Bill Text: CA AB3218 | 2023-2024 | Regular Session | Amended

California Assembly Bill 3218

Bill Title: Unflavored Tobacco List.

Spectrum: Partisan Bill (Democrat 10-0)

Status: (Engrossed) 2024-07-03 - From committee: Do pass and re-refer to Com. on APPR. (Ayes 10. Noes 1.) (July 2). Re-referred to Com. on APPR. [AB3218 Detail]

Download: California-2023-AB3218-Amended.html

Amended IN Senate June 27, 2024

Amended IN Assembly May 16, 2024

Amended IN Assembly April 01, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 3218

Introduced by Assembly Member Wood
(Principal coauthor: Assembly Member Robert Rivas)
(Coauthors: Assembly Members Berman, Connolly, Grayson, McCarty, Quirk-Silva, and Weber)
(Coauthors: Senators Portantino and Rubio)

February 16, 2024

An act to amend Section 22980 of the Business and Professions Code, to amend Section 104559.5 of, and to add Article 4.5 (commencing with Section 104559.1) to Chapter 1 of Part 3 of Division 103 of, the Health and Safety Code, and to amend Sections 30165.1, 30435, 30436, and 30449 of the Revenue and Taxation Code, relating to tobacco, and making an appropriation therefor.

LEGISLATIVE COUNSEL'S DIGEST

AB 3218, as amended, Wood. Unflavored Tobacco List.

Existing law prohibits a person from selling or otherwise furnishing tobacco products, as defined, to a person under 21 years of age. Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, provides for enforcement of that prohibition by the Attorney General.

Existing law prohibits a tobacco retailer, as defined, from offering for sale any flavored tobacco product or tobacco product flavor enhancer, as specified. A violation of this prohibition is an infraction.

This bill would require the Attorney General to, by no later than December 31, 2025, establish and maintain on the Attorney General’s internet website a list of tobacco product brand styles that lack a characterizing flavor, as defined.

This bill would require each manufacturer or importer of tobacco products to submit to the Attorney General a list of all brand styles, as defined, of tobacco products that they manufacture or import for sale or distribution in or into California. The bill would require a manufacturer or importer that submits a product pursuant to these provisions to, under penalty of perjury, describe each brand style, brand, and product category, as specified, describe, for each brand style, if a formal authorization, approval, or order from the United States Food and Drug Administration has been sought and its status, if applicable, and certify that each brand style lacks a characterizing flavor. By expanding the scope of the crime of perjury, this bill would create a state-mandated local program. The bill would authorize the Attorney General to charge a fee for each submission and renewal of a brand style for the costs of processing the submissions, and operating the list, as specified. The bill would create the California Unflavored Tobacco List Fund for the collection of these fees, and would continuously appropriate these fees to the Attorney General for the purposes above, thereby making an appropriation. The bill would require the Attorney General to determine whether each brand style has a characterizing flavor, as specified. The bill would require any manufacturer or importer that submits a ~~product~~ brand style in this way to, among other things, consent to the jurisdiction of the California courts for the purpose of enforcing these provisions and to appoint an agent for service of process, as specified. The bill would authorize the Attorney General to seek injunctive relief and a civil penalty up to $50,000 against any manufacturer or importer who falsely certifies that brand style determined to have a characteristic flavor, lacks a characteristic flavor.

This bill would refine the ~~definition~~ definitions of characteristic flavor and tobacco product for purposes of the prohibition and these provisions.

This bill would prohibit a distributor from selling any tobacco product not listed on the Unflavored Tobacco List or any tobacco product flavor enhancer to any person, as specified, for sale in the state and would authorize the Attorney General to assess civil penalties, as specified, for violations of this prohibition.

This bill would authorize the Attorney General to recover reasonable attorney’s fees, investigative costs, and other related costs, against a nonprevailing party in a civil action brought pursuant to these provisions. The bill would require moneys recovered by the Attorney General in an action pursuant to these provisions to be deposited in the Public Rights Law Enforcement Special Fund, as specified.

This bill would deem certain tobacco products possessed in violation of these provisions that are seized by the California Tax and Fee Administration to be forfeited to the state.

This bill would also ban the retail sale of any tobacco product not on the Unflavored Tobacco List, as specified. By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: MAJORITY Appropriation: YES Fiscal Committee: YES Local Program: YES

The people of the State of California do enact as follows:

SECTION 1.

The Legislature finds and declares all of the following:

(a) A large and increasing number of flavored tobacco products are available for sale in California, which appeal to minors and nonsmokers, initiate nonusers, and impede cessation.

(b) There is evidence that those products are disproportionately used by youth and marketed to certain minorities and marginalized communities.

(c) A growing number of cities and counties have restricted or banned the retail sale of flavored tobacco products, and a statewide ban on the retail sale of certain flavored tobacco products has been approved by California voters.

(d) Because many tobacco manufacturers do not disclose whether their products are flavored, it is difficult for government agencies, distributors, retailers, and consumers to identify whether tobacco products are flavored without actually using the products.

(e) There is a need in California for a reliable and complete public list of unflavored tobacco products, meaning tobacco products that do not have a flavor other than that of tobacco.

SEC. 2.

Section 22980 of the Business and Professions Code is amended to read:

22980.

(a) A peace officer or department employee granted limited peace officer status pursuant to paragraph (6) of subdivision (a) of Section 830.11 of the Penal Code, upon presenting appropriate credentials, is authorized to enter any place as described in paragraph (2) or (3) and to conduct inspections in accordance with all of the following:

(1) Inspections shall be performed in a reasonable manner and at times that are reasonable under the circumstances, taking into consideration the normal business hours of the place to be entered.

(2) Inspections may be at any place at which cigarettes or tobacco products are sold, produced, or stored or at any site where evidence of activities involving evasion of cigarette or tobacco products tax and violations of Section 30165.1 of the Revenue and Taxation Code may be discovered.

(3) Inspections may be at any place where evidence of a violation of Section 104559.5 of the Health and Safety Code may be discovered.

(4) Inspections shall be requested or conducted no more than once in a 24-hour period.

(b) Any person that refuses to allow an inspection shall be subject to the penalties imposed pursuant to Section 22981.

SEC. 3.

Article 4.5 (commencing with Section 104559.1) is added to Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, to read:

Article 4.5. Unflavored Tobacco

104559.1.

(a) The Attorney General shall establish and maintain on the Attorney General’s internet website a list of tobacco product brand styles that lack a characterizing flavor. This list shall be known as the Unflavored Tobacco List (UTL).

(b) (1) Every manufacturer and every importer of tobacco products shall submit to the Attorney General a list of all brand styles of tobacco products that they manufacture or import for sale or distribution in or into California that lack a characterizing flavor. The Attorney General may deem each submission to be a request that the brand style be included on the UTL. Any submission under this section shall be accompanied by a certification by the manufacturer or importer, under penalty of perjury, that does all of the following:

(A) Describes each brand style, brand, and tobacco product category. Categories shall include, but not be limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, electronic cigarettes, electronic pipes, and electronic hookahs.

(B) Describes, for each brand style, if a formal authorization, approval, or order from the United States Food and Drug Administration under Section 387e(j) or 387j of the Federal Food, Drug, and Cosmetic Act (FFDCA) (21 U.S.C. Sec. 301 et seq.) has been sought and, if so, the status of any request for that authorization, approval, or order.

(2) (A) Upon the request of the Attorney General, a manufacturer or importer shall provide additional information and factual substantiation regarding a brand style’s lack of characterizing flavor.

(B) Information submitted to the Attorney General by a manufacturer or importer pursuant to this paragraph shall be considered confidential and corporate proprietary information. This information shall not be subject to disclosure under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).

(3) (A) Upon the request of the Attorney General, a manufacturer or importer shall provide additional information and documentation regarding ~~packaging~~ tobacco product status, packaging, or marketing of a brand style.

(B) Information submitted to the Attorney General by a manufacturer or importer pursuant to this paragraph and designated as nonpublic shall be considered confidential and corporate proprietary information. This information shall not be subject to disclosure under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).

(c) In determining whether or not a brand style has a characterizing flavor the Attorney General shall consider, among other factors, information received from the manufacturer or importer to the Attorney General regarding the brand style.

(d) The Attorney General shall presume a brand style to have a characterizing flavor if the manufacturer or importer, or any employee or agent of the manufacturer or importer, in the course of their employment by the agency, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, any text, color, or images on the product’s labeling or packaging, that explicitly or implicitly communicates that the tobacco product has a characterizing flavor. This presumption may be rebutted by the manufacturer or importer.

