15 U.S.C. § 375 — Definitions

Page 727 TITLE 15—COMMERCE AND TRADE § 375 1974—Pub. L. 93–436 extended authorization of appro- priation of $200,000 for each of fiscal years ending June 30, 1975, 1976, and 1977. CHAPTER 10—WAR FINANCE CORPORATION §§ 331 to 374. Omitted Editorial Notes CODIFICATION Sections referred to War Finance Corporation. They were derived from acts Apr. 5, 1918, ch. 45, §§ 1–19, 24–28, 300, 302–304, 40 Stat. 506–512, 514, 515; Mar. 3, 1919, ch. 100, § 10, 40 Stat. 1314; Jan. 4, 1921, ch. 9, 41 Stat. 1084; Aug. 24, 1921, ch. 80, §§ 1–3, 5–7, 42 Stat. 181–184; June 10, 1922, ch. 215, §§ 2, 3, 42 Stat. 634; Mar. 4, 1923, ch. 252, title V, §§ 502, 503, 42 Stat. 1481; Feb. 20, 1924, ch. 37, §§ 1–4, 43 Stat. 14, 15; Apr. 4, 1928, ch. 315, 45 Stat. 405; May 29, 1928, ch. 901, § 1(116), 45 Stat. 995; Mar. 1, 1929, ch. 444, 45 Stat. 1442; Aug. 23, 1935, ch. 614, § 203(a), 49 Stat. 704. War Finance Corporation was abolished and Sec- retary of Treasury was directed to complete and wind up its affairs and dispose of its assets in accordance with act Mar. 1, 1929, ch. 444, 45 Stat. 1442, not later than Dec. 31, 1939. All its functions, property, and obli- gations not previously transferred by statute to Sec- retary of Treasury were transferred to Department of Treasury by Reorg. Plan No. II, of 1939, § 2(c), eff. July 1, 1939, 4 F.R. 2731, 53 Stat. 1432, set out in the Appendix to Title 5, Government Organization and Employees. See also sections 401 to 404 of Reorg. Plan No. II of 1939 for provisions relating to transfer of functions, records, property, personnel, and funds. In a letter addressed to the Speaker of the House of Representatives and dated October 26, 1942, the Acting Secretary of the Treasury transmitted the final report of the affairs of the War Finance Corporation covering the period of its existence from April 5, 1918 through June 30, 1939. Statutory Notes and Related Subsidiaries REPEALS Sections 1, 2, 5 to 19, 200 to 206, 300 and 302 to 306 of act Apr. 5, 1918, ch. 45, 40 Stat. 506 to 512, 514, 515, for- merly classified to sections 331 to 347 and 361 to 365 of this title, were repealed by Pub. L. 89–554, § 8(a), Sept. 6, 1966, 80 Stat. 643. Sections 3 and 4 of act Apr. 5, 1918, ch. 45, 40 Stat. 507, which authorized the appointment of Government em- ployees to membership on the Board of Directors of the War Finance Corporation and provided for their com- pensation, previously omitted from this Code, were re- pealed by Pub. L. 88–448, title IV, § 402(a)(16), Aug. 19, 1964, 78 Stat. 493. Sections 9 and 10 of act Mar. 3, 1919, ch. 100, 40 Stat. 1313, 1314, formerly classified to section 343 of this title, were repealed by Pub. L. 89–554, § 8(a), Sept. 6, 1966, 80 Stat. 644. Act Jan. 4, 1921, ch. 9, 41 Stat. 1084, formerly classi- fied to section 373 of this title, was repealed by Pub. L. 89–554, § 8(a), Sept. 6, 1966, 80 Stat. 644. Act Aug. 24, 1921, ch. 80, 42 Stat. 181, formerly classi- fied to sections 331, 340, 341, 343, 348 to 352 and 364 of this title, was repealed by Pub. L. 89–554, § 8(a), Sept. 6, 1966, 80 Stat. 645. Act June 10, 1922, ch. 215, 42 Stat. 634, formerly classi- fied to sections 340 and 343 of this title, was repealed by Pub. L. 89–554, § 8(a), Sept. 6, 1966, 80 Stat. 645. Sections 501 to 503 of act Mar. 4, 1923, ch. 252, 42 Stat. 1480, 1481, formerly classified to sections 340 and 343 of this title, were repealed by Pub. L. 89–554, § 8(a), Sept. 6, 1966, 80 Stat. 645. Act Feb. 20, 1924, ch. 37, 43 Stat. 14, formerly classi- fied to sections 343, 371 and 372 of this title, was re- pealed by Pub. L. 89–554, § 8(a), Sept. 6, 1966, 80 Stat. 645. Act Apr. 4, 1928, ch. 315, 45 Stat. 405, formerly classi- fied to section 331 of this title, was repealed by Pub. L. 89–554, § 8(a), Sept. 6, 1966, 80 Stat. 647. Act May 29, 1928, ch. 901, § 1(116), 45 Stat. 995, formerly classified to section 347 of this title, was repealed by Pub. L. 89–554, § 8(a), Sept. 6, 1966, 80 Stat. 647. Act Mar. 1, 1929, ch. 444, 45 Stat. 1442, formerly classi- fied to section 374 of this title, was repealed by Pub. L. 89–554, § 8(a), Sept. 6, 1966, 80 Stat. 647. CHAPTER 10A—COLLECTION OF STATE CIGARETTE TAXES Sec. 375. Definitions. 