15 U.S.C. § 377 — Penalties

Page 736 TITLE 15—COMMERCE AND TRADE § 377 (D) Other limits Section 376 of this title and subsections (a), (b), (c), and (d) of this section shall not be interpreted to impose any responsibil- ities, requirements, or liability on common carriers. (f) Presumption For purposes of this chapter, a delivery sale shall be deemed to have occurred in the State and place where the buyer obtains personal pos- session of the cigarettes or smokeless tobacco, and a delivery pursuant to a delivery sale is deemed to have been initiated or ordered by the delivery seller. (Oct. 19, 1949, ch. 699, § 2A, as added Pub. L. 111–154, § 2(c), Mar. 31, 2010, 124 Stat. 1091; amend- ed Pub. L. 116–260, div. FF, title VI, § 602(a)(2), Dec. 27, 2020, 134 Stat. 3137.) Editorial Notes REFERENCES IN TEXT The Prevent All Cigarette Trafficking Act of 2009, re- ferred to in subsec. (e)(1)(A), (5)(C)(i), is Pub. L. 111–154, Mar. 31, 2010, 124 Stat. 1087, also known as the PACT Act. For complete classification of this Act to the Code, see Short Title of 2010 Amendment note set out under section 375 of this title and Tables. For the date subsection (e) of this section goes into effect, referred to in subsec. (e)(1)(A), see Effective Date note below. AMENDMENTS 2020—Subsec. (b)(1). Pub. L. 116–260 inserted ‘‘NICO- TINE/’’ after ‘‘CIGARETTES/’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2020 AMENDMENT Amendment by Pub. L. 116–260 effective on the date that is 90 days after Dec. 27, 2020, see section 602(b) of Pub. L. 116–260, set out as a note under section 375 of this title. 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 this title. § 377. Penalties (a) Criminal penalties (1) In general Except as provided in paragraph (2), whoever knowingly violates this chapter shall be im- prisoned for not more than 3 years, fined under title 18, or both. (2) Exceptions (A) Governments Paragraph (1) shall not apply to a State, local, or tribal government. (B) Delivery violations A common carrier or independent delivery service, or employee of a common carrier or independent delivery service, shall be sub- ject to criminal penalties under paragraph (1) for a violation of section 376a(e) of this title only if the violation is committed knowingly— (i) as consideration for the receipt of, or as consideration for a promise or agree- ment to pay, anything of pecuniary value; or (ii) for the purpose of assisting a delivery seller to violate, or otherwise evading compliance with, section 376a of this title. (b) Civil penalties (1) In general Except as provided in paragraph (3), whoever violates this chapter shall be subject to a civil penalty in an amount not to exceed— (A) in the case of a delivery seller, the greater of— (i) $5,000 in the case of the first violation, or $10,000 for any other violation; or (ii) for any violation, 2 percent of the gross sales of cigarettes or smokeless to- bacco of the delivery seller during the 1- year period ending on the date of the vio- lation. (B) in the case of a common carrier or other delivery service, $2,500 in the case of a first violation, or $5,000 for any violation within 1 year of a prior violation. (2) Relation to other penalties A civil penalty imposed under paragraph (1) for a violation of this chapter shall be imposed in addition to any criminal penalty under sub- section (a) and any other damages, equitable relief, or injunctive relief awarded by the court, including the payment of any unpaid taxes to the appropriate Federal, State, local, or tribal governments. (3) Exceptions (A) Delivery violations An employee of a common carrier or inde- pendent delivery service shall be subject to civil penalties under paragraph (1) for a vio- lation of section 376a(e) of this title only if the violation is committed intentionally— (i) as consideration for the receipt of, or as consideration for a promise or agree- ment to pay, anything of pecuniary value; or (ii) for the purpose of assisting a delivery seller to violate, or otherwise evading compliance with, section 376a of this title. (B) Other limitations No common carrier or independent deliv- ery service shall be subject to civil penalties under paragraph (1) for a violation of section 376a(e) of this title if— (i) the common carrier or independent delivery service has implemented and en- forces effective policies and practices for complying with that section; or (ii) the violation consists of an employee of the common carrier or independent de- livery service who physically receives and processes orders, picks up packages, proc- esses packages, or makes deliveries, tak- ing actions that are outside the scope of employment of the employee, or that vio- late the implemented and enforced policies of the common carrier or independent de- livery service described in clause (i). Page 737 TITLE 15—COMMERCE AND TRADE § 378 (Oct. 19, 1949, ch. 699, § 3, as added Pub. L. 111–154, § 2(d), Mar. 31, 2010, 124 Stat. 1100.) Editorial Notes PRIOR PROVISIONS A prior section 377, act Oct. 19, 1949, ch. 699, § 3, 63 Stat. 885; Aug. 9, 1955, ch. 695, § 1, 69 Stat. 628, which re- lated to penalties for violations of any provision of this chapter, was repealed, effective on the date that is 90 days after March 31, 2010, by Pub. L. 111–154, §§ 2(d), 6, Mar. 31, 2010, 124 Stat. 1100, 1110. 