(e) The Attorney General shall decline to include on the UTL any brand style that the Attorney General reasonably determines has a characterizing flavor. The Attorney General may decline to include on the UTL any brand style that is adulterated as defined in Section 387b of or misbranded as defined in Section 387c of the FFDCA or that is otherwise required to obtain and has not received a formal authorization, approval, or order under Section 387e(j) or 387j of the FFDCA.

(f) (1) The Attorney General shall remove from the UTL any brand style that the Attorney General determines has a characterizing flavor. The Attorney General may remove from the UTL any brand style that the Attorney General determines is adulterated as defined in Section 387b of or misbranded as defined in Section 387c of the FFDCA or that is required to obtain and has not received a formal authorization, approval, or order under Section 387e(j) or 387j of the FFDCA.

(2) (A) The Attorney General shall promptly provide the manufacturer or importer that submitted a certification regarding a brand style with written notice when the Attorney General removes it from the UTL. This notice shall include the basis for the Attorney General’s determination.

(B) Removal of a brand style from the UTL will be effective 30 days after the manufacturer or importer is given notice pursuant to subparagraph (A).

(C) A manufacturer or importer may provide additional materials that the manufacturer or importer deems relevant to the determination described in paragraph (1) within 30 days of the notice provided pursuant to subparagraph (A).

(D) Information submitted to the Attorney General by a manufacturer or importer pursuant to this paragraph shall be considered confidential and corporate proprietary information. This information shall not be subject to disclosure under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).

(g) Any brand style not on the UTL shall be deemed a flavored tobacco product under subdivision (b) of Section 104559.5.

(h) Every manufacturer and every importer that has made a submission under this section shall submit updated information to the Attorney General whenever it no longer manufactures or imports for sale or distribution in or into the state a brand style listed on the UTL or when the brand style it manufactures or imports no longer lacks a characterizing flavor. This updated information shall be provided to the Attorney General by the manufacturer or importer prior to or on the date upon which the manufacture or importation of the brand style ceases, or prior to or on the date upon which the brand style no longer lacks a characterizing flavor.

(i) Every manufacturer or importer that submits a ~~product~~ brand style pursuant to this section shall also do all of the following:

(1) Consent to the jurisdiction of the California courts for the purpose of enforcement of this section and for enforcement of regulations adopted pursuant to this section.

(2) Appoint a registered agent for service of process in this state.

(3) Identify the registered agent to the Attorney General.

(4) Waive any sovereign immunity defense that may apply in an action to enforce this section or to enforce regulations adopted pursuant to this section.

(j) The Attorney General may require a manufacturer or importer of tobacco products that are sold or distributed in or into California, whether directly or indirectly through a distributor, wholesaler, or retailer, to submit to the Attorney General a list of all brand styles of tobacco products that they manufacture or import into the state.

(k) (1) Every manufacturer and importer submission under paragraph (1) of subdivision (b) shall be accompanied by an initial application fee of up to one thousand dollars ($1,000) per brand style, not to exceed the reasonable costs of processing the submissions and operating the UTL, to offset the costs incurred by the Attorney General for processing the submissions and operating the UTL. The Attorney General shall collect an annual renewal fee of up to one thousand dollars ($1,000) per brand style, not to exceed the reasonable costs of maintaining the UTL, to offset the costs associated with operating the UTL. The fee shall be for the fiscal year ending June 30 and shall not be prorated.

(2) Application and renewal fees received under this subdivision shall be deposited into the California Unflavored Tobacco List Fund, which is hereby created in the State Treasury. Notwithstanding Section 13340 of the Government Code, all amounts deposited into the California Unflavored Tobacco List Fund are hereby continuously appropriated without regard to fiscal year to the office of the Attorney General for the purpose of processing the submissions and operating the UTL.

(l) (1) Upon receiving notice from the Attorney General that a brand style is either removed from the UTL or that the Attorney General declines to include it on the list, the manufacturer or importer that provided the certification to the Attorney General that the brand style lacks a characterizing flavor may challenge the Attorney General’s determination as erroneous, seek to rebut any presumption relied upon by the Attorney General, and seek relief from the determination, by filing a writ of mandate pursuant to Section 1085 of the Code of Civil Procedure in the Superior Court of the County of Sacramento, or as otherwise provided by law. The filing of the petition shall not operate to stay the Attorney General’s determination except upon a ruling of a court of competent jurisdiction.

(2) A manufacturer or importer may challenge a decision by the Attorney General pursuant to paragraph (1) in addition to providing additional materials to the Attorney General pursuant to subdivision (f).

(m) The Attorney General shall publish the UTL beginning on or before December 31, 2025.

(n) ~~No person shall~~ A person shall not affix, or cause to be affixed, any tax stamp or meter impression to a package of cigarettes as described in Chapter 3.5 (commencing with Section 30161) of Part 13 of Division 2 of the Revenue and Taxation Code, or pay any tax levied on a tobacco product under Chapter 2 (commencing with Section 30101) of Part 13 of Division 2 of the Revenue and Taxation Code, unless the brand style of the cigarettes or tobacco products is included on the UTL.

(o) The Attorney General may seek injunctive relief and a civil penalty not to exceed fifty thousand dollars ($50,000) and recover reasonable attorney’s fees, investigation costs, and expert fees against an entity or individual that certifies to the Attorney General that a brand style lacks a characterizing flavor when the certifying entity or individual had no reasonable basis to believe the certification was true.

(p) ~~No distributor may~~ A distributor shall not sell any tobacco product not appearing on the UTL or any tobacco product flavor enhancer to any retailer, wholesaler, or other person for sale in California. For each tobacco product or tobacco product flavor enhancer sold in violation of this subdivision, the Attorney General may assess civil penalties against the distributor according to the following schedule:

(1) A civil penalty of not more than two thousand dollars ($2,000) for the first violation.

(2) A civil penalty of not more than three thousand five hundred dollars ($3,500) for the second violation.

(3) A civil penalty of not more than five thousand dollars ($5,000) for the third violation within a five-year period.

(4) A civil penalty of not more than six thousand five hundred dollars ($6,500) for the fourth violation within a five-year period.

(5) A civil penalty of not more than ten thousand dollars ($10,000) for a fifth or subsequent violation within a five-year period.

(q) Whenever the Attorney General prevails in a civil action to enforce this section, the court shall award to the Attorney General all costs of investigating and prosecuting the action, including expert fees, reasonable attorney’s fees, and costs. Awards under this section shall be paid to the Public Rights Law Enforcement Special Fund established pursuant to Section 12530 of the Government Code.

(r) The Attorney General may adopt those rules and regulations the Attorney General deems necessary to implement the purposes of this section, including regulations further delineating tobacco product status and characterizing flavor determinations and adopting an administrative process for the imposition of civil penalties. The regulations adopted to implement this section are emergency regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and shall be considered by the Office of Administrative Law to be necessary for the immediate preservation of the public health, safety, and welfare.

(s) This section does not preempt or otherwise prohibit the adoption of a local ordinance that is more restrictive than this section, that references or incorporates the UTL, or that imposes standards or definitions for a characterizing flavor that are more restrictive than those in this section.

(t) For the purposes of this section, the following definitions apply:

(1) “Brand style” means a style of tobacco product within a brand that is differentiated from other styles of that brand by weight, volume, size, Universal Product Code, Stock Keeping Unit, nicotine content, characterizing flavor, logo, symbol, motto, labeling, marketing, materials, packaging, or other indicia of product identification.

(2) “Characterizing flavor” has the same meaning as in Section 104559.5.

(3) “Tobacco product” means a tobacco product as defined in Section ~~104495,~~ 104559.5, but excludes looseleaf tobacco, premium cigars, and shisha tobacco products, as those terms are defined in that section.

(4) “Tobacco product flavor enhancer” has the same meaning as defined in Section 104559.5.
~~(4)~~

(5) “UTL” means the Unflavored Tobacco List described in subdivision (a).

(u) 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.

SEC. 4.

Section 104559.5 of the Health and Safety Code is amended to read:

104559.5.

(a) For purposes of this section, the following definitions apply:

(1) “Characterizing flavor” means a taste or odor, distinguishable by an ordinary consumer either prior to or during the consumption of a tobacco product, other than the taste or odor of tobacco, including, but not limited to, tastes or odors relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice, or a cooling ~~or numbing~~ sensation distinguishable by an ordinary consumer during the consumption of a tobacco product.

