Senate
House
Joint
Bill Status
WV Code
Audits/ Reports
Educational
Contact
home
home

West Virginia Code

Search

Chapter 16     Entire Code
‹ Chapter 15  |  Chapter 17 › Printer Friendly Versions
Chapter 16  |  Article 16 - 9B  |  Section 3

1 - STATE PUBLIC HEALTH SYSTEM

1A - UNIFORM CREDENTIALING FOR HEAL

1B - SKILLED NURSING FACILITIES FOR

1C - HEALTH CARE PROVIDER TRANSPARE

2 - LOCAL BOARDS OF HEALTH

2A - ALTERNATIVE METHOD OF ORGANIZI

2B - FAMILY PLANNING AND CHILD SPAC

2C - HOME HEALTH SERVICES

2D - CERTIFICATE OF NEED

2E - BIRTHING CENTERS

2F - PARENTAL NOTIFICATION OF ABORT

2G - SPECIAL SUPPLEMENTARY FOOD PRO

2H - PRIMARY CARE SUPPORT PROGRAM

2I - WOMEN'S RIGHT TO KNOW ACT

2J - PREVENTIVE CARE PILOT PROGRAM

2K - PROGRAMS OF ALL-INCLUSIVE CARE

3 - PREVENTION AND CONTROL OF COMMU

3A - REPOSITORY OF INFORMATION ON M

3B - PERTUSSIS

3C - AIDS-RELATED MEDICAL TESTING A

3D - TUBERCULOSIS TESTING, CONTROL,

4 - SEXUALLY TRANSMITTED DISEASES

4A - PRENATAL EXAMINATION

4B - AUTOPSIES ON BODIES OF DECEASE

4C - EMERGENCY MEDICAL SERVICES ACT

4D - AUTOMATED EXTERNAL DEFIBRILLAT

4E - UNIFORM MATERNAL SCREENING ACT

5 - VITAL STATISTICS

5A - CANCER CONTROL

5B - HOSPITALS AND SIMILAR INSTITUT

5C - NURSING HOMES

5D - ASSISTED LIVING RESIDENCES

5E - REGISTRATION AND INSPECTION OF

5F - HEALTH CARE FINANCIAL DISCLOSU

5G - OPEN HOSPITAL PROCEEDINGS

5H - CHRONIC PAIN CLINIC LICENSING

5I - HOSPICE LICENSURE ACT

5J - CLINICAL LABORATORIES QUALITY

5K - EARLY INTERVENTION SERVICES FO

5L - LONG-TERM CARE OMBUDSMAN PROGR

5M - OSTEOPOROSIS PREVENTION EDUCAT

5N - RESIDENTIAL CARE COMMUNITIES

5O - MEDICATION ADMINISTRATION BY U

5P - SENIOR SERVICES

5Q - THE JAMES TIGER MORTON CATASTR

5R - THE ALZHEIMER'S SPECIAL CARE S

5S - OLDER WEST VIRGINIANS ACT

5T - CARE HOME ADVISORY BOARD

5U - ARTHRITIS PREVENTION EDUCATION

5V - EMERGENCY MEDICAL SERVICES RET

5W - WEST VIRGINIA OFFICIAL PRESCRI

6 - HOTELS AND RESTAURANTS

7 - PURE FOOD AND DRUGS

8 - ELECTROLOGISTS

8A - NARCOTIC DRUGS

8B - DANGEROUS DRUGS ACT

9 - OFFENSES GENERALLY

9A - TOBACCO USAGE RESTRICTIONS

9B - IMPLEMENTING TOBACCO MASTER SE
    16 - 9 B- 1
    16 - 9 B- 2
    16 - 9 B- 3
    16 - 9 B- 4

9C - STATE TOBACCO GROWERS' SETTLEM

9D - ENFORCEMENT OF STATUTES IMPLEM

9E - DELIVERY SALES OF TOBACCO

9F - COUNTERFEIT CIGARETTES

10 - UNIFORM DETERMINATION OF DEAT

11 - SEXUAL STERILIZATION

12 - SANITARY DISTRICTS FOR SEWAGE

13 - SEWAGE WORKS AND STORMWATER W

13A - PUBLIC SERVICE DISTRICTS

13B - COMMUNITY IMPROVEMENT ACT

13C - DRINKING WATER TREATMENT REV

13D - REGIONAL WATER AND WASTEWATE

13E - COMMUNITY ENHANCEMENT ACT

14 - BARBERS AND COSMETOLOGISTS

15 - STATE HOUSING LAW

16 - HOUSING COOPERATION LAW

17 - NATIONAL DEFENSE HOUSING

18 - SLUM CLEARANCE

19 - ANATOMICAL GIFT ACT

20 - AIR POLLUTION CONTROL

21 - BLOOD DONATIONS

22 - DETECTION AND CONTROL OF PHEN

22A - TESTING OF NEWBORN INFANTS F

22B - BIRTH SCORE PROGRAM

23 - TRANSFUSION OF BLOOD; TRANSPL

24 - STATE HEMOPHILIA PROGRAM

25 - DETECTION OF TUBERCULOSIS, HI

26 - WEST VIRGINIA SOLID WASTE MAN

