies and penalties provided in sections 38 to 58, inclusive, of this act are cumulative to each other and to the remedies and penalties available under any other law of this state.”.
Amend sec. 40, page 15, line 27, by deleting “71” and inserting “57”.
Amend sec. 48, page 18, lines 17 and 21, by deleting “72 hours” and inserting “10 days”.
Amend sec. 48, page 18, by deleting line 25 and inserting:
“person who holds a current permit to engage in business as a manufacturer or importer of cigarettes issued pursuant to 26 U.S.C. § 5713.”.
Amend sec. 49, page 19, line 5, by deleting:
“65 to 70,” and inserting:
“51 to 57,”.
Amend sec. 51, page 20, line 17, after “Government,” by inserting “this state,”.
Amend the bill as a whole by deleting sections 57 through 72, renumbering sec. 73 as sec. 80 and adding new sections designated sections 78 and 79, following sec. 56, to read as follows:
“Sec. 78. NRS 370.525 is hereby amended to read as follows:
370.525 1. Except as otherwise provided in subsection 2, a person may institute a civil action in a court of competent jurisdiction for appropriate injunctive relief if the person:
(a) Sells, distributes or manufactures cigarettes; and
(b) Sustains direct economic or commercial injury as a result of a violation of [subsection 4 of NRS 370.240 or NRS 370.385.] NRS 370.080 to 370.315, inclusive, and sections 24 to 32, inclusive, of this act, NRS 370.380, 370.385 or 370.410, or section 35, 36 or 37 of this act.
2. Nothing in this section authorizes an action against this state, a political subdivision of this state, or an officer, employee or agency thereof.
Sec. 79. NRS 370.530 is hereby amended to read as follows:
370.530 1. The Attorney General or the district attorney of the proper county may investigate and prosecute any civil or criminal violation of this chapter.
2. Sheriffs, within their counties, and all other peace officers of the State of Nevada [are charged with the duty,] shall, without further compensation, [of assisting] assist in the enforcement of this chapter.”.
Amend sec. 73, page 29, line 12, by deleting:
“[shall] is entitled to” and inserting “shall”.
Amend sec. 73, page 29, by deleting lines 22 through 29 and inserting:
“amount it was required to deposit into escrow on account of units sold in the State in a particular year was greater than [this state’s allocable share of the total payments that the manufacturer would have been required to make in that year under] the Master Settlement Agreement payments, as determined pursuant to section IX(i) of that Agreement including after final determination of all adjustments, that such manufacturer would have been required to make on account of such units sold if the manufacturer had been a”.
Amend the bill as a whole by renumbering sections 74 and 75 as sections 83 and 84 and adding new sections designated sections 81 and 82, following sec. 73, to read as follows:
“Sec. 81. NRS 370A.150 is hereby amended to read as follows:
370A.150 A manufacturer of tobacco products that deposits money into escrow pursuant to subsection 2 of NRS 370A.140 shall receive the interest or other appreciation on the deposit as earned. The principal of the deposit may be released from escrow only under the following circumstances:
1. To pay a judgment or settlement on a released claim brought against that manufacturer by this state or by a releasing party located or residing in this state. Money may be released from escrow under this subsection only in the order in which it was deposited into escrow and only to the extent and at the time necessary to make payments required under the judgment or settlement.
2. [To the extent that the manufacturer establishes that the amount it was required to deposit into escrow on account of units sold in the State in a particular year was greater than the Master Settlement Agreement payments, as determined pursuant to section IX(i) of that Agreement including after final determination of all adjustments, that such manufacturer would have been required to make on account of such units sold if the manufacturer had been a participating manufacturer, the excess must be released from escrow and revert to the manufacturer.
3.] To the extent not released from escrow under subsection 1 , [or 2,] deposits must be released from escrow and revert to the manufacturer 25 years after the date on which they were deposited.
Sec. 82. NRS 370A.150 is hereby amended to read as follows:
370A.150 A manufacturer of tobacco products that deposits money into escrow pursuant to subsection 2 of NRS 370A.140 shall receive the interest or other appreciation on the deposit as earned. The principal of the deposit may be released from escrow only under the following circumstances:
1. To pay a judgment or settlement on a released claim brought against that manufacturer by this state or by a releasing party located or residing in this state. Money may be released from escrow under this subsection only in the order in which it was deposited into escrow and only to the extent and at the time necessary to make payments required under the judgment or settlement.
2. To the extent that the manufacturer establishes that the amount it was required to deposit into escrow in a particular year was greater than this state’s allocable share of the total payments that the manufacturer would have been required to make in that year under the Master Settlement Agreement if the manufacturer had been a participating manufacturer, as such payments are determined pursuant to section IX(i)(2) of that Agreement and before any of the adjustments or offsets described in section IX(i)(3) of that Agreement other than the inflation adjustment, the excess must be released from escrow and revert to the manufacturer.
3. To the extent not released from escrow under subsection 1[,] or 2, deposits must be released from escrow and revert to the manufacturer 25 years after the date on which they were deposited.”.
Amend sec. 74, page 29, line 38, by deleting “69” and inserting “55”.
Amend sec. 74, page 29, line 40, by deleting “65” and inserting “51”.
Amend sec. 74, page 29, line 44, by deleting “67” and inserting “53”.
Amend sec. 75, page 30, by deleting lines 1 and 2 and inserting:
“Sec. 84. 1. This section and sections 1 to 56, inclusive, 58 to 80, inclusive, and 83 of this act become effective:”.
Amend sec. 75, page 30, line 7, by deleting “71” and inserting “57”.
Amend sec. 75, page 30, after line 7, by inserting:
“3. Section 81 of this act becomes effective on the date a court of competent jurisdiction enters a judgment determining that the amendatory provisions of section 80 of this act are unconstitutional.
4. Section 82 of this act becomes effective on the date a court of competent jurisdiction enters a judgment determining that the amendatory provisions of section 81 of this act are unconstitutional.”.