[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3047 Introduced in House (IH)]






108th CONGRESS
  1st Session
                                H. R. 3047

     To prevent the sale of tobacco products to minors by means of 
        electronic or mail-order sales, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 9, 2003

  Mr. Meehan introduced the following bill; which was referred to the 
                    Committee on Energy and Commerce

_______________________________________________________________________

                                 A BILL


 
     To prevent the sale of tobacco products to minors by means of 
        electronic or mail-order sales, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Tobacco Free Internet for Kids Act 
of 2003''.

SEC. 2. DEFINITIONS.

    In this Act--
            (1) The term ``attorney general'', with respect to a State, 
        means the attorney general or other chief law enforcement 
        officer of the State, or the designee of that officer.
            (2) The term ``consumer'' means an individual who purchases 
        or arranges or attempts to purchase a tobacco product either 
        for the consumer or on behalf of some other person.
            (3) The term ``delivery sale'' means any sale of tobacco 
        products for personal consumption in or affecting interstate 
        commerce to a consumer if--
                    (A) the consumer submits the order for such sale by 
                means of a telephone or other method of voice 
                transmission, the mails, or the Internet or other 
                online service, or the seller is otherwise not in the 
                physical presence of the buyer when the request for 
                purchase or order is made; or
                    (B) the tobacco product is not delivered directly 
                to a consumer by the seller at the time and place of 
                purchase; or
                    (C) the tobacco product is delivered by use of a 
                common carrier, private delivery service, or the mails, 
                or the seller is not in the physical presence of the 
                buyer when the buyer obtains personal possession of the 
                delivered cigarettes or smokeless tobacco; and
                    (D) notwithstanding the foregoing, any delivery of 
                tobacco products to a home or residential address by a 
                person in the business of manufacturing, distributing, 
                or selling tobacco products, whether any fee is charged 
                for the tobacco products or not, shall be considered a 
                delivery sale.
            (4) The term ``delivery seller'' means any person making a 
        delivery sale.
            (5) The term ``interstate commerce'' means commerce between 
        a State and any place outside the State, commerce between a 
        State and any Indian lands in the State, or commerce between 
        points in the same State but though any place outside the State 
        or through any Indian lands.
            (6) The term ``minor'' means an individual who has not 
        attained the age of 18 years or, if older, the minimum age for 
        the purchase of a tobacco product under applicable Federal, 
        State, local, or Indian tribal law.
            (7) The term ``person'' means any corporation, company, 
        partnership, joint stock companies, foundation, association, 
        organization, individual, State or local government, Indian 
        Tribal government, governmental organization, or any group 
        thereof.
            (8) The term ``State'' includes the District of Columbia, 
        the Commonwealth of Puerto Rico, and any other commonwealth, 
        territory, or possession of the United States.
            (9) The term ``tobacco product'' has the meaning given that 
        term in section 5702(c) of the Internal Revenue Code of 1986, 
        and also includes any other product that contains tobacco and 
        is meant for human consumption.

SEC. 3. DELIVERY SALE REQUIREMENTS.