27 - STORAGE AND DISPOSAL OF RADIO

27A - BAN ON CONSTRUCTION OF NUCLE

28 - ASSISTANCE TO KOREAN AND VIET

29 - HEALTH CARE RECORDS

29A - WEST VIRGINIA HOSPITAL FINAN

29B - HEALTH CARE AUTHORITY

29C - INDIGENT CARE

29D - STATE HEALTH CARE

29E - LEGISLATIVE OVERSIGHT COMMIS

29F - UNINSURED AND UNDERINSURED P

29G - WEST VIRGINIA HEALTH INFORMA

29H - INTERAGENCY HEALTH COUNCIL

29I - WEST VIRGINIA HEALTH CARE AU

30 - WEST VIRGINIA HEALTH CARE DEC

30A - MEDICAL POWER OF ATTORNEY

30B - HEALTH CARE SURROGATE ACT

30C - DO NOT RESUSCITATE ACT

31 - COMMUNITY RIGHT TO KNOW

32. ASBESTOS ABATEMENT

33 - BREAST AND CERVICAL CANCER PR

34 - LICENSURE OF RADON MITIGATORS

35 - LEAD ABATEMENT

36 - NEEDLESTICK INJURY PREVENTION

37 - BODY PIERCING STUDIO BUSINESS

38 - TATTOO STUDIO BUSINESS

39 - PATIENT SAFETY ACT

40 - STATEWIDE BIRTH DEFECTS INFOR

41 - ORAL HEALTH IMPROVEMENT ACT

42 - COMPREHENSIVE BEHAVIORAL HEAL

43 - ENGINE COOLANT AND ANTIFREEZE

44 - THE PULSE OXIMETRY NEWBORN TE

45 - TANNING FACILITIES

WVC 16- CHAPTER 16. PUBLIC HEALTH.
WVC 16 - 9 B- ARTICLE 9B. IMPLEMENTING TOBACCO MASTER SETTLEMENT AGREEMENT.

WVC 16 - 9 B- 1 §16-9B-1. Findings and purpose.
(a) Cigarette smoking presents serious public health concerns to the state and to the citizens of the state. The surgeon general has determined that smoking causes lung cancer, heart disease and other serious diseases, and that there are hundreds of thousands of tobacco-related deaths in the United States each year. These diseases most often do not appear until many years after the person in question begins smoking.

(b) Cigarette smoking also presents serious financial concerns for the state. Under certain health-care programs, the state may have a legal obligation to provide medical assistance to eligible persons for health conditions associated with cigarette smoking, and those persons may have a legal entitlement to receive such medical assistance.

(c) Under these programs, the state pays millions of dollars each year to provide medical assistance for these persons for health conditions associated with cigarette smoking.

(d) It is the policy of the state that financial burdens imposed on the state by cigarette smoking be borne by tobacco product manufacturers rather than by the state to the extent that such manufacturers either determine to enter into a settlement with the state or are found culpable by the courts.

(e) On the twenty-third day of November, one thousand nine hundred ninety-eight, leading United States tobacco product manufacturers entered into a settlement agreement, entitled the "master settlement agreement", with the state. The master settlement agreement obligates these manufacturers, in return for a release of past, present and certain future claims against them as described therein, to pay substantial sums to the state (tied in part to their volume of sales); to fund a national foundation devoted to the interests of public health; and to make substantial changes in their advertising and marketing practices and corporate culture, with the intention of reducing underage smoking.

