Current through Register 1531, September 27, 2024
(1)
Purpose. The
purpose of 830 CMR 94E.1.1 is to explain the obligations of those persons and
entities appointed under M.G.L. c. 64C, § 30 as Cigarette Stampers; and
the obligations of Participating and Non-participating Manufacturers, under the
provisions of M.G.L. c. 94E: Provisions Concerning Certain Tobacco
Manufacturers and M.G.L. c. 94F: Complementary Provisions
Concerning Tobacco Product Manufacturers.
(2)
Definitions. For
the purpose of 830 CMR 94E.1.1, the following terms have the following
meanings, unless the context requires otherwise:
Brand Family. All styles of cigarettes
sold under the same trademark and differentiated from one another by means of
additional modifiers or descriptors including, but not limited to, "menthol",
"lights", "kings" and "100s", and includes any use of a 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.
Cigarette. As that term is defined in
M.G.L. chs. 94E and 94F and any regulations promulgated thereunder.
Cigarette Stamper. Any person or
entity duly appointed and authorized by the Commissioner to affix Massachusetts
cigarette excise stamps to any package or container of cigarettes requiring
such a stamp under the provisions of M.G.L. c. 64C.
Commissioner. The Commissioner of
Revenue or the Commissioner's duly authorized representative.
Master Settlement Agreement. The
Agreement dated November 23, 1998, between the Commonwealth of Massachusetts
and Participating Manufacturers.
Non-participating Manufacturer (NPM).
Any Tobacco Product Manufacturer who is not a Participating Manufacturer, as
both terms are defined in the Master Settlement Agreement.
Participating Manufacturer (PM). As
that term is defined in the Master Settlement Agreement and M.G.L. chs. 94E and
94F and any regulations promulgated thereunder.
Qualified Escrow Fund. As the term is
defined in M.G.L. c. 94E.
Tobacco Product Manufacturer.
Participating or Non-Participating Manufacturers as both are defined in the
Master Settlement Agreement and M.G.L. chs. 94E and 94F.
Units Sold. As defined in M.G.L. c.
94E.
(3)
Directory. The Commissioner shall publish a directory
listing all Tobacco Product Manufacturers who have provided certifications
conforming to the requirements of M.G.L. chs. 94E and 94F. The directory will
provide a complete listing of the brand families of each Tobacco Product
Manufacturer. The Commissioner shall update the directory as necessary. No
person shall stamp, sell, offer for sale or possess for sale in the
Commonwealth, any cigarettes of a Tobacco Product Manufacturer or brand family
that is not certified pursuant to M.G.L. chs. 94E and 94F and listed in the
directory.
(4)
General
Rules for Cigarette Stampers.
(a) Every Cigarette Stamper ("stamper")
stamping cigarettes for sale in Massachusetts must report information as
required by the Commissioner in a form and manner prescribed by the
Commissioner.
(b) A stamper must
certify in a form and manner prescribed by the Commissioner that it is
knowledgeable of the requirements of M.G.L. c. 94F and will comply with its
terms before the Commissioner shall issue or renew a stamper's
authority.
(c) A stamper may not
affix an excise stamp to a package or other container of cigarettes of a
Tobacco Product Manufacturer or brand family unless that product is listed in
the directory.
(d) Nothing herein
shall be construed to require a stamper to affix an excise stamp to any product
not requiring such a stamp under the provisions of M.G.L. c. 64C.
(e) A stamper must provide the Commissioner a
valid electronic mail address for the purpose of receiving any notices required
under M.G.L. chs. 94E and 94F.
(5)
General Rules for
Participating Manufacturers.
(a)
A PM that sells cigarettes in the Commonwealth either directly or through a
wholesaler, retailer or similar intermediary, shall file an annual
certification of its status as a participant in the master settlement agreement
with the Commissioner by April 30 in a form and manner prescribed by the
Commissioner.
(b) A PM shall
include in its certification a complete list of its brand families. The PM
shall update such list 30 days prior to any addition or modification to its
brand families by executing and delivering a supplemental certification to the
Commissioner.
(6)
General Rules for Non-participating Manufacturers.
(a) Every NPM that sells cigarettes in the
Commonwealth, either directly or through a wholesaler, retailer or similar
intermediary, shall file an annual certification with the Commissioner by April
30, that states the NPM is in full compliance with the provisions of M.G.L.
chs. 94E and 94F and any regulations promulgated thereunder.
