or a retailer.HOUSE BILL 83
46th legislature - STATE OF NEW MEXICO - second session, 2004
INTRODUCED BY
Gail C. Beam
FOR THE TOBACCO SETTLEMENT REVENUE OVERSIGHT COMMITTEE
AN ACT
RELATING TO TOBACCO; ENACTING THE TOBACCO DELIVERY SALES ACT; PROVIDING FOR AGE VERIFICATION, TAX COMPLIANCE, REPORTING AND SHIPPING REQUIREMENTS; PROVIDING FOR REGISTRATION OF SELLERS; IMPOSING PENALTIES; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Tobacco Delivery Sales Act".
Section 2. DEFINITIONS.--As used in the Tobacco Delivery Sales Act:
A. "consumer" means an individual who purchases a tobacco product by means of a delivery sale;
B. "delivery sale" means a sale of a tobacco product to a consumer in New Mexico when the consumer submits the order for the sale by written, telephonic or electronic means or when the tobacco product is delivered by mail or other delivery service;
C. "delivery service" means a person or entity engaged in the delivery of letters, packages or other containers or that otherwise delivers a tobacco product to a consumer in New Mexico;
D. "department" means the taxation and revenue department, the secretary of taxation and revenue or an employee of the department exercising authority lawfully delegated to that employee;
E. "seller" means a person or an agent or employee of a person who sells or transfers a tobacco product by means of a delivery sale; and
F. "tobacco product" means tobacco or any consumable product that contains tobacco, including cigarettes, cigars, chewing tobacco, smokeless tobacco, bidis and kreteks.
Section 3. GENERAL PROVISIONS.--
A. A seller shall comply with all the requirements set forth in the Tobacco Delivery Sales Act, the Cigarette Tax Act, the Tobacco Products Act and all other laws applicable to sales of tobacco products that occur entirely within New Mexico, including laws imposing excise tax, gross receipts tax, licensing, stamping, escrow payments and other payment obligations.
B. A seller shall register with credit and debit card companies to ensure that all related receipts, invoices, summaries or statements of a delivery sale clearly indicate that the seller is a seller of tobacco products or that the transaction is a sale of a tobacco product.
C. A delivery sale shall be made only to a physical street address.
D. A delivery sale of a tobacco product to an
individual in New Mexico shall be deemed a sale to a consumer
unless the individual is a licensed distributor
or a retailer.
E. A person in the business of manufacturing, distributing or selling tobacco products shall not deliver, or cause to be delivered, a tobacco product to a home or residence or to a consumer unless the consumer has specifically requested the tobacco product and paid for it.
Section 4. AGE VERIFICATION.--
A. A seller shall not accept an order for or make a delivery sale of a tobacco product to an individual who is under eighteen years of age.
B. Before mailing or shipping a tobacco product in connection with a delivery sale, a seller shall obtain reliable confirmation that the prospective consumer is at least eighteen years old. The seller shall:
(1) obtain identification in the form of:
(a) government-issued identification, or a copy of it, bearing a photograph of the consumer; or
(b) information from government-issued photo identification that includes the consumer's full name, address, date of birth and the type and number of the government-issued identification;
(2) obtain a statement signed by the prospective consumer in writing or electronically that:
(a) certifies the prospective consumer's name, address and date of birth;
(b) confirms that the prospective consumer understands that: 1) signing another person's name is illegal; 2) falsely certifying to be another person is illegal; 3) the sale or procurement of a tobacco product to an individual under the age of eighteen is illegal; and 4) the purchase of a tobacco product by an individual under the age of eighteen is illegal; and
(c) confirms that the prospective consumer understands that providing false information may subject the consumer to monetary fines or imprisonment, or both;
(3) verify the information provided pursuant to Paragraph (1) of this subsection against a commercially available database consisting of age and identity information obtained solely from government records; and
(4) accept payment for the delivery sale only by a credit or debit card issued to the consumer with the same residential address.
C. For the initial purchase by a specific consumer, a seller shall mail a written confirmation of the tobacco product order placed to the delivery address of the consumer.
D. A seller shall not use any of the information obtained from a prospective or actual consumer, including any information that may be used to contact the consumer, for any purpose other than to complete the delivery sale and to comply with the Tobacco Delivery Sales Act and other applicable state and federal laws relating to the delivery sale unless the consumer affirmatively provides authorization for a specified use and the seller regularly provides the consumer with clear and conspicuous opportunities to revoke the authorization.
Section 5. SHIPPING REQUIREMENTS.--
A. A seller shall:
(1) include as part of the shipping documents a clear and conspicuous statement as follows: "TOBACCO PRODUCT: NEW MEXICO LAW PROHIBITS SHIPPING TO INDIVIDUALS UNDER THE AGE OF 18 AND REQUIRES PAYMENT OF ALL APPLICABLE TAXES";
(2) include, on the outside of the package, a clear and conspicuous label stating: "PACKAGE CONTAINS TOBACCO PRODUCT";
(3) use a method of shipping that obligates the delivery service to require:
(a) that only the consumer who placed the delivery sale order, or an adult designated by the consumer and who resides at the shipping address, may sign for and accept delivery of the shipping container; and
(b) proof, in the form of government-issued identification bearing a photograph of the individual who signs for and accepts delivery, that the individual is at least eighteen years old; and
(4) provide to the delivery service evidence of full compliance with Section 8 of the Tobacco Delivery Sales Act and of the seller's registration with the department.
