H.R. 1400House111th Congress (2009-2011)In Committee

To amend title 39, United States Code, to make cigarettes and certain other tobacco products nonmailable, and for other purposes.

Legislative Activity

Stay on top of the latest movement without scrolling through every action

2 earlier actions

HouseIntro Referral Latest Action

Sponsor introductory remarks on measure. (CR E619)

March 10, 2009

View full timeline

HouseIntro Referral

Introduced in House

March 9, 2009

HouseIntro Referral

Referred to the House Committee on Oversight and Government Reform.

Oversight and Government Reform Committee

March 9, 2009

HouseIntro Referral

Sponsor introductory remarks on measure. (CR E619)

March 10, 2009

Floor Debate

1 member

What members said about H.R. 1400 on the floor

1 Republican

Rep. John M. McHughR-NY-23 · Mar 10, 2009

Madam Speaker, on March 9, 2009, I introduced H.R. 1400, a bill designed to further combat and reduce underage smoking. Specifically, this measure would make cigarettes and certain other tobacco…

Madam Speaker, on March 9, 2009, I introduced H.R. 1400, a bill designed to further combat and reduce underage smoking. Specifically, this measure would make cigarettes and certain other tobacco products nonmailable through the United States Postal Service.

This bill is necessary because the United States Postal Service is being used to facilitate the delivery of cigarettes that were purchased illegally on the Internet by underage minors. Unfortunately, those existing safeguards designed to prevent minors from purchasing cigarettes online have proven ineffective. For example, although 80 percent of cigarette vendor websites allege that transactions with minors will not be completed, there is little in place to enforce this policy. In fact, one study found that only seven percent of online vendors require driver's license information, while more than 50 percent simply require customers to verify their age by selecting an ``I am over 18 years old'' option. These and other safeguards clearly did not deter the 50,000 minors estimated, based on U.S. Centers for Disease Control and Prevention data, to have purchased cigarettes online in 2003. As Internet commerce expands, the number of persons (including minors) purchasing cigarettes online is expected to increase dramatically.

The problem H.R. 1400 is designed to address is illustrated by the disturbing results from Internet ``sting'' operations conducted by over 15 states in recent years. In New York State, 24 out of 26 websites sold cigarettes to minors as young as nine years old. Moreover, in 2005, a group of Upstate New York teenagers in my Congressional District conducted a similar experiment in collaboration with law enforcement. Half of their orders were successfully delivered, and, unfortunately, 90 percent were delivered via the United States Postal Service.

In addition to helping curb the usage of tobacco products among minors, H.R. 1400 would end tax evasions that hurt our States and local governments. These revenues are not insignificant. Rather, annual tax revenues estimated at $1.4 billion are being lost; in 2005, New York State alone lost $400 million.

Madam Speaker, Congress has the opportunity to combat underage tobacco use and tax evasion by enacting H.R. 1400. Accordingly, I ask my colleagues to work with me to enact this important measure.

Bill Text

Latest available legislative text

Reading Mode

Raw Text PDF XML

Introduced in HouseIssued March 9, 2009

111th CONGRESS

1st Session

H. R. 1400

IN THE HOUSE OF REPRESENTATIVES

March 9, 2009

Mr. McHugh introduced the following bill; which was referred to the Committee on Oversight and Government Reform

A BILL

To amend title 39, United States Code, to make cigarettes and certain other tobacco products nonmailable, and for other purposes.

Nonmailability of certain tobacco products

(a)

In General

Chapter 30 of title 39, United States Code, is amended by inserting after section 3002a the following:

3002b.

Nonmailability of certain tobacco products

(a)

In General

Except as provided in subsections (g) and (h), cigarettes, smokeless tobacco, and roll-your-own-tobacco—

(1)

are nonmailable matter;

(2)

shall not be—

(A)

deposited in the mails; or

(B)

carried or delivered through the mails; and

(3)

shall be disposed of as the Postal Service directs.

(b)

Civil penalty

(1)

In general

Any person who violates subsection (a)(2)(A) shall be liable to the United States for a civil penalty in an amount not to exceed $100,000 for each violation.

(2)

Hearings

(A)

In general

The Postal Service may determine that a person has violated subsection (a)(2)(A) only after notice and an opportunity for a hearing. Proceedings under this paragraph shall be conducted in accordance with section 3001(m).

(B)

Penalty considerations

In determining the amount of a civil penalty under this paragraph, the Postal Service shall consider—

(i)

the nature, circumstances, extent, and gravity of the violation;

(ii)

with respect to the violator, the degree of culpability, ability to pay, and any history of prior violations; and

(iii)

such other matters as justice may require.