(f) It would be contrary to the policy of the state if tobacco product manufacturers who determine not to enter into such a settlement could use a resulting cost advantage to derive large, short-term profits in the years before liability may arise without ensuring that the state will have an eventual source of recovery from them if they are proven to have acted culpably. It is thus in the interest of the state to require that such manufacturers establish a reserve fund to guarantee a source of compensation and to prevent such manufacturers from deriving large, short-term profits and then becoming judgment-proof before liability may arise.

WVC 16 - 9 B- 2 §16-9B-2. Definitions.
(a) "Adjusted for inflation" means increased in accordance with the formula for inflation adjustment set forth in Exhibit C to the master settlement agreement.

(b) "Affiliate" means a person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, another person. Solely for purposes of this definition, the terms "owns," "is owned" and "ownership" mean ownership of an equity interest, or the equivalent thereof, of ten percent or more, and the term "person" means an individual, partnership, committee, association, corporation or any other organization or group of persons.

(c) "Allocable share" means allocable share as that term is defined in the master settlement agreement.

(d) "Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains: (1) Any roll of tobacco wrapped in paper or in any substance not containing tobacco; or (2) tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or (3) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette as that term is described in this subsection. The term "cigarette" includes "roll-your-own", which means any tobacco which, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes. For purposes of this definition of cigarette, 0.09 ounces of "roll-your-own" tobacco shall constitute one individual cigarette.

(e) "Master settlement agreement" means the settlement agreement (and related documents) entered into on the twenty-third day of November, one thousand nine hundred ninety-eight, by the state and leading United States tobacco product manufacturers.

(f) "Qualified escrow fund" means an escrow arrangement with a federally- or state- chartered financial institution having no affiliation with any tobacco product manufacturer and having assets of at least $1,000,000,000 where such arrangement requires that such financial institution hold the escrowed funds' principal for the benefit of releasing parties and prohibits the tobacco product manufacturer placing the funds into escrow from using, accessing or directing the use of the funds' principal except as consistent with subdivision (2), subsection (b), section three of this article.

(g) "Released claims" means released claims as that term is defined in the master settlement agreement.

(h) "Releasing parties" means releasing parties as that term is defined in the master settlement agreement.

(i) "Tobacco product manufacturer" means an entity that after the date of enactment of this article directly (and not exclusively through any affiliate):

(1) Manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer (except where such importer is an original participating manufacturer, as that term is defined in the master settlement agreement, that will be responsible for the payments under the master settlement agreement with respect to such cigarettes as a result of the provisions of subsections II(mm) of the master settlement agreement and that pays the taxes specified in subsection II(z) of the master settlement agreement, and provided that the manufacturer of such cigarettes does not market or advertise such cigarettes in the United States);

(2) Is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or

(3) Becomes a successor of an entity described in subdivision (1) or (2) of this subsection.

The term "tobacco product manufacturer" shall not include an affiliate of a tobacco product manufacturer unless such affiliate itself falls within subdivision (1), (2) or (3).

(j) "Units sold" means the number of individual cigarettes sold in the state by the applicable tobacco product manufacturer (whether directly or through a distributor, retailer or similar intermediary or intermediaries) during the year in question, as measured by excise taxes collected by the state on packs or "roll-your-own" tobacco containers bearing the excise tax stamp of the state. The tax commissioner shall propose legislative rules for promulgation, in accordance with article three, chapter twenty-nine of this code, as are necessary to ascertain the amount of state excise tax paid on the cigarettes of such tobacco product manufacturer for each year.

WVC 16 - 9 B- 3 §16-9B-3. Requirements.
Any tobacco product manufacturer selling cigarettes to consumers within the state (whether directly or through a distributor, retailer or similar intermediary or intermediaries) after the date of enactment of this article shall do one of the following:

(a) Become a participating manufacturer (as that term is defined in section II(jj) of the master settlement agreement) and generally perform its financial obligations under the master settlement agreement; or

(b) (1) Place into a qualified escrow fund by the fifteenth day of April of the year following the year in question the following amounts, adjusted for inflation:

(A) For the year one thousand nine hundred ninety-nine: $.0094241 per unit sold after the date of enactment of this article;

(B) For the year two thousand: $.0104712 per unit sold;

(C) For each of the years two thousand one and two thousand two: $.0136125 per unit sold;

(D) For each of the years two thousand three through two thousand six: $.0167539 per unit sold; and

(E) For the year two thousand seven or each year thereafter: $.0188482 per unit sold.

