This page contains the full-text reproduction of S. 1415
the "Universal Tobacco Settlement Act."
[Title I-II]
TITLE III--STANDARDS TO REDUCE INVOLUNTARY EXPOSURE TO TOBACCO SMOKE
SEC. 301. DEFINITIONS.
(1) ADMINISTRATOR- The term `Administrator' means the Administrator of the Occupational Safety and Health Administration.
(A) IN GENERAL- The term `public facility' means any building regularly entered by 10 or more individuals at least 1 day per week, including any such building owned by or leased to a Federal, State, or local government entity. Such term shall not include any building or portion thereof regularly used for residential purposes.
(B) EXCLUSIONS- Such term does not include a building which is used as a restaurant (other than a fast food restaurant), bar, private club, hotel guest room, casino, bingo parlor, tobacco merchant, or prison.
(C) FAST FOOD RESTAURANT- The term `fast food restaurant' means any restaurant or chain of restaurants that primarily distributes food through a customer pick-up (either at a counter or drive-through window). The Administrator of the Occupational Safety and Health Administration may promulgate regulations to clarify this subparagraph to ensure that the intended inclusion of establishments catering largely to individuals under 18 years of age is achieved.
(3) RESPONSIBLE ENTITY- The term `responsible entity' means, with respect to any public facility, the owner of such facility except that, in the case of any such facility or portion thereof which is leased, such term means the lessee.
SEC. 302. SMOKE-FREE ENVIRONMENT POLICY.
(a) POLICY REQUIRED- In order to protect children and adults from cancer, respiratory disease, heart disease, and other adverse health effects from breathing environmental tobacco smoke, the responsible entity for each public facility shall adopt and implement at such facility a smoke-free environment policy which meets the requirements of subsection (b).
(1) IN GENERAL- Each smoke-free environment policy for a public facility shall--
(A) prohibit the smoking of cigarettes, cigars, and pipes, and any other combustion of tobacco within the facility and on facility property within the immediate vicinity of the entrance to the facility; and
(B) post a clear and prominent notice of the smoking prohibition in appropriate and visible locations at the public facility.
(2) EXCEPTION- The smoke-free environment policy for a public facility may provide an exception to the prohibition specified in paragraph (1) for 1 or more specially designated smoking areas within a public facility if such area or areas meet the requirements of subsection (c).
(c) SPECIALLY DESIGNATED SMOKING AREAS- A specially designated smoking area meets the requirements of this subsection if--
(1) the area is ventilated in accordance with specifications promulgated by the Administrator that ensure that air from the area is directly exhausted to the outside and does not recirculate or drift to other areas within the public facility;
(2) the area is maintained at negative pressure, as compared to adjoined nonsmoking areas, as determined under regulations promulgated by the Administrator; and
(3) nonsmoking individuals do not have to enter the area for any purpose while smoking is occurring in such area.
Cleaning and maintenance work shall be conducted in such area only while no smoking is occurring in the area.
SEC. 303. CITIZEN ACTIONS.
(a) IN GENERAL- An action may be brought to enforce the requirements of this title by any aggrieved person, any State or local government agency, or the Administrator.
(b) VENUE- Any action to enforce this title may be brought in any United States district court for the district in which the defendant resides or is doing business to enjoin any violation of this title or to impose a civil penalty for any such violation in the amount of not more than $5,000 per day of violation. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce this title and to impose civil penalties under this title.
(c) NOTICE- An aggrieved person shall give any alleged violator notice of at least 60 days prior to commencing an action under this section. No action may be commenced by an aggrieved person under this section if such alleged violator complies with the requirements of this title within such 60-day period and thereafter.
(d) COSTS- The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and
expert witness fees) to any prevailing plaintiff, whenever the court determines such award is appropriate.
(e) PENALTIES- The court, in any action under this section to apply civil penalties, shall have discretion to order that such civil penalties be used for projects which further the policies of this title. The court shall obtain the view of the Administrator in exercising such discretion and selecting any such projects.
SEC. 304. PREEMPTION.
Nothing in this title shall preempt or otherwise affect any other Federal, State or local law which provides protection from health hazards from environmental tobacco smoke.
SEC. 305. REGULATIONS.
The Administrator is authorized to promulgate such regulations as the Administrator deems necessary to carry out this title.
SEC. 306. EFFECTIVE DATE.
The provisions of this title shall take effect on the date that is 1 year after the date of enactment of this Act.
TITLE IV--PUBLIC HEALTH AND OTHER PROGRAMS
Subtitle A--Public Health Block Grant Program
SEC. 401. PUBLIC HEALTH TRUST FUND.
(1) IN GENERAL- The Secretary shall establish, as a separate fund within the Trust Fund established under section 401, a trust fund to be known as the `Public Health Trust Fund', consisting of such amounts as may be appropriated or credited to the Trust Fund.
(2) TRUSTEES- The trustees of the Trust Fund shall be the Commissioner and the Secretary.
(b) TRANSFERS- There are hereby appropriated and transferred to the Trust Fund the amounts described in section 401(d)(1) with respect to the year involved.
(c) EXPENDITURES FROM TRUST FUND- Amounts in the Public Health Trust Fund shall be available in each calendar year, as provided by appropriations Act, for block grants under section 502.
SEC. 402. BLOCK GRANTS TO STATES.