(2) “Constituent” means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.

(3) “Department” means the State Department of Public Health.

(4) “Enforcing agency” means the State Department of Public Health, another state agency, including, but not limited to, the office of the Attorney General, or a local law enforcement agency, including, but not limited to, a city attorney, district attorney, or county counsel.

(5) “Flavored shisha tobacco product” means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.

(6) “Flavored tobacco product” means any tobacco product that contains a constituent that imparts a characterizing flavor. “Flavored tobacco product” includes any tobacco product, other than looseleaf tobacco, a premium cigar, or a shisha tobacco product, that is not listed on the Unflavored Tobacco List established and maintained by the Attorney General pursuant to Section 104559.1.

(7) “Hookah” means a type of waterpipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.

(8) “Hookah tobacco retailer” means a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.

(9) “Labeling” means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.

(10) “Looseleaf tobacco” consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.

(11) “Nicotine” means any form of the chemical nicotine, including any salt or complex, regardless of whether the chemical is naturally or synthetically derived, and includes nicotinic alkaloids and nicotine analogs.
~~(11)~~

(12) “Packaging” means a pack, box, carton, or container of any kind, or, if no other container, any wrapping, including cellophane, in which a tobacco product is sold or offered for sale to a consumer.

~~(12)~~

(13) “Premium cigar” means any cigar that is handmade, is not mass produced by use of mechanization, has a wrapper that is made entirely from whole tobacco leaf, and has a wholesale price of no less than twelve dollars ($12). A premium cigar does not have a filter, tip, or nontobacco mouthpiece and is capped by hand.

~~(13)~~

(14) “Retail location” means both of the following:

(A) A building from which tobacco products are sold at retail.

(B) Any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public.

~~(14)~~

(15) “Sale” or “sold” means a sale as that term is defined in Section 30006 of the Revenue and Taxation Code.

~~(15)~~

(16) “Shisha tobacco product” means a tobacco product smoked or intended to be smoked in a hookah. “Shisha tobacco product” includes, and may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. “Shisha tobacco product” does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.

~~(16)“Tobacco product” means a tobacco product as defined in paragraph (8) of subdivision (a) of Section 104495, as that provision may be amended from time to time.~~
(17) (A) “Tobacco product” means any of the following:
(i) A product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff.
(ii) An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including an electronic cigarette, cigar, pipe, or hookah.
(iii) Any component, part, or accessory of a tobacco product, whether or not sold separately.
(B) Notwithstanding subparagraph (A), “tobacco product” does not include: (i) a nicotine replacement product approved by the United States Food and Drug Administration, or (ii) cannabis or a cannabis product, as those terms are defined in Section 26001 of the Business and Professions Code. Cannabis or a cannabis product that includes an ingredient, substance, chemical, or compound that contains or is made or derived from tobacco or nicotine is a “tobacco product” under this section.
~~(17)~~

(18) “Tobacco product flavor enhancer” means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.

~~(18)~~

(19) “Tobacco retailer” means a person who engages in this state in the sale of tobacco products directly to the public from a retail location. “Tobacco retailer” includes a person who operates vending machines from which tobacco products are sold in this state.

(b) (1) A tobacco retailer, or any of the tobacco retailer’s agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer.

(2) There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.

(c) Subdivision (b) does not apply to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the following conditions are met:

(1) The hookah tobacco retailer has a valid license to sell tobacco products issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 of the Business and Professions Code.

(2) The hookah tobacco retailer does not permit any person under 21 years of age to be present or enter the premises at any time.

(3) The hookah tobacco retailer shall operate in accordance with all relevant state and local laws relating to the sale of tobacco products.

(4) If consumption of tobacco products is allowed on the premises of the hookah tobacco retailer, the hookah tobacco retailer shall operate in accordance with all state and local laws relating to the consumption of tobacco products on the premises of a tobacco retailer, including, but not limited to, Section 6404.5 of the Labor Code.

(d) Subdivision (b) does not apply to sales of premium cigars sold in cigar lounges where products are purchased and consumed only on the premises.

(e) Subdivision (b) does not apply to looseleaf tobacco or premium cigars.

(f) (1) An enforcing agency may assess civil penalties against any person or entity that violates subdivision (b) according to the schedule of civil penalties prescribed in paragraph (1) of subdivision (a) of Section 22958 of the Business and Professions Code. In the case of a corporation or business with more than one retail location, the number of accumulated violations for purposes of the penalty schedule shall be determined in accordance with subdivision (h) of that section.

(2) In addition to the civil penalties described in paragraph (1), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the California Department of Tax and Fee Administration of the violation who shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22972) of Division 8.6 of the Business and Professions Code, in accordance with the schedule listed in paragraph (1) of subdivision (b) of Section 22958 of the Business and Professions Code.

(3) Notwithstanding paragraph (7), the civil penalty assessed pursuant to paragraph (2) shall be deposited into the Cigarette and Tobacco Products Compliance Fund and shall be made available to the California Department of Tax and Fee Administration, upon appropriation by the Legislature, for the purposes of meeting its duties prescribed in paragraph (2).

(4) The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the California Department of Tax and Fee Administration pursuant to paragraph (2).

(5) The department shall, upon request, provide information concerning any person or entity that has been assessed a civil penalty for violation of this section to the California Department of Tax and Fee Administration when the department has notified the California Department of Tax and Fee Administration of the violation.

(6) Proceedings under this section shall be conducted pursuant to Section 131071, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071.

(7) Except as otherwise provided in paragraph (3), all moneys collected as civil penalties by the department or by any other state agency or department pursuant to this section shall be deposited in the Sale of Tobacco to Minors Control Account.

(g) (1) Primary responsibility for enforcement of this section shall be with the department. In carrying out its enforcement responsibilities, the department may conduct onsite sting inspections at tobacco retailers randomly, in response to public complaints, or at retailers where violations have previously occurred. Agents of the department, while conducting enforcement activities pursuant to this section, are peace officers and are subject to all of the powers and immunities granted to Food and Drug Section inspectors pursuant to Section 106500 in the same manner as are any Food and Drug Section inspectors of the department.

(2) In addition to the primary enforcement responsibility assumed by the department, another enforcing agency may conduct inspections and assess penalties for violations of this section if that enforcing agency complies with the applicable provisions of this section and with all other applicable provisions of law.

(3) State and local enforcing agencies are encouraged, in order to avoid duplication, to share the results of inspections and coordinate with the department when enforcing this section.

(4) An enforcing agency may use audio or video recording equipment when conducting inspections, to record and document illegal sales or attempted sales.

(h) (1) The department may adopt any regulations that it determines are necessary for the enforcement of this section. The regulations shall be adopted by the department in the manner prescribed by Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

(2) The department may adopt emergency regulations to implement this section. Any emergency regulation shall be adopted in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Emergency regulations adopted shall remain in effect until regulations have been adopted pursuant to paragraph (1).

(i) This section does not preempt or otherwise prohibit the adoption of a local standard that imposes greater restrictions on the access to tobacco products than the restrictions imposed by this section. To the extent that there is an inconsistency between this section and a local standard that imposes greater restrictions on the access to tobacco products, the greater restriction on the access to tobacco products in the local standard shall prevail.

SEC. 5.

Section 30165.1 of the Revenue and Taxation Code is amended to read:

30165.1.

(a) The following definitions shall apply for purposes of this section:

(1) “Department” means the California Department of Tax and Fee Administration.

(2) “Brand family” means styles of cigarettes sold under the same trademark and differentiated from one another by means of additional modifiers, including, but not limited to, “menthol,” “lights,” “kings,” and “100s,” and includes any brand name, alone or in conjunction with any other word, trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, a previously known brand of cigarettes.

(3) “Brand style” means any particular combination of trademark and modifiers within a brand family.

(4) “Cigarette” has the same meaning as in subdivision (d) of Section 104556 of the Health and Safety Code and includes tobacco products defined as a cigarette under that subdivision.

(5) “Directory” means the California Tobacco Directory developed by the Attorney General and published on its internet website pursuant to subdivision (c).

(6) “Distributor” has the same meaning as in Section 30011.

(7) “MSA” means the Master Settlement Agreement, as defined in subdivision (e) of Section 104556 of the Health and Safety Code.

