(a)
It is the intent of the Legislature in enacting this section to facilitate the collection of all applicable state surtaxes, sales or use taxes, and escrow and other payment obligations on cigarettes sold to residents of the state and to ensure compliance with the Prevent All Cigarette Trafficking Act of 2009 (PACT Act; Public Law 111-154).
(b)
Except as provided in subdivision (d), no person may engage in a retail sale of cigarettes or tobacco products in California unless the sale is a vendor-assisted, face-to-face sale.
(c)
For the purposes of this section, the following definitions shall apply:
(1)
“Cigarette” has the same meaning as provided in Section 375 of Title 15 of the United States Code, as amended from time to time.
(2)
“Consumer” means a person who purchases cigarettes or tobacco products. “Consumer” does not include any person licensed under this part or under Division 8.6 (commencing with Section 22970) of the Business and Professions Code and lawfully operating as a manufacturer, distributor, wholesaler, or retailer of cigarettes or tobacco products.
(3)
“Delivery sale” means sale of cigarettes or tobacco products into and in this state in either of the following cases:
(A)
The consumer submits the order for the sale by means of a telephone
or other method of voice transmission, the mail, or the Internet or other online service, or the seller is otherwise not in the physical presence of the consumer when the request for
purchase or order is made.
(B)
The cigarettes or tobacco products are delivered to the consumer by common carrier, private delivery service, or other method of remote delivery, or the seller is not in the physical presence of the consumer when the consumer obtains possession of the cigarettes or tobacco products.
(4)
“Delivery seller” means a person who makes a delivery sale.
(5)
“Face-to-face sale” means a sale in which the purchaser is in the physical presence of the seller or the seller’s employee or agent at the time of the sale. A face-to-face sale does not include a delivery sale.
(6)
“Indian country” shall have the same meaning as provided in
Section 1151 of Title 18 of the United States Code, and includes any other land held by the United States in trust or restricted status for one or more Indian tribes.
(7)
“Interstate commerce” means commerce between a state and any place outside the state, commerce between a state and Indian country in the state, or commerce between points in the same state but through a place outside of the state or through any Indian country.
(8)
“Tobacco products” shall have the same meaning as otherwise defined under this part with the exception of cigars.
(d)
A person may engage in delivery sale of cigarettes or tobacco products to a person in California provided that all of the following conditions are met:
(1)
The delivery seller has fully complied with all of the requirements of Chapter 10A (commencing with Section 375) of Title 15 of the United States Code, otherwise known as the Jenkins Act.
(2)
The delivery seller obtains and maintains any applicable license under this part and under Division 8.6 (commencing with Section 22970) of the Business and Professions Code, as if the delivery sales occurred entirely within this state.
(3)
The delivery seller complies with any applicable state law that imposes escrow or other payment obligations on tobacco product manufacturers, including, but not limited to, Sections 104555 to 104557, inclusive, of the Health and Safety Code.
(4)
The delivery seller complies with any applicable state law or local ordinance that imposes restrictions on the retail sale of cigarettes or tobacco products directly to the public from a retail location, including Section 104559.5 of the Health and Safety Code, as if the delivery sales occurred entirely within the state and place.
(5)
The Attorney General may require the delivery seller to report to the Attorney General its delivery sales of cigarettes and tobacco products to California consumers in the form and manner specified by the Attorney General.
(e)
Any violation of this section by any person is a misdemeanor. Each offense shall be punishable by a fine not to exceed five thousand dollars ($5,000), or imprisonment not to exceed one year in a county jail,
or both the fine and imprisonment. The amount of any fines assessed shall be deposited in the Cigarette and Tobacco Products Compliance Fund.
(f)
The California Department of Tax and Fee Administration may provide information relative to a seller’s failure or attempt to comply with the PACT Act and the Jenkins Act to the Attorney General.
(g)
The Attorney General or a city attorney, county counsel, or district attorney may bring a civil action to enforce this section against a person that violates this section and, in addition to any other remedy provided by law, the court shall assess a civil penalty in accordance with the following schedule:
(1)
A civil penalty of not less than one thousand dollars ($1,000) and
not more than two thousand dollars ($2,000) for the first violation.
(2)
A civil penalty of not less than two thousand five hundred dollars ($2,500) and not more than three thousand five hundred dollars ($3,500) for the second violation within a five-year period.
(3)
A civil penalty of not less than four thousand dollars ($4,000) and not more than five thousand dollars ($5,000) for the third violation within a five-year period.
(4)
A civil penalty of not less than five thousand five hundred dollars ($5,500) and not more than six thousand five hundred dollars ($6,500) for a fourth violation within a five-year period.
(5)
A civil penalty of up to ten thousand dollars
($10,000) for a fifth or subsequent violation within a five-year period.
(h)
This section does not prohibit the lawful sale of a tobacco product that occurs by means of a vending machine.
(i)
Nothing in this section shall relieve the seller of cigarettes from any other applicable requirement of state law relating to the sale or distribution of cigarettes or tobacco products in this state.
(j)
The California Department of Tax and Fee Administration shall enforce the licensing and tax provisions of this section. Other provisions of this section shall be enforced by the Attorney General.
(k)
The provisions of this section are severable. If any provision of this
section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