(a) IN GENERAL- For the purpose described in subsection (b), the Secretary shall award a block grant to each State in each fiscal year in an amount based on the allotment of the State as determined in accordance with section 503.
(b) AUTHORIZED ACTIVITIES- A State shall use amounts received under a block grant only for the purpose of planning, carrying out, and evaluating activities as provided for in section 504.
(c) APPLICATION- To be eligible to receive a grant under this subtitle a State shall prepare and submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require, including such assurances as the Secretary may require regarding the compliance of the State with the requirements of this Act.
SEC. 403. ALLOTMENTS.
(a) IN GENERAL- Of the amounts appropriated and available for block grants for a fiscal year under section 502, the Secretary shall allot to each State an amount determined under the allotment formula under subsection (b).
(c) REALLOTMENTS- To the extent that all the funds appropriated under section 501(c) for a fiscal year and available for allotment in such fiscal year are not otherwise allotted to States because--
(1) one or more States have not submitted an application in accordance with section 502(c) for the fiscal year; or
(2) one or more States have notified the Secretary that they do not intend to use the full amount of their allotment;
such excess shall be reallotted among each of the remaining States in proportion to the amount otherwise allotted to such States for the fiscal year without regard to this subsection.
(d) INDIAN TRIBES AND TRIBAL ORGANIZATIONS-
(1) IN GENERAL- If the Secretary--
(A) receives a request from the governing body of an Indian tribe or tribal organization within any State that funds under this subtitle be provided directly by the Secretary to such tribe or organization; and
(B) determines that the members of such tribe or tribal organization would be better served by means of grants made directly by the Secretary under this subtitle;
the Secretary shall reserve from amounts which would otherwise be allotted to such State under subsection (a) for the fiscal year the amount determined under paragraph (2).
(2) AMOUNT- The Secretary shall reserve for the purpose of paragraph (1) from amounts that would otherwise be allotted to such State under subsection (a) an amount to be determined by a formula developed by the Secretary after consultation with the Secretary of the Interior.
(3) GRANT- The amount reserved by the Secretary on the basis of a determination under this subsection shall be granted to the Indian tribe or tribal organization serving the individuals for whom such a determination has been made.
(4) PLAN- In order for an Indian tribe or tribal organization to be eligible for a grant for a fiscal year under this subsection, it shall submit to the Secretary a plan for such fiscal year which meets such criteria as the Secretary may prescribe.
(5) DEFINITIONS- The terms `Indian tribe' and `tribal organization' shall have the same meaning given such terms in section 4(b) and section 4(c) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(b) and (c)).
SEC. 404. USE OF FUNDS.
(a) IN GENERAL- Amounts provided to a State under a grant under this subtitle shall be used--
(1) to reimburse the State for expenses incurred by the State under the State program under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) relating to the treatment of tobacco-related illnesses or conditions;
(2) to reimburse the State for other expenses incurred by the State in providing directly, or reimbursing others for the provision of, treatment for tobacco-related illnesses or conditions;
(3) to provide health care coverage, either directly or through arrangements with other entities, for uninsured individuals under 18 years of age who reside in the State;
(4) to establish a State tobacco products liability judgments and settlement fund, as provided for in subsection (c);
(5) to reimburse the State for expenses incurred in carrying out the tobacco licensure requirements of subtitle D of title I; and
(6) to carry out any other activities determined appropriate by the State.
(b) LIMITATIONS ON USES- A State may not use amounts provided under a grant under this subtitle for programs or projects not approved of by the Secretary.
(c) JUDGMENT AND SETTLEMENT FUND-
(1) IN GENERAL- Each State that receives a grant under this subtitle shall establish a fund for the purpose of making payments under paragraph (2).
(2) PAYMENTS- The fund established under paragraph (1) shall be used to make payments to individuals who have obtained a judgment in a tobacco-related action brought in a State court, or who have entered into a settlement of such an action, of the amount of any award under such judgment or settlement that represents punitive damages.
SEC. 405. WITHHOLDING OF FUNDS.
(1) IN GENERAL- The Secretary shall, after adequate notice and an opportunity for a hearing conducted within the affected State, withhold funds from any State which does not use its allotment in accordance with the requirements of this subtitle. The Secretary shall withhold such funds until the Secretary finds that the reason for the withholding has been removed and there is reasonable assurance that it will not recur.
(2) INVESTIGATION- The Secretary may not institute proceedings to withhold funds under paragraph (1) unless the Secretary has conducted an
investigation concerning whether the State has used its allotment in accordance with the requirements of this subtitle. Investigations required by this paragraph shall be conducted within the affected State by qualified investigators.
(3) RESPONSE TO COMPLAINTS- The Secretary shall respond in an expeditious manner to complaints of a substantial or serious nature that a State has failed to use funds in accordance with the requirements of this subtitle.
(4) MINOR FAILURE- The Secretary may not withhold funds under paragraph (1) from a State for a minor failure to comply with the requirements of this subtitle.
(b) INVESTIGATIONS- The Secretary shall conduct in several States in each fiscal year investigations of the use of funds received by the States under this subtitle in order to evaluate compliance with the requirements of this subtitle.
(c) AVAILABILITY OF INFORMATION- Each State, and each entity which has received funds from an allotment made to a State under this subtitle, shall make available to the Secretary, for examination, copying, or mechanical reproduction on or off the premises, appropriate books, documents, papers, and records of the entity upon a reasonable request therefore.