(8) “Nonparticipating manufacturer” means any tobacco product manufacturer that is not a participating manufacturer.

(9) “Participating manufacturer” has the same meaning as in subsection II(jj) of the MSA.

(10) “Qualified escrow fund” has the same meaning as in subdivision (f) of Section 104556 of the Health and Safety Code.

(11) “Tobacco product manufacturer” has the same meaning as in subdivision (i) of Section 104556 of the Health and Safety Code.

(12) “Units sold” has the same meaning as in subdivision (j) of Section 104556 of the Health and Safety Code.

(b) Every tobacco product manufacturer whose cigarettes are sold in this state, whether directly or through a distributor, retailer, or similar intermediary or intermediaries, shall execute and deliver on a form and in the manner prescribed by the Attorney General, a certification to the Attorney General no later than April 30 of each year that, as of the date of the certification, the tobacco product manufacturer is either a participating manufacturer that has made all payments calculated by the independent auditor to be due under the Master Settlement Agreement, except to the extent the participating manufacturer is disputing any of the payments, or is a nonparticipating manufacturer in full compliance with Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, including all installment payments required by that article and this section, and any regulations adopted pursuant to those provisions. A tobacco product manufacturer located outside of the United States shall provide to the Attorney General and keep current, the names, and addresses, including email addresses, of all importers that sell or will be selling their cigarettes in this state and shall cause each importer to provide to the Attorney General a copy of a valid importer permit issued by the United States Treasury, Alcohol and Tobacco Tax and Trade Bureau, and the importer license issued by the department. The importers who sell or will be selling their cigarettes in this state shall obtain and maintain a license as an importer in compliance with Division 8.6 (commencing with Section 22970) of the Business and Professions Code. Any person who makes a certification pursuant to this subdivision that asserts the truth of any material matter that the person knows to be false is guilty of a misdemeanor punishable by imprisonment of up to one year in the county jail, or a fine of not more than one thousand dollars ($1,000), or both the imprisonment and the fine.

(1) A participating manufacturer shall include in its certification a complete list of its brand families and brand styles. The participating manufacturer shall update the list 30 days before any addition to or modification of its brand families and brand styles by executing and delivering a supplemental certification to the Attorney General.

(2) A nonparticipating manufacturer shall include in its certification a complete list of all of its brand families and brand styles in accordance with all of the following requirements:

(A) Separately listing brand families and brand styles of cigarettes and the number of units sold for each brand family that were sold in the state during the preceding calendar year.

(B) Separately listing all of its brand families and brand styles that have been sold in the state at any time during the current calendar year.

(C) Indicating by an asterisk any brand family or brand style 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.

(D) Identifying by name and address any other tobacco product manufacturer, including all previous fabricators or makers of the brand families, in a form, manner, and detail as required by the Attorney General. The tobacco product manufacturer shall update the list 30 days before any change in a fabricator for any brand family or any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General.

(3) In the case of a nonparticipating manufacturer, the certification shall further certify all of the following:

(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 subdivision (f).

(B) That the nonparticipating manufacturer has done all of the following:

(i) Established and continues to maintain a qualified escrow fund as that term is defined in subdivision (f) of Section 104556 of the Health and Safety Code and implementing regulations.

(ii) Executed a qualified escrow agreement that has been reviewed and approved by the Attorney General and that governs the qualified escrow fund.

(iii) The certifying nonparticipating manufacturer fabricates all of the brand families of the cigarettes it seeks to certify.

(i) Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, including paragraph (2) of subdivision (a) of Section 104557 of the Health and Safety Code, this section, and any regulations adopted pursuant to those provisions.

(ii) Division 8.6 (commencing with Section 22970) of the Business and Professions Code, and any regulations adopted pursuant to those provisions. The nonparticipating manufacturer shall also provide a copy of a valid, corresponding federal permit issued by the United States Treasury, Alcohol and Tobacco Tax and Trade Bureau.

(D) That the nonparticipating manufacturer has provided all of the following:

(i) The name, address, and telephone number of the financial institution where the nonparticipating manufacturer has established the qualified escrow fund required pursuant to Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code and all regulations adopted pursuant to those provisions.

(ii) The account number of the qualified escrow fund and subaccount number for the State of California.

(iii) The amount the nonparticipating manufacturer placed in the qualified escrow fund for cigarettes sold in the state during the preceding calendar year, the date and amount of each deposit, and any confirming evidence or verification as may be deemed necessary by the Attorney General.

(iv) The amounts and dates of any withdrawal or transfer of funds the nonparticipating manufacturer made at any time from the qualified escrow fund or from any other qualified escrow fund into which it ever made escrow payments pursuant to Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code and all regulations adopted pursuant to those provisions.

(E) In the case of a nonparticipating manufacturer located outside the United States, that the manufacturer has provided a declaration in a form prescribed by the Attorney General from each of its importers into the United States of any of its brand families to be sold in the state, that the importer accepts joint and several liability with the nonparticipating manufacturer for all escrow deposits due and all penalties assessed in accordance with Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, and for payment of all fees, costs, attorney’s fees, penalties, and refunds imposed or required under this section, including, but not limited to, all refunds resulting from the removal of the nonparticipating manufacturer or any of its brand families or brand styles from the Directory. The declaration shall appoint for the declarant a resident agent for service of process in California in accordance with subdivision (f) and affirm that the declarant has caused every importer that will sell its cigarettes in this state to obtain and maintain a license as an importer pursuant to Division 8.6 (commencing with Section 22970) of the Business and Professions Code.

(4) (A) A tobacco product manufacturer may not include a brand family in its certification unless either of the following is true:

(i) In the case of a participating manufacturer, the participating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of calculating its payments under the MSA for the relevant year, in the volume and shares determined pursuant to the MSA.

(ii) In the case of a nonparticipating manufacturer, the nonparticipating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, including paragraph (2) of subdivision (a) of Section 104557 of the Health and Safety Code, and any regulations adopted pursuant to those provisions.

(B) Nothing in this section shall be construed as limiting or otherwise affecting the state’s right to maintain that a brand family constitutes cigarettes of a different tobacco product manufacturer for purposes of calculating payments under the MSA or for purposes of Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code and any regulations adopted pursuant to those provisions.

(5) A tobacco product manufacturer shall maintain all invoices and documentation of sales and other information relied upon for the certification for a period of five years, unless otherwise required by law to maintain them for a longer period of time.

(c) The Attorney General shall develop and publish on its internet website the California Tobacco Directory, which shall list only the tobacco product manufacturers, brand families, and brand styles of cigarettes that are compliant with this section and Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, and any regulations adopted pursuant to those provisions.

(1) The Attorney General may not include or retain in the Directory the name, brand families, or brand styles of any of the following:

(A) Any participating manufacturer that fails to provide the required certification or to make a payment calculated by the independent auditor to be due from it under the MSA except to the extent that it is disputing the payment.

(B) Any nonparticipating manufacturer that fails to provide the required certification or whose certification the Attorney General determines is not in compliance with subdivision (b), unless the Attorney General has determined that the violation has been cured to the satisfaction of the Attorney General.

(C) A tobacco product manufacturer that does not hold a valid and current manufacturer’s license under Section 22979 of the Business and Professions Code, including, but not limited to, a manufacturer whose license has been revoked under subdivision (g) of Section 22979 of the Business and Professions Code.

(2) A tobacco product manufacturer, brand family, or brand style shall not be included or retained in the Directory if the Attorney General concludes that any of the following is true:

(A) In the case of a nonparticipating manufacturer, any escrow deposit required pursuant to Section 104557 of the Health and Safety Code for any period for any brand family, whether or not listed by the nonparticipating manufacturer, has not been fully deposited into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the Attorney General.

(B) Any outstanding final judgment, including interest thereon, for violations of Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, this section, Sections 30101.7 and 30165.2, and any regulations adopted pursuant to those sections, has not been fully satisfied for the brand family and the tobacco product manufacturer.

(C) In the case of a nonparticipating manufacturer by reason of the business plan, business history, trade connections, or compliance and payment history in the state or any other state of any of the principals thereof, the nonparticipating manufacturer fails to provide reasonable assurance that it will comply with the requirements of this section, Section 30165.2, and Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code. As used in this section, “reasonable assurance” may include information and documentation establishing to the satisfaction of the Attorney General that a failure to pay in California or elsewhere was the result of a good faith dispute over the payment obligation.

