Chapter 109:8-1 Tobacco Products Manufacturer Escrow Accounts

109:8-1-01 Definitions.

(A) The following definitions shall apply to all rules promulgated and contained in Chapter 1346 of the Ohio Administrative Code:

(1) "Brand Family" has the meaning given that term in section 1346.04(A) of the Revised Code.

(2) "Cigarette" has the meaning given that term in section 1346.04(B) of the Revised Code.

(3) "Directory" means the listing of tobacco product manufacturers maintained by the Attorney General pursuant to section 1346.05(B) of the Revised Code.

(4) "Escrow deposit" means deposits required to be made into a qualified escrow fund pursuant to section 1346.02(B) of the Revised Code.

(5) "Master Settlement Agreement" has the meaning given that term in section 1346.01(E) of the Revised Code.

(6) "Nonparticipating Manufacturer" has the meaning given that term in section 1346.04(C) of the Revised Code.

(7) "Participating manufacturer" has the meaning given that term in section 1346.04(D) of the Revised Code.

(8) "Qualified escrow fund" has the meaning given that term in section 1346.01(F) of the Revised Code.

(9) "Stamping agent" has the meaning given that term in section 1346.04(E) of the Revised Code.

(10) "Tobacco product manufacturer" has the meaning given that term in section 1346.01(I) of the Revised Code.

(11) "Units Sold" has the meaning given that term in section 1346.01(J) of the Revised Code.

Eff 11-14-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 1346.08(A)(B)
Rule amplifies: RC 1346.04 - 1346.10
R.C. 119.032 review dates: 09/29/2009 and 09/29/2014

109:8-1-02 Tobacco product manufacturers directory.

(A) In exercising the discretion granted by section 1346.05(A)(4)(b) and section 1346.05(B)(2) of the Revised Code, the Attorney General may consider the following:

(1) Whether the entity tendering a certification request is a tobacco product manufacturer;

(2) Completeness, or lack thereof, of the certification request made by the tobacco product manufacturer;

(3) Whether the tobacco product manufacturer has provided all requested documents supporting its certification request;

(4) Whether the certification request is based on misrepresentation, false information, nondisclosure or concealment of facts;

(5) Whether the tobacco product manufacturer is in full compliance with all provisions of local, state and federal Law, including but not limited to the provisions of section 5743.21 and section 2927.02 of the Revised Code;

(6) Whether the tobacco product manufacturer, predecessor of the tobacco product manufacturer, or previous manufacturer of the brand is the subject of an injunction obtained by the State of Ohio for previous failure to comply with sections 1346.01 through 1346.10 of the Revised Code;

(7) Whether the tobacco product manufacturer has failed to fully fund a qualified escrow fund approved by the Attorney General;

(8) Whether all final judgments and penalties, including interest, costs and attorney fees thereon, in favor of the State of Ohio, for violation of any Ohio statute, administrative rule or other law, including but not limited to violations of sections 1346.01 through 1346.10 of the Revised Code, have been fully satisfied for the brand family, or tobacco product manufacturer;

(9) Whether the tobacco product manufacturer has corrected deficiencies in its certification request or criteria set forth in this section in a timely and thorough manner;

(10) Whether the tobacco product manufacturer has complied in a timely and thorough manner with any request by the Attorney General for additional information or documentation supporting its certification request or the criteria set forth in this section;

(11) Whether the tobacco product manufacturer is owned, either all or in part, by a person or entity with a current or prior interest in any other tobacco product manufacturer that is, or has been, not in compliance with sections 1346.01 through 1346.10 of the Revised Code or is the subject of an injunction obtained by the State of Ohio for failure to comply with sections 1346.01 through 1346.10 of the Revised Code;

(12) Whether the tobacco product manufacturer is managed or operated by a person with a current or prior interest in any other tobacco product manufacturer that is, or has been, not in compliance with sections 1346.01 through 1346.10 of the Revised Code or is the subject of an injunction obtained by the State of Ohio for failure to comply with sections 1346.01 through 1346.10 of the Revised Code; and

(13) Any other facts or circumstances the Attorney General determines are relevant.

(B) In a manner provided in Section 1346.05(B)(2) of the Revised Code, the Attorney General shall remove a tobacco product manufacturer or brand family from the directory if the Attorney General determines that the tobacco product manufacturer or the brand family no longer meets the requirements of sections 1346.01 through 1346.10 of the Revised Code.

(C) In the manner provided in Section 1346.05(B)(2) of the Revised Code, the Attorney General shall reject the application of a tobacco product manufacturer or brand family to be listed in the directory if the Attorney General determines that the tobacco product manufacturer or the brand family does not meet the requirements of sections 1346.01 through 1346.10 of the Revised Code.