Subtitle B--Other Programs
SEC. 411. NATIONAL SMOKING CESSATION PROGRAM.
(a) ESTABLISHMENT- The Secretary shall establish a program to be known as the `National Smoking Cessation Program' under which the Secretary may award grants to eligible public and nonprofit entities and individuals for smoking cessation purposes.
(1) OF ENTITIES- To be eligible to receive a grant under this section an entity shall--
(A) be a public or nonprofit private entity;
(B) prepare and submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require;
(C) provide assurances that amounts received under the grant will be used in accordance with subsection (c)(1); and
(D) meet any other requirements determined appropriate by the Secretary.
(2) OF INDIVIDUALS- To be eligible to receive a grant under this section an individual shall--
(A) prepare and submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require;
(B) provide assurances that amounts received under the grant will be used only in accordance with subsection (c)(2); and
(C) meet any other requirements determined appropriate by the Secretary.
(1) BY ENTITIES- An entity that receives a grant under this section shall use amounts provided under the grant to establish or administer tobacco product use cessation programs that are approved in accordance with subsection (d).
(2) BY INDIVIDUALS- An individual that receives a grant under this section shall use amounts provided under the grant to enroll in a tobacco product use cessation program or to purchase a tobacco product cessation device that has been approved in accordance with subsection (d). Grants to individuals under this section may be in the form of vouchers that may be used to pay the costs of enrollment in an approved program or to purchase an approved device.
(d) APPROVAL OF CESSATION PROGRAM OR DEVICES- Using the best available scientific information, the Secretary shall promulgate regulations to provide for the approval of tobacco product use cessation programs and devices. Such regulations shall be designed to ensure that tobacco product users, if requested, are provided with reasonable access to safe and effective cessation programs and devices. Such regulations shall ensure that such individuals have access to a broad range of cessation options that are tailored to the needs of the individual tobacco user.
(e) FUNDING- The Secretary shall use amounts available under section 401(d)(2) to carry out this section.
SEC. 412. NATIONAL REDUCTION IN TOBACCO USAGE PROGRAM.
(a) ESTABLISHMENT- The Secretary shall establish a program to be known as the `National Reduction in Tobacco Usage Program' under which the Secretary may award grants to eligible public and nonprofit entities to carry out activities designed to reduce the use of tobacco products.
(b) ELIGIBILITY- To be eligible to receive a grant under this section an entity shall--
(1) be a State health department, other public entity, or a nonprofit private entity;
(2) prepare and submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require;
(3) provide assurances that amounts received under the grant will be used in accordance with subsection (c); and
(4) meet any other requirements determined appropriate by the Secretary.
(c) USE OF FUNDS- An entity that receives a grant under this section shall use amounts provided under the grant to--
(1) carry out media-based and nonmedia-based education, prevention, and cessation campaigns designed to discourage the use of tobacco products by individuals who are under 18 years of age and to encourage those who use such products to quit;
(2) carry out research concerning, and provide for the development and public dissemination of, technologies and methods to reduce the risk of dependence and injury from tobacco product usage and exposure;
(3) provide for the identification, testing, and evaluation of the health effects of both tobacco and non-tobacco constituents of tobacco products; or
(4) carry out any other activities determined by the Secretary to be consistent with the purposes of this Act.
(d) FUNDING- The Secretary shall use amounts available under section 401(d)(3) to carry out this section.
SEC. 413. NATIONAL TOBACCO-FREE PUBLIC EDUCATION PROGRAM.
(a) ESTABLISHMENT OF BOARD-
(1) IN GENERAL- The Secretary shall establish an independent board to be known as the `Tobacco-Free Education Board' (referred to in this section as the `Board') to enter into contracts with or award grants to eligible public and nonprofit private entities to carry out public informational and educational activities designed to reduce the use of tobacco products.
(2) APPOINTMENT- The Board shall be composed of 9 members to be appointed by the Secretary, of which--
(A) at least 3 such members shall be an individual who is widely recognized by the general public for achievement in the athletic, cultural, entertainment, educational, business, or political field; and
(B) at least 3 of whom shall be individuals who are heads of a major public health organizations.
(3) TERMS AND VACANCIES- The members of the Board shall serve staggered terms as determined appropriate at the time of appointment by the Secretary. Any vacancy in the Board shall not affect its powers, but shall be filled in the same manner as the original appointment.
(A) HEARINGS- The Board may hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as the Board considers advisable to carry out the purposes of this section.
(B) INFORMATION FROM FEDERAL AGENCIES- The Board may secure directly from any Federal department or agency such information as the Board considers necessary to carry out the provisions of this section.
(A) COMPENSATION- Each member of the Board who is not an officer or employee of the Federal Government shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay prescribed for level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day (including travel time) during which such member is engaged in the performance of the duties of the Board. All members of the Board who are officers or employees of the United States shall serve without compensation in addition to that received for their services as officers or employees of the United States.
(B) TRAVEL EXPENSES- The members of the Board shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of services for the Board.
(b) ESTABLISHMENT OF PROGRAM- The Secretary shall establish a program to be known as the `National Tobacco-Free Public Education Program' under which the Board may enter into contracts with or award grants to eligible public and nonprofit private entities to carry out public informational and educational activities designed to reduce the use of tobacco products.