    (a) No Sales to Minors.--No delivery seller shall sell or deliver a 
tobacco product to a minor or cause any tobacco product to be sold or 
delivered to a minor.
    (b) No Unrequested Deliveries of Tobacco Products.--No person in 
the business of manufacturing, distributing, or selling tobacco 
products shall deliver any tobacco products to any home or residence or 
to any consumer for personal consumption, unless the person receiving 
the tobacco products has specifically requested the delivery of the 
tobacco products and paid for them.
    (c) State Registration.--A delivery seller shall not make any 
delivery sale or related delivery to a consumer physically located in a 
State unless the delivery seller has already registered with that State 
as a delivery seller of tobacco products. Registration with the State 
pursuant to section 2 of the Act of October 19, 1949, commonly referred 
to as the ``Jenkins Act'' (15 U.S.C. 376) shall satisfy the 
registration requirement of this subsection.
    (d) Verification of Consumer Age, Identity, and Address at 
Purchase.--No person shall accept a delivery sale order from a person 
or make a delivery sale or initiate any related tobacco product 
delivery to any person without first verifying the consumer's age, 
identity, and residential address by one of the following means--
            (1) obtaining from the consumer the consumer's name, 
        address, birth date and residential address and verifying that 
        information through the use of a commercially available 
        database or aggregate of databases consisting of age and 
        identity information from government-issued identification 
        supplemented by age and identity information from other 
        government or validated commercial sources that is regularly 
        used by government and businesses for the purpose of identity 
        verification and authentication. But no database or databases 
        being used for such age and identity verification shall be in 
        the possession or under the control of the delivery seller or 
        be subject to any changes or supplementation by the delivery 
        seller; and
            (2) obtaining a statement signed by the consumer (which may 
        be a statement provided or obtained and signed electronically) 
        providing certification from the consumer that--
                    (A) all of the information provided by the 
                consumer, including the consumer's name, address, and 
                birth date, are correct;
                    (B) the consumer understands that forging another 
                person's signature is illegal; and
                    (C) the consumer understands that tobacco product 
                sales to persons under the applicable legal minimum age 
                (which must be specified, numerically, in the 
                statement) are illegal and that tobacco product 
                purchases by a person under the legal minimum age or by 
                any person for the subsequent delivery or sale to 
                persons under the legal minimum age may subject the 
                person to monetary fines or imprisonment, or both, 
                under applicable state law; or
            (3) using any other age and identity verification procedure 
        established by the United States Attorney General that employs 
        new technologies to provide even more stringent and accurate 
        identity and age verification than the procedure in subsection 
        (1).
    (e) Confidentiality of Consumer Information.--A delivery seller 
shall not use any of the age and identity information they obtain from 
a prospective or actual consumer, including any information that could 
be used to contact the consumer, for any other purposes other than to 
complete the delivery sale or to comply with this Act or other laws 
unless the consumer affirmatively provides authorization for such 
specified other use and the delivery seller regularly provides the 
consumer with clear and conspicuous opportunities to revoke that 
authorization. This subsection shall not be construed to limit, 
restrict, or reduce any other laws protecting the disclosure or 
unauthorized use of personal or consumer information.
    (f) Payment Methods.--A delivery seller shall accept payment from a 
consumer only by debit card, charge card, or credit card issued to the 
consumer identified under subsection (d) with the same residential 
address, and the delivery seller shall ensure that any related receipt, 
invoice, or summary of a payment provided by a debit card, credit card, 
or charge card company to the consumer clearly indicates (by including 
the use of the word ``tobacco'' or ``cigarette'', and by other means) 
that the delivery seller is a seller of tobacco products or that the 
transaction is a sale of a tobacco product.
    (g) Verification of Order.--At least five business days prior to 
delivering any tobacco product to a consumer, a delivery seller shall 
send to the name and address provided by the consumer pursuant to 
subsection (d) a letter that describes the order and asks that the 
recipient reply immediately (to a specified toll-free phone number or 
email address) if the recipient did not place the order or otherwise 
desires to cancel it.
    (h) Delivery Addresses.--Any tobacco product sold through or 
delivered pursuant to a delivery sale shall not be delivered to any 
address outside the United States, and shall be delivered only to a 
consumer's residential address unless the consumer is a verified member 
of the U.S. Armed Forces, as evidenced by a document issued by the U.S. 
Department of Defense that includes a photograph of the consumer, in 
which case the delivery may be made to the consumer at the address for 
the consumer in the Department of Defense identification document.
    (i) Delivery Requirements.--
            (1) A delivery seller shall use a method of delivery to the 
        consumer that ensures that the person physically making the 
        delivery delivers the tobacco product only after the consumer 
        or another adult residing at the consumer's address who has 
        been designated at the time of purchase by the consumer as an 
        alternative recipient and whose age and identity have been 
        verified by the delivery seller pursuant to the process 
        described in subsection (d)--
                    (A) signs to accept delivery of the cigarettes or 
                smokeless tobacco;
                    (B) provides proof of identity, age, and residence, 
                in the form of a valid, government-issued 
                identification bearing a photograph of the person; and
                    (C) if not the consumer, signs a statement 
                confirming that he or she knows the consumer and that 
                the consumer is not under the legal minimum purchase 
                age.
            (2) If the compliance costs would not be prohibitively 
        expensive, the Attorney General may require that delivery 
        sellers ensure that the age and identity of any individual 
        accepting delivery of cigarettes or smokeless tobacco delivered 
        pursuant to a delivery sale be verified at the point of 
        delivery in accordance with subsection (d).
            (3) A delivery seller shall ensure that the bill of lading 
        for any tobacco product delivered pursuant to a delivery sale 
        clearly states the above requirements of this subsection and 
        specifies that federal law requires compliance with the 
        requirements prior to the completion of any delivery.
            (4) A delivery seller shall provide to any person making 
        deliveries of a tobacco product on the delivery seller's 
        behalf--
                    (A) notice that the delivery seller is placing (or 
                intends to place) a tobacco product for delivery by the 
                delivery service as part of a delivery sale;
                    (B) documentation that the delivery seller has 
                registered as an interstate seller of tobacco products 
                with the State in which the physical delivery to the 
                consumer is being made; and
                    (C) for each delivery, the name, age, and birth 
                date of the consumer and any other person designated by 
                the consumer as an alternate recipient of the delivery.
    (j) Delivery Service Duties.--
            (1) A common carrier, private delivery service, or any 
        other person shall not knowingly make any delivery of any 
        tobacco product on behalf of a delivery seller that does not 
        fully comply with the requirements of subsection (h), and shall 
        not knowingly deliver any tobacco product to any person under 
        the legal minimum age.
            (2) No common carrier or other delivery service shall be 
        subject to any liability or penalty under any federal or other 
        laws for choosing as a matter of policy not to deliver to any 
        tobacco products or any particular tobacco products to any 
        homes or residences or not to deliver any delivery sale tobacco 
        products or particular tobacco products in any or all states.
    (k) Minimum and Maximum Sale Amounts.--
            (1) No delivery seller shall make any single sale or 
        delivery to a consumer of less than 400 cigarettes, 20 single 
        consumer-sized packages of smokeless tobacco, or 40 cigars; and 
        the Attorney General may set minimum sale amounts for other 
        types of tobacco products.
            (2) In any 10-day period, no delivery seller shall make any 
        sale or delivery or multiple sales and deliveries to any single 
        consumer of in an amount in excess of 2,000 cigarettes, 100 
        single consumer-sized packages of smokeless tobacco, or 200 
        cigars; and the Attorney General may set maximum delivery sale 
        amounts for other types of tobacco products.
    (l) Delivery Sale Websites.--A delivery seller shall not offer any 
tobacco product for sale through an Internet website unless--
            (1) a person cannot access any website page that offers 
        tobacco products for sale or transacts any tobacco product sale 
        until the delivery seller has first satisfied the requirements 
        of subsection (d) in relation to that person; and
            (2) any Internet website pages used by the delivery seller 
        to comply with the requirements of subsection (d), including 
        any website pages a consumer must access prior to accessing the 
        age and identify verification website pages, are not used for 
        any other purpose than to fulfill the requirements of 
        subsection (d) or to provide access to the website pages used 
        to comply with those requirements; and consist only of 
        nonmoving black text on a white background, with no graphics or 
        other pictorial depictions.