(3)

Civil actions

The Postal Service may bring a civil action in an appropriate district court of the United States, in accordance with section 409(g)(2), to enjoin violations of subsection (a)(2)(A), to collect a civil penalty under this section, or to seek such other relief with respect to violations of subsection (a)(2)(A) as the court may deem appropriate.

(4)

Disposition of amounts

Amounts received in payment of any civil penalties under this subsection shall be deposited as miscellaneous receipts in the Treasury of the United States.

(c)

Orders

Upon evidence satisfactory to the Postal Service that any person is engaged in the sending of mail matter which is nonmailable under this section, the Postal Service may issue an order which—

(1)

directs any postmaster, to whom any mailing originating with such person or his representative is tendered for transmission through the mails (other than a mailing that consists only of one or more sealed letters), to refuse to accept any such mailing, unless such person or his representative first establishes to the satisfaction of the postmaster that the mailing does not contain any matter which is nonmailable under this section; and

(2)

requires the person or his representative to cease and desist from mailing any mail matter which is nonmailable under this section.

(d)

Prima facie evidence

For the purposes of this section, prima facie evidence that a person is engaged in the mailing of matter which is nonmailable under this section may include a statement on a publicly available website, or an advertisement, by any person that such person will mail matter which is nonmailable under this section in return for payment or other consideration.

(e)

Coordination of efforts

In the enforcement of this section, the Postal Service shall cooperate with, and coordinate its efforts with related activities of, any other Federal agency or any State or local government, whenever appropriate.

(f)

Actions by States relating to certain tobacco products

(1)

Authority of States

Whenever the attorney general of a State has reason to believe that any person has engaged or is engaging in mailings to residents of that State in violation of subsection (a)(2)(A), the State may bring, in an appropriate district court of the United States, a civil action—

(A)

to enjoin such mailings;

(B)

to carry out paragraphs (1) and (4) of subsection (b) with respect to such mailings; or

(C)

to carry out subparagraphs (A) and (B).

In the course of any such action, the State may seek damages equal to the amount of any unpaid taxes on tobacco products mailed in violation of subsection (a)(2)(A) to residents of the State and such other relief as the court may deem appropriate.

(2)

Rights of the Postal Service

The State shall serve prior written notice of any action under paragraph (1) upon the Postal Service and provide the Postal Service with a copy of its complaint, except in any case in which such prior notice is not feasible, in which case the State shall serve such notice immediately upon instituting such action. The Postal Service, in accordance with section 409(g)(2), shall have the right (A) to intervene in the action, (B) upon so intervening, to be heard on all matters arising therein, and (C) to file petitions for appeal.

(3)

Effect on State court proceedings

Nothing contained in this section shall be considered to prohibit an authorized State official from proceeding in State court on the basis of an alleged violation of any general civil or criminal statute of such State.

(4)

Limitation

Whenever the Postal Service institutes a civil action under subsection (a)(3) for a violation of subsection (a)(2)(A), no State may, during the pendency of such action, institute a separate civil action for any violation of subsection (a)(2)(A) against any defendant named in the Postal Service’s complaint.

(g)

Mailings between legal tobacco industry businesses and government agencies

(1)

In general

Tobacco products otherwise made nonmailable by subsection (a) may, beginning on the effective date of regulations prescribed under paragraph (2), be mailed—

(A)

for business purposes between businesses that—

(i)

have all government licenses or permits that are required in order to do business; and

(ii)

are engaged in tobacco product manufacturing, distribution, wholesale, export, import, testing, investigation, or research; or

(B)

for regulatory purposes between any business described in subparagraph (A) and any government agency.

(2)

Regulations

The Postal Service may prescribe regulations governing mailings under this subsection, including regulations to carry out the following:

(A)

The Postal Service shall verify that any person depositing any otherwise nonmailable tobacco product into the mails under this subsection is a business or government agency permitted to make such mailing under this subsection.

(B)

The Postal Service shall ensure that any recipient of any otherwise nonmailable tobacco product sent through the mails under this subsection is a business or government agency permitted to receive such mailing under this subsection.

(C)

The mailing shall be sent using a method that provides for the tracking and confirmation of delivery.

(D)

The identity of the business or government agency from which the mailing is sent, and the identity of the business or government agency to which the mailing is sent, shall be clearly set forth on the envelope or outside cover or wrapper in which such mailing is sent, and all of that information shall, for a period of at least 3 years from the date of the mailing, be kept in Postal Service records and made available to persons enforcing subsection (a)(2)(A).

