Section 2: Annual certification; contents
Section 2. (a) A tobacco product manufacturer whose cigarettes are sold in the commonwealth, whether directly or through a wholesaler, retailer or similar intermediary, shall annually execute and deliver to the attorney general and to the commissioner, not later than April 30, in a form and manner prescribed by the attorney general, a certification under penalty of perjury that as of the date of the certification, the tobacco product manufacturer either: (1) is a participating manufacturer; or (2) is in full compliance with the escrow requirements of chapter 94E, including any installment payments which may be required under subsection (e) of section 4.
(b) A participating manufacturer shall include in its certification a complete list of all of its brand families. The participating manufacturer shall update such list 30 days prior to any addition or modification to its brand families by executing and delivering a supplemental certification to the attorney general and the commissioner.
(c) A nonparticipating manufacturer shall include in its certification a complete list of all of its brand families, with:
(i) for each brand family, the number of units sold in the commonwealth during the preceding calendar year;
(ii) a designation of all of the brand families that have been sold in the commonwealth at any time during the current calendar year;
(iii) a designation of all of the brand families sold in the commonwealth during the preceding calendar year that no longer are being sold in the commonwealth as of the date of the certification; and
(iv) the identification, by name and address, of any other manufacturer of such brand families in the preceding calendar year or current calendar year. The nonparticipating manufacturer shall update the list 30 days prior to any addition or modification to its brand families by executing and delivering a supplemental certification to the attorney general and the commissioner.
(d) In the case of a nonparticipating manufacturer, such certification shall further certify:—
(i) that the nonparticipating manufacturer is registered to do business in the commonwealth or has appointed an agent for service of process and provided notice thereof as required by section 3;
(ii) that the nonparticipating manufacturer maintains a qualified escrow fund established under and governed by a qualified escrow agreement that has been reviewed and approved by the attorney general;
(iii) that the nonparticipating manufacturer is in full compliance with chapter 94E and this chapter and any regulations promulgated pursuant thereto; and
(iv) the name, address and telephone number of the financial institution where the nonparticipating manufacturer has established such qualified escrow fund; the account number of such qualified escrow fund and the subaccount number for the commonwealth; the amount such nonparticipating manufacturer placed in such fund for units sold in the commonwealth during the preceding calendar year; the date and amount of each such deposit and such evidence or verification as may be deemed necessary by the attorney general to confirm them; and the dates and amounts of all withdrawals or transfers of funds made at any time from such qualified escrow fund or from any other qualified escrow fund into which the nonparticipating manufacturer ever made escrow payments pursuant to said chapter 94E or this chapter and any regulations promulgated pursuant thereto.
(e) A tobacco product manufacturer may not include a brand family in its certification unless:
(i) in the case of a participating manufacturer, the participating manufacturer affirms that the brand family is 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
(ii) in the case of a nonparticipating manufacturer, said nonparticipating manufacturer affirms that the brand family is deemed to be its cigarettes for purposes of chapter 94E. Nothing in this section shall be construed to limit or otherwise affect the commonwealth's right to maintain that a brand family constitutes cigarettes of a different tobacco product manufacturer for the purposes of calculating payments under the Master Settlement Agreement or for the purposes of said chapter 94E.
(f) The tobacco product manufacturer shall maintain all invoices and documentation of sales and other such information relied upon for such certification for a period of 5 years, unless otherwise required by law to maintain them for a greater period of time.
(g) In consultation with the attorney general, the commissioner shall develop a public directory listing all tobacco product manufacturers who have provided certifications conforming to the requirements of subsection (a) and all brand families that are listed in such certifications, subject to the following:
(1) The commissioner shall not include in the directory the name or brand families of a nonparticipating manufacturer that fails to provide the required certification or whose certification the attorney general determines is not complete and accurate and otherwise in compliance with subsections (a) to (f), inclusive, unless such violation has been corrected to the satisfaction of the attorney general.
(2) The commissioner shall not include in the directory the name or brand families of a nonparticipating manufacturer if the attorney general determines that: (i) all escrow payments required pursuant to chapter 94 E for any period for a brand family, whether or not listed by the nonparticipating manufacturer, have not been fully paid into a qualified escrow fund governed by a qualified escrow agreement approved by the attorney general; or (ii) all outstanding final judgments, including interest thereon, for violations of said chapter 94E or this chapter have not been fully satisfied for such brand family and such manufacturer.
(3) The commissioner shall take reasonable steps to update the directory as necessary in order to keep the directory in conformity with the requirements of this chapter.
(4) Every stamper shall provide to the commissioner, and update as necessary, an electronic mail address for the purpose of receiving any notices as may be made pursuant to this chapter.
(h) No person shall: (1) affix an excise stamp to a package or other container of cigarettes of a tobacco product manufacturer or brand family not included in the directory; or (2) sell, offer or possess for sale in the commonwealth, cigarettes of a tobacco product manufacturer or brand family not included in the directory.