(c) ELIGIBILITY- To be eligible to receive a grant under this section an entity shall--
(A) public entity or a State health department; or
(B) nonprofit private entity that--
(i) is not affiliated with a tobacco product manufacturer or importer;
(ii) has a demonstrated record of working effectively to reduce tobacco product use; and
(iii) has expertise in conducting a multi-media communications campaign;
(2) prepare and submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require, including a description of the activities to be conducted using amounts received under the grant or contract;
(3) provide assurances that amounts received under the grant will be used in accordance with subsection (d); and
(4) meet any other requirements determined appropriate by the Secretary.
(d) USE OF FUNDS- An entity that receives a grant or contract under this section shall use amounts provided under the grant or contract to conduct multi-media public educational or informational campaigns that are designed to discourage and de-glamorize the use of tobacco products. Such campaigns shall be designed to discourage the initiation of tobacco use by minors and encourage those using such products to quit.
(e) NEEDS OF CERTAIN POPULATIONS- In awarding grants and contracts under this section, the Board shall take into consideration the needs of particular populations.
(f) FUNDING- The Secretary shall use amounts available under section 401(d)(4) to carry out this section.
SEC. 414. NATIONAL EVENT SPONSORSHIP PROGRAM.
(a) ESTABLISHMENT- The Secretary shall establish a program to be known as the `National Event Sponsorship Program' under which the Secretary may award grants to eligible entities or individuals for the sponsorship of activities described in subsection (c).
(b) ELIGIBILITY- To be eligible to receive a grant under this section an entity or individual shall--
(1) prepare and submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require, including--
(A) a description of the event, activity, team, or entry for which the grant is to be provided;
(B) documentation that the event, activity, team, or entry involved was sponsored or otherwise funded by a tobacco manufacturer or distributor prior to the date of the application; and
(C) a certification that the applicant is unable to secure funding for the event, activity, team, or entry involved from sources other than those described in paragraph (2);
(2) provide assurances that amounts received under the grant will be used in accordance with subsection (d); and
(3) meet any other requirements determined appropriate by the Secretary.
(c) PERMISSIBLE SPONSORSHIP ACTIVITIES- Events, activities, teams, or entries for which a grant may be provided under this section include--
(1) an athletic, musical, artistic, or other social or cultural event or activity that was sponsored in whole or in part by a tobacco manufacturer or distributor prior to the date of enactment of this Act;
(2) the participation of a team that was sponsored in whole or in part by a tobacco manufacturer or distributor prior to the date of enactment of this Act, in an athletic event or activity; and
(3) the payment of a portion or all of the entry fees of, or other financial or technical support provided to, an individual or team by a tobacco manufacturer or distributor prior to the date of enactment of this Act, for participation of the individual in an athletic, musical, artistic, or other social or cultural event.
(d) USE OF FUNDS- Amounts received under a grant under this section shall be used to--
(1)(A) pay the costs associated with the sponsorship of an event or activity described in subsection (c)(1);
(B) provide for the sponsorship of an individual or team;
(C) pay the required entry fees associated with the participation of an individual or team in an event or activity described in subsection (c)(3);
(D) provide financial or technical support to an individual or team in connection with the participation of that individual or team in an activity described in subsection (c)(3); or
(E) for any other purposes determined appropriate by the Secretary; and
(2) promote images or activities to discourage individuals from using tobacco products or encourage individuals who use such products to quit.
(e) ALLOCATION OF UNEXPENDED FUNDS- Amounts available for purposes of carrying out this section and remaining available at the end of the 10-year period described in section 401(d)(5), shall be used as follows:
(1) 50 percent of such amounts shall be used to supplement amounts available for multi-media campaigns under section 512;
(2) 25 percent of such amounts shall be used to supplement amounts available for enforcement purposes under section 401(d)(8); and
(3) 25 percent of such amounts shall be used to supplement amounts available for community action programs under section 515.
(f) FUNDING- The Secretary shall use amounts available under section 401(d)(5) to carry out this section.
SEC. 415. NATIONAL COMMUNITY ACTION PROGRAM.
(a) ESTABLISHMENT- The Secretary shall establish a program to be known as the `National Community Action Program' under which the Secretary may award grants to eligible State and local governmental entities to carry out community-based tobacco control efforts that are designed to encourage community involvement in reducing tobacco product use.
(b) ELIGIBILITY- To be eligible to receive a grant under this section an entity shall--
(1) be a State or local public entity;
(2) prepare and submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require;
(3) provide assurances that amounts received under the grant will be used in accordance with the purposes of this section; and
(4) meet any other requirements determined appropriate by the Secretary.
(c) FUNDING- The Secretary shall use amounts available under section 401(d)(6) to carry out this section.
SEC. 416. NATIONAL CESSATION RESEARCH PROGRAM.
(a) ESTABLISHMENT- The Secretary shall establish a program to be known as the `National Cessation Research Program' under which the Secretary may award grants to eligible entities for research concerning, and the development of methods, drugs, and devices to discourage individuals from using tobacco products and to assist individuals who use such products in quitting such use.
(d) Additional Requirements-
(e) FUNDING- The Secretary shall use amounts available under section 401(d)(7) to carry out this section.
