[Congressional Record Volume 169, Number 156 (Tuesday, September 26, 2023)]
[Senate]
[Pages S4681-S4682]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself, Mr. Wyden, Mr. Blumenthal, Mr. 
        Merkley, Mr. Brown, Mr. Markey, Ms. Hirono, Mrs. Murray, and 
        Mr. Reed):
  S. 2929. A bill to amend the Internal Revenue Code of 1986 to provide 
tax rate parity among all tobacco products, and for other purposes; to 
the Committee on Finance.
  Mr. DURBIN. Madam President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2929

       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 Tax Equity Act of 
     2023''.

     SEC. 2. INCREASING EXCISE TAXES ON CIGARETTES AND 
                   ESTABLISHING EXCISE TAX EQUITY AMONG ALL 
                   TOBACCO PRODUCT TAX RATES.

       (a) Tax Parity for Roll-Your-Own Tobacco.--Section 5701(g) 
     of the Internal Revenue Code of 1986 is amended by striking 
     ``$24.78'' and inserting ``$49.56''.
       (b) Tax Parity for Pipe Tobacco.--Section 5701(f) of the 
     Internal Revenue Code of 1986 is amended by striking 
     ``$2.8311 cents'' and inserting ``$49.56''.
       (c) Tax Parity for Smokeless Tobacco.--
       (1) Section 5701(e) of the Internal Revenue Code of 1986 is 
     amended--
       (A) in paragraph (1), by striking ``$1.51'' and inserting 
     ``$26.84'';
       (B) in paragraph (2), by striking ``50.33 cents'' and 
     inserting ``$10.74''; and
       (C) by adding at the end the following:
       ``(3) Smokeless tobacco sold in discrete single-use 
     units.--On discrete single-use units, $100.66 per 
     thousand.''.
       (2) Section 5702(m) of such Code is amended--
       (A) in paragraph (1), by striking ``or chewing tobacco'' 
     and inserting ``, chewing tobacco, or discrete single-use 
     unit'';
       (B) in paragraphs (2) and (3), by inserting ``that is not a 
     discrete single-use unit'' before the period in each such 
     paragraph; and
       (C) by adding at the end the following:
       ``(4) Discrete single-use unit.--The term `discrete single-
     use unit' means any product containing, made from, or derived 
     from tobacco or nicotine that--
       ``(A) is not intended to be smoked; and
       ``(B) is in the form of a lozenge, tablet, pill, pouch, 
     dissolvable strip, or other discrete single-use or single-
     dose unit.''.
       (d) Tax Parity for Small Cigars.--Paragraph (1) of section 
     5701(a) of the Internal Revenue Code of 1986 is amended by 
     striking ``$50.33'' and inserting ``$100.66''.
       (e) Tax Parity for Large Cigars.--
       (1) In general.--Paragraph (2) of section 5701(a) of the 
     Internal Revenue Code of 1986 is amended by striking ``52.75 
     percent'' and all that follows through the period and 
     inserting the following: ``$49.56 per pound and a 
     proportionate tax at the like rate on all fractional parts of 
     a pound but not less than 10.066 cents per cigar.''.
       (2) Guidance.--The Secretary of the Treasury, or the 
     Secretary's delegate, may issue guidance regarding the 
     appropriate method for determining the weight of large cigars 
     for purposes of calculating the applicable tax under section 
     5701(a)(2) of the Internal Revenue Code of 1986.
       (3) Conforming amendment.--Section 5702 of such Code is 
     amended by striking subsection (l).
       (f) Tax Parity for Roll-Your-Own Tobacco and Certain 
     Processed Tobacco.--Subsection (o) of section 5702 of the 
     Internal Revenue Code of 1986 is amended by inserting ``, and 
     includes processed tobacco that is removed for delivery or 
     delivered to a person other than a person with a permit 
     provided under section 5713, but does not include removals of 
     processed tobacco for exportation'' after ``wrappers 
     thereof''.
       (g) Imposition of Tax on Nicotine for Use in Vaping, etc.--
       (1) In general.--Section 5701 of the Internal Revenue Code 
     of 1986 is amended by redesignating subsection (h) as 
     subsection (i) and by inserting after subsection (g) the 
     following new subsection:
       ``(h) Nicotine.--On taxable nicotine, manufactured in or 
     imported into the United States, there shall be imposed a tax 
     equal to the dollar amount specified in section 5701(b)(1) 
     per 1,810 milligrams of nicotine (and a proportionate tax at 
     the like rate on any fractional part thereof).''.
       (2) Taxable nicotine.--Section 5702 of such Code is amended 
