18 U.S.C. § 1716E — Tobacco products as nonmailable

Page 432 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 1716E 1 See References in Text note below. (Added Pub. L. 103–322, title XXXII, § 320108(b)(1), Sept. 13, 1994, 108 Stat. 2113.) § 1716E. Tobacco products as nonmailable (a) PROHIBITION.— (1) IN GENERAL.—All cigarettes and smoke- less tobacco (as those terms are defined in sec- tion 1 of the Act of October 19, 1949, commonly referred to as the Jenkins Act) are non- mailable and shall not be deposited in or car- ried through the mails. The United States Postal Service shall not accept for delivery or transmit through the mails any package that it knows or has reasonable cause to believe contains any cigarettes or smokeless tobacco made nonmailable by this paragraph. (2) REASONABLE CAUSE.—For the purposes of this subsection reasonable cause includes— (A) a statement on a publicly available website, or an advertisement, by any person that the person will mail matter which is nonmailable under this section in return for payment; or (B) the fact that the person is on the list created under section 2A(e) of the Jenkins Act. (b) EXCEPTIONS.— (1) CIGARS.—Subsection (a) shall not apply to cigars (as defined in section 5702(a) of the In- ternal Revenue Code of 1986). (2) GEOGRAPHIC EXCEPTION.—Subsection (a) shall not apply to mailings within the State of Alaska or within the State of Hawaii. (3) BUSINESS PURPOSES.— (A) IN GENERAL.—Subsection (a) shall not apply to tobacco products mailed only— (i) for business purposes between legally operating businesses that have all applica- ble State and Federal Government licenses or permits and are engaged in tobacco product manufacturing, distribution, wholesale, export, import, testing, inves- tigation, or research; or (ii) for regulatory purposes between any business described in clause (i) and an agency of the Federal Government or a State government. (B) RULES.— (i) IN GENERAL.—Not later than 180 days after the date of enactment of the Prevent All Cigarette Trafficking Act of 2009, the Postmaster General shall issue a final rule which shall establish the standards and re- quirements that apply to all mailings de- scribed in subparagraph (A). (ii) CONTENTS.—The final rule issued under clause (i) shall require— (I) the United States Postal Service to verify that any person submitting an otherwise nonmailable tobacco product into the mails as authorized under this paragraph is a business or government agency permitted to make a mailing under this paragraph; (II) the United States Postal Service to ensure that any recipient of an otherwise nonmailable tobacco product sent through the mails under this paragraph is a business or government agency that may lawfully receive the product; (III) that any mailing described in sub- paragraph (A) shall be sent through the systems of the United States Postal Service that provide for the tracking and confirmation of the delivery; (IV) that the identity of the business or government entity submitting the mailing containing otherwise non- mailable tobacco products for delivery and the identity of the business or gov- ernment entity receiving the mailing are clearly set forth on the package; (V) the United States Postal Service to maintain identifying information de- scribed in subclause (IV) during the 3- year period beginning on the date of the mailing and make the information avail- able to the Postal Service, the Attorney General of the United States, and to per- sons eligible to bring enforcement ac- tions under section 3(d) 1 of the Prevent All Cigarette Trafficking Act of 2009; (VI) that any mailing described in sub- paragraph (A) be marked with a United States Postal Service label or marking that makes it clear to employees of the United States Postal Service that it is a permitted mailing of otherwise non- mailable tobacco products that may be delivered only to a permitted govern- ment agency or business and may not be delivered to any residence or individual person; and (VII) that any mailing described in subparagraph (A) be delivered only to a verified employee of the recipient busi- ness or government agency, who is not a minor and who shall be required to sign for the mailing. (C) DEFINITION.—In this paragraph, the term ‘‘minor’’ means an individual who is less than the minimum age required for the legal sale or purchase of tobacco products as determined by applicable law at the place the individual is located. (4) CERTAIN INDIVIDUALS.