TITLE 10 COMMERCE AND TRADE

13A. Master Settlement Agreement Enhancements, 10-13A-1 through 10-13A-10.

ARTICLE 2 INVEST GEORGIA FUND

10-13A-2. Definitions.

As used in this chapter, the term:

1. "Brand family" means all styles of cigarettes sold under the same trademark and differentiated from one another by means of additional modifiers or descriptors, including, but not limited to, "menthol," "lights," "kings," and "100s," and includes any brand name, alone or in conjunction with any other word, trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or any other indicia of product identification identical or similar to or identifiable with a previously known brand of cigarettes.
2. "Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains (A) any roll of tobacco wrapped in paper or in any substance not containing tobacco; or (B) tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or (C) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in clause (A) of this definition. The term "cigarette" includes "roll-your-own" (i.e., any tobacco which, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes). For purposes of this definition of "cigarette," 0.09 ounces of "roll-your-own" tobacco shall constitute one individual "cigarette."
3. "Commissioner" means the state revenue commissioner.
4. "Dealer" means cigarette and loose and smokeless dealers as defined in paragraphs (7) and (17) of Code Section 48-11-1.
5. "Directory" means the directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of Code Section 10-13A-3 and all brand families that are listed in such certifications developed by the Attorney General pursuant to Code Section 10-13A-4, or in the case of reference to another state's directory, the directory compiled under the similar law of the other state.
6. "Distributor" means any person who:
   1. Maintains a warehouse, warehouse personnel, and salespersons who regularly contact and call on dealers; and
   2. Is engaged in the business of:
      1. Manufacturing cigarettes in this state, importing cigarettes into this state, or purchasing cigarettes from other manufacturers or distributors; and
      2. Selling the cigarettes to dealers in this state for resale but is not in the business of selling the cigarettes directly to the ultimate consumer of the cigarettes.
7. "Importer" means any person in the United States to whom nonfederal excise tax-paid cigarettes manufactured in a foreign country are shipped or consigned, any person who removes cigarettes for sale or consumption in the United States from a customs bonded manufacturing warehouse, or any person who smuggles or otherwise unlawfully brings cigarettes into the United States.
8. "Master Settlement Agreement" means the settlement agreement (and related documents) entered into on November 23, 1998, by the state and leading United States tobacco product manufacturers.
9. "Nonparticipating manufacturer" means any tobacco product manufacturer that is not a participating manufacturer.
10. "Package" means any pack or other container on which a state stamp could be applied consistent with and as required by Code Section 48-11-3 that contains one or more individual cigarettes for sale. Nothing in this paragraph shall alter any other applicable requirements with respect to the minimum number of cigarettes that may be contained in a pack or other container of cigarettes. References to package do not include a container of multiple packages.
11. "Participating manufacturer" has the meaning given that term in subsection II(jj) of the Master Settlement Agreement and all amendments thereto.
12. "Person" means any natural person, trustee, company, partnership, corporation, or other legal entity.
13. "Purchase" means any acquisition in any manner or by any means for any consideration. The term includes transporting or receiving product in connection with a purchase.
14. "Qualified escrow fund" means an escrow arrangement with a federally or state chartered financial institution having no affiliation with any tobacco product manufacturer and having assets of at least $1 billion where such arrangement requires that such financial institution hold the escrowed funds' principal for the benefit of releasing parties and prohibits the tobacco product manufacturer placing the funds into escrow from using, accessing, or directing the use of the funds' principal except as consistent with subparagraph (B) of paragraph (2) of Code Section 10-13-3. The principal balance in the qualified escrow fund must always be maintained so that both the face value and the cost basis of the account are each equal to or greater than the accumulated principal deposits.
15. "Sale or sell" means any transfer, exchange, or barter in any manner or by any means for any consideration. Sale or sell includes distributing or shipping product in connection with a sale. References to sale "in" or "into" a state refers to the state of the destination point of the product in the sale, without regard to where title was transferred. References to sale "from" the state refers to the sale of cigarettes that are located in the state to the destination in question without regard to where title was transferred.
16. "Stamping agent" means any person that is authorized to affix stamps to packages or other containers of cigarettes under Code Section 48-11-3 or any person that is required to pay the excise tax under the alternate method of taxation, if so prescribed pursuant to Code Section 48-11-3 on "roll-your-own" tobacco.
17. "Tobacco product manufacturer" means an entity that after April 28, 1999:
    1. Manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer (except where such importer is an original participating manufacturer (as that term is defined in the Master Settlement Agreement) that will be responsible for the payments under the Master Settlement Agreement with respect to such cigarettes as a result of the provisions of subsection II(mm) of the Master Settlement Agreement and that pays the taxes specified in subsection II(z) of the Master Settlement Agreement, and provided that the manufacturer of such cigarettes does not market or advertise such cigarettes in the United States);
    2. Is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or
    3. Becomes a successor of an entity described in subparagraph (A) or (B) of this paragraph.

       The term tobacco product manufacturer shall not include an affiliate of a tobacco product manufacturer unless such affiliate itself falls within subparagraphs (A) through (C) of this paragraph.

18. "Units sold" means the number of individual cigarettes sold in the state by the applicable tobacco product manufacturer (whether directly or through a distributor, retailer, or similar intermediary or intermediaries) during the year in question on cigarette packs required to bear a tax stamp pursuant to Code Section 48-11-3 and on "roll-your-own" tobacco on which excise tax is due either by tax stamp or pursuant to an alternate method of taxation. "Units sold" does not include cigarettes the purchase or use of which the state is prohibited from taxing under the Constitution or statutes of the United States. The state revenue commissioner and the Attorney General may promulgate such regulations as are necessary to ascertain the amount of state excise tax paid on cigarettes of such tobacco product manufacturer for each year.

(Code 1981, §10-13A-2, enacted by Ga. L. 2003, p. 829, § 1; Ga. L. 2004, p. 631, § 10; Ga. L. 2016, p. 528, § 3/HB 899.)

The 2016 amendment, effective July 1, 2016, added paragraph (4); redesignated former paragraphs (4) and (5) as present paragraphs (5) and (6), respectively; added ", or in the case of reference to another state's directory, the directory compiled under the similar law of the other state" at the end of paragraph (5); deleted "cigars or" preceding "cigarettes" throughout paragraph (6); added paragraph (7); redesignated former paragraphs (6) and (7) as present paragraphs (8) and (9), respectively; added paragraph (10); redesignated former paragraph (8) as present paragraph (11); added paragraphs (12) through (16); deleted former paragraph (9), which read: "'Qualified escrow fund' means an escrow arrangement with a federally or state chartered financial institution having no affiliation with any tobacco product manufacturer and having assets of at least $1 billion where such arrangement requires that such financial institution hold the escrowed funds' principal for the benefit of releasing parties and prohibits the tobacco product manufacturer placing the funds into escrow from using, accessing, or directing the use of the funds' principal except as consistent with subparagraph (B) of paragraph (2) of Code Section 10-13-3."; redesignated former paragraphs (10) and (11) as present paragraphs (17) and (18), respectively; and, in paragraph (18), substituted "on cigarette packs required to bear a tax stamp pursuant to Code Section 48-11-3 and on 'roll-your-own' tobacco on which excise tax is due either by tax stamp or pursuant to an alternate method of taxation" for ", as measured by excise taxes collected by the state on packs (or 'roll-your-own' tobacco containers) bearing the excise tax stamp of the state." in the first sentence, added the second sentence, and substituted "and the Attorney General may" for "shall" in the last sentence.