     by adding at the end the following new subsection:
       ``(q) Taxable Nicotine.--
       ``(1) In general.--Except as otherwise provided in this 
     subsection, the term `taxable nicotine' means any nicotine 
     which has been extracted, concentrated, or synthesized.
       ``(2) Exception for products approved by food and drug 
     administration.--Such term shall not include any nicotine if 
     the manufacturer or importer thereof demonstrates to the 
     satisfaction of the Secretary of Health and Human Services 
     that such nicotine will be used in--
       ``(A) a drug--
       ``(i) that is approved under section 505 of the Federal 
     Food, Drug, and Cosmetic Act or licensed under section 351 of 
     the Public Health Service Act; or
       ``(ii) for which an investigational use exemption has been 
     authorized under section 505(i) of the Federal Food, Drug, 
     and Cosmetic Act or under section 351(a) of the Public Health 
     Service Act; or
       ``(B) a combination product (as described in section 503(g) 
     of the Federal Food, Drug, and Cosmetic Act), the constituent 
     parts of which were approved or cleared under section 505, 
     510(k), or 515 of such Act.
       ``(3) Coordination with taxation of other tobacco 
     products.--Tobacco products meeting the definition of cigars, 
     cigarettes, smokeless tobacco, pipe tobacco, and roll-your-
     own tobacco in this section shall be classified and taxed as 
     such despite any concentration of the nicotine inherent in 
     those products or any addition of nicotine to those products 
     during the manufacturing process.
       ``(4) Regulations.--The Secretary shall prescribe such 
     regulations or other guidance as is necessary or appropriate 
     to carry out the purposes of this subsection, including 
     regulations or other guidance for coordinating the taxation 
     of tobacco products and taxable nicotine to protect revenue 
     and prevent double taxation.''.
       (3) Taxable nicotine treated as a tobacco product.--Section 
     5702(c) of such Code is amended by striking ``and roll-your-
     own tobacco'' and inserting ``roll-your-own tobacco, and 
     taxable nicotine''.
       (4) Manufacturer of taxable nicotine.--Section 5702 of such 
     Code, as amended by paragraph (2), is amended by adding at 
     the end the following new subsection:
       ``(r) Manufacturer of Taxable Nicotine.--
       ``(1) In general.--Any person who extracts, concentrates, 
     or synthesizes nicotine shall be treated as a manufacturer of 
     taxable nicotine (and as manufacturing such taxable 
     nicotine).
       ``(2) Application of rules related to manufacturers of 
     tobacco products.--Any reference to a manufacturer of tobacco 
     products, or to manufacturing tobacco products, shall be 
     treated as including a reference to a manufacturer of taxable 
     nicotine, or to manufacturing taxable nicotine, 
     respectively.''.
       (h) Increasing Tax on Cigarettes.--
       (1) Small cigarettes.--Section 5701(b)(1) of such Code is 
     amended by striking ``$50.33'' and inserting ``$100.66''.
       (2) Large cigarettes.--Section 5701(b)(2) of such Code is 
     amended by striking ``$105.69'' and inserting ``$211.38''.
       (i) Tax Rates Adjusted for Inflation.--Section 5701 of such 
     Code, as amended by subsection (g), is amended by adding at 
     the end the following new subsection:
       ``(j) Inflation Adjustment.--
       ``(1) In general.--In the case of any calendar year 
     beginning after 2023, the dollar amounts provided under this 
     chapter shall each be increased by an amount equal to--
       ``(A) such dollar amount, multiplied by
       ``(B) the cost-of-living adjustment determined under 
     section 1(f)(3) for the calendar year, determined by 
     substituting `calendar year 2022' for `calendar year 2016' in 
     subparagraph (A)(ii) thereof.
       ``(2) Rounding.--If any amount as adjusted under paragraph 
     (1) is not a multiple of $0.01, such amount shall be rounded 
     to the next highest multiple of $0.01.''.
       (j) Floor Stocks Taxes.--
       (1) Imposition of tax.--On tobacco products manufactured in 
     or imported into the United States which are removed before 
     any tax increase date and held on such date for sale by any 
     person, there is hereby imposed a tax in an amount equal to 
     the excess of--
       (A) the tax which would be imposed under section 5701 of 
     the Internal Revenue Code of