— (A) IN GENERAL.—Subsection (a) shall not apply to tobacco products mailed by individ- uals who are not minors for noncommercial purposes, including the return of a damaged or unacceptable tobacco product to the man- ufacturer. (B) RULES.— (i) IN GENERAL.—Not later than 180 days after the date of enactment of the Prevent All Cigarette Trafficking Act of 2009, the Postmaster General shall issue a final rule which shall establish the standards and re- quirements that apply to all mailings de- scribed in subparagraph (A). (ii) CONTENTS.—The final rule issued under clause (i) shall require— (I) the United States Postal Service to verify that any person submitting an otherwise nonmailable tobacco product into the mails as authorized under this paragraph is the individual identified on the return address label of the package and is not a minor; Page 433 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 1716E 2 So in original. Probably should be preceded by ‘‘a’’. 3 So in original. The comma probably should not appear. (II) for a mailing to an individual, the United States Postal Service to require the person submitting the otherwise nonmailable tobacco product into the mails as authorized by this paragraph to affirm that the recipient is not a minor; (III) that any package mailed under this paragraph shall weigh not more than 10 ounces; (IV) that any mailing described in sub- paragraph (A) shall be sent through the systems of the United States Postal Service that provide for the tracking and confirmation of the delivery; (V) that a mailing described in sub- paragraph (A) shall not be delivered or placed in the possession of any indi- vidual who has not been verified as not being a minor; (VI) for a mailing described in subpara- graph (A) to an individual, that the United States Postal Service shall de- liver the package only to a recipient who is verified not to be a minor at the re- cipient address or transfer it for delivery to an Air/Army Postal Office or Fleet Postal Office number designated in the recipient address; and (VII) that no person may initiate more than 10 mailings described in subpara- graph (A) during any 30-day period. (C) DEFINITION.—In this paragraph, the term ‘‘minor’’ means an individual who is less than the minimum age required for the legal sale or purchase of tobacco products as determined by applicable law at the place the individual is located. (5) EXCEPTION FOR MAILINGS FOR CONSUMER TESTING BY MANUFACTURERS.— (A) IN GENERAL.—Subject to subparagraph (B), subsection (a) shall not preclude a le- gally operating cigarette manufacturer or a legally authorized agent of a legally oper- ating cigarette manufacturer from using the United States Postal Service to mail ciga- rettes to verified 2 adult smoker solely for consumer testing purposes, if— (i) the cigarette manufacturer has a per- mit, in good standing, issued under section 5713 of the Internal Revenue Code of 1986; (ii) the package of cigarettes mailed under this paragraph contains not more than 12 packs of cigarettes (240 cigarettes); (iii) the recipient does not receive more than 1 package of cigarettes from any 1 cigarette manufacturer under this para- graph during any 30-day period; (iv) all taxes on the cigarettes mailed under this paragraph levied by the State and locality of delivery are paid to the State and locality before delivery, and tax stamps or other tax-payment indicia are affixed to the cigarettes as required by law; and (v)(I) the recipient has not made any payments of any kind in exchange for re- ceiving the cigarettes; (II) the recipient is paid a fee by the manufacturer or agent of the manufac- turer for participation in consumer prod- uct tests; and (III) the recipient, in connection with the tests, evaluates the cigarettes and pro- vides feedback to the manufacturer or agent. (B) LIMITATIONS.—Subparagraph (A) shall not— (i) permit a mailing of cigarettes to an individual located in any State that pro- hibits the delivery or shipment of ciga- rettes to individuals in the State, or pre- empt, limit, or otherwise affect any re- lated State laws; or (ii) permit a manufacturer, directly or through a legally authorized agent, to mail cigarettes in any calendar year in a total amount greater than 1 percent of the total cigarette sales of the manufacturer in the United States during the calendar year before the date of the mailing. (C) RULES.