SENATE, No. 693
STATE OF NEW JERSEY
211th LEGISLATURE
INTRODUCED JANUARY 26, 2004
Sponsored by:
Senator JOSEPH F. VITALE
District 19 (Middlesex)
Senator ELLEN KARCHER
District 12 (Mercer and Monmouth)
Co-Sponsored by:
Senator Buono
SYNOPSIS
Prohibits Internet and mail-order cigarette sales.
CURRENT VERSION OF TEXT
As introduced.
(Sponsorship Updated As Of: 2/6/2004)
An Act concerning the sale of cigarettes and supplementing Titles 2A and 2C of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. a. It is unlawful for any person engaged in the business of selling cigarettes to ship or cause to be shipped any cigarettes to a person in this State who is not:
(1) a person licensed as a wholesale or retail dealer pursuant to P.L.1948, c.65 (C.54:40A-1 et seq.);
(2) an export warehouse proprietor pursuant to chapter 52 of the federal Internal Revenue Code or an operator of a customs bonded warehouse pursuant to 19 U.S.C. s.1311 or 19 U.S.C. s.1555; or
(3) a person who is an officer, employee or agent of the United States government, this State or a department, agency instrumentality or political subdivision of the United States or this State, when that person is acting in accordance with his official duties.
b. It is unlawful for a common or contract carrier to knowingly transport cigarettes to a person in this State reasonably believed by that carrier to be other than a person described in paragraph (1), (2) or (3) of subsection a. of this section.
c. For the purposes of subsection a. of this section, if cigarettes are transported to a home or residence, it shall be presumed that the common or contract carrier knew that the person in the home or residence was not a person described in paragraph (1), (2) or (3) of subsection a. of this section. It is unlawful for any other person to knowingly transport cigarettes to a person in this State, other than to a person described in paragraph (1), (2) or (3) of subsection a. of this section.
d. Nothing in this section shall be construed to prohibit a person other than a common or contract carrier from transporting not more than 800 cigarettes at any one time to any person in this State.
2. When a person engaged in the business of selling cigarettes ships or causes to be shipped any cigarettes to a person in this State, other than in the cigarette manufacturer's original container or wrapping, the container or wrapping shall be plainly and visibly marked with the word "cigarettes."
3. A law enforcement officer, acting pursuant to his official duties, who discovers any cigarettes that have been, or are being, shipped or transported in violation of this act, is authorized to seize and take possession of the cigarettes, and those cigarettes shall be subject to a forfeiture action pursuant to the procedures provided for in law.
4. A person who violates the provisions of section 1 or 2 of this act is liable to a civil penalty of not more than $5,000 for each offense, to be sued for and collected in a summary proceeding by the Director of the Division of Taxation pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). A penalty imposed pursuant to this section shall be in addition to any penalty that may be imposed pursuant to section 5 of P.L. , c. (C. )(pending before the Legislature as this bill).
5. A person who violates the provisions of section 1 of P.L. ,
c. (C. )(pending before the Legislature as this bill) is a disorderly person for a first offense, and guilty of a crime of the fourth degree for a second or subsequent offense. A penalty imposed pursuant to this section shall be in addition to any penalty that may be imposed pursuant to section 4 of P.L. , c. (C. )(pending before the Legislature as this bill).
6. This act shall take effect on the first day of the fifth month after enactment.
STATEMENT
This bill would prohibit Internet and mail-order cigarette sales directly to New Jersey consumers.
The bill is modeled after a 2000 New York State law that prohibits cigarette sellers and common and contract carriers from shipping and transporting cigarettes directly to consumers in that state (codified at section 1399-11 of New York's Public Health Law). The New York statute was upheld by the United States Court of Appeals for the Second Circuit in its February 13, 2003 decision on an action by Brown & Williamson Tobacco Corporation and Santa Fe Natural Tobacco Company challenging the constitutionality of the law as a violation of the Commerce Clause of the United States Constitution (reversing a 2001 decision by the United States District Court for the Southern District of New York). The Court of Appeals held that the New York statute does not discriminate against, and would have only "incidental effects" on, interstate commerce; and that, to the extent that its provisions burden interstate commerce, that burden is significantly outweighed by the "putative local benefits" of the law, including the public health goal of reducing the demand for cigarettes by requiring that purchasers pay a high cigarette excise tax.
In addition to the prohibition on Internet and mail-order cigarette sales, the bill provides that when a person engaged in the business of selling cigarettes ships or causes to be shipped any cigarettes to a person in this State, other than in the cigarette manufacturer's original container or wrapping, the container or wrapping is to be plainly and visibly marked with the word "cigarettes."
The bill further provides that:
-- a law enforcement officer, acting pursuant to his official duties, who discovers any cigarettes that have been, or are being, shipped or transported in violation of the bill, is authorized to seize and take possession of the cigarettes; and
-- those cigarettes are subject to a forfeiture action pursuant to the procedures provided for in law.
A person who violates the provisions of the bill that prohibit Internet and mail-order cigarette sales directly to New Jersey consumers is:
-- a disorderly person for a first offense (punishable by imprisonment for up to six months and a fine of up to $1,000);
-- guilty of a crime of the fourth degree for a second or subsequent offense (punishable by imprisonment for up to 18 months and a fine of up to $10,000); and
-- in addition, is liable to a civil penalty of not more than $5,000 for each offense, to be sued for and collected in a summary proceeding by the Director of the Division of Taxation pursuant to the "Penalty Enforcement Law of 1999."
Also, a person who violates the provisions of the bill concerning the marking of a container or wrapping in which cigarettes are shipped is liable to a civil penalty of not more than $5,000 for each offense, to be sued for and collected in a summary proceeding by the Director of the Division of Taxation pursuant to the "Penalty Enforcement Law of 1999."
The bill would take effect on the first day of the fifth month after its enactment.