H. B. 2748
(By Delegates Perdue and Hatfield)
[Passed March 8, 2003; in effect ninety days from passage.]
AN ACT to amend
chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto two new articles, designated articles nine-d and nine-
all relating to restricting delivery sales of tobacco
products and prohibiting possession of counterfeit cigarettes;
defining terms; specifying requirements for verification of
age and identity of purchasers; requiring notices to
consumers; establishing requirements for shipping and
shippers; establishing requirements for registration and
reporting to the department of tax and revenue; requiring
payment of taxes; providing for forfeiture of tobacco products
and personal property; prohibiting the possession or sale of
counterfeit cigarettes; and providing for civil and criminal
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding
thereto two new articles, designated articles nine-d and nine-e,
all to read as follows:
ARTICLE 9D. DELIVERY SALES OF TOBACCO.
For purposes of this article:
(a) "Adult" means a person who is at least the legal minimum
purchase age, as defined by article nine-A, section two of this
(b) "Consumer" means an individual who does not hold a
business registration certificate in this state for the business of
selling tobacco products as a wholesale or retail dealer.
(c)"Delivery sale" means any sale of cigarettes to a
consumer in this state where either: (1) The purchaser submits the
order for such sale by means of a telephonic or other method of
voice transmission, the mails or any other delivery service, or the
internet or other online service; or (2) the cigarettes are
delivered by use of the mails or a delivery service. A sale of
cigarettes shall be a delivery sale regardless of whether or not
the seller is located within this state. A sale of cigarettes not
for personal consumption to a person who holds a business
registration certificate as a wholesale dealer or a retail dealer
shall not be a delivery sale.
(d) "Delivery service" means any person who is engaged in the
commercial delivery of letters, packages, or other containers.
(e) "Department" means the state tax department.
(f) "Legal minimum purchase age" is at least eighteen years of
age as defined by article nine-A, section two of this chapter for
the purchase of cigarettes in this state.
(g) "Mails" or "mailing" means the shipment of cigarettes
through the United States postal service.
(h)"Shipping container" means a container in which
cigarettes are shipped in connection with a delivery sale.
(i) "Shipping documents" means bills of lading, airbills, or
any other documents used to evidence the undertaking by a delivery
service to deliver letters, packages, or other containers.
16-9D-2. Requirements for delivery sales.
(a) No person shall make a delivery sale of cigarettes to any
individual who is under the legal minimum purchase age in this
(b) Each person accepting a purchase order for a delivery sale
shall comply with:
(1) The age verification requirements set forth in section
three of this article;
(2) The disclosure requirements set forth in subdivision (3)
of subsection (a) of section three of this article;
(3) The shipping requirements set forth in section four of
(4) The registration and reporting requirements set forth in
section five of this article;
(5) The tax collection requirements set forth in section six
of this article; and
(6) All other laws of this state generally applicable to sales
of cigarettes that occur entirely within this state, including, but
not limited to, those laws imposing: (i) Excise taxes; (ii) sales
taxes; (iii) license and revenue-stamping requirements; and (iv)
escrow or other payment obligations.
§16-9D-3. Age verification requirements.
(a) No person shall mail, ship, or otherwise deliver
cigarettes in connection with a delivery sale unless prior to the
first delivery sale to a consumer, the person:
(1) Obtains from the prospective consumer a certification that
includes a reliable confirmation that the consumer is at least the
legal minimum purchase age and a statement signed by the
prospective consumer in writing that certifies the prospective
consumer's address and that the consumer is at least eighteen years
of age. The statement shall also confirm (i) that the prospective
consumer understands that it is illegal to sign another person's
name to the certification, (ii) that the sale of cigarettes to
individuals under the legal minimum purchase age is illegal, and
(ii) that the purchase of cigarettes by individuals under the legal
minimum purchase age is illegal under the laws of this state;
(2) Verifies the information contained in the certification
provided by the prospective consumer against an appropriate
database of government records available to the distributor or seller, or obtains simultaneous with the certificate as provided
for in subdivision (1), a photocopy or other image of the valid,
government-issued identification stating the date of birth or age
of the individual placing the order;
(3) Sends to the prospective consumer, via e-mail or other
means, a notice that contains: (A) A prominent and clearly legible
statement that cigarette sales to a consumer below the legal
minimum purchase age is illegal, (B) A prominent and clearly
legible statement that consists of one of the warnings set forth in
section 4(a)(1) of the federal Cigarette Labeling and Advertising
Act, 15 U.S.C. § 1333(a)(1), rotated on a quarterly basis, (C) A
prominent and clearly legible statement that sales of cigarettes
are restricted to those consumers who provide verifiable proof of
age in accordance with section three of this article, and (D) A
prominent and clearly legible statement that cigarette sales are
subject to excise and sales taxes in this state, and an explanation
of how such taxes have been, or are to be, paid with respect to the
(4) In the case of an order for cigarettes pursuant to an
advertisement on the internet, receives payment for the delivery
sale from the prospective consumer by a credit or debit card or
check that has been issued in the consumer's name.
(b) Persons accepting purchase orders for delivery sales may
request that prospective consumers provide their e-mail addresses.
§16-9D-4. Shipping requirements.