SEC. 4. PENALTIES.

    (a) Civil Penalties.--
            (1) Any delivery seller who violates this Act (or any 
        person willfully participating in any such violation, including 
        but not limited to any person who owns, controls, or manages 
        the delivery seller) is subject to a civil penalty not to 
        exceed $5,000 for a first violation and not to exceed $10,000 
        for any second or additional violation.
            (2) Any common carrier, private delivery service, or other 
        person who delivers tobacco products on behalf of a delivery 
        seller (or any person willfully participating in any such 
        violation, including but not limited to any person who owns, 
        controls, or manages the person who makes the delivery on 
        behalf of the delivery seller) who knowingly violates this Act 
        is subject to a civil penalty not to exceed $5,000 for a first 
        violation and not to exceed $10,000 for any second or 
        additional violation.
            (3) A civil penalty for a violation of this Act under this 
        subsection is in addition to any criminal penalty under 
        subsection (b) for the violation and in addition to any other 
        injunctive or equitable relief, including money damages, for 
        such violations.
    (b) Criminal Penalties.--A delivery seller that knowingly violates 
this Act (or any person willfully participating in any such violation, 
including but not limited to any person who owns, controls, or manages 
the delivery seller) shall be guilty of a felony, fined under 
subchapter C of chapter 227 of title 18, imprisoned not more than three 
years, or both.