376. Reports to State tobacco tax administrator. 376a. Delivery sales. 377. Penalties. 378. Enforcement. § 375. Definitions As used in this chapter, the following defini- tions apply: (1) Attorney general The term ‘‘attorney general’’, with respect to a State, means the attorney general or other chief law enforcement officer of the State. (2) Cigarette (A) In general The term ‘‘cigarette’’— (i) has the meaning given that term in section 2341 of title 18; and (ii) includes— (I) roll-your-own tobacco (as defined in section 5702 of title 26); and (II) an electronic nicotine delivery sys- tem. (B) Exception The term ‘‘cigarette’’ does not include a cigar (as defined in section 5702 of title 26). (3) Common carrier The term ‘‘common carrier’’ means any per- son (other than a local messenger service or the United States Postal Service) that holds itself out to the general public as a provider for hire of the transportation by water, land, or air of merchandise (regardless of whether the person actually operates the vessel, vehi- cle, or aircraft by which the transportation is provided) between a port or place and a port or place in the United States. (4) Consumer The term ‘‘consumer’’— (A) means any person that purchases ciga- rettes or smokeless tobacco; and (B) does not include any person lawfully operating as a manufacturer, distributor, wholesaler, or retailer of cigarettes or smokeless tobacco. (5) Delivery sale The term ‘‘delivery sale’’ means any sale of cigarettes or smokeless tobacco to a consumer if— (A) the consumer submits the order for the sale by means of a telephone or other meth- od of voice transmission, the mails, or the Internet or other online service, or the seller is otherwise not in the physical presence of the buyer when the request for purchase or order is made; or Page 728 TITLE 15—COMMERCE AND TRADE § 375 (B) the cigarettes or smokeless tobacco are delivered to the buyer by common carrier, private delivery service, or other method of remote delivery, or the seller is not in the physical presence of the buyer when the buyer obtains possession of the cigarettes or smokeless tobacco. (6) Delivery seller The term ‘‘delivery seller’’ means a person who makes a delivery sale. (7) Electronic nicotine delivery system The term ‘‘electronic nicotine delivery sys- tem’’— (A) means any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device; (B) includes— (i) an e-cigarette; (ii) an e-hookah; (iii) an e-cigar; (iv) a vape pen; (v) an advanced refillable personal vapor- izer; (vi) an electronic pipe; and (vii) any component, liquid, part, or ac- cessory of a device described in subpara- graph (A), without regard to whether the component, liquid, part, or accessory is sold separately from the device; and (C) does not include a product that is— (i) approved by the Food and Drug Ad- ministration for— (I) sale as a tobacco cessation product; or (II) any other therapeutic purpose; and (ii) marketed and sold solely for a pur- pose described in clause (i). (8) Indian country The term ‘‘Indian country’’— (A) has the meaning given that term in section 1151 of title 18, except that within the State of Alaska that term applies only to the Metlakatla Indian Community, An- nette Island Reserve; and (B) includes any other land held by the United States in trust or restricted status for one or more Indian tribes. (9) Indian tribe The term ‘‘Indian tribe’’, ‘‘tribe’’, or ‘‘trib- al’’ refers to an Indian tribe as defined in sec- tion 5304(e) of title 25 or as listed pursuant to section 5131 of title 25. (10) Interstate commerce (A) In general The term ‘‘interstate commerce’’ means commerce between a State and any place outside the State, commerce between a State and any Indian country in the State, or commerce between points in the same State but through any place outside the State or through any Indian country. (B) Into a State, place, or locality A sale, shipment, or transfer of cigarettes or smokeless tobacco that is