(D) In the case of a nonparticipating manufacturer, the nonparticipating manufacturer has knowingly failed to disclose any material information required or knowingly made any material false statements in the certification of any supporting information or documentation provided.

(E) If the tobacco product manufacturer or its importer, as defined in Section 30019, engages in delivery sales and the tobacco product manufacturer fails to provide or fails to cause its importer to provide reasonable assurances that the delivery seller has fully complied with all requirements of applicable federal and state law, including, but not limited to, all of the following:

(i) Chapter 10A (commencing with Section 375) of Title 15 of the United States Code.

(ii) The requirements of Section 30101.7.

(iii) All stamping, marking, and labeling requirements, including, but not limited to, Section 30163, and any other information or indicia requirements imposed by state or federal law.

(iv) All other state laws generally applicable to the sale and distribution of tobacco products.

(3) The Attorney General may not include or retain in the Directory any brand style that has not been tested and marked in compliance with the California Cigarette Fire Safety and Firefighter Protection Act (Part 8 (commencing with Section 14950) of Division 12 of the Health and Safety Code).

(4) All listings on the Directory shall expire on April 29 of each year. Beginning with the 2023 calendar year, a tobacco product manufacturer shall renew its listing on the Directory by providing the annual certification in compliance with this section and remitting an annual fee of one thousand dollars ($1,000) per tobacco product manufacturer payable to the office of the Attorney General. Any fees received pursuant to this paragraph shall be deposited into the California Tobacco Directory Fund, which is hereby created in the State Treasury. Notwithstanding Section 13340 of the Government Code, all amounts deposited in the California Tobacco Directory Fund are hereby continuously appropriated without regard to fiscal year to the office of the Attorney General for the purpose of administering the Directory. The Attorney General may retain a listing for a tobacco product manufacturer on the Directory while the renewal for the certification is pending, provided that if the Attorney General decides not to retain a listing of any manufacturer or brand family while the renewal of the certification is pending, the Attorney General shall comply with the delisting provisions in this section, including paragraph (5).

(5) The Attorney General shall update the Directory as necessary in order to correct mistakes and to add or remove a tobacco product manufacturer, brand family, or brand style to keep the Directory in conformity with the requirements of this section, Section 30165.2, Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, and the California Cigarette Fire Safety and Firefighter Protection Act (Part 8 (commencing with Section 14950) of Division 12 of the Health and Safety Code). The Attorney General shall promptly provide distributors and wholesalers with written notice of each tobacco product manufacturer, brand family, and brand style that the Attorney General has added to, or excluded or removed from, the Directory.

(A) When the Attorney General’s office informs a manufacturer that it will recommend to the Attorney General that the manufacturer or brand family be delisted for cause, the office shall transmit by email, or other practicable means, a copy of the notice of the pending administrative action to the manufacturer, all licensed distributors and wholesalers, and to any retailer or other person who has provided an email address to the Attorney General for this purpose.

(B) A licensed distributor may purchase, stamp, or sell, and a licensed wholesaler may purchase or sell, products affected by the notice of pending administrative action for no more than 40 days following issuance of the notice of pending administrative action. Before the sale of a product affected by the notice of pending administrative action, and no later than seven days after the notice of pending administrative action, a distributor or wholesaler shall notify each of its existing customers of the pending administrative action.

(C) Upon removal from the Directory of a tobacco product manufacturer, brand family, or brand style, the Attorney General shall transmit by email, or other practicable means, a notice of removal, to the manufacturer, all licensed distributors and wholesalers, and to any retailer or other person who has provided an email address to the Attorney General for this purpose. No later than seven days after issuance of the notice of removal, a distributor or wholesaler shall provide each of its existing customers a copy of the notice of removal.

(D) Notwithstanding subdivision (e), a licensed retailer may possess, transport, and sell the tax-stamped cigarettes of a tobacco product manufacturer, brand family, or brand style affected by the notice of removal for no more than 60 days following the effective date of the tobacco product manufacturer’s brand family’s or brand style’s removal from the Directory.

(E) After 60 days following removal from the Directory, the cigarettes of a tobacco product manufacturer, brand family, or brand style identified in the notice of removal are contraband and are subject to seizure and destruction under subdivision (e) of Section 30436 and subdivision (b) of Section 30449, and may not be purchased or sold in the state. This section does not limit or otherwise change the seizure and destruction process of cigarettes under Sections 14950 to 14959, inclusive, of the Health and Safety Code, including, but not limited to, Section 14956 of the Health and Safety Code.

(F) If the Attorney General declines to remove a tobacco product manufacturer, brand family, or brand style from the Directory following issuance of the notice of pending administrative action described in subparagraph (A), the Attorney General shall notify by email, or other practicable means, the tobacco product manufacturer, all licensed distributors and wholesalers, and any retailer or other person who has provided an email address to the Attorney General for this purpose, of the decision not to pursue administrative action. No later than seven days after issuance of this notice, a distributor or wholesaler shall provide each of its existing customers a copy of this notice, and the purchase, stamping, and sales restrictions imposed by subparagraph (B) shall have no further effect.

(G) Upon request of the Attorney General, the department shall provide the Attorney General all email addresses for licensed distributors, wholesalers, and retailers in the department’s possession.

(6) Newly qualified and elevated-risk nonparticipating manufacturers shall file with the Attorney General a surety bond in a form and manner directed by the Attorney General.

(A) Notwithstanding any other law, if a newly qualified nonparticipating manufacturer is to be listed in the Directory or if the Attorney General reasonably determines that any nonparticipating manufacturer who has filed a certification pursuant to subdivision (b) poses an elevated risk for noncompliance with this section, Section 30165.2, Part 13 (commencing with Section 30001) of Division 2, or with Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, neither the nonparticipating manufacturer nor any of its brand families shall be included in the Directory unless and until the nonparticipating manufacturer, or its United States importer that undertakes joint and several liability for the nonparticipating manufacturer’s performance in accordance with subparagraph (E) of paragraph (3) of subdivision (b), has posted a bond in accordance with this section.

(B) The bonds shall be posted by a corporate surety located within the United States in an amount equal to the greater of fifty thousand dollars ($50,000) or the amount of escrow the nonparticipating manufacturer in either its current or predecessor form was required to deposit as a result of the largest of its most recent five calendar year’s sales in California. The bond shall be written in favor of the State of California and shall be conditioned on the performance by the nonparticipating manufacturer, or its importer that undertakes joint and several liability for the nonparticipating manufacturer’s performance in accordance with subparagraph (E) of paragraph (3) of subdivision (b), of all its duties and obligations under this section and Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code and payment of all state taxes for the sale or distribution of cigarettes and tobacco products in this state during the year in which the certification is filed and the next succeeding calendar year. The bond may be drawn upon by the department or the Attorney General to cover unsatisfied escrow obligations, tax obligations, claims for penalties, claims for monetary damages, and any other liabilities that are subject to a claim of sovereign immunity against enforcement of the laws specified above.

(C) A nonparticipating manufacturer may be deemed to pose an elevated risk for noncompliance with this section, Section 30165.2, or Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code if any of the following apply:

(i) The nonparticipating manufacturer or any affiliate thereof has failed to deposit fully the amount due on an escrow obligation with respect to any state at any time during the current calendar year or within the past three calendar years unless either of the following occur:

(I) The nonparticipating manufacturer did not underdeposit knowingly or recklessly and the manufacturer promptly cured the underdeposit within 180 days of notice of it.

(II) The underdeposit or lack of deposit is the subject of a good faith dispute as documented to the satisfaction of the Attorney General and the underdeposit or lack of deposit is cured within 180 days of entry of a final order establishing the amount of the required escrow deposit.

(ii) Any state has removed the nonparticipating manufacturer or its brand families or an affiliate or any of the affiliate’s brand families from the state’s tobacco Directory for noncompliance with a state escrow deposit or tobacco tax law at any time during the calendar year or within the past three calendar years.

(iii) Any state has litigation pending against, or an unsatisfied final judgment against, the nonparticipating manufacturer or any affiliate thereof for escrow or for penalties, fees, costs, refunds, or attorney’s fees related to noncompliance with state escrow laws.

(iv) The nonparticipating manufacturer sells its cigarettes or tobacco products directly to consumers via remote or other non-face-to-face means.

(v) A state or federal court has determined that the nonparticipating manufacturer has violated any tobacco tax or tobacco control law or engaged in unfair business practice or unfair competition.