SEC. 5. ENFORCEMENT.

    (a) District Court Jurisdiction.--The United States district courts 
shall have primary jurisdiction to prevent and restrain violations of 
this Act, provide other appropriate injunctive or equitable relief, 
including money damages, award civil penalties, and impose criminal 
penalties for such violations.
    (b) Federal Enforcement.--The Attorney General shall administer and 
enforce the provisions of this Act.
    (c) Enforcement by States and Indian Tribes.--
            (1) A State, through its attorney general and an Indian 
        Tribe through its chief law enforcement officer, or designee 
        thereof, may bring a civil action under this Act in the United 
        States district courts to prevent and restrain violations of 
        this Act by any person (or by any person controlling such 
        person) or to obtain any other appropriate relief from any 
        person (or from any person controlling such person) for 
        violations of this Act, including civil penalties, money 
        damages, and injunctive or other equitable relief.
            (2) The remedies available under this subsection are in 
        addition to any other remedies available under Federal, State, 
        Tribal, or other law.
            (3) Nothing in this Act shall be construed to prohibit an 
        authorized State official from proceeding in State court, or 
        taking other enforcement actions, on the basis of an alleged 
        violation of State or other law.
            (4) Nothing in this Act shall be construed to prohibit an 
        authorized Tribal official from proceeding in Tribal court, or 
        taking other enforcement actions, on the basis of an alleged 
        violation of Tribal or other law.
    (d) Enforcement by Other Parties.--Any person who holds a permit 
under section 5712 of the Internal Revenue Code of 1986, may bring an 
action in the United States district courts to prevent and restrain 
violations of this Act by any person (or by any person controlling such 
person) other than a State government, local government, Indian tribal 
government, or governmental organization of any such government.
    (e) Coordination of Enforcement Efforts.--
            (1) Any person who holds a permit under section 5712 of the 
        Internal Revenue Code of 1986 who commences a civil action 
        under paragraph this section shall inform the Attorney General 
        of the United States of the action.
            (2) It is the sense of Congress that any attorney general 
        of a State or chief law enforcement official of an Indian Tribe 
        who commences a civil action under this section should inform 
        the Attorney General of the United States of the action.
            (3) The Attorney General of the United States shall make 
        available to the public information about all enforcement 
        actions undertaken by the Attorney General or reported to the 
        Attorney General under this section, including the resolution 
        of such actions, by posting such information on the Internet 
        and by other means.

SEC. 6. RELATION TO OTHER LAWS.

    (a) More Stringent Laws not Affected.--Nothing in this Act may be 
construed to limit or interfere with any other Federal, State, local, 
or Tribal law that place additional, or more stringent, restrictions or 
penalties on delivery sales or other sales of tobacco products.
    (b) Effect on Coordinated Law Enforcement Efforts.--Nothing in this 
chapter may be construed to inhibit or otherwise affect any coordinated 
law enforcement effort by one or more States or other jurisdictions, 
including Indian Tribes, through interstate compact or otherwise, 
that--
            (1) provides for the administration of tobacco product laws 
        or laws pertaining to delivery sales or other sales of tobacco 
        products;
            (2) provides for the seizure of tobacco products or other 
        property related to a violation of such laws; or
            (3) establishes cooperative programs for the administration 
        of such laws.
    (c) Business Entities not Subject to Liability.--This Act does not 
create any new Federal requirements or potential liability of any kind 
for business entities providing communication technologies (e.g., phone 
companies or internet service providers), computer software or related 
services, or credit or debit card services; nor does this Act limit, 
amend, or expand any existing Federal requirements or potential 
liability for any such entities, except to the extent that those 
entities are delivery sellers, persons that deliver tobacco products on 
behalf of delivery sellers, or otherwise directly engaged in the sale 
or delivery of tobacco products.

SEC. 7. EFFECTIVE DATE.

    This Act shall go into effect 90 days after it is passed into law.
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