— (i) IN GENERAL.—Not later than 180 days after the date of enactment of the Prevent All Cigarette Trafficking Act of 2009, the Postmaster General shall issue a final rule which shall establish the standards and re- quirements that apply to all mailings de- scribed in subparagraph (A). (ii) CONTENTS.—The final rule issued under clause (i) shall require— (I) the United States Postal Service to verify that any person submitting a to- bacco product into the mails under this paragraph is a legally operating ciga- rette manufacturer permitted to make a mailing under this paragraph,3 or an agent legally authorized by the legally operating cigarette manufacturer to sub- mit the tobacco product into the mails on behalf of the manufacturer; (II) the legally operating cigarette manufacturer submitting the cigarettes into the mails under this paragraph to affirm that— (aa) the manufacturer or the legally authorized agent of the manufacturer has verified that the recipient is an adult established smoker; (bb) the recipient has not made any payment for the cigarettes; (cc) the recipient has signed a writ- ten statement that is in effect indi- cating that the recipient wishes to re- ceive the mailings; and (dd) the manufacturer or the legally authorized agent of the manufacturer has offered the opportunity for the re- cipient to withdraw the written state- ment described in item (cc) not less frequently than once in every 3-month period; (III) the legally operating cigarette manufacturer or the legally authorized agent of the manufacturer submitting the cigarettes into the mails under this paragraph to affirm that any package mailed under this paragraph contains Page 434 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 1716E not more than 12 packs of cigarettes (240 cigarettes) on which all taxes levied on the cigarettes by the State and locality of delivery have been paid and all related State tax stamps or other tax-payment indicia have been applied; (IV) that any mailing described in sub- paragraph (A) shall be sent through the systems of the United States Postal Service that provide for the tracking and confirmation of the delivery; (V) the United States Postal Service to maintain records relating to a mailing described in subparagraph (A) during the 3-year period beginning on the date of the mailing and make the information available to persons enforcing this sec- tion; (VI) that any mailing described in sub- paragraph (A) be marked with a United States Postal Service label or marking that makes it clear to employees of the United States Postal Service that it is a permitted mailing of otherwise non- mailable tobacco products that may be delivered only to the named recipient after verifying that the recipient is an adult; and (VII) the United States Postal Service shall deliver a mailing described in sub- paragraph (A) only to the named recipi- ent and only after verifying that the re- cipient is an adult. (D) DEFINITIONS.—In this paragraph— (i) the term ‘‘adult’’ means an individual who is not less than 21 years of age; and (ii) the term ‘‘consumer testing’’ means testing limited to formal data collection and analysis for the specific purpose of evaluating the product for quality assur- ance and benchmarking purposes of ciga- rette brands or sub-brands among existing adult smokers. (6) FEDERAL GOVERNMENT AGENCIES.—An agency of the Federal Government involved in the consumer testing of tobacco products sole- ly for public health purposes may mail ciga- rettes under the same requirements, restric- tions, and rules and procedures that apply to consumer testing mailings of cigarettes by manufacturers under paragraph (5), except that the agency shall not be required to pay the recipients for participating in the con- sumer testing. (c) SEIZURE AND FORFEITURE.—Any cigarettes or smokeless tobacco made nonmailable by this subsection that are deposited in the mails shall be subject to seizure and forfeiture, pursuant to the procedures set forth in chapter 46 of this title. Any tobacco products seized and forfeited under this subsection shall be destroyed or re- tained by the Federal Government for the detec- tion or prosecution of crimes or related inves- tigations and then destroyed. (d) ADDITIONAL PENALTIES.