SEC. 417. USE OF SURCHARGE PAYMENTS.
(a) IN GENERAL- Of the amount made available to the Secretary each year under section 401(d)(9), the Secretary shall--
(1) use not less than 90 percent of such amount to award grants to State and local governmental and public health agencies to carry out activities to further reduce the use of tobacco products by individuals who are under 18 years of age; and
(2) use not more than 10 percent of such amount for the administrative costs associated with the administration of title II and of chapter IX of the Federal Food, Drug and Cosmetic Act (as added by section 143(3)).
(b) TRANSFER OF CERTAIN AMOUNTS- If the Secretary determines that the administrative costs described in subsection (a)(2) are less than the amount available under section subsection, the Secretary may--
(1) transfer any such excess amount to other Federal, State, or local agencies to meet the needs associated with the reduction of underage tobacco usage; or
(2) expend such amounts directly for activities to expedite the reduction of underage tobacco use.
(c) ELIGIBILITY- To be eligible to receive a grant under this section an entity shall--
(1) be a State or local governmental or public health agency;
(2) prepare and submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require;
(3) provide assurances that amounts received under the grant will be used in accordance with this section; and
(4) meet any other requirements determined appropriate by the Secretary.
(d) FUNDING- The Secretary shall use amounts available under section 401(d)(9) to carry out this section.
TITLE V--CONSENT DECREES, NON-PARTICIPATING MANUFACTURERS, AND STATE ENFORCEMENT
SEC. 501. PURPOSES.
It is the purpose of this title to provide for the establishment of consent decrees and the imposition of certain
payment provisions, in addition to those otherwise provided for under Federal or State laws, to encourage manufacturers, distributors, and retailers to comply with this Act, and to otherwise provide for the enforcement of this Act with respect to non-participating manufacturers.
Subtitle A--Consent Decrees and Non-Participating Manufacturers
SEC. 511. CONSENT DECREES.
(a) REQUIREMENT- To be eligible to receive payments under title V, a State, and to be eligible to receive liability protections under title VII, a tobacco manufacturer or distributor, shall enter into consent decrees under this section to be effective on the date of enactment of this Act.
(b) TERMS AND CONDITIONS-
(1) IN GENERAL- The terms and conditions contained in the consent decrees described in subsection (a) shall contain provisions to clarify the application and requirements of this Act (and the amendments made by this Act), including provisions relating to--
(A) restrictions on tobacco product advertising and marketing and youth access to such products;
(B) the termination, establishment, and operation of trade associations;
(C) restrictions on tobacco lobbying;
(D) the disclosure of tobacco smoke constituents;
(E) the disclosure of nontobacco ingredients found in tobacco products;
(F) the disclosure of existing and future documents relating to health, toxicity, and addition related to tobacco product usage;
(G) compliance and corporate culture;
(H) the obligation of manufacturers to make payments for the benefit of States;
(I) the obligation of manufacturers to interact only with distributors and retailers that operate in compliance with the applicable provisions of Federal, State, or local law regarding the marketing and sale of tobacco products;
(J) requirements for warnings, labeling, and packaging of tobacco products;
(K) the dismissal of pending litigation as required under title VII and as agreed to by the parties to the decree; and
(L) any other matter determined appropriate by the Secretary or the parties involved.
(2) LIMITATIONS- The terms and conditions contained in the consent decrees described in subsection (a) shall not contain provisions relating to--
(A) tobacco product design, performance, or modification;
(B) manufacturing standards and good manufacturing practices;
(C) testing and regulation with respect to toxicity and ingredients approval; and
(D) the required percentage reductions in the underage use of tobacco products for a year under section 204.
(3) WAIVER OF CONSTITUTIONAL CLAIMS- The terms and conditions contained in the consent decrees described in subsection (a) shall include a provision waiving the Federal or State constitutional claims of the parties and providing for the severability of the provisions of the decree.
(4) CONSTRUCTION- The terms and conditions contained in the consent decrees described in subsection (a) shall provide that the terms of the decree will be construed in a manner that is consistent with the provision of this Act.
(c) APPROVAL- To be valid under this section, the provisions of a consent decree must be approved by the Secretary prior to approval or entry by a court.
(1) CHANGES IN LAW- The provisions of a consent decree entered under this section shall remain in effect and enforceable regardless of whether the provisions of this Act are amended, except that any amendments to this Act that--
(A) establish Federal requirements that are in conflict with obligations contained in the consent decrees shall render such obligations unenforceable;
(B) require allocations of funds that are in conflict with the allocation contained in the consent decrees shall render such consent decree allocation unenforceable; and
(C) require warnings, labeling, or packaging that conflicts with the warning, labeling, or packaging requirements of the consent decree, shall require that modifications be made in the consent decree to conform with such amendments.
(A) IN GENERAL- A State may bring an action to enforce the provisions of any consent decree under this section in any appropriate State court. Such proceedings may seek injunctive relief only and may not seek criminal or monetary sanctions. Enforcement of any injunctive relief provided under a State action under this section shall be permitted under any applicable State law.
(B) CONSISTENCY- The Secretary, in consultation with the Attorney General, shall promulgate regulations to ensure the consistency of State court ruling with respect to conduct under a consent decree that is not exclusively local in nature.
SEC. 512. NATIONAL TOBACCO CONTROL PROTOCOL.