made in inter- state commerce, as defined in this para- graph, shall be deemed to have been made into the State, place, or locality in which such cigarettes or smokeless tobacco are de- livered. (11) Person The term ‘‘person’’ means an individual, cor- poration, company, association, firm, partner- ship, society, State government, local govern- ment, Indian tribal government, governmental organization of such a government, or joint stock company. (12) State The term ‘‘State’’ means each of the several States of the United States, the District of Co- lumbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States. (13) Smokeless tobacco The term ‘‘smokeless tobacco’’ means any finely cut, ground, powdered, or leaf tobacco, or other product containing tobacco, that is intended to be placed in the oral or nasal cav- ity or otherwise consumed without being com- busted. (14) Tobacco tax administrator The term ‘‘tobacco tax administrator’’ means the State, local, or tribal official duly authorized to collect the tobacco tax or ad- minister the tax law of a State, locality, or tribe, respectively. (15) Use The term ‘‘use’’ includes the consumption, storage, handling, or disposal of cigarettes or smokeless tobacco. (Oct. 19, 1949, ch. 699, § 1, as added Pub. L. 111–154, § 2(a), Mar. 31, 2010, 124 Stat. 1088; amended Pub. L. 116–260, div. FF, title VI, § 602(a)(1), Dec. 27, 2020, 134 Stat. 3136.) Editorial Notes PRIOR PROVISIONS A prior section 375, act Oct. 19, 1949, ch. 699, § 1, 63 Stat. 884; Aug. 9, 1955, ch. 695, § 1, 69 Stat. 627, set out definitions for this chapter, prior to repeal by Pub. L. 111–154, § 2(a), Mar. 31, 2010, 124 Stat. 1088. AMENDMENTS 2020—Par. (2)(A)(ii). Pub. L. 116–260, § 602(a)(1)(A), sub- stituted ‘‘includes—’’ for ‘‘includes’’, inserted subcl. (I) designation before ‘‘roll-your-own tobacco’’, and added subcl. (II). Pars. (7) to (15). Pub. L. 116–260, § 602(a)(1)(B), (C), added par. (7) and redesignated former pars. (7) to (14) as (8) to (15), respectively. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2020 AMENDMENT Pub. L. 116–260, div. FF, title VI, § 602(b), Dec. 27, 2020, 134 Stat. 3137, provided that: ‘‘This section [amending this section and section 376a of this title and enacting provisions set out as a note under this section], and the amendments made by this section, shall take effect on the date that is 90 days after the date of enactment of this Act [Dec. 27, 2020].’’ EFFECTIVE DATE Pub. L. 111–154, § 6, Mar. 31, 2010, 124 Stat. 1110, pro- vided that: Page 729 TITLE 15—COMMERCE AND TRADE § 375 ‘‘(a) IN GENERAL.—Except as provided in subsection (b), this Act [see Short Title of 2010 Amendment note below] shall take effect on the date that is 90 days after the date of enactment of this Act [Mar. 31, 2010]. ‘‘(b) BATFE AUTHORITY.—The amendments made by section 4 [amending section 2343 of Title 18, Crimes and Criminal Procedure] shall take effect on the date of en- actment of this Act.’’ SHORT TITLE OF 2020 AMENDMENT Pub. L. 116–260, div. FF, title VI, § 601, Dec. 27, 2020, 134 Stat. 3136, provided that: ‘‘This title [amending this section and section 376a of this title and enacting pro- visions set out as notes under this section and section 1716E of Title 18, Crimes and Criminal Procedure] may be cited as the ‘Preventing Online Sales of E-Cigarettes to Children Act’.’’ SHORT TITLE OF 2010 AMENDMENT Pub. L. 111–154, § 1(a), Mar. 31, 2010, 124 Stat. 1087, pro- vided that: ‘‘This Act [enacting this section, sections 376a, 377, and 378 of this title, and section 1716E of Title 18, Crimes and Criminal Procedure, amending section 376 of this title and section 2343 of Title 18, repealing former sections 375, 377, and 378 of this title, and enact- ing provisions set out as notes under this section] may be cited as the ‘Prevent All Cigarette Trafficking Act of 2009’ or ‘PACT Act’.’’ SHORT TITLE Act Oct. 19, 1949, ch. 699, 63 Stat. 884, which is classi- fied generally to this chapter, is popularly known as the Jenkins Act. SEVERABILITY Pub. L. 111–154, § 7, Mar. 31, 2010, 124 Stat. 1111, pro- vided that: ‘‘If any provision of this Act [see Short Title of 2010 Amendment note above], or any amend- ment made by this Act, or the application thereof to any person or circumstance, is held invalid, the re- mainder of the Act and the application of the Act to any other person or circumstance shall not be affected thereby.’’ RULE OF CONSTRUCTION Pub. L. 116–260, div. FF, title VI, § 602(c), Dec. 27, 2020, 134 Stat. 3137, provided that: ‘‘Nothing in this section [amending this section and section 376a of this title and enacting provisions set out as a note under this sec- tion], or an amendment made by this section, may be construed to affect or otherwise alter any provision of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.), including its implementing regulations.’’ FINDINGS AND PURPOSE Pub. L. 111–154, § 1(b), (c), Mar. 31, 2010, 124 Stat. 1087, 1088, provided that: ‘‘(b) FINDINGS.—Congress finds that— ‘‘(1) the sale of illegal cigarettes and smokeless to- bacco products significantly reduces Federal, State, and local government revenues, with Internet sales alone accounting for billions of dollars of lost Fed- eral, State, and local tobacco tax revenue each year; ‘‘(2) Hezbollah, Hamas, al Qaeda, and other terrorist organizations have profited from trafficking in illegal cigarettes or counterfeit cigarette tax stamps; ‘‘(3) terrorist involvement in illicit cigarette traf- ficking will continue to grow because of the large profits such organizations can earn; ‘‘(4) the sale of illegal cigarettes and smokeless to- bacco over the Internet, and through mail, fax, or phone orders, makes it cheaper and easier for chil- dren to obtain tobacco products; ‘‘(5) the majority of Internet and other remote sales of cigarettes and smokeless tobacco are being made without adequate precautions to protect against sales to children, without the payment of applicable taxes, and without complying with the nominal registration and reporting requirements in existing Federal law; ‘‘(6) unfair competition from illegal sales of ciga- rettes and smokeless tobacco is taking billions of dol- lars of sales away from law-abiding retailers through- out the United States; ‘‘(7) with rising State and local tobacco tax rates, the incentives for the illegal sale of cigarettes and smokeless tobacco have increased; ‘‘(8) the number of active tobacco investigations being conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives rose to 452 in 2005; ‘‘(9) the number of Internet vendors in the United States and in foreign countries that sell cigarettes and smokeless tobacco to buyers in the United States increased from only about 40 in 2000 to more than 500 in 2005; and ‘‘(10) the intrastate sale of illegal cigarettes and smokeless tobacco over the Internet has a substantial effect on interstate commerce. ‘‘(c) PURPOSES.—It is the purpose of this Act [see Short Title of 2010 Amendment note above] to— ‘‘(1) require Internet and other remote sellers of cigarettes and smokeless tobacco to comply with the same laws that apply to law-abiding tobacco retail- ers; ‘‘(2) create strong disincentives to illegal smuggling of tobacco products; ‘‘(3) provide government enforcement officials with more effective enforcement tools to combat tobacco smuggling; ‘‘(4) make it more difficult for cigarette and smoke- less tobacco traffickers to engage in and profit from their illegal activities; ‘‘(5) increase collections of Federal, State, and local excise taxes on cigarettes and smokeless tobacco; and ‘‘(6) prevent and reduce youth access to inexpensive cigarettes and smokeless tobacco through illegal Internet or contraband sales.’’ EXCLUSIONS REGARDING INDIAN TRIBES AND TRIBAL MATTERS Pub. L. 111–154, § 5, Mar. 31, 2010, 124 Stat. 1109, pro- vided that: ‘‘(a) IN GENERAL.