15 U.S.C. § 376a — Delivery sales

(a) In general. This section applies to every "delivery sale" — a sale of cigarettes or smokeless tobacco where the seller ships the product to the buyer instead of handing it over in person. For each delivery sale into a particular state and place, the delivery seller must follow four sets of rules: (1) the shipping and packaging rules in subsection (b); (2) the recordkeeping rules in subsection (c); (3) every state, local, tribal, or other law that would apply if the sale had happened entirely within that state and place — including excise taxes, licensing and tax-stamp requirements, rules against selling to minors, and any other payment or legal requirement on selling, distributing, or delivering cigarettes or smokeless tobacco; and (4) the tax-collection rules in subsection (d). (b) Shipping and packaging. (1) Every shipping package containing cigarettes or smokeless tobacco must carry a clear, visible statement — on the bill of lading, if any, and on the outside of the package next to the delivery address — reading: "CIGARETTES/NICOTINE/SMOKELESS TOBACCO: FEDERAL LAW REQUIRES THE PAYMENT OF ALL APPLICABLE EXCISE TAXES, AND COMPLIANCE WITH APPLICABLE LICENSING AND TAX-STAMPING OBLIGATIONS." (2) A package that should carry this statement but does not must be treated as undeliverable by a common carrier or delivery service, if the carrier knows or should know it holds cigarettes or smokeless tobacco. Before accepting a suspicious package, the carrier may demand proof it does not violate this rule, but the carrier is never required to open a package to check its contents. (3) A delivery seller cannot sell or deliver more than 10 pounds of cigarettes or smokeless tobacco in a single sale or single delivery. (4) A seller cannot deliver tobacco products to anyone under the legal purchase age set by the law where the delivery happens. To prevent that, the seller must ship using a method that requires the buyer, or another adult old enough to buy tobacco there, to sign for the package at the delivery address, and requires that signer to show a valid, government-issued photo ID proving their age. The seller also cannot accept a delivery order without first getting the buyer's full name, birth date, and address, and verifying that information through a commercial database built mainly from government sources and regularly used for age and identity checks. That database cannot be one the seller owns, controls, or can add information to. (c) Records. (1) Every delivery seller must keep a record of each delivery sale — the same information required by section 376(a)(2) — organized by state, and within each state, by city or town and zip code. (2) These records must be kept until the end of the fourth full calendar year after the sale. (3) State tax administrators, local governments and tribes with their own tobacco taxes, state attorneys general, local and tribal law enforcement chiefs, and the U.S. Attorney General must be able to see these records to check compliance with this chapter. (d) Delivery. (1) Except as noted in (2), a delivery seller cannot sell, deliver, or hand a shipment of cigarettes or smokeless tobacco to a carrier unless, beforehand, any state excise tax has been paid to the state, any local excise tax has been paid to the local government, and any required tax stamps or markings are properly affixed. (2) This advance-payment rule does not apply to smokeless tobacco if the state or local government instead requires the seller to collect the tax from the buyer and remit it later, as long as the seller actually follows that requirement. (e) List of unregistered or noncompliant delivery sellers. (1) Within 90 days after this subsection takes effect, the Attorney General must build a list of delivery sellers who have not registered under section 376(a) or who are otherwise breaking this chapter's rules, and must send it to every state's attorney general and tax administrator, to carriers and other companies that deliver small packages (including the Postal Service), and to anyone else who could help enforce this chapter, and must publicize it to others in the interstate delivery business. For each listed seller, the list must include, as far as known, every name and address the seller uses, its websites, main email, and phone number, and any other helpful information. The Attorney General must update and redistribute the list at least every four months, and must add sellers reported by state, local, or tribal governments, sending updates to those governments and to relevant carriers. Before listing anyone, the Attorney General must use reasonable care to keep the list accurate, give the seller written notice at least 14 days in advance explaining why, let the seller challenge the listing, investigate any challenge with the relevant law enforcement agencies and report back within 30 days, and promptly remove and correct any listing found to be wrong, incomplete, or unverifiable. The list is confidential; anyone who receives it must keep it confidential too, though it can be shared for enforcement purposes, and a carrier may still discuss a listing with the seller involved. (2) Starting 60 days after the list is first distributed, no one who received it, and no one who delivers cigarettes or smokeless tobacco, may knowingly complete a delivery for a listed person — unless the deliverer honestly believes the package holds no cigarettes or smokeless tobacco, the delivery goes to someone lawfully in the tobacco business, or the package weighs over 100 pounds and the deliverer has no reason to think it contains tobacco. The same rule applies 30 days after any update to the list, for that update. (3) A carrier is excused from the packaging-label duty in (b)(2) and from the listed carrier duties in (2) if it is covered by a qualifying nationwide settlement agreement about tobacco deliveries — including specific 2005–2006 New York agreements with DHL, UPS, and FedEx, if honored nationwide, or any other active nationwide state agreement blocking illegal tobacco deliveries — and it still qualifies even after such an agreement ends, as long as it keeps enforcing policies at least as strict. (4) If a carrier delays or stops a delivery because it believes the sender is on the list and no exception applies, the sender still must pay the carrier as though the delivery went through, plus possibly an extra fee if it cannot be delivered, and the carrier must offer an undeliverable package to law enforcement. Carriers must keep records of any such interrupted delivery for five years, share them on request with the Attorney General or with state, local, or tribal officials, who must then use the records only for enforcement and tax collection and keep personal information confidential. (5) No state, local, or tribal government may pass a law restricting how carriers deliver tobacco for sellers by demanding ID checks, signatures, tax-payment verification, specific package labels, or bans based on a non-federal delivery-seller list. This does not change other federal limits on state regulation of carriers under 49 U.S.C. §§ 14501(c)(1) or 41713(b)(4), and it does not stop a state from banning delivery sales of tobacco outright — except a state cannot enforce such a ban against a carrier without first proving the carrier is not exempt under (3). (6) Any state, local, or tribal government must give the Attorney General the names, addresses, and contact information of noncompliant sellers operating in its area, plus a list of carriers delivering tobacco there, updating this every four months until it withdraws in writing — after which the Attorney General must remove anyone listed only because of that government's reports. (7) The Attorney General must add government-reported sellers to the list within 30 days of receiving the report and send the update to the relevant carriers. (8) The Attorney General must try to notify a seller at least 14 days before first listing them, citing the relevant law. (9) Carriers are not required to check whether the list is complete, accurate, or current; to verify a sender is actually complying with this chapter; or to open packages to inspect them. Carriers need not hunt for sellers using a fake name or address to dodge the list, but cannot knowingly deliver for a listed seller they know is doing that. Carriers cannot be penalized under 49 U.S.C. § 14101(a) or any other law just for refusing to deliver for a listed seller, refusing tobacco deliveries generally, or delaying a delivery while making a good-faith effort to comply with this chapter. Nothing in section 376 or in subsections (a) through (d) of this section places extra responsibilities or liability on carriers. (f) Presumption. A delivery sale is treated as happening in the state and place where the buyer actually takes possession of the cigarettes or smokeless tobacco, and the delivery is treated as having been started or ordered by the delivery seller.