Current through Register Vol. 47, No. 25, June 23, 2023
a) The
AGO shall develop, maintain, and publish a directory of participating manufacturers who have generally
performed their financial obligations under the MSA, and a separate directory of compliant NPMs who have
established a qualified escrow account and who are otherwise in compliance with Section 15(a)(2) of the
Escrow Act and Section 15(a)(2) and (3) of the Escrow Enforcement Act.
b) The directories shall be published on the AGO's website (www.illinoisattorneygeneral.gov) and shall be revised as
necessary as new information is received by the AGO.
1) If the AGO intends
to remove or not list a TPM from the directory, the AGO shall send a notice of intent to deny the TPM or its
agent for service of process. The notice of intent to deny shall include:
A) the factual and legal deficiencies upon which the AGO's intended action
rests;
B) the actions that the TPM must undertake to cure the
factual or legal deficiencies upon which the intended action is based; and
C) a notification that the TPM shall have 10 calendar days to cure
deficiencies and submit documentation or other information of its attempt to cure to the AGO.
2) The AGO may extend the time period for a TPM to cure its
deficiencies.
c) If the TPM's deficiencies have been
cured, a notice of approval shall be sent to the TPM or its agent for service of process. If the TPM's
deficiencies have not been cured, a notice of removal or refusal to list shall be sent to the TPM or its
agent for service of process. The notice of approval, removal or refusal to list shall be sent by certified
or registered U.S. Mail or by other commercial mail delivery service 10 days prior to the change. The notice
of approval, removal or refusal to list shall be a final administrative decision. Any TPM may request
judicial review of the final administrative decision in the manner set forth in Section
250.100.
d) If the AGO decides to add or remove a TPM or brand family from the
directory, notice shall be provided to distributors. The notice to distributors shall be provided by U.S.
Mail, other commercial mail delivery service, electronic mail or facsimile 10 calendar days prior to the
change. In addition, notice of the directory change may be published on the AGO's website (www.illinoisattorneygeneral.gov) 10 calendar days prior to the
change.
e) The AGO shall not place an NPM on the directory of
compliant NPMs unless all outstanding final judgments (including interest thereon) for violations of the
Escrow Act and the Escrow Enforcement Act have been fully satisfied for that brand family and NPM, and:
1) the NPM has had sales in one or more Liability Years prior to the date
of the directory's publication and it is in full compliance with its escrow obligations under the Escrow Act
and the Escrow Enforcement Act and Section
250.70 as
to such sales, including the payment of any applicable penalties; or
2) the NPM is a successor to a tobacco product manufacturer that has had
sales in one or more Liability Years prior to the date of the directory's publication, and it has deposited
funds into a qualified escrow account to fully fund all prior Liability Year obligations for all of its
predecessor's brands and paid all the penalties due for all such brands for all prior Liability Years, if the
NPM's predecessor has not already done so; or
3) the NPM has had
no sales in any prior Liability Years but has established a qualifying escrow account (as evidenced by an
approved Escrow Agreement) and is otherwise compliant with the Escrow Act and the Escrow Enforcement
Act.
f) Under Section 15(a)(2) of the Escrow Act, each
NPM for a particular brand family is jointly and severally liable with every other NPM for that particular
brand family for all Liability Year escrow obligations and penalties.
g) In determining compliance for purposes of placing a TPM on the directory
of participating manufacturers and the directory of compliant NPMs, the AGO may consider the following
factors:
1) the requirements for placement on the directory as set forth in
this Part and in the Acts;
2) distributor filings;
3) the TPM's certifications, affidavits, and supporting
documents;
4) the lack of completeness of the TPM's
certifications, affidavits, and supporting documents;
5) the
NPM's escrow agreement;
6) the failure of a TPM who is a PM to
generally perform its financial obligations under the MSA, or of the TPM, predecessor of the TPM, or previous
TPM of the brand families to make its full MSA payments unless as otherwise provided in MSA Section
XI(d);
7) the failure of the NPM, predecessor of the NPM, or
previous NPM of the brand families to timely pay or fully fund its qualified escrow account or to timely or
entirely pay judgments or penalties due to a qualified escrow account or to the AGO under the Escrow Act or
other states' tobacco statutes;
8) whether the TPM is, in fact,
the manufacturer of the brands with respect to which the TPM seeks to be listed as compliant;
9) whether acting on its own or through a distributor, wholesaler,
retailer, or similar intermediary or intermediaries or another TPM, the TPM's having engaged in business as a
distributor (as defined in the Tobacco Products Tax Act of 1995 [ 35 ILCS 143 ]) without first having
obtained a license to do so from the Department;
10) the TPM's
failure to cure the deficiencies identified in a notice of intent to deny under this Part within 10 calendar
days after receiving the notice;
11) the TPM's failure to provide
additional information as requested by the AGO;
12) information
from any other source (e.g., U.S. Department of the Treasury, Department of Revenue, distributors) that
pertains to the verification of the accuracy of the information provided by the TPM;
13) whether the TPM is controlled, managed, or operated by a person with a
current or prior interest in any other TPM that is not or has not been compliant with the Escrow Act or that
is the subject of an injunction for failure to comply with the Escrow Act; and
14) any other facts or circumstances that are relevant to the certification
of the TPM.
Amended at 31 Ill. Reg. 12718, effective August 24, 2007
Amended at
41
Ill. Reg. 2068, effective 2/2/2017
