CHAPTER 541-D TOBACCO PRODUCT MANUFACTURERS' FAILURE TO COMPLY
Section 541-D:3
541-D:3 Certifications; Directory; Tax Stamps. –
I. 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 prescribed by the attorney general a certification to the attorney general no later than the thirtieth day of April each year, certifying under penalty of perjury that, as of the date of such certification, such tobacco product manufacturer either is a participating manufacturer, or is in full compliance with RSA 541-C.
(a) A participating manufacturer shall include in its certification a list of its brand families. The participating manufacturer shall update such list 30 days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the attorney general.
(b) (1) A non-participating manufacturer shall include in its certification, a complete list of all of its brand families:
(A) Separately listing brand families of cigarettes and the number of units sold for each brand family that were sold in the state during the preceding calendar year;
(B) All of its brand families that have been sold in the state at any time during the current calendar year;
(C) Indicating by an asterisk, any brand family sold in the state during the preceding calendar year that is no longer being sold in the state as of the date of such certification; and
(D) Identifying by name and address any other manufacturer of such brand families in the preceding calendar year.
(2) The non-participating manufacturer shall update such list 30 days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the attorney general.
(c) In the case of a non-participating manufacturer, such certification shall further certify:
(1) That such non-participating manufacturer is registered to do business in the state or has appointed an agent for service of process and provided notice thereof as required by subparagraph (d).
(2) That such non-participating manufacturer has:
(A) Established and continues to maintain a qualified escrow fund as that term is defined in RSA 541-C:2, VI; and
(B) Executed a qualified escrow agreement that has been reviewed and approved by the attorney general and that governs the qualified escrow fund.
(3) That such non-participating manufacturer is in full compliance with RSA 541-C and this section, and any rules adopted pursuant thereto;
(4) The name, address and telephone number of the financial institution where the non-participating manufacturer has established such qualified escrow fund, required pursuant to RSA 541-C:2, VI and all rules adopted thereunder; the account number of such qualified escrow fund and sub-account number for the state of New Hampshire; the amount such non-participating manufacturer placed in such fund for cigarettes sold in the state during the preceding calendar year, the date and amount of each such deposit, and such evidence or verification as may be deemed necessary by the attorney general to confirm the foregoing; and the amounts of and dates of any withdrawal or transfer of funds the non-participating manufacturer made at any time from such fund or from any other qualified escrow fund into which it ever made escrow payments pursuant to RSA 541-C and all rules adopted thereunder.
(d) A tobacco product manufacturer may not include a brand family in its certification unless:
(1) In the case of a participating manufacturer, said participating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of calculating its payments under the Master Settlement Agreement for the relevant year, in the volume and shares determined pursuant to the Master Settlement Agreement; and
(2) In the case of a non-participating manufacturer, said non-participating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of RSA 541-C.
(e) 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 Master Settlement Agreement or for purposes of RSA 541-C.
(f) The tobacco product manufacturers shall maintain all invoices and documentation of sales and other such information relied upon for such certification for a period of 5 years, unless otherwise required by law to maintain them for a greater period of time.
II. Not later than January 1, 2004 the attorney general shall develop and publish on the state website a directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of paragraph I and all brand families that are listed in such certifications ("the directory"), except as otherwise provided in this paragraph.
(a) The attorney general shall not include or retain in such directory the name or brand families of any non-participating manufacturer that fails to provide the required certification or whose certification the attorney general determines is not in compliance with subparagraphs I(b) and (c), unless the attorney general has determined that such violation has been cured to the satisfaction of the attorney general.
(b) Neither a tobacco product manufacturer nor brand family shall be included or retained in the directory if the attorney general concludes that:
(1) In the case of a non-participating manufacturer all escrow payments required pursuant to RSA 541-C:3 for any period for any brand family, whether or not listed by such non-participating manufacturer, have not been fully paid into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the attorney general; or
(2) All outstanding final judgments, including interest thereon, for violations of RSA 541-C have not been fully satisfied for such brand family and such manufacturer.
(c) The attorney general shall update the directory as necessary in order to correct mistakes and to add or remove a tobacco product manufacturer or brand families to keep the directory in conformity with the requirements of this chapter.
(d) Every stamping agent shall provide and update as necessary an electronic mail address to the attorney general for the purpose of receiving any notifications as may be required by this chapter.
III. Prohibition against stamping or sale or import of cigarettes not in the directory. It shall be unlawful for any person:
(a) To affix a stamp to a package or other container of cigarettes of a tobacco product manufacturer or brand family not included in the directory; and
(b) To sell, offer, or possess for sale in this state, or import for personal consumption in this state cigarettes of a tobacco product manufacturer or brand family not included in the directory.