[[Page S4682]]

     1986 on the article if the article had been removed on such 
     date, over
       (B) the prior tax (if any) imposed under section 5701 of 
     such Code on such article.
       (2) Credit against tax.--Each person shall be allowed as a 
     credit against the taxes imposed by paragraph (1) an amount 
     equal to $500. Such credit shall not exceed the amount of 
     taxes imposed by paragraph (1) on such date for which such 
     person is liable.
       (3) Liability for tax and method of payment.--
       (A) Liability for tax.--A person holding tobacco products 
     on any tax increase date to which any tax imposed by 
     paragraph (1) applies shall be liable for such tax.
       (B) Method of payment.--The tax imposed by paragraph (1) 
     shall be paid in such manner as the Secretary shall prescribe 
     by regulations.
       (C) Time for payment.--The tax imposed by paragraph (1) 
     shall be paid on or before the date that is 120 days after 
     the effective date of the tax rate increase.
       (4) Articles in foreign trade zones.--Notwithstanding the 
     Act of June 18, 1934 (commonly known as the Foreign Trade 
     Zone Act, 48 Stat. 998, 19 U.S.C. 81a et seq.), or any other 
     provision of law, any article which is located in a foreign 
     trade zone on any tax increase date shall be subject to the 
     tax imposed by paragraph (1) if--
       (A) internal revenue taxes have been determined, or customs 
     duties liquidated, with respect to such article before such 
     date pursuant to a request made under the first proviso of 
     section 3(a) of such Act, or
       (B) such article is held on such date under the supervision 
     of an officer of the United States Customs and Border 
     Protection of the Department of Homeland Security pursuant to 
     the second proviso of such section 3(a).
       (5) Definitions.--For purposes of this subsection--
       (A) In general.--Any term used in this subsection which is 
     also used in section 5702 of such Code shall have the same 
     meaning as such term has in such section.
       (B) Tax increase date.--The term ``tax increase date'' 
     means the effective date of any increase in any tobacco 
     product excise tax rate pursuant to the amendments made by 
     this section (other than subsection (j) thereof).
       (C) Secretary.--The term ``Secretary'' means the Secretary 
     of the Treasury or the Secretary's delegate.
       (6) Controlled groups.--Rules similar to the rules of 
     section 5061(e)(3) of such Code shall apply for purposes of 
     this subsection.
       (7) Other laws applicable.--All provisions of law, 
     including penalties, applicable with respect to the taxes 
     imposed by section 5701 of such Code shall, insofar as 
     applicable and not inconsistent with the provisions of this 
     subsection, apply to the floor stocks taxes imposed by 
     paragraph (1), to the same extent as if such taxes were 
     imposed by such section 5701. The Secretary may treat any 
     person who bore the ultimate burden of the tax imposed by 
     paragraph (1) as the person to whom a credit or refund under 
     such provisions may be allowed or made.
       (k) Effective Dates.--
       (1) In general.--Except as provided in paragraphs (2) 
     through (4), the amendments made by this section shall apply 
     to articles removed (as defined in section 5702(j) of the 
     Internal Revenue Code of 1986) after the last day of the 
     month which includes the date of the enactment of this Act.
       (2) Discrete single-use units and processed tobacco.--The 
     amendments made by subsections (c)(1)(C), (c)(2), and (f) 
     shall apply to articles removed (as defined in section 
     5702(j) of the Internal Revenue Code of 1986) after the date 
     that is 6 months after the date of the enactment of this Act.
       (3) Large cigars.--The amendments made by subsection (e) 
     shall apply to articles removed after December 31, 2023.
       (4) Taxable nicotine.--The amendments made by subsection 
     (g) shall apply to articles removed in calendar quarters 
     beginning after the date which is 180 days after the date of 
     the enactment of this Act.
       (l) Transition Rule for Permit and Bond Requirements.--A 
     person which is lawfully engaged in business as a 
     manufacturer or importer of taxable nicotine (within the 
     meaning of subchapter A of chapter 52 of the Internal Revenue 
     Code of 1986, as amended by this section) on the date of the 
     enactment of this Act, first becomes subject to the 
     requirements of subchapter B of chapter 52 of such Code by 
     reason of the amendments made by this section, and submits an 
     application under such subchapter B to engage in such 
     business not later than 90 days after the date of the 
     enactment of this Act, shall not be denied the right to carry 
     on such business by reason of such requirements before final 
     action on such application.

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