(vi) Any state has suspended or revoked the nonparticipating manufacturer’s license to engage in any aspect of tobacco business.

(vii) Any state or federal court has determined that the nonparticipating manufacturer failed to comply with state or federal law imposing marking, labeling, and stamping requirements or requiring information to be affixed to, or contained in, the labels, markings, or packaging.

(viii) During any of the past three years, escrow and equity fee payments were made on less than 80 percent of the nonparticipating manufacturer’s nationwide cigarette sales as measured by excise taxes collected by the federal government and, in the case of Puerto Rico, arbitrios de cigarrillos collected by the Puerto Rico taxing authority.

(ix) As of January 1, 2023, the nonparticipating manufacturer’s cigarettes are sold in or into the state by distributors that have not reported their last 12 months of in-state sales electronically and in the manner prescribed by both the department and the Attorney General.

(x) For a domestic manufacturer, the nonparticipating manufacturer’s cigarettes are sold in the state through one or more distributors that do not purchase directly from the nonparticipating manufacturer. For a foreign manufacturer, the nonparticipating manufacturer’s cigarettes are sold in the state through one or more distributors that do not purchase directly from an importer that has accepted joint and several liability pursuant to paragraph (4) of subdivision (f).

(xi) The nonparticipating manufacturer fails to submit or complete any required forms, documents, certification, or notices, in a timely manner or, to the satisfaction of the Attorney General or the department.

(D) As used in this paragraph, “newly qualified nonparticipating manufacturer” means a nonparticipating manufacturer that has not previously been listed in the Directory during the last 12 months. These newly qualified nonparticipating manufacturers may be required to post a bond in accordance with this section for the next three years of their listing, or longer if they have been determined to pose an elevated risk for noncompliance.

(7) The Attorney General shall provide each tobacco product manufacturer that has provided all certifications and other information required by this section with a written acknowledgment of receipt within seven business days after receiving the certifications and other materials. Each tobacco product manufacturer shall provide to each distributor to whom it sells or ships cigarettes a copy of each acknowledgment of receipt provided to the tobacco product manufacturer by the Attorney General. Upon request, the Attorney General shall provide any distributor with a copy of the most recent written acknowledgment of receipt provided to the tobacco product manufacturer.

(8) The Attorney General shall not include or retain in the directory any brand style that is not listed on the Unflavored Tobacco List established pursuant to Article 4.5 (commencing with Section 104559.1) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code.

(d) (1) The Attorney General may exclude or remove from the Directory a tobacco product manufacturer or any of its brand families, based on a determination that the manufacturer is not a participating manufacturer that has provided the required certification and made all payments calculated by the independent auditor to be due from it under the MSA, except to the extent that it is disputing the payment, or in the case of a nonparticipating manufacturer, has not made all escrow payments required by paragraph (2) of subdivision (a) of Section 104557 of the Health and Safety Code, in accordance with that subdivision, or has not complied with this section or Section 30165.2, or the tobacco product manufacturer has not complied with any state or federal delivery sales laws applicable to sales and distribution of tobacco products in this state. Before the exclusion or removal may take effect, the Attorney General shall notify the tobacco product manufacturer of this determination.

(2) Upon receiving notice from the Attorney General pursuant to paragraph (1), the tobacco product manufacturer may challenge the Attorney General’s determination as erroneous, and may seek relief from the determination, by filing a petition for writ of mandate pursuant to Section 1085 of the Code of Civil Procedure for that purpose in the Superior Court for the County of Sacramento, or as otherwise provided by law. The filing of the petition shall operate to stay the Attorney General’s determination, if the participating manufacturer has made all payments calculated by the independent auditor to be due from it under the MSA, except to the extent that it is disputing payment, or if a nonparticipating manufacturer has paid into escrow the full amount of any deficiency in the escrow payments that the Attorney General has determined the nonparticipating manufacturer was required to have made under paragraph (2) of subdivision (a) of Section 104557 of the Health and Safety Code, including any installment payments required under subdivision (h), pending final resolution of the action.

(e) (1) No A person shall not affix, or cause to be affixed, any tax stamp or meter impression to a package of cigarettes pursuant to subdivision (a) of Section 30163, or pay the tax levied pursuant to Sections 30123 and 30131.2 on a tobacco product defined as a cigarette under this section, unless the brand family and brand style of the cigarettes or tobacco product, and the tobacco product manufacturer that makes or sells the cigarettes, are included on the Directory.

(2) No A person shall not sell, offer, or possess for sale in this state, ship or otherwise distribute into or within this state or import for personal consumption in this state, cigarettes of a tobacco product manufacturer, brand family, or brand style not included in the Directory.

(3) No A person shall not do either of the following:

(A) Sell or distribute cigarettes that the person knows or should know are intended to be distributed in violation of paragraphs (1) and (2).

(B) Acquire, hold, own, possess, transport, import, or cause to be imported cigarettes that the person knows or should know are intended to be distributed in violation of paragraphs (1) and (2).

(f) (1) A nonresident or foreign nonparticipating manufacturer that has not registered to do business in the state as a foreign corporation or business entity shall, as a condition precedent to having its brand families or brand styles listed or retained in the Directory, appoint and continually engage without interruption the services of an agent in this state to act as agent for the service of process on whom all process, and any action or proceeding against the nonresident or foreign nonparticipating manufacturer concerning or arising out of the enforcement of this section, Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, and any regulations adopted pursuant to those provisions, may be served in any manner authorized by law. This service shall constitute legal and valid service of process on the nonparticipating manufacturer. The nonparticipating manufacturer shall provide the name, address, telephone number, and proof of the appointment and availability of the agent to the satisfaction of the Attorney General. A nonparticipating manufacturer located outside of the United States shall, as an additional condition precedent to having its brand families listed or retained in the Directory, cause each of its importers into the United States of any of its brand families to be sold in the state to appoint and continually engage without interruption the services of an agent in the state in accordance with this section. All obligations of a nonparticipating manufacturer imposed by this section with respect to appointment of its agent shall likewise apply to importers with respect to appointment of their agents.

(2) The nonparticipating manufacturer shall provide notice to the Attorney General 30 calendar days before termination of the authority of an agent and shall further provide proof to the satisfaction of the Attorney General of the appointment of a new agent no less than five calendar days before the termination of an existing agent appointment. In the event an agent terminates an agency appointment, the nonparticipating manufacturer shall notify the Attorney General of said termination within five calendar days and shall include proof to the satisfaction of the Attorney General of the appointment of a new agent.

(3) (A) A nonparticipating manufacturer whose products are sold in this state without appointing or designating an agent as herein required shall be deemed to have appointed the Secretary of State as its agent. The appointment of the Secretary of State as the agent for service of process pursuant to this provision does not satisfy the condition precedent specified in paragraph (1) to having its brand families listed or retained in the Directory.

(B) The Attorney General or their authorized representative may proceed against a nonparticipating manufacturer in the courts of this state pursuant to subparagraph (A) by service of process upon the Secretary of State. The service may be made by delivering by hand to the Secretary of State or their authorized representative one copy of the process for each defendant to be served, together with a declaration stating that service is being made upon the Secretary of State pursuant to subparagraph (A), setting forth the last known address of the nonparticipating manufacturer, and signed by the party to the action seeking service.

(C) Upon receipt of the records described in subparagraph (B), the Secretary of State or their authorized representative shall give notice of the service of process to any nonparticipating manufacturer served by forwarding a copy of the process to the nonparticipating manufacturer at the last known address identified in the declaration.

(4) For each nonparticipating manufacturer located outside the United States, each importer into the United States of any nonparticipating manufacturer’s brand families that are sold in the state shall bear joint and several liability with the nonparticipating manufacturer for deposit of all escrow due under, and payment of all costs and attorney’s fees imposed in accordance with, Section 104557 of the Health and Safety Code, and payment of all fees, costs, attorney’s fees, penalties, and refunds imposed or required by this section or Section 30165.2. Each tobacco product manufacturer and importer, that sells or intends to sell cigarettes in California, shall obtain and maintain a license as a manufacturer or importer in compliance with Division 8.6 (commencing with Section 22970) of the Business and Professions Code. Each nonparticipating manufacturer and its importers shall report in the manner, including electronically, as required by the Attorney General, all cigarettes sold in this state each month, including, but not limited to, the quantity, including tobacco weight and number of cigarettes, the wholesale cost, and sale price of each brand family and brand style. Any tobacco product manufacturer or importer that fails to file the report as required by the Attorney General shall be liable for a civil penalty in an amount not to exceed the greater of either of the following:

(A) Five times the retail value of the cigarettes that were not reported as required by the Attorney General.