—Nothing in this Act [see Short Title of 2010 Amendment note above] or the amend- ments made by this Act shall be construed to amend, modify, or otherwise affect— ‘‘(1) any agreements, compacts, or other intergov- ernmental arrangements between any State or local government and any government of an Indian tribe (as that term is defined in section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(e)) [now 25 U.S.C. 5304(e)] relating to the collection of taxes on cigarettes or smokeless tobacco sold in Indian country; ‘‘(2) any State laws that authorize or otherwise per- tain to any such intergovernmental arrangements or create special rules or procedures for the collection of State, local, or tribal taxes on cigarettes or smoke- less tobacco sold in Indian country; ‘‘(3) any limitations under Federal or State law, in- cluding Federal common law and treaties, on State, local, and tribal tax and regulatory authority with respect to the sale, use, or distribution of cigarettes and smokeless tobacco by or to Indian tribes, tribal members, tribal enterprises, or in Indian country; ‘‘(4) any Federal law, including Federal common law and treaties, regarding State jurisdiction, or lack thereof, over any tribe, tribal members, tribal enter- prises, tribal reservations, or other lands held by the United States in trust for one or more Indian tribes; or ‘‘(5) any State or local government authority to bring enforcement actions against persons located in Indian country. ‘‘(b) COORDINATION OF LAW ENFORCEMENT.—Nothing in this Act or the amendments made by this Act shall be construed to inhibit or otherwise affect any coordi- nated law enforcement effort by 1 or more States or other jurisdictions, including Indian tribes, through interstate compact or otherwise, that— Page 730 TITLE 15—COMMERCE AND TRADE § 376 ‘‘(1) provides for the administration of tobacco product laws or laws pertaining to interstate sales or other sales of tobacco products; ‘‘(2) provides for the seizure of tobacco products or other property related to a violation of such laws; or ‘‘(3) establishes cooperative programs for the ad- ministration of such laws. ‘‘(c) TREATMENT OF STATE AND LOCAL GOVERN- MENTS.—Nothing in this Act or the amendments made by this Act shall be construed to authorize, deputize, or commission States or local governments as instrumen- talities of the United States. ‘‘(d) ENFORCEMENT WITHIN INDIAN COUNTRY.—Nothing in this Act or the amendments made by this Act shall prohibit, limit, or restrict enforcement by the Attorney General of the United States of this Act or an amend- ment made by this Act within Indian country. ‘‘(e) AMBIGUITY.—Any ambiguity between the lan- guage of this section or its application and any other provision of this Act shall be resolved in favor of this section. ‘‘(f) DEFINITIONS.—In this section— ‘‘(1) the term ‘Indian country’ has the meaning given that term in section 1 of the Jenkins Act [Act of October 19, 1949, 15 U.S.C. 375], as amended by this Act; and ‘‘(2) the term ‘tribal enterprise’ means any business enterprise, regardless of whether incorporated or un- incorporated under Federal or tribal law, of an Indian tribe or group of Indian tribes.’’ § 376. Reports to State tobacco tax administrator (a) Contents Any person who sells, transfers, or ships for profit cigarettes or smokeless tobacco in inter- state commerce, whereby such cigarettes or smokeless tobacco are shipped into a State, lo- cality, or Indian country of an Indian tribe tax- ing the sale or use of cigarettes or smokeless to- bacco, or who advertises or offers cigarettes or smokeless tobacco for such a sale, transfer, or shipment, shall— (1) first file with the Attorney General of the United States and with the tobacco tax admin- istrators of the State and place into which such shipment is made or in which such adver- tisement or offer is disseminated a statement setting forth his name and trade name (if any), and the address of his principal place of business and of any other place of business, as well as telephone numbers for each place of business, a principal electronic mail address, any website addresses, and the name, address, and telephone number of an agent in the State authorized to accept service on behalf of the person; (2) not later than the 10th day of each cal- endar month, file with the tobacco tax admin- istrator of the State into which such shipment is