(a) REQUIREMENT- Not later than 6 months after the date of enactment of this Act, each tobacco manufacturer to which this Act applies shall enter into a National Tobacco Control Protocol.
(b) TERMS AND CONDITIONS- The Protocol referred to in subsection (a) shall be--
(1) developed by the Secretary as a binding and enforceable contract that embodies the terms of this Act; and
(2) designed to be enforceable in Federal or State courts.
SEC. 513. NON-PARTICIPATING MANUFACTURERS.
(a) IN GENERAL- With respect to a manufacturer that elects not to enter into a consent decree under section 602, such manufacturer shall not be eligible to receive the liability protections under title VII.
(b) IMPOSITION OF USER FEE-
(1) IN GENERAL- Each manufacturer that elects not to enter into a consent decree under section 602 and not to become a signatory to the National Tobacco Control Protocol under section 603 shall be subject to an annual fee established under this subsection.
(A) TOTAL- The total amount of all fees established under this subsection for a year shall be equal to the amounts provided under paragraphs (1) and (8) of section 401(d) for the year.
(B) PER MANUFACTURER- The Secretary shall promulgate regulations for the purpose of assessing fees under this subsection and determining the amount of the fee to be assessed to each manufacturer.
(c) SETTLEMENT RESERVE FUND-
(1) IN GENERAL- Each manufacturer to which subsection (b)(1) applies shall annually deposit into an escrowed reserve fund an amount equal to 150 percent of the amount that such manufacturer would have paid under section 402 (except for that portion of the payments that would have been made available under paragraphs (1) and (8) of section 401(d)) for the year in which the manufacturer is making such deposit if the manufacturer had been a signatory to the National Tobacco Control Protocol under section 603.
(2) USE- Amounts contained in the reserve fund of a manufacturer under paragraph (1) shall be used solely for tobacco-related liability payments. The manufacturer may reclaim any amounts remaining in the fund (with interest) at the end of the 35-year period beginning on the date on which such fund is established.
Subtitle B--State Enforcement
SEC. 521. REQUIREMENT OF NO SALE TO MINORS LAW.
(1) IN GENERAL- Subject to paragraph (2), for each calendar year, the Secretary may not make any payments to a State under section 403 unless the State involved has in effect a law providing that it is unlawful for any manufacturer, retailer, or distributor of tobacco products to sell or distribute any such product to any individual under the age of 18 that meets the requirements of this section.
(2) DELAYED APPLICABILITY FOR CERTAIN STATES- In the case of a State whose legislature does not convene a regular session in fiscal year 1997, and in the case of a State whose legislature does not convene a regular session in fiscal year 1998, the requirement described in paragraph (1) as a condition of a receipt of payments under section 403 shall apply only for fiscal year 1999 and subsequent fiscal years.
(b) REQUIREMENTS- A State law described in subsection (a) shall comply with the following:
(1) PROHIBITION ON SALE- Such law shall provide that it is unlawful for any manufacturer, retailer, or distributor of tobacco products to sell or distribute any such product within the State to any individual under the age of 18 years.
(2) PURCHASE, RECEIPT OR POSSESSION-
(A) IN GENERAL- Such law shall provide that an individual under 18 years of age shall not purchase or attempt to purchase, receive or
attempt to receive, possess or attempt to possess, smoke or attempt to smoke, or otherwise use or consume or attempt to use or consume a tobacco product in a public place.
(B) EMPLOYMENT- Such law may permit an individual under the age of 18 to possess a tobacco product during regular working hours and in the course of such individual's employment if the tobacco product is not possessed for such individual's consumption.
(A) IN GENERAL- Such law shall provide that the State Police of a State, or such local law enforcement authority duly designated by the State Police, shall enforce this law in a manner that can reasonably be expected to reduce the extent to which tobacco products are distributed to individuals under 18 years of age and shall, at least monthly, conduct random, unannounced inspections in accordance with regulations promulgated by the Secretary under this section to ensure compliance with this law.
(B) CONDUCT- Inspections under this paragraph shall be conducted in communities geographically and statistically representative of the entire State and the youth population of the State. Not less than 250 such inspections shall be conducted with respect to each 1,000,000 residents of the State.
SEC. 522. STATE REPORTING.
(a) IN GENERAL- Not later than 2 years after the date of enactment of this Act, and annually thereafter, the State shall prepare and submit to the Secretary a reduction in tobacco product usage report. Such report shall, except as provided in subsection (b)(3), be made available to the general public of the State.
(b) CONTENTS- A report submitted under subsection (a) shall include--
(1) a detailed description of the enforcement activities undertaken by the State and the political subdivisions of the State concerning tobacco product usage laws for the year for which the report is being prepared;
(2) a detailed description of the progress of the State in reducing the availability of tobacco products to individuals under 18 years of age, including the detailed statistical results of the compliance inspection required under section 621;
(3) a detailed description of the methods used in such compliance inspection and in identifying outlets which were tested (the Secretary shall provide protections for the confidentiality of information provided under this paragraph);
(4) a detailed description of the strategies that the State intends to utilize in the current and succeeding years to make further progress on reducing the availability of tobacco products to individuals under 18 years of age; and
(5) the identity of a single State agency that is responsible for administering the requirements of title III in the State.