(B) Five thousand dollars ($5,000).

(g) (1) Not later than 25 days after the end of each calendar quarter, and more frequently if directed by the department or the Attorney General, each distributor shall submit any information as the department or Attorney General requires to facilitate compliance with this section, including, but not limited to, a list by brand family of the total number of cigarettes or, in the case of roll your own, the total ounces for which the distributor affixed stamps during the previous calendar month or otherwise paid the tax due. The distributor shall maintain, and shall make available to the department and the Attorney General, all invoices and documentation of sales of all nonparticipating manufacturer cigarettes and any other information relied upon in reporting to the department and the Attorney General for a period of five years.

(2) (A) Notwithstanding Section 30455, the department shall disclose to the Attorney General any information received under this part for purposes of determining compliance with and enforcing the provisions of this section, Sections 30101.7 and 30165.2, and Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, and any regulations adopted pursuant to those provisions. The department and Attorney General may share the information received under this section with any of the following:

(i) Other federal, state, or local agencies for purposes of enforcing this section, Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, and any regulations promulgated pursuant thereto, or corresponding laws of other states or the United States.

(ii) A court arbitrator, or data clearinghouse or similar entity for purposes of resolving disputes arising under, and making calculations and determinations required by, the MSA or related settlement agreements and with counsel for the parties or expert witnesses in any such proceeding, provided that the recipients agree to maintain the confidentiality of confidential information.

(B) The department and Attorney General shall not publicly disclose confidential information except as necessary to carry out their functions and duties.

(3) At any time, the Attorney General may require from the nonparticipating manufacturer proof from the financial institution in which the manufacturer has established a qualified escrow fund for the purpose of compliance with Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, and any regulations adopted pursuant to those provisions, of the amount of money in the fund being held on behalf of the state and the dates of deposits, and listing the amounts of all withdrawals from the fund and the dates thereof.

(4) In addition to the information required to be submitted pursuant to this section or Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, and any regulations adopted pursuant to those provisions, the Attorney General may require a retailer, wholesaler, distributor, importer, or tobacco product manufacturer to submit any additional information, including, but not limited to, samples of the packaging or labeling of each brand family, as is necessary to enable the Attorney General to determine whether a tobacco product manufacturer or importer has complied, is in compliance, and, if applicable pursuant to subparagraph (C) of paragraph (2) of subdivision (c), has provided reasonable assurance that it will comply or continue to comply with this section, Section 30165.2, Part 8 (commencing with Section 14950) of Division 12 of the Health and Safety Code, and Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, and any regulations adopted pursuant to those provisions.

(h) To promote compliance with this section, the Attorney General may promulgate regulations requiring a tobacco product manufacturer subject to the requirements of paragraph (2) of subdivision (a) of Section 104557 to make the escrow deposits required in quarterly or other specified installments during the year in which the sales covered by the deposits are made. The Attorney General may require production of information sufficient to enable the Attorney General to determine the adequacy of the amount of the installment deposit.

(i) (1) In addition to any other civil or criminal penalty provided by law, upon a finding that a distributor licensed by the department has violated subdivision (e), or paragraph (1) of subdivision (g), the department may take the following actions:

(A) In the case of the first offense, the department may revoke or suspend the license or licenses issued to the distributor by the department, pursuant to the procedures applicable to the revocation of a license set forth in Sections 30148 and 30158, and Section 22980.3 of the Business and Professions Code. Each stamp affixed and each sale or offer to sell cigarettes in violation of subdivision (e) shall constitute a separate violation.

(B) In the case of a second or any subsequent offense that the department determines to be a violation of subdivision (e), in addition to the action authorized under subparagraph (A), the department may impose a civil penalty in an amount not to exceed the greater of either of the following:

(i) Five times the retail value of the cigarettes.

(ii) Five thousand dollars ($5,000).

(2) (A) A distributor licensed by the department in any action for a violation of subdivision (e) shall have a defense provided that either of the following is true:

(i) At the time of the violation, the cigarettes or tobacco products claimed to be the subject of the alleged violation belonged to a brand family and brand style that was included on the Directory.

(ii) At the time of the violation, the distributor possessed a copy of the Attorney General’s most recent written acknowledgment of receipt of the certifications and other information required as a condition of including the brand family and brand style on the Directory.

(B) The defense described in clause (ii) of subparagraph (A) is not available to a distributor if, at the time of the violation, the Attorney General had provided the distributor with written notice that the brand family or brand style had been excluded or removed from the Directory, or the distributor failed to provide the Attorney General with a current address for the receipt of written notice through email as required by paragraph (4) of subdivision (c).

(3) In addition to any other civil or criminal penalty provided by law, the Attorney General may bring a civil action on behalf of the state for civil penalties and injunctive relief against a retailer, distributor, wholesaler, manufacturer, importer, or other person that violates subdivision (e), or paragraph (1) or (4) of subdivision (g). The court, upon a finding of a violation, shall impose a civil penalty to be paid to the General Fund. The amount of the civil penalty may not exceed the greater of either of the following:

(A) Five times the retail value of the cigarettes.

(B) Five thousand dollars ($5,000).

(4) In addition to any other civil or criminal penalty provided by law, the Attorney General may bring a civil action on behalf of the state for civil penalties and injunctive relief against any nonparticipating manufacturer that does not submit timely, complete, and accurate certifications to the Attorney General under this section and subdivision (c) of Section 104557 of the Health and Safety Code regarding its sales of cigarettes in this state, whether directly or through a distributor, retailers, or similar intermediary or intermediaries, and tobacco escrow account compliance for its ongoing and previous sales in this state. The court, upon a finding of a violation, may do both of the following:

(A) Impose a civil penalty to be paid to the General Fund not to exceed one thousand dollars ($1,000) for each day the nonparticipating manufacturer fails to timely, completely, and accurately certify to the Attorney General.

(B) Issue an injunction prohibiting the nonparticipating manufacturer’s cigarettes from being sold in or into the state until the failure to certify has been fully cured.

(5) A violation of paragraph (3) of subdivision (e) shall constitute a misdemeanor.

(j) If a distributor affixes a stamp or meter impression to a package of cigarettes under subdivision (a) of Section 30163, or pays the tax levied under Sections 30123 and 30131.2 on a tobacco product defined as a cigarette under this section, during the period between the date on which the brand family of the cigarettes or tobacco product was excluded or removed from the Directory and the date on which the distributor received notice of the exclusion or removal under paragraph (4) of subdivision (c), then both of the following shall apply:

(1) The distributor shall be entitled to a credit for the tax paid by the distributor with respect to the cigarette or tobacco product to which the stamp or meter impression was affixed, or the tax paid during that period. The distributor shall comply with regulations prescribed by the department regarding refunds and credits that are adopted pursuant to Section 30177.5. If the distributor has sold the cigarette or tobacco product to a wholesaler or retailer, and has received payment from the wholesaler or retailer, the distributor shall provide the credit to the wholesaler or retailer.

(2) The brand family may not be included on or restored to the Directory until the tobacco product manufacturer has reimbursed the distributor for the cost to the distributor of the cigarettes or tobacco product to which the stamp or meter impression was affixed, or the tax paid, during that period.

(k) Any tobacco product manufacturer that falsely represents any of the following to any person shall be guilty of a misdemeanor for each false representation:

(1) Any information required under subdivision (b).

(2) That the tobacco product manufacturer is a participating manufacturer.

(3) That the tobacco product manufacturer or any other person has made any or all escrow payments required by paragraph (2) of subdivision (a) of Section 104557 of the Health and Safety Code, if applicable to the manufacturer.

(4) That it has complied with subdivision (b), or with paragraph (1) of subdivision (g), if applicable to the tobacco product manufacturer.

(l) A violation of subdivision (e) shall constitute unfair competition under Section 17200 of the Business and Professions Code.

(m) No A person shall not be issued a distributor’s license pursuant to Section 30140 unless that person has certified in writing that the person will comply fully with this section. Any person who makes a certification pursuant to this subdivision that asserts the truth of any material matter that the person knows to be false is guilty of a misdemeanor punishable by imprisonment of up to one year in the county jail, or a fine of not more than one thousand dollars ($1,000), or both the imprisonment and the fine.