(b) A NPM shall include in its certification
a complete list of all of its brand families, with:
1. for each brand family, the number of units
sold in the Commonwealth during the preceding calendar year;
2. a designation of all of the brand families
that have been sold in the Commonwealth at any time during the current calendar
year;
3. a designation of all of
the brand families sold in the Commonwealth during the preceding calendar year
that no longer are being sold in the Commonwealth as of the date of the
certification; and
4. the
identification, by name and address, of any other tobacco product manufacturer
of such brand families in the preceding calendar year or current calendar
year.
(c) A NPM shall
update its list of brand families 30 days prior to any addition or modification
to its brand families by executing and delivering a supplemental certification
to the Commissioner.
(d) The
Commissioner may require a Tobacco Product Manufacturer subject to the
requirements of M.G.L. c. 94F, to make its qualified escrow deposit in
quarterly installments. The Commissioner may require production of additional
information as necessary to determine the adequacy of the amount of an escrow
installment deposit.
(7)
Failure to Make Escrow Payments. Any NPM that fails in
any year to place the required funds in a qualified escrow fund shall be liable
to such enforcement actions and civil penalties as are authorized by the
provisions of M.G.L. chs. 94E and 94F.
(8)
Enforcement.
(a) The Commissioner shall have the authority
to use any one or more administrative or judicial remedies available under the
provisions of M.G.L. chs. 62C, 64C, 94E or 94F to compel compliance with the
statutes and 830 CMR 94E.1.1.
(b)
The Commissioner may require a stamper or Tobacco Product Manufacturer to
submit additional information including, but not limited to, samples of the
packaging and labeling of each brand family, as may be necessary to enable the
Commissioner to determine whether a stamper or a Tobacco Product Manufacturer
is in compliance with M.G.L. chs. 94E and 94F.
(c) Remedies the Commissioner may exercise,
without limitation, include the Commissioner's authority:
1. to compel the production of books and
records and to take testimony and proofs under M.G.L. c. 62C, §
70;
2. to lien under M.G.L. c. 62C,
§ 50 and levy under M.G.L. c. 62C, § 53;
3. to discontinue the sale of cigarette
excise stamps to a stamper under M.G.L. c. 64C, § 30;
4. to revoke or suspend the stamping
authority of a stamper in the manner provided in M.G.L. chs. 62C or 64C, in
addition to or in lieu of any other civil or criminal remedy
provided by law, upon a determination that the stamper violated M.G.L. c. 94F
or 830 CMR 94E.1.1. Each stamp affixed and each sale or offer to sell
cigarettes in violation of M.G.L. c. 94F, § 2(h) shall constitute a
separate violation. The Commissioner may also impose a civil penalty in an
amount not to exceed the greater of 500% of the retail value of the cigarettes
sold or $5,000 for each violation;
5. to seek criminal penalties if any person
sells or distributes cigarettes in violation of M.G.L. c. 94F, § 2(h) or
acquires, holds, owns, possesses, transports, imports or causes to be imported
cigarettes that the person knows or should know are intended for distribution
or sale in the Commonwealth in violation of M.G.L. c. 94F, § 2(h). A
violation of 830 CMR 94E.1.1(8)(c)5. may result in a fine of not more than
$1,000 or by imprisonment for not more than one year, or both; and
6. to destroy as contraband and not resell
any cigarettes seized as a result of a violation of M.G.L. c. 94F, §
2(h).
(9)
Record Retention. Every person subject to the
requirements of 830 CMR 94E.1.1 is required to maintain a complete and accurate
set of records of all invoices and other documentation of sales of tobacco
products, as well as any other information relied upon in reporting to the
Commissioner pursuant to M.G.L. chs. 94E and 94F, for a period of five
years.
(10)
Disclosure. Information supplied to the Commissioner
under M.G.L. chs. 94E, 94F and 830 CMR 94E.1.1 may be shared with the
Massachusetts Attorney General for the purposes of enforcing M.G.L. chs. 94E or
94F and 830 CMR 94E.1.1.
REGULATORY AUTHORITY
830 CMR 94E.1.1: M.G.L. c. 14, § 6(1); M.G.L. c. 62C,
§ 3; M.G.L. c. 94E, and M.G.L. c.
94F.