SEC. 523. REDUCTION IN STATE PAYMENTS.
(a) ANNUAL DETERMINATION- Beginning with respect to the fifth full fiscal year after the date of enactment of this Act, and each fiscal year thereafter the Secretary shall make a determination as to whether each State has pursued all reasonably available measures to enforce the law described in section 621.
(b) PRESUMPTIVE FINDING- The Secretary shall find presumptively that a State has not pursued all reasonably available measures to enforce the law described in section 621 if the Secretary determines that the State has not achieved the following compliance rate results based on the findings of the retail compliance inspections conducted under the State law:
(1) With respect to each of the fifth and sixth fiscal years following the date of enactment, 75 percent compliance with State law.
(2) With respect to each of the seventh through ninth fiscal years following the date of enactment, 85 percent compliance with State law.
(3) With respect to the tenth and each subsequent fiscal year following the date of enactment, 90 percent compliance with State law.
(1) IN GENERAL- With respect to a State that the Secretary determines does not meet the compliance rates described in subsection (b), the Secretary may reduce the amount that the State may be eligible for under section 501. The amount of any such reduction shall not exceed an amount equal to 1 percent of the amount for which the State is eligible for under section 501 for the fiscal year involved for each 1 percentage point by which the State's compliance performance is below the applicable compliance rate.
(2) LIMITATION- In no event shall the amount of any reduction under this section exceed an amount equal to 20 percent of the amount for which
the State is eligible for under section 501 for the fiscal year involved.
(3) REALLOTMENT- The Secretary shall reallot any amounts withheld under this subsection to States with compliance rates that exceed the rates applicable under subsection (b) in amounts to be determined by the Secretary as appropriate to reward States with the highest compliance rates.
(1) PETITION FOR RELEASE- Not later than 90 days after the date on which a notice from the Secretary that the Secretary intends to make a reduction under subsection (c) is received, a State may petition the Secretary for a release and disbursement of such amount (referred to in this subsection as the `withhold amount'). The State shall give prompt written notice of such petition to the State attorney general.
(A) HOLDING AND INVESTING OF FUNDS- Upon receipt of a petition under paragraph (1), the Secretary shall designate the withhold amount as subject to a petition and invest such amount in interest-bearing securities of the United States subject to a final disposition of the petition.
(B) BASIS FOR DETERMINATION- In considering a petition received under paragraph (1), the Secretary shall consider--
(i) whether the State has acted in good faith and in full compliance with the provisions of this Act (and the amendments made by this Act) and any regulations promulgated in furtherance of this Act;
(ii) whether the State has pursued all reasonably available measures to achieve the compliance rates applicable under subsection (b) and the goals of this Act for reducing the underage use of tobacco products;
(iii) whether there is any evidence of any direct or indirect action taken by the State to undermine the achievement of the compliance rates and goals described in clause (ii); and
(iv) any other evidence determined appropriate by the Secretary.
(C) BURDEN- With respect to any action by the Secretary on a petition under paragraph (1), the burden shall be on the State to prove, by a preponderance of the evidence, that the State should be granted a release and disbursement under the petition.
(D) HEARING- The Secretary shall hold a hearing, with notice and an opportunity to be heard provided to the attorney general of the State and to manufacturers, prior to making any determination as to a petition under paragraph (1).
(E) RELEASE OF FUNDS- Upon a determination by the Secretary that the State has met the burden imposed under subparagraph (C) with respect to a petition, the Secretary shall disburse not to exceed 75 percent of the withhold amount (and any interest accrued on such amount) to the State. The Secretary may consider all relevant evidence in determining the amount to disburse to the State under this subparagraph.
(A) IN GENERAL- Any manufacturer or State attorney general aggrieved by a decision of the Secretary under paragraph (2) may, within 30 days of the date of such decision, seek judicial review of the decision in the United States Court of Appeals for the District of Columbia Circuit. The provisions of sections 701 through 706 of title 5, United States Code, shall apply to appeals filed under this paragraph.
(B) LIMITATION- No stay or other injunctive relief that has the effect of enjoining the withholding of amounts under this section shall be permitted during the pendency of an appeal filed under this paragraph.
(C) FINALITY- The decision of the Court of Appeals in an action under this paragraph shall be final.
TITLE VI--PROVISIONS RELATING TO TOBACCO-RELATED CIVIL ACTIONS
SEC. 601. GENERAL IMMUNITY.
(a) STATE ATTORNEY GENERAL ACTIONS-
(1) PENDING ACTIONS- Civil actions that have been commenced by a State or local governmental entity, or on behalf of such an entity, against a manufacturer, distributor, or retailer that is a
signatory to the National Tobacco Control Protocol under section 612, and that are pending on the date of enactment of this Act are terminated.
(2) FUTURE ACTIONS- A manufacturer, distributor or retailer that is a signatory to the National Tobacco Control Protocol under section 612 shall be immune from any civil action commenced after the date of enactment of this Act by a Federal, State, or local governmental entity, or on behalf of such an entity, for all claims arising from the use of a tobacco product.
(A) PENDING ACTIONS- Class actions for claims arising from the use of a tobacco product that are pending against a manufacturer, distributor, or retailer that is a signatory to the National Tobacco Control Protocol under section 612, are terminated.