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 this title. § 378. Enforcement (a) In general The United States district courts shall have jurisdiction to prevent and restrain violations of this chapter and to provide other appropriate in- junctive or equitable relief, including money damages, for the violations. (b) Authority of the Attorney General The Attorney General of the United States shall administer and enforce this chapter. (c) State, local, and tribal enforcement (1) In general (A) Standing A State, through its attorney general, or a local government or Indian tribe that levies a tax subject to section 376a(a)(3) of this title, through its chief law enforcement offi- cer, may bring an action in a United States district court to prevent and restrain viola- tions of this chapter by any person or to ob- tain any other appropriate relief from any person for violations of this chapter, includ- ing civil penalties, money damages, and in- junctive or other equitable relief. (B) Sovereign immunity Nothing in this chapter shall be deemed to abrogate or constitute a waiver of any sov- ereign immunity of a State or local govern- ment or Indian tribe against any unconsented lawsuit under this chapter, or otherwise to restrict, expand, or modify any sovereign immunity of a State or local gov- ernment or Indian tribe. (2) Provision of information A State, through its attorney general, or a local government or Indian tribe that levies a tax subject to section 376a(a)(3) of this title, through its chief law enforcement officer, may provide evidence of a violation of this chapter by any person not subject to State, local, or tribal government enforcement actions for violations of this chapter to the Attorney Gen- eral of the United States or a United States attorney, who shall take appropriate actions to enforce this chapter. (3) Use of penalties collected (A) In general There is established a separate account in the Treasury known as the ‘‘PACT Anti- Trafficking Fund’’. Notwithstanding any other provision of law and subject to sub- paragraph (B), an amount equal to 50 percent of any criminal and civil penalties collected by the Federal Government in enforcing this chapter shall be transferred into the PACT Anti-Trafficking Fund and shall be available to the Attorney General of the United States for purposes of enforcing this chapter and other laws relating to contraband tobacco products. (B) Allocation of funds Of the amount available to the Attorney General of the United States under subpara- graph (A), not less than 50 percent shall be made available only to the agencies and of- fices within the Department of Justice that were responsible for the enforcement actions in which the penalties concerned were im- posed or for any underlying investigations. (4) Nonexclusivity of remedy (A) In general The remedies available under this section and section 377 of this title are in addition to any other remedies available under Federal, State, local, tribal, or other law. (B) State court proceedings Nothing in this chapter shall be construed to expand, restrict, or otherwise modify any right of an authorized State official to pro- ceed in State court, or take other enforce- ment actions, on the basis of an alleged vio- lation of State or other law. (C) Tribal court proceedings Nothing in this chapter shall be construed to expand, restrict, or otherwise modify any right of an authorized Indian tribal govern- ment official to proceed in tribal court, or take other enforcement actions, on the basis of an alleged violation of tribal law. (D) Local government enforcement Nothing in this chapter shall be construed to expand, restrict, or otherwise modify any right of an authorized local government offi- cial to proceed in State court, or take other enforcement actions, on the basis of an al- leged violation of local or other law. (d) Persons dealing in tobacco products Any person who holds a permit under section 5712 of title 26 (regarding permitting of manufac- turers and importers of tobacco products and ex- port warehouse proprietors) may bring an action in an appropriate United States district court to prevent and restrain violations of this chapter by any person other than a State, local, or tribal government. (e) Notice (1) Persons dealing in tobacco products Any person who commences a civil action under subsection (d) shall inform the Attorney General of the United States of the action. (2) State, local, and tribal actions It is the sense of Congress that the attorney general of any State, or chief law enforcement officer of any locality or tribe, that com-