made, a memorandum or a copy of the in- voice covering each and every shipment of cigarettes or smokeless tobacco made during the previous calendar month into such State; the memorandum or invoice in each case to in- clude the name and address of the person to whom the shipment was made, the brand, the quantity thereof, and the name, address, and phone number of the person delivering the shipment to the recipient on behalf of the de- livery seller, with all invoice or memoranda information relating to specific customers to be organized by city or town and by zip code; and (3) with respect to each memorandum or in- voice filed with a State under paragraph (2), also file copies of the memorandum or invoice with the tobacco tax administrators and chief law enforcement officers of the local govern- ments and Indian tribes operating within the borders of the State that apply their own local or tribal taxes on cigarettes or smokeless to- bacco. (b) Presumptive evidence The fact that any person ships or delivers for shipment any cigarettes or smokeless tobacco shall, if such shipment is into a State in which such person has filed a statement with the to- bacco tax administrator under subsection (a)(1) of this section, be presumptive evidence that such cigarettes or smokeless tobacco were sold, or transferred for profit, by such person. (c) Use of information A tobacco tax administrator or chief law en- forcement officer who receives a memorandum or invoice under paragraph (2) or (3) of sub- section (a) shall use the memorandum or invoice solely for the purposes of the enforcement of this chapter and the collection of any taxes owed on related sales of cigarettes and smoke- less tobacco, and shall keep confidential any personal information in the memorandum or in- voice except as required for such purposes. (Oct. 19, 1949, ch. 699, § 2, 63 Stat. 884; Aug. 15, 1953, ch. 512, title II, § 201(a), 67 Stat. 617; Aug. 9, 1955, ch. 695, § 1, 69 Stat. 627; Pub. L. 111–154, § 2(b), Mar. 31, 2010, 124 Stat. 1090.) Editorial Notes AMENDMENTS 2010—Subsec. (a). Pub. L. 111–154, § 2(b)(1), (2)(A), in- serted heading and, in introductory provisions, sub- stituted ‘‘cigarettes or smokeless tobacco’’ for ‘‘ciga- rettes’’ wherever appearing, ‘‘, transfers, or ships’’ for ‘‘or transfers’’, and ‘‘, transfer, or shipment’’ for ‘‘or transfer and shipment’’, inserted ‘‘, locality, or Indian country of an Indian tribe’’ after ‘‘a State’’, and struck out ‘‘to other than a distributor licensed by or located in such State,’’ after ‘‘use of cigarettes or smokeless tobacco,’’. Subsec. (a)(1). Pub. L. 111–154, § 2(b)(2)(B), substituted ‘‘with the Attorney General of the United States and with the tobacco tax administrators of the State and place’’ for ‘‘with the tobacco tax administrator of the State’’ and ‘‘, as well as telephone numbers for each place of business, a principal electronic mail address, any website addresses, and the name, address, and tele- phone number of an agent in the State authorized to accept service on behalf of the person;’’ for ‘‘; and’’. Subsec. (a)(2). Pub. L. 111–154, § 2(b)(1), (2)(C), sub- stituted ‘‘cigarettes or smokeless tobacco’’ for ‘‘ciga- rettes’’ and ‘‘the quantity thereof, and the name, ad- dress, and phone number of the person delivering the shipment to the recipient on behalf of the delivery sell- er, with all invoice or memoranda information relating to specific customers to be organized by city or town and by zip code; and’’ for ‘‘and the quantity thereof.’’ Subsec. (a)(3). Pub. L. 111–154, § 2(b)(2)(D), added par. (3). Subsec. (b). Pub. L. 111–154, § 2(b)(1), (3), inserted heading, substituted ‘‘cigarettes or smokeless tobacco’’ for ‘‘cigarettes’’ in two places and ‘‘evidence that’’ for ‘‘evidence (1) that’’, and struck out ‘‘, and (2) that such sale or transfer was to other than a distributor licensed by or located in such State’’ after ‘‘by such person’’. Subsec. (c). Pub. L. 111–154, § 2(b)(4), added subsec. (c). 1955—Act Aug. 9, 1955, designated existing provisions as subsec. (a), inserted provisions requiring filing of a