(B) FUTURE ACTIONS- A manufacturer, distributor, or retailer that is a signatory to the National Tobacco Control Protocol under section 612 shall be immune from any class action commenced after the date of enactment of this Act for all claims arising from the use of a tobacco product.
(2) ADDICTION AND DEPENDENCE CLAIMS-
(A) PENDING ACTIONS- Any civil action for claims based on addition to or dependence on a tobacco product that are pending against a manufacturer, distributor, or retailer that is a signatory to the National Tobacco Control Protocol under section 612, are terminated.
(B) FUTURE ACTIONS- A manufacturer, distributor, or retailer that is a signatory to the National Tobacco Control Protocol under section 612 shall be immune from any civil action commenced after the date of enactment of this Act for all claims based on addition to or dependence on a tobacco product.
(c) PRESERVATION- All personal injury claims arising from the use of a tobacco product by an individual shall be preserved.
SEC. 602. CIVIL LIABILITY FOR PAST CONDUCT.
(a) APPLICATION- The provisions of this section shall apply to all civil actions permitted under section 701 for relief arising from the conduct of a manufacturer, distributor, or retailer that is a signatory to the National Tobacco Control Protocol under section 612 that occurred prior to the date of enactment of this Act.
(b) PUNITIVE DAMAGES PROHIBITED- No punitive damages shall be awarded in any claim described in subsection (a).
(c) INDIVIDUAL TRIALS- No class action suits, joinder of parties, aggregation of claims, consolidation of actions, extrapolations, or other devices to resolve cases other than on the basis of individual actions shall be permitted without the consent of the defendant. Any defendant, in an action that involves a violation of this subsection, may remove such action to an appropriate Federal court.
(d) JOINT SHARING AGREEMENT- As part of the National Tobacco Control Protocol under section 612, all signatories shall agree to the joint sharing of any civil liability for actions for damages arising from the use of tobacco products. Such signatories shall not be jointly and severally liable for damages involving nonsignatories. Actions involving both signatories and nonsignatories shall be severed.
(1) PLAINTIFFS- The following individuals may be plaintiffs in a civil action to which this section applies:
(A) Individuals bringing claims, or claims derivative of such claims, on their own behalf for a tobacco-related injury, or the heirs of such individuals.
(B) Third-party payors for claims not based on subrogation that were pending on June 9, 1997.
(C) Third-party payors for claims based on subrogation of individual claims permitted under subparagraph (A).
(2) DEFENDANTS- This section shall apply only to actions brought against a signatory of the National Tobacco Control Protocol under section 612, a successor or assign of such a signatory, any future fraudulent transferees, or any entity for suit designated to survive a defunct signatory. Such signatories shall be vicariously liable for the actions of their agents.
(f) REMOVAL- Except as provided in subsection (c), there shall be no removal of a action to which this section applies.
(g) DISCOVERY- The development, after the date of enactment of this Act, of any tobacco product that reduces the risk of injury or illness to a user shall not be admissible or discoverable.
(1) AGGREGATE ANNUAL CAP- With respect to a calendar year, the aggregate amount of all tobacco claims judgments or settlements to which this section applies, that the signatories of the National Tobacco Control Protocol under section 612 shall be required to pay, shall not exceed an amount equal to 33 percent of the annual payment required under section 402 for the year involved.
(2) PAYMENT OF EXCESS- If the amount of the judgments and settlements described in paragraph (1) exceed an amount equal to 33 percent of the annual payment required under section 402 for the year involved, such excess amount shall be paid in the following year.
(3) EFFECT OF SETTLEMENT- The signatories described in paragraph (1) shall receive a credit, to be applied against the amount owed by such signatories to the National Tobacco Settlement Trust Fund for the year involved, in an amount equal to 80 percent of the aggregate amounts paid under judgments or settlements of tobacco-related claims to which this section applies for such year.
(4) INDIVIDUAL CAP- With respect to an action to which this section applies, any amount awarded in excess of $1,000,000 may be paid in the year following the year in which the judgment or settlement was entered, except that this paragraph shall not apply if all other awards under judgments or settlements entered in the first year can be paid without exceeding the aggregate annual cap under paragraph (1). Such excess amount shall carry over from year to year with no payments in any single year exceeding $1,000,000 and no interest accruing on such amounts until such time as the annual aggregate cap is not exceeded.
(5) Unused portion of credit-
(i) DEFENSE COSTS- The signatories of the National Tobacco Control Protocol under section 612 shall be responsible for the payment of all attorneys' fees and other costs associated with being a defendant in an action to which this section applies.
SEC. 603. CIVIL LIABILITY FOR FUTURE CONDUCT.
(a) APPLICATION- The provisions of this section shall apply to all civil actions permitted under section 701 for relief arising from the conduct of a manufacturer, distributor, or retailer that is a signatory to the National Tobacco Control Protocol under section 612 that occurs after the date of enactment of this Act.
(b) GENERAL PROVISIONS- The provisions of subsections (c) and (e) through (i) of section 702 shall apply to actions under this section.
(c) THIRD-PARTY PAYOR CLAIMS- Third-party payor claims that are not based on subrogation shall not be commenced under this section.
SEC. 604. NON-PARTICIPATING MANUFACTURERS.
The provisions of this title shall not apply to any manufacturer, distributor, or retailer that is not a signatory to the National Tobacco Control Protocol under section 612.
[Title I-II]
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