(2) A tobacco product manufacturer that places funds into escrow pursuant to this subsection shall receive the interest or other appreciation on such funds as earned. Such funds themselves shall be released from escrow only under the following circumstances:

(A) To pay a judgment or settlement on any released claim brought against such tobacco product manufacturer by the state or any releasing party located or residing in the state. Funds shall be released from escrow under this paragraph: (i) In the order in which they were placed into escrow; and (ii) only to the extent and at the time necessary to make payments required under such judgment or settlement;

(B) To the extent that a tobacco product manufacturer establishes that the amount it was required to place into escrow on account of units sold in the state in a particular year was greater than the master tobacco settlement agreement payments, as determined pursuant to section IX(i) of that agreement, including after final determination of all adjustments, that such manufacturer would have been required to make on account of such units sold had it been a participating manufacturer, the excess shall be released from escrow and revert back to such tobacco product manufacturer; or

(C) To the extent not released from escrow under paragraph (A) or (B) of this subdivision, funds shall be released from escrow and revert back to the tobacco product manufacturer twenty-five years after the date on which they were placed into escrow.

(3) Each tobacco product manufacturer that elects to place funds into escrow pursuant to this subsection shall annually certify to the attorney general that it is in compliance with this subsection. The attorney general may bring a civil action on behalf of the state against any tobacco product manufacturer that fails to place into escrow the funds required under this section. Any tobacco product manufacturer that fails in any year to place into escrow the funds required under this section shall:

(A) Be required within fifteen days to place such funds into escrow as shall bring it into compliance with this section. The court, upon a finding of a violation of this subsection, may impose a civil penalty, to be paid to the general fund of the state, in an amount not to exceed five percent of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed one hundred percent of the original amount improperly withheld from escrow;

(B) In the case of a knowing violation, be required within fifteen days to place such funds into escrow as shall bring it into compliance with this section. The court, upon a finding of a knowing violation of this subsection, may impose a civil penalty, to be paid to the general fund of the state, in an amount not to exceed fifteen percent of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed three hundred percent of the original amount improperly withheld from escrow; and

(C) In the case of a second knowing violation, be prohibited from selling cigarettes to consumers within the state (whether directly or through a distributor, retailer or similar intermediary) for a period not to exceed two years.

Each failure to make an annual deposit required under this section shall constitute a separate violation.

WVC 16 - 9 B- 4 §16-9B-4. Special severability rule; implementation date.
(a) Section three severability rule. --

(1) If the act amending section three of this article in the year two thousand three, or any portion of the amendment to paragraph (B), subdivision (2), subsection (b), section three of this article, made by that act, is held by a court of competent jurisdiction to be unconstitutional, then such paragraph (B) shall be deemed to be repealed in its entirety.

(2) If after application of subsection (a) of this section, a court of competent jurisdiction thereafter holds subdivision (2), subsection (b) of said section three to be unconstitutional, then section three as amended in the year two thousand three shall be deleted in its entirety and section three as enacted in the year one thousand nine hundred ninety-nine, shall be restored as if no amendments had been made to section three in the year two thousand three. Neither any holding of unconstitutionality nor the repeal of paragraph (B), subdivision (2), subsection (b), section three of this article shall affect, impair or invalidate any other portion of section three, or the application of section three to any other person or circumstance, and such remaining portions of section three shall at all times continue in full force and effect.

(b) Implementation date. -- The amendments to section three of this article in the year two thousand three shall not take effect until thirty days after the earlier of:

(1) All states that share a common border with this state enacting similar amendments to their laws implementing the master tobacco settlement agreement; or

(2) Thirty-three states, including this state, enacting similar amendments to their laws implementing the master tobacco settlement agreement.

Note: WV Code updated with legislation passed through the 2014 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.
This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Web Administrator   |   © 2014 West Virginia Legislature **