325F.781 REQUIREMENTS; TOBACCO PRODUCT DELIVERY SALES.
    Subdivision 1. Definitions. (a) For purposes of this section, the following terms have the
meanings given, unless the language or context clearly provides otherwise.
(b) "Consumer" means an individual who purchases, receives, or possesses tobacco products
for personal consumption and not for resale.
(c) "Delivery sale" means:
(1) a sale of tobacco products to a consumer in this state when:
(i) the purchaser submits the order for the sale by means of a telephonic or other method of
voice transmission, the mail or any other delivery service, or the Internet or other online service; or
(ii) the tobacco products are delivered by use of the mail or other delivery service; or
(2) a sale of tobacco products that satisfies the criteria in clause (1), item (i), regardless of
whether the seller is located inside or outside of the state.
A sale of tobacco products to an individual in this state must be treated as a sale to a
consumer, unless the individual is licensed as a distributor or retailer of tobacco products.
(d) "Delivery service" means a person, including the United States Postal Service, that is
engaged in the commercial delivery of letters, packages, or other containers.
(e) "Distributor" means a person, whether located inside or outside of this state, other than
a retailer, who sells or distributes tobacco products in the state. Distributor does not include a
tobacco products manufacturer, export warehouse proprietor, or importer with a valid permit under
United States Code, title 26, section 5712 (1997), if the person sells or distributes tobacco products
in this state only to distributors who hold valid and current licenses under the laws of a state, or to
an export warehouse proprietor or another manufacturer. Distributor does not include a common
or contract carrier that is transporting tobacco products under a proper bill of lading or freight bill
that states the quantity, source, and destination of tobacco products, or a person who ships tobacco
products through this state by common or contract carrier under a bill of lading or freight bill.
(f) "Retailer" means a person, whether located inside or outside this state, who sells or
distributes tobacco products to a consumer in this state.
(g) "Tobacco products" means:
(1) cigarettes, as defined in section 297F.01, subdivision 3; and
(2) smokeless tobacco as defined in section 325F.76.
    Subd. 2. Requirements for accepting order for delivery sale. (a) This subdivision applies
to acceptance of an order for a delivery sale of tobacco products.
(b) When accepting the first order for a delivery sale from a consumer, the tobacco retailer
shall obtain the following information from the person placing the order:
(1) a copy of a valid government-issued document that provides the person's name, current
address, photograph, and date of birth; and
(2) an original written statement signed by the person documenting that the person:
(i) is of legal age to purchase tobacco products in the state;
(ii) has made a choice whether to receive mailings from a tobacco retailer;
(iii) understands that providing false information may be a violation of law; and
(iv) understands that it is a violation of law to purchase tobacco products for subsequent
resale or for delivery to persons who are under the legal age to purchase tobacco products.
(c) If an order is made as a result of advertisement over the Internet, the tobacco retailer
shall request the e-mail address of the purchaser and shall receive payment by credit card or
check prior to shipping.
(d) Prior to shipping the tobacco products, the tobacco retailer shall verify the information
provided under paragraph (b) against a commercially available database. Any such database or
databases may also include age and identity information from other government or validated
commercial sources, if that additional information is regularly used by government and businesses
for the purpose of identity verification and authentication, and if the additional information is
used only to supplement and not to replace the government-issued identification data in the
age and identity verification process.
    Subd. 3. Requirements for shipping a delivery sale. (a) This subdivision applies to a
tobacco retailer shipping tobacco products pursuant to a delivery sale.
(b) The tobacco retailer shall clearly mark the outside of the package of tobacco products to
be shipped "tobacco products - adult signature required" and to show the name of the tobacco
retailer.
(c) The tobacco retailer shall utilize a delivery service that imposes the following
requirements:
(1) an adult must sign for the delivery; and
(2) the person signing for the delivery must show valid government-issued identification that
contains a photograph of the person signing for the delivery and indicates that the person signing
for the delivery is of legal age to purchase tobacco products and resides at the delivery address.
(d) The retailer must provide delivery instructions that clearly indicate the requirements of
this subdivision and must declare that state law requires compliance with the requirements.
(e) No criminal penalty may be imposed on a person for a violation of this section other than
a violation described in paragraph (f) or (g). Whenever it appears to the commissioner that any
person has engaged in any act or practice constituting a violation of this section, and the violation
is not within two years of any previous violation of this section, the commissioner shall issue and
cause to be served upon the person an order requiring the person to cease and desist from violating
this section. The order must give reasonable notice of the rights of the person to request a hearing
and must state the reason for the entry of the order. Unless otherwise agreed between the parties,
a hearing shall be held not later than seven days after the request for the hearing is received by
the commissioner after which and within 20 days after the receipt of the administrative law
judge's report and subsequent exceptions and argument, the commissioner shall issue an order
vacating the cease and desist order, modifying it, or making it permanent as the facts require. If
no hearing is requested within 30 days of the service of the order, the order becomes final and
remains in effect until modified or vacated by the commissioner. All hearings shall be conducted
in accordance with the provisions of chapter 14. If the person to whom a cease and desist order
is issued fails to appear at the hearing after being duly notified, the person shall be deemed in
default, and the proceeding may be determined against the person upon consideration of the cease
and desist order, the allegations of which may be deemed to be true.
(f) Any person who violates this section within two years of a violation for which a cease
and desist order was issued under paragraph (e), is guilty of a misdemeanor.
(g) Any person who commits a third or subsequent violation of this section, including a
violation for which a cease and desist order was issued under paragraph (c), within any subsequent
two-year period is guilty of a gross misdemeanor.
    Subd. 4. Common carriers. This section may not be construed as imposing liability upon
any common carrier, or officers or employees of the common carrier, when acting within the
scope of business of the common carrier.
    Subd. 5. Registration requirement. Prior to making delivery sales or shipping tobacco
products in connection with any sales, an out-of-state retailer must meet the requirements of
section 297F.031.
    Subd. 6. Collection of taxes. (a) Prior to shipping any tobacco products to a purchaser in this
state, the out-of-state retailer shall comply with all requirements of chapter 297F and shall ensure
that all state excise taxes and fees that apply to such tobacco products have been collected and
paid to the state and that all related state excise tax stamps or other indicators of state excise tax
payment have been properly affixed to those tobacco products.
(b) In addition to any penalties under chapter 297F, a distributor who fails to pay any tax
due according to paragraph (a) shall pay, in addition to any other penalty, a penalty of 50 percent
of the tax due but unpaid.
    Subd. 7. Application of state laws. All state laws that apply to in-state tobacco product
retailers shall apply to Internet and mail-order sellers that sell into this state.
    Subd. 8. Forfeiture. Any tobacco product sold or attempted to be sold in a delivery sale
that does not meet the requirements of this section is deemed to be contraband and is subject to
forfeiture in the same manner as and in accordance with the provisions of section 297F.21.
    Subd. 9. Civil penalties. A tobacco retailer or distributor who violates this section or rules
adopted under this section is subject to the following fines:
(1) for the first violation, a fine of not more than $1,000; and
(2) for the second and any subsequent violation, a fine of not more than $5,000.
    Subd. 10. Enforcement. The attorney general may bring an action to enforce this section
and may seek injunctive relief, including a preliminary or final injunction, and fines, penalties,
and equitable relief and may seek to prevent or restrain actions in violation of this section by any
person or any person controlling such person. In addition, a violation of this section is a violation
of the Unlawful Trade Practices Act, sections 325D.09 to 325D.16.
History: 1Sp2005 c 3 art 6 s 20