(E)

The mailing shall be marked with a Postal Service label or marking that makes it clear that such mailing—

(i)

is a permissible mailing of otherwise nonmailable tobacco products; and

(ii)

may be delivered only to a business described in paragraph (1)(A) or a government employee or entity.

(F)

The mailing shall be delivered only to a verified employee or agent of the recipient business or government agency, who—

(i)

has been duly authorized to accept such mailing; and

(ii)

shall be required to sign for the mailing.

(3)

Rule of construction

Nothing in this subsection shall be considered to subject a government agency or any government employee or agent to any penalty or other restriction in connection with any mailing made by such employee or agent, acting within the scope of his employment or agency.

(h)

Mailings between individuals

(1)

In general

Tobacco products otherwise made nonmailable by subsection (a) may be mailed between individuals (other than in any of the circumstances to which subsection (g) applies), for non-moneymaking purposes, beginning on the effective date of regulations prescribed under paragraph (2).

(2)

Regulations

The Postal Service may prescribe regulations establishing the standards and requirements which shall govern all mailings under this subsection, including regulations to carry out the following:

(A)

The Postal Service shall verify that the person depositing the otherwise nonmailable tobacco product into the mails is properly identified on the return address of the mailing.

(B)

The Postal Service shall require the person depositing the otherwise nonmailable tobacco product into the mails to affirm that the recipient is an individual who is of legal age to purchase tobacco products.

(C)

The Postal Service shall require the person depositing the otherwise nonmailable tobacco product into the mails to affirm that the product is not being sent for moneymaking purposes.

(D)

The mailing shall weigh not more than 10 ounces.

(E)

The mailing shall be sent using a method that provides for the tracking and confirmation of delivery.

(F)

The Postal Service shall deliver the mailing only to the verified recipient (as described in subparagraph (B)) at the recipient’s address, including an Air/Army Postal Office (APO) or Fleet Postal Office (FPO) address.

(i)

Definitions

For purposes of this section—

(1)

the terms cigarette and roll-your-own-tobacco have the meanings given them by section 5702 of the Internal Revenue Code of 1986;

(2)

the term smokeless tobacco has the meaning given such term by section 2341 of title 18; and

(3)

the term State includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands.

(b)

Administrative subpoenas

Section 3016(a) of title 39, United States Code, is amended in paragraphs (1)(A) and (2) by inserting 3002b or before 3005(a).

(c)

Enforcement of Postal Service orders

Section 3012 of title 39, United States Code, is amended—

(1)

in subsection (b), by striking or (d) each place it appears and inserting (d), or (e);

(2)

by redesignating subsections (e) and (f) as subsections (f) and (g), respectively; and

(3)

by inserting after subsection (d) the following:

(e)

Any person who fails to comply with an order issued under section 3002b(c)(2) shall be liable to the United States for a civil penalty—

(1)

not to exceed $10,000 for each mailing of fewer than 10 pieces;

(2)

not to exceed $50,000 for each mailing of 10 to 50 pieces; and

(3)

not to exceed $100,000 for each mailing of more than 50 pieces.

; and

(4)

in subsection (g) (as so redesignated by paragraph (2)), by inserting 3002b(c)(2) or before 3005 each place it appears.

(d)

Semiannual reports

Section 3013 of title 39, United States Code, is amended—

(1)

in paragraph (1), by inserting 3002b(b) or before 3005;

(2)

in paragraph (2), by inserting 3002b(c) or before 3005(e); and

(3)

in paragraph (3), by striking section 3007 of this title and inserting section 3002b(c) or section 3007, respectively,.

(e)

Clerical amendment

The table of sections for chapter 30 of title 39, United States Code, is amended by inserting after the item relating to section 3002a the following:

3002b. Nonmailability of certain tobacco products.

(f)

Effective dates

(1)

In general

Except as provided in paragraph (2), the amendments made by this section shall take effect on the 60th day after the date of the enactment of this Act, and shall apply with respect to any mail matter mailed on or after such 60th day.

(2)

Semiannual reports

The amendments made by subsection (d) shall apply beginning with the report submitted for the reporting period in which occurs the 60th day after the date of the enactment of this Act.

Technical correction

(a)

In general

Sections 3007(a)(1), 3012(b)(1), and 3018(f)(1) of title 39, United States Code, are amended by striking 409(d) and inserting 409(g)(2).

(b)

Effective date

The amendments made by subsection (a) shall take effect as if included in the enactment of the Postal Accountability and Enhancement Act (Public Law 109–435).