—In addition to any other fines and penalties under this title for vio- lations of this section, any person violating this section shall be subject to an additional civil penalty in the amount equal to 10 times the re- tail value of the nonmailable cigarettes or smokeless tobacco, including all Federal, State, and local taxes. (e) CRIMINAL PENALTY.—Whoever knowingly deposits for mailing or delivery, or knowingly causes to be delivered by mail, according to the direction thereon, or at any place at which it is directed to be delivered by the person to whom it is addressed, anything that is nonmailable matter under this section shall be fined under this title, imprisoned not more than 1 year, or both. (f) USE OF PENALTIES.—There is established a separate account in the Treasury, to be known as the ‘‘PACT Postal Service Fund’’. Notwith- standing any other provision of law, an amount equal to 50 percent of any criminal fines, civil penalties, or other monetary penalties collected by the Federal Government in enforcing this section shall be transferred into the PACT Post- al Service Fund and shall be available to the Postmaster General for the purpose of enforcing this subsection. (g) COORDINATION OF EFFORTS.—The Post- master General shall cooperate and coordinate efforts to enforce this section with related en- forcement activities of any other Federal agen- cy or agency of any State, local, or tribal gov- ernment, whenever appropriate. (h) ACTIONS BY STATE, LOCAL, OR TRIBAL GOV- ERNMENTS RELATING TO CERTAIN TOBACCO PROD- UCTS.— (1) IN GENERAL.—A State, through its attor- ney general, or a local government or Indian tribe that levies an excise tax on tobacco prod- ucts, through its chief law enforcement offi- cer, may in a civil action in a United States district court obtain appropriate relief with respect to a violation of this section. Appro- priate relief includes injunctive and equitable relief and damages equal to the amount of un- paid taxes on tobacco products mailed in vio- lation of this section to addressees in that State, locality, or tribal land. (2) SOVEREIGN IMMUNITY.—Nothing in this subsection shall be deemed to abrogate or con- stitute a waiver of any sovereign immunity of a State or local government or Indian tribe against any unconsented lawsuit under para- graph (1), or otherwise to restrict, expand, or modify any sovereign immunity of a State or local government or Indian tribe. (3) ATTORNEY GENERAL REFERRAL.—A State, through its attorney general, or a local gov- ernment or Indian tribe that levies an excise tax on tobacco products, through its chief law enforcement officer, may provide evidence of a violation of this section for commercial pur- poses by any person not subject to State, local, or tribal government enforcement ac- tions for violations of this section to the At- torney General of the United States, who shall take appropriate actions to enforce this sec- tion. (4) NONEXCLUSIVITY OF REMEDIES.—The rem- edies available under this subsection are in ad- dition to any other remedies available under Federal, State, local, tribal, or other law. Nothing in this subsection shall be construed to expand, restrict, or otherwise modify any right of an authorized State, local, or tribal government official to proceed in a State, trib- Page 435 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 1719 al, or other appropriate court, or take other enforcement actions, on the basis of an alleged violation of State, local, tribal, or other law. (5) OTHER ENFORCEMENT ACTIONS.—Nothing in this subsection shall be construed to pro- hibit an authorized State official from pro- ceeding in State court on the basis of an al- leged violation of any general civil or criminal statute of the State. (i) DEFINITION.—In this section, the term ‘‘State’’ has the meaning given that term in sec- tion 1716(k). (Added Pub. L. 111–154, § 3(a), Mar. 31, 2010, 124 Stat. 1103.) Editorial Notes REFERENCES IN TEXT Section 1 of the Act of October 19, 1949, commonly re- ferred to as the Jenkins Act, referred to in subsec. (a)(1), is classified to section 375 of Title 15, Commerce and Trade. Section 2A(e) of the Jenkins Act, referred to in sub- sec. (a)(2)(B), is classified to section 376a of Title 15, Commerce and Trade. The Internal Revenue Code of 1986, referred to in sub- sec. (b)(1), (5)(A)(i), is classified generally to Title 26, Internal Revenue Code. The date of enactment of the Prevent All Cigarette Trafficking Act of 2009, referred to in subsec. (b)(3)(B)(i), (4)(B)(i), (5)(C)(i), is the date of enactment of Pub. L. 