(1) Certification. (a)
Every tobacco product manufacturer whose cigarettes are sold in this state
whether directly or through a distributor, retailer, or similar intermediary or
intermediaries shall execute and deliver in the manner prescribed by the
department a certification to the executive director of the department no later than
the thirtieth day of April each year certifying under penalty of perjury that, as of the
date of such certification, the tobacco product manufacturer either is a
participating manufacturer or is in full compliance with the tobacco escrow funds
act and all implementing regulations.
(b) A participating manufacturer shall include in its certification a list of its
brand families. The participating manufacturer shall update the list thirty days prior
to any addition to or modification of its brand families by executing and delivering a
supplemental certification to the department.
(c) A nonparticipating manufacturer shall include in its certification a
complete list of all of its brand families, and the list shall:
(I) Separately list:
(A) Brand families of cigarettes and the number of units sold for each brand
family that were sold in the state during the preceding calendar year; and
(B) All of the nonparticipating manufacturer's brand families that have been
sold in the state at any time during the current calendar year;
(II) Indicate by an asterisk, any brand family sold in the state during the
preceding calendar year that is no longer being sold in the state as of the date of
such certification; and
(III) Identify by name and address any other manufacturer of such brand
families in the preceding calendar year.
(d) A nonparticipating manufacturer shall update a certification thirty days
prior to any addition to or modification of its brand families by executing and
delivering a supplemental certification to the department.
(e) A certification of a nonparticipating manufacturer shall further certify:
(I) That the nonparticipating manufacturer is registered to do business in the
state or has appointed a resident agent for service of process and provided notice
thereof as required by section 39-28-304;
(II) That the nonparticipating manufacturer has:
(A) Established and continues to maintain a qualified escrow fund, as defined
in section 39-28-202 (6); and
(B) Executed a qualified escrow agreement that has been reviewed and
approved by the attorney general and that governs the qualified escrow fund;
(III) That the nonparticipating manufacturer is in full compliance with the
tobacco escrow funds act, this part 3, and any rules promulgated pursuant to the
tobacco escrow funds act or this part 3; and
(IV) That information pertaining to the qualified escrow fund, including:
(A) The name, address, and telephone number of the financial institution
where the nonparticipating manufacturer has established the qualified escrow fund
required by section 39-28-203 and all rules promulgated thereto;
(B) The account number of the qualified escrow fund and sub-account
number for the state of Colorado;
(C) The amount the nonparticipating manufacturer placed in the fund for
cigarettes sold in the state during the preceding calendar year, the date and
amount of each deposit, and such evidence or verification as may be deemed
necessary by the department to confirm the foregoing; and
(D) The amounts of and dates of any withdrawal or transfer of funds the
nonparticipating manufacturer made at any time from the fund or from any other
qualified escrow fund into which it ever made escrow payments pursuant to the
tobacco escrow funds act and all rules promulgated thereto.
(f) (I) A tobacco product manufacturer may not include a brand family in its
certification unless:
(A) In the case of a participating manufacturer, the participating
manufacturer affirms that the brand family is to be deemed to be its cigarettes for
purposes of calculating its payments under the master settlement agreement for
the relevant year in the volume and shares determined pursuant to the master
settlement agreement; and
(B) In the case of a nonparticipating manufacturer, the nonparticipating
manufacturer affirms that the brand family is to be deemed to be its cigarettes for
purposes of the tobacco escrow funds act.
(II) Nothing in this paragraph (f) shall be construed as limiting or otherwise
affecting the state's right to maintain that a brand family constitutes cigarettes of
a different tobacco product manufacturer for purposes of calculating payments
under the master settlement agreement or for purposes of part 2 of this article.
(g) Tobacco product manufacturers shall maintain all invoices and
documentation of sales and other such information relied upon for such
certification for a period of five years, unless otherwise required by law to maintain
them for a greater period.
(2) Directory of cigarettes approved for stamping and sale. (a) Not later
than June 1, 2003, the department shall develop and publish on its website a
directory listing all tobacco product manufacturers that have provided current and
accurate certifications conforming to the requirements of subsection (1) of this
section and all brand families that are listed in such certifications; except that:
(I) The department shall not include or retain in the directory the name or
brand families of any nonparticipating manufacturer that has failed to provide the
required certification or whose certification the department determines is not in
compliance with paragraphs (c) and (d) of subsection (1) of this section, unless the
department has determined that the violation has been cured to the satisfaction of
the department.
(II) Neither a tobacco product manufacturer nor brand family shall be
included or retained in the directory if the executive director of the department
concludes that:
(A) In the case of a nonparticipating manufacturer, any escrow payment
required pursuant to the tobacco escrow funds act for any period for any brand
family, whether or not listed by the nonparticipating manufacturer, has not been
fully paid into a qualified escrow fund governed by a qualified escrow agreement
that has been approved by the attorney general; or
(B) Any outstanding final judgment, including interest thereon, for violations
of the tobacco escrow funds act has not been fully satisfied for the brand family
and the manufacturer.
(b) The department shall update the directory as necessary in order to
correct mistakes and to add or remove a tobacco product manufacturer or brand
family to keep the directory in conformity with the requirements of this part 3.
(c) The department shall transmit by electronic mail or other practicable
means to each stamping agent notice of any addition to or removal from the
directory of a tobacco product brand manufacturer or brand family. In addition, the
department shall transmit by electronic mail or other practical means to each
stamping agent notice of the potential removal from the directory of a tobacco
product brand manufacturer or brand family three calendar days before the
tobacco product brand manufacturer or brand family is actually removed from the
directory. Unless otherwise provided by agreement between a stamping agent and
a tobacco product manufacturer, a stamping agent shall be entitled to a refund
from a tobacco product manufacturer of any money paid by the stamping agent to
the tobacco product manufacturer for any cigarettes of the tobacco product
manufacturer still held by the stamping agent on the date of notice by the
department of the removal from the directory of the tobacco product manufacturer
or the brand family of the cigarettes. The department shall not restore to the
directory a tobacco product manufacturer or a brand family until the tobacco
product manufacturer has paid the stamping agent any refund due.
(d) Every stamping agent shall provide and update as necessary an
electronic mail address to the department for the purpose of receiving any
notifications that may be required by this part 3.
(3) Prohibition against stamping or sale of cigarettes not in the directory. It
shall be unlawful for any person to:
(a) Affix a stamp to a package or other container of cigarettes of a tobacco
product manufacturer or brand family not included in the directory; or
(b) Sell, offer, or possess for sale in this state cigarettes of a tobacco
product manufacturer or brand family not included in the directory.