B. A delivery service shall deliver a tobacco product only in accordance with the provisions set forth in Subsection A of this section.
C. A delivery service shall not deliver a tobacco product on behalf of a seller that does not comply with the provisions set forth in Subsection A of this section.
D. A delivery service that chooses not to deliver a tobacco product shall not be subject to any liability or penalty for so choosing.
Section 6. MAXIMUM DELIVERY AMOUNTS.--
A. A tobacco product delivered in a delivery sale cannot exceed ten cartons of cigarettes, two hundred cigars, one hundred ounces of smokeless tobacco or pipe tobacco or such comparable amounts of other tobacco products as may be determined by the department.
B. A seller shall not make more than one delivery sale to a specific consumer in a seven-day period.
Section 7. REGISTRATION--RECORDS--REPORTS--CONFIDENTIALITY.--
A. A seller shall register with the department and file a statement setting forth the seller's:
(1) name and trade name;
(2) addresses and phone numbers of its principal place of business and any other place of business;
(3) email address;
(4) web site addresses that relate to delivery sales; and
(5) other information as the department may require.
B. A seller shall file with the department on a monthly basis a report providing information on delivery sales made in the previous calendar month. The report shall include for each delivery sale:
(1) the name and address of the consumer to whom the sale was made;
(2) the type, brand and quantity of each tobacco product sold;
(3) the date of the sale; and
(4) the name, address and telephone number of the delivery service used.
C. The department shall prescribe the manner and form of the report required pursuant to Subsection B of this section and may require invoices and additional information to be submitted.
D. A seller shall retain all records required pursuant to Subsections B and C of this section for a period of three years from the end of the year in which the transaction occurred unless otherwise required by law to retain them for a longer period of time.
E. The department shall maintain the confidentiality of the names and addresses of individuals identified pursuant to the provisions of Subsection B of this section and shall not use this information for any purpose other than the enforcement of the Tobacco Delivery Sales Act.
F. The department shall make public the information provided pursuant to Subsection A of this section, including posting on a public web site a current list of those registered sellers that are in compliance with state laws.
Section 8. COLLECTION OF TAXES.--
A. A seller shall remit to the department on a monthly basis all excise and other taxes applicable to its delivery sales in the manner and on the form prescribed by the department.
B. A seller shall not make a delivery sale of cigarettes unless the cigarette packages are stamped in accordance with the provisions of the Cigarette Tax Act. A cigarette package that is stamped pursuant to the provisions of the Cigarette Tax Act shall be sufficient evidence to a delivery service that excise taxes have been paid on that cigarette package.
C. The department may impose additional requirements on sellers to ensure compliance with applicable tax laws.
Section 9. PENALTIES.--
A. A first violation by a seller of a provision of the Tobacco Delivery Sales Act shall be punishable by a fine of one thousand dollars ($1,000) or five times the retail value of the tobacco products involved, whichever is greater.
B. A second or subsequent violation by a seller of a provision of the Tobacco Delivery Sales Act is a misdemeanor punishable by a fine of five thousand dollars ($5,000) or ten times the retail value of the tobacco products involved, whichever is greater, or imprisonment for a definite term in accordance with the provisions of Section 31-19-1 NMSA 1978, or both. Upon conviction, the department may prohibit the seller from selling tobacco products in New Mexico for a period up to five years.
C. A seller who fails to pay a tax required in connection with a delivery sale shall pay, in addition to any other penalty, a penalty of five hundred percent of the tax due but unpaid.
D. A delivery service that knowingly violates a provision of the Tobacco Delivery Sales Act shall, for a first violation, be fined one thousand dollars ($1,000) or five times the retail value of the tobacco products involved, whichever is greater. A second or subsequent violation by a delivery service shall be punishable by a fine of five thousand dollars ($5,000) or ten times the retail value of the tobacco products involved, whichever is greater. Upon a second or subsequent violation, the department may prohibit the delivery service from delivering tobacco products for a period up to five years.
E. A person who provides false information to obtain a tobacco product by means of a delivery sale is guilty of a petty misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978.
F. A tobacco product sold or attempted to be sold in a delivery sale in violation of the Tobacco Delivery Sales Act shall be forfeited to the department pursuant to the Forfeiture Act.
Section 10. ENFORCEMENT.--
A. The department, the attorney general, a district attorney or a person holding a permit under 26 U.S.C. 5713 may bring an action to enforce the provisions of the Tobacco Delivery Sales Act or to prevent or restrain violations of that act.
B. The department, a district attorney or a person bringing an action under this section shall provide the attorney general at least fifteen days' notice prior to bringing the action.
C. The attorney general may join in any action brought pursuant to the provisions of the Tobacco Delivery Sales Act.
Section 11. LOCAL LAWS.--The Tobacco Delivery Sales Act does not restrict or limit the power of a local government to adopt and enforce ordinances that meet the minimum standards set forth in the act.
Section 12. APPROPRIATION.--One hundred thousand dollars ($100,000) is appropriated from the general fund to the taxation and revenue department for expenditure in fiscal year 2005 to implement the provisions of this act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2005 shall revert to the general fund.
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