111–154, which was approved Mar. 31, 2010. Section 3(d) of the Prevent All Cigarette Trafficking Act of 2009, referred to in subsec. (b)(3)(B)(ii)(V), is un- identifiable because section 3 of that Act, Pub. L. 111–154, Mar. 31, 2010, 124 Stat. 1103, does not contain a subsec. (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective on the date that is 90 days after March 31, 2010, see section 6 of Pub. L. 111–154, set out as an Effective Date of 2010 Amendment note under sec- tion 375 of Title 15, Commerce and Trade. NONMAILABILITY OF ELECTRONIC NICOTINE DELIVERY SYSTEMS Pub. L. 116–260, div. FF, title VI, § 603, Dec. 27, 2020, 134 Stat. 3137, provided that: ‘‘(a) REGULATIONS.—Not later than 120 days after the date of enactment of this Act [Dec. 27, 2020], the United States Postal Service shall promulgate regulations to clarify the applicability of the prohibition on mailing of cigarettes under section 1716E of title 18, United States Code, to electronic nicotine delivery systems, in accordance with the amendment to the definition of ‘cigarette’ made by section 602 [amending sections 375 and 376a of Title 15, Commerce and Trade]. ‘‘(b) EFFECTIVE DATE.—The prohibition on mailing of cigarettes under section 1716E of title 18, United States Code, shall apply to electronic nicotine delivery sys- tems on and after the date on which the United States Postal Service promulgates regulations under sub- section (a) of this section.’’ § 1717. Letters and writings as nonmailable (a) Every letter, writing, circular, postal card, picture, print, engraving, photograph, news- paper, pamphlet, book, or other publication, matter or thing, in violation of sections 499, 506, 793, 794, 915, 954, 956, 957, 960, 964, 1017, 1542, 1543, 1544 or 2388 of this title or which contains any matter advocating or urging treason, insurrec- tion, or forcible resistance to any law of the United States is nonmailable and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. (b) Whoever uses or attempts to use the mails or Postal Service for the transmission of any matter declared by this section to be non- mailable, shall be fined under this title or im- prisoned not more than ten years or both. (June 25, 1948, ch. 645, 62 Stat. 782; Pub. L. 86–682, § 12(b), Sept. 2, 1960, 74 Stat. 708; Pub. L. 91–375, § 6(j)(27), Aug. 12, 1970, 84 Stat. 780; Pub. L. 101–647, title XXXV, § 3552(a), Nov. 29, 1990, 104 Stat. 4926; Pub. L. 103–322, title XXXIII, § 330016(1)(K), Sept. 13, 1994, 108 Stat. 2147.) HISTORICAL AND REVISION NOTES Based on title 18, U.S.C., 1940 ed., §§ 343, 344, 345, 346 (June 15, 1917, ch. 30, title XII, §§ 1–3, title XIII, § 1, 40 Stat. 230, 231; Mar. 28, 1940, ch. 72, § 9, 54 Stat. 80). Section consolidates said sections 343–345 of title 18, U.S.C., 1940 ed. The provision as to opening letters was incorporated in paragraph (c). Venue provisions in said section 345 of title 18, U.S.C., 1940 ed., were omitted as covered by section 3237 of this title. Section 346 of title 18, U.S.C., 1940 ed., defining ‘‘United States’’ was omitted. It is incorporated, how- ever, in section 5 of this title. References in text to other sections do not include definitive sections. Only those susceptible of violation are cited. Mandatory punishment provision was rephrased in the alternative. Minor changes were made in arrangement, trans- lation, and phraseology. Editorial Notes AMENDMENTS 1994—Subsec. (b). Pub. L. 103–322 substituted ‘‘fined under this title’’ for ‘‘fined not more than $5,000’’. 1990—Pub. L. 101–647 struck out ‘‘; opening letters’’ after ‘‘nonmailable’’ in section catchline. 1970—Subsec. (b). Pub. L. 91–375 struck out ‘‘of the United States’’ after ‘‘Postal Service’’. 1960—Subsec. (c). Pub. L. 86–682 struck out subsec. (c) which related to the opening of letters. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note pre- ceding section 101 of Title 39, Postal Service. EFFECTIVE DATE OF 1960 AMENDMENT Amendment by Pub. L. 86–682 effective Sept. 1, 1960, see section 11 of Pub. L. 86–682, Sept. 2, 1960, 74 Stat. 708. [§ 1718. Repealed. Pub. L. 101–647, title XII, § 1210(c), Nov. 29, 1990, 104 Stat. 4832] Section, acts June 25, 1948, ch. 645, 62 Stat. 782; Aug. 12, 1970, Pub. L. 91–375, § 6(j)(28), 84 Stat. 780, provided that libelous matter on wrappers or envelopes was non- mailable. § 1719. Franking privilege Whoever makes use of any official envelope, label, or indorsement authorized by law, to