(n) The Attorney General may adopt rules and regulations to implement this section. The rules and regulations may establish procedures for including in the Directory tobacco product manufacturers that are not participating manufacturers and were not required to make escrow payments under paragraph (2) of subdivision (a) of Section 104557 of the Health and Safety Code, for sales made during any preceding calendar year, and brand families of those tobacco product manufacturers. The rules and regulations may also establish procedures for seizure and destruction of cigarettes forfeited to the state pursuant to Section 30436 or Section 30449, including, but not limited to, the state facilities that may be used for the destruction of contraband cigarettes. Nothing in this section shall affect the authority of local law enforcement and local government officials to seize and destroy contraband under existing state or local law. The regulations adopted to effect the purposes of this section are emergency regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. For purposes of that chapter, including Section 11349.6 of the Government Code, the adoption of the regulations shall be considered by the Office of Administrative Law to be necessary for the immediate preservation of the public peace, health and safety, and general welfare. Notwithstanding subdivision (e) of Section 11346.1 of the Government Code, the regulations shall be repealed 180 days after their effective date, unless the adopting authority or agency complies with that chapter, as provided in subdivision (e) of Section 11346.1 of the Government Code.

(o) In any action brought by the state to enforce this section, the state shall be entitled to recover the costs of investigation, expert witness fees, costs of the action, and reasonable attorney’s fees.

(p) The Attorney General or the Attorney General’s authorized representative shall have the authority to:

(1) Conduct audits and investigations of the following:

(A) A nonparticipating manufacturer and its importers.

(B) Distributors, retailers, and wholesalers, as defined in Division 8.6 (commencing with Section 22970) of the Business and Profession Code, and this part.

(2) Upon reasonable cause to believe that a violation of this article or of Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, or of Section 22963 of the Business and Professions Code, or of Section 30101.7, has occurred or is reasonably likely to occur, issue subpoenas, compel the attendance of witnesses, administer oaths, certify to official acts, take depositions within and without the state, as now provided by law, and compel the production of pertinent books, payrolls, accounts, papers, records, documents, and testimony relevant to investigations. If a person refuses, without good cause, to be examined or to answer a legal and pertinent question, or to produce a document or other evidence when ordered to do so by the Attorney General or the Attorney General’s authorized representative, the Attorney General or the Attorney General’s authorized representative may apply to the superior court of the county where the person is in attendance or located, upon affidavit, for an order returnable in no less than two nor more than five days, directing the person to show cause why the person should not be examined, answer a legal or pertinent question, or produce a document, record, or other evidence. Upon the hearing, if the court determines that the person, without good cause, has refused to be examined, answer legal or pertinent questions, or produce a document, record, or other evidence, the court may order compliance with the subpoena and assess all costs and reasonable attorney’s fees against the person. If the motion for an order is granted and the person thereafter fails to comply with the order, the court may make orders as are provided for by law. Subpoenas shall be served and witness fees and mileage paid as allowed in civil cases in the courts of the State of California.

(q) In any action regarding a violation of this article or of Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, or of Section 22963 of the Business and Professions Code, or of Section 30101.7, or of Section 17200 of the Business and Professions Code, reports submitted to the department pursuant to Section 30182 or Section 22978.1, 22978.4, or 22978.5 of the Business and Professions Code, shall be admissible in evidence and shall be presumed to accurately state the number of cigarettes stamped during the time period by the stamping agent that submitted the report absent a contrary showing by the nonparticipating manufacturer or importer. Nothing in this section shall be construed as limiting or otherwise affecting the right of the state to maintain that reports are incorrect or do not accurately reflect a nonparticipating manufacturer’s sales in the state during the time period in question, and the presumption shall not apply in the event the state does so maintain.

(r) In any action regarding a violation of this article or of Article 3 (commencing with Section 104555) of Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, or of Section 22963 of the Business and Professions Code, or of Section 30101.7, or of Section 17200 of the Business and Professions Code, sufficient notice of the action to the alleged violator shall be given by complaint written in the English language. The state shall not be required to bear any expense of translating the complaint into another language.

(s) Unless otherwise expressly provided, the remedies or penalties provided by this section are cumulative to each other and to the remedies or penalties available under all other laws of this state.

SEC. 6.

Section 30435 of the Revenue and Taxation Code is amended to read:

30435.

(a) An employee of the department, upon presentation of the appropriate identification and credentials, is authorized to enter into, and conduct an inspection of any building, facility, site, or place described in subdivision (b) or (c).

(b) Any building, facility, site, or place at which cigarette or tobacco products are sold, produced, or stored, or any building, facility, site, or place for which there is evidence of either the evasion of the taxes imposed under this part, or the failure to comply with the requirements of the Master Settlement Agreement, as defined in subdivision (e) of Section 104556 of the Health and Safety Code, including, but not limited to, Section 30165.1.

(c) Any building, facility, site, or place where evidence of a violation of Section 104559.5 of the Health and Safety Code may be discovered.

(d) Any inspection performed under the authority of this section shall be performed in a reasonable manner and at a reasonable time, taking into consideration the normal business hours of the building, facility, site, or place that is inspected.

(e) Any person that refuses to allow an inspection authorized under this section is subject to the penalty imposed by Section 30471.

SEC. 7.

Section 30436 of the Revenue and Taxation Code is amended to read:

30436.

The following property, upon seizure by the department, is hereby forfeited to the state:

(a) Cigarettes or tobacco products transported upon the highways, roads, or streets of this state in violation of Section 30431 or Section 30432.

(b) Cigarettes not contained in packages to which are affixed California cigarette tax stamp or meter impressions or tobacco products upon which the tobacco products surtax has not been paid, which are offered for sale, possessed, kept, stored, or owned by any person with the intent of the person to sell the cigarettes or tobacco products without payment of the taxes imposed by this part.

(c) Any cigarette or tobacco product vending machine, together with the cigarettes, tobacco products, money, or other contents thereof, that has been loaded, in whole or in part, with packages of cigarettes that do not have California cigarette tax stamps or meter impressions affixed or tobacco products upon which the tobacco products surtax has not been paid.

(d) Cigarettes contained in packages to which are affixed California cigarette tax stamps or meter impressions in violation of Section 30163.

(e) Cigarettes or tobacco products to which are affixed California cigarette tax stamps or meter impressions, or for which tax is paid pursuant to Sections 30123 and 30131.2, in violation of Section 30165.1, regardless of whether the violation is subject to the defense described in paragraph (2) of subdivision (i) of Section 30165.1.

(f) Cigarettes or tobacco products to which are affixed California cigarette tax stamps or meter impressions, or for which tax is paid, that are offered for sale, possessed, kept, stored, or owned by any person with the intent to sell the cigarettes or tobacco products in violation of Section 104559.1 of the Health and Safety Code.

SEC. 8.

Section 30449 of the Revenue and Taxation Code is amended to read:

30449.

(a) Except as provided in subdivision (b), any property, except money, forfeited to the state under this chapter shall be sold by the department at public auction. Notice of the sale shall be given by posting a written notice of the time and place of sale in three public places in the county where the property is to be sold for not less than five days nor more than 10 days before the sale. If the department is unable to sell any property forfeited to the state under this part or, if the department determines that the property is unsalable, it may destroy that property.

(b) (1) Any property forfeited to the state pursuant to subdivision (e) of Section 30436 shall be destroyed.

(2) Any cigarettes forfeited to the state pursuant to subdivision (b) of Section 30436 shall be destroyed.

(3) Any cigarettes or tobacco products forfeited to the state pursuant to subdivision (f) of Section 30436 shall be destroyed.

(4) Any cigarettes or tobacco products forfeited to the state pursuant to Division 8.6 (commencing with Section 22970) of the Business and Professions Code shall be destroyed.

(c)(1) A record shall be kept of all property destroyed pursuant to this section showing the nature of the property, the quantity, the reason for, and the cost and manner of destruction.

(2) The person from whom the property was seized shall be liable for the cost of the destruction of property pursuant to this section.

(3) The proceeds of the sale and any money forfeited to the state shall be deposited in the General Fund.

SEC. 9.

The Legislature finds and declares that Section 3 of this act, which adds Section 104559.1 to the Health and Safety Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:

In order to facilitate manufacturer submissions of information related to brand styles of tobacco products for consideration by the Attorney General, it is necessary to protect the confidential and proprietary nature of that information.

SEC. 10.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

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