(D) The Attorney General shall promptly notify a tobacco product manufacturer in writing at the address supplied in the certification form prescribed by the Attorney General pursuant to section 1346.05(A)(1) of the Revised Code by facsimile or regular mail if the manufacturer has met the requirements of section 1346.05 of the Revised Code and will be included in the directory. The notice shall include each brand family that the Attorney General determines will be included in the directory.

(E) If, on or after the effective date of these rules, the Attorney General intends to deny a tobacco product manufacturer or brand family a place in the directory, to remove a manufacturer or brand family from the directory, or to exclude an entity because the entity is not a tobacco product manufacturer, the Attorney General shall mail a written Notice of Intended Action to the manufacturer or entity. The Notice of Intended Action shall specify:

(1) The factual and legal basis upon which the Attorney General's intended action rests;

(2) The actions that the tobacco product manufacturer or entity must undertake to cure the factual or legal deficiencies upon which the intended action is based, if any; and,

(3) The date upon which attempts to cure the deficiencies, if any, must be completed and documentation of completion must be submitted to the Attorney General. In no event shall the Attorney General allow the tobacco product manufacturer or entity less than seven (7) days within which to cure the deficiencies, if any, upon which the Attorney General's intended action is based.

(F) If the deficiencies have been cured to the satisfaction of the Attorney General, the attorney General shall notify a tobacco product manufacturer in writing by facsimile or regular mail that the manufacturer or brand name family will be included in the directory in accordance with section 1346.05(B) of the Revised Code.

(G) If any of the deficiencies have not been cured to the satisfaction of the Attorney General, the Attorney General shall take action in accordance with section 1346.05(B) of the Revised Code denying or removing a manufacturer, brand family, or entity a place in the directory.

(H) The Attorney General may, for any reason and at the Attorney General's discretion, extend any period allowed by these rules.

Eff 11-14-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 1346.08(A)(B)
Rule amplifies: RC 1346.01 - 1346.10
R.C. 119.032 review dates: 09/29/2009 and 09/29/2014

109:8-1-03 Quarterly certifications and escrow deposits.

(A) On or after January 1, 2005, to promote compliance with section 1346.02 of the Revised Code, the Attorney General may require nonparticipating manufacturers to certify compliance with sections 1346.02 and 1346.05 of the Revised Code on a quarterly basis. The Attorney General may also require nonparticipating manufacturers to make the escrow payments required by section 1346.02 of the Revised Code, in quarterly installments during the year in which the sales covered by such payments are made. This rule applies to nonparticipating manufacturers that meet any of the following criteria:

(1) Nonparticipating manufacturers that have not previously established and funded a qualified escrow fund in Ohio;

(2) Nonparticipating manufacturers that have not made any escrow deposits for more than one (1) year;

(3) Nonparticipating manufacturers that have failed to make a timely and/or complete escrow deposit for any prior calendar year;

(4) Nonparticipating manufacturers that have failed to pay any judgment obtained in any jurisdiction, including any civil penalty stemming from any jurisdiction's escrow deposit laws;

(5) Nonparticipating manufacturers that have more than 1,600,000 of their cigarettes sold during a quarter; and

(6) In addition to the reasons specified above, the Attorney General may require quarterly escrow deposits from a nonparticipating manufacturer if the Attorney General has reasonable cause to believe the nonparticipating manufacturer may not make its full required escrow deposit by April 15 of the year following the year in which the cigarettes sales were made.

(B) Nonparticipating manufacturers who are required to make quarterly escrow deposits must do so no later than thirty (30) days after the end of the quarter in which the sales are made. For example, the deadline for making a quarterly escrow deposit for cigarette sales occurring January 1 through March 31 is April 30 of the same year.

(C) Nonparticipating manufacturers who are required to make quarterly escrow deposits, shall provide the Attorney General with official notification of the quarterly escrow deposit no later than ten (10) days after the deadline for which an escrow deposit is required. Nonparticipating manufacturers shall also provide their quarterly certifications within the same deadline. For example, the deadline for certifying and officially notifying the Attorney General of a quarterly escrow deposit for sales of cigarettes that occurred January 1 through March 31 is May 10 of the same year. Nothing in this rule eliminates the requirement under section 1346.05 of the Revised Code for a nonparticipating manufacturer to file its annual certification due on April 30 of each year.

(D) For purposes of this section, the calendar year shall be divided into the following quarters: January 1 through March 31; April 1 through June 30; July 1 through September 30; and October 1 through December 31.

(E) If the required quarterly escrow deposit is not timely made in full, or the required quarterly certification is not provided to the Attorney General, or the Attorney General does not receive timely official notice of the quarterly escrow deposit, the delinquent nonparticipating manufacturer and its brand families shall be removed from the directory in accordance with Section 1346.05 of the Revised Code.

Eff 1-1-05
Rule promulgated under: RC 119.03
Rule authorized by: RC 1346.08(A)(B)
Rule amplifies: RC 1346.01 - 1346.10
R.C. 119.032 review dates: 09/29/2009 and 09/29/2014