(a) Each person who mails, ships, or otherwise delivers
cigarettes in connection with a delivery sale:
(1) Shall include as part of the bill of lading or other
shipping documents a clear and conspicuous statement providing as
follows: "Cigarettes: West Virginia Law Prohibits Shipping to
Individuals Under 18, and Requires the Payment of all Applicable
(2) Shall use a method of mailing, shipping, or delivery that
obligates the delivery service to require (i) the consumer placing
the purchase order for the delivery sale, or another adult of legal
minimum purchase age, to sign to accept delivery of the shipping
container, and (ii) proof, in the form of a valid,
government-issued identification bearing a photograph of the
individual who signs to accept delivery of the shipping container,
demonstrating that he is either the addressee or another adult of
legal minimum purchase age; and
(3) Shall provide to the delivery service retained for such
delivery sale evidence of full compliance with section seven of
(b) A delivery service shall be in violation of this article
if it (1) ships or otherwise delivers cigarettes in connection with
a delivery sale without first receiving evidence of compliance with
section seven of this article; or (2) fails to comply with the
requirements described in subsection (a) or described in section
six of this article:
(1) When obligated to do so under a method of shipping or
(2) When delivering any container pursuant to shipping
documents containing the statement described in subdivision one of
subsection (a) of this section; or
(3) When delivering any container that the delivery service
otherwise has reason to know contains cigarettes.
(c) If the person accepting a purchase order for a delivery
sale delivers the cigarettes without using a delivery service, that
person shall comply with all requirements of this article
applicable to a delivery service and shall be in violation of the
provisions of this article upon failure to comply with the
§16-9D-5. Registration and reporting requirements.
(a) Prior to making delivery sales or mailing, shipping, or
otherwise delivering cigarettes in connection with any such sales,
every person shall file with the department a statement setting
forth the seller's name, trade name, and the address of the
seller's principal place of business and any other place of
(b) Not later than the tenth day of each calendar month, each
person that has made a delivery sale or mailed, shipped, or
otherwise delivered cigarettes in connection with any such sale
during the previous calendar month shall file with the department
a memorandum or a copy of the invoice that provides for each and every delivery sale:
(1) The name and address of the consumer to whom the delivery
sale was made;
(2) The brand or brands of the cigarettes that were sold in
the delivery sale; and
(3) The quantity of cigarettes that were sold in the delivery
(c) Any person that satisfies the requirements of 15 U.S.C.
§376 shall be deemed to satisfy the requirements of this section.
§16-9D-6. Collection of taxes.
Each person accepting a purchase order for a delivery sale
shall collect and remit to the department all cigarette taxes
imposed by this state with respect to such delivery sale, except
that the collection and remission shall not be required to the
extent the person has obtained proof, in the form of the presence
of applicable tax stamps or otherwise, that the taxes already have
been paid to this state.
(a) Except as otherwise provided in this section, a first
violation of any provision of this article shall be a misdemeanor
and punishable by a fine of five hundred dollars or five times the
retail value of the cigarettes involved, whichever is greater.
(b) Any person who knowingly violates any provision of this
article, or who knowingly and falsely submits a certification under
section three of this article in another person's name, shall be guilty of a misdemeanor be fined one thousand dollars or ten times
the retail value of the cigarettes involved, whichever is greater,
or confined not more than six months, or both.
(c) Any person failing to collect or remit to the department
any tax required in connection with a delivery sale shall be
assessed, in addition to any other penalty, a penalty of five times
the retail value of the cigarettes involved.
(d) Any cigarettes sold or attempted to be sold in a delivery
sale that does not meet the requirements of this article shall be
forfeited to this state and destroyed. All fixtures, equipment,
and all other materials and personal property on the premises of
any person who, with the intent to defraud this state, violates any
of the requirements of this article, shall be forfeited to this
For violations of this article resulting in a delivery of
tobacco products in this state, the prosecuting attorney of the
county where the delivery is made shall have the power to prosecute
the violation and to bring any action necessary to prevent further
violations. The attorney general or any person who holds a valid
permit under 26 U.S.C. § 5712 may bring any actions required to
enforce all other requirements of this article and to prevent all
other violations of its provisions.
ARTICLE 9E. COUNTERFEIT CIGARETTES.
As used in this article, "counterfeit cigarettes" means
cigarettes that (a) have false manufacturing labels, (b) are not
manufactured by the manufacturer indicated on the container, or (c)
have a false tax stamp affixed to the container.
§16-9E-2. Prohibition of counterfeit cigarettes.
It shall be unlawful for any person to knowingly possess or
sell counterfeit cigarettes, and all counterfeit cigarettes and the
equipment, materials and personal property used in substantial
connection with a knowing violation of this article may be seized
and destroyed by any law enforcement agency of this state.
(a)Any person who knowingly violates the provisions of
this article with a total quantity of less than two cartons of
cigarettes shall, for the first offense, be punished by a civil
penalty of no more than one thousand dollars, and for a second or
subsequent offense involving a total quantity of less than two
cartons of cigarettes shall be punished by a civil penalty of no
more than five thousand dollars and the revocation for a period of
six months of any business held by the person.
(b)Any person who knowingly violates the provisions of
this article with a total quantity of two or more cartons of
cigarettes shall, for the first offense, be punished by a civil
penalty of no more than two thousand dollars, and for a second or
subsequent offense involving a total quantity of two or more
cartons of cigarettes shall be punished by a civil penalty of no more than fifty thousand dollars and the revocation for a period of
one year of any business registration certificate held by the
The attorney general, the prosecuting attorney for the county
in which counterfeit cigarettes are found or any person who holds
a valid permit under 26 U.S.C. § 5712 may bring an action in the
circuit court of that county to prevent or restrain violations of
this article by any person, or any person controlling that person.