I think this topic deserves its own thread. Xander pointed out elsewhere that the Senate passed a version of the PACT bill that is truly gutless. Why? Because the sections on compliance and enforcement were eliminated. What does that leave? An empty gesture that extricates the federal government from PACT matters, really. (And that was the very point of the PACT proposal – to get the federal government involved in what have always been state matters.) You can compare the original and altered, final version here: http://www.govtrack.us/congress/billtext.xpd?bill=s111-1147 Who was it exactly that pushed for the elimination of Sections 4 and 7? It’s a brilliant bit of legal maneuvering, really. It renders PACT spineless and unenforceable, removing the federal government from any further involvement. This was removed: [quote]SEC. 4. COMPLIANCE WITH MODEL STATUTE OR QUALIFYING STATUTE. (a) In General- A Tobacco Product Manufacturer or importer may not sell in, deliver to, or place for delivery sale, or cause to be sold in, delivered to, or placed for delivery sale in a State that is a party to the Master Settlement Agreement, any cigarette manufactured by a Tobacco Product Manufacturer that is not in full compliance with the terms of the Model Statute or Qualifying Statute enacted by the State requiring funds to be placed into a qualified escrow account under specified conditions, and with any regulations promulgated pursuant to the statute. (b) Jurisdiction To Prevent and Restrain Violations- (1) IN GENERAL- The United States district courts shall have jurisdiction to prevent and restrain violations of subsection (a) in accordance with this subsection. (2) INITIATION OF ACTION- A State, through its attorney general, may bring an action in an appropriate United States district court to prevent and restrain violations of subsection (a) by any person. (3) ATTORNEY FEES- In any action under paragraph (2), a State, through its attorney general, shall be entitled to reasonable attorney fees from a person found to have knowingly violated subsection (a). (4) NONEXCLUSIVITY OF REMEDIES- The remedy available under paragraph (2) is in addition to any other remedies available under Federal, State, or other law. No provision of this Act or any other Federal law shall be held or construed to prohibit or preempt the Master Settlement Agreement, the Model Statute (as defined in the Master Settlement Agreement), any legislation amending or complementary to the Model Statute in effect as of June 1, 2006, or any legislation substantially similar to such existing, amending, or complementary legislation enacted after the date of enactment of this Act. (5) OTHER ENFORCEMENT ACTIONS- Nothing in this subsection shall be construed to prohibit an authorized State official from proceeding in State court or taking other enforcement actions on the basis of an alleged violation of State or other law. (6) AUTHORITY OF THE ATTORNEY GENERAL- The Attorney General of the United States may bring an action in an appropriate United States district court to prevent and restrain violations of subsection (a) by any person. (c) Definitions- In this section the following definitions apply: (1) DELIVERY SALE- The term ‘delivery sale’ means any sale of cigarettes or smokeless tobacco to a consumer if-- (A) the consumer submits the order for the sale by means of a telephone or other method of voice transmission, the mails, or the Internet or other online service, or the seller is otherwise not in the physical presence of the buyer when the request for purchase or order is made; or (B) the cigarettes or smokeless tobacco are delivered to the buyer by common carrier, private delivery service, or other method of remote delivery, or the seller is not in the physical presence of the buyer when the buyer obtains possession of the cigarettes or smokeless tobacco. (2) IMPORTER- The term ‘importer’ means each of the following: (A) SHIPPING OR CONSIGNING- Any person in the United States to whom nontaxpaid tobacco products manufactured in a foreign country, Puerto Rico, the Virgin Islands, or a possession of the United States are shipped or consigned. (B) MANUFACTURING WAREHOUSES- Any person who removes cigars or cigarettes for sale or consumption in the United States from a customs-bonded manufacturing warehouse. (C) UNLAWFUL IMPORTING- Any person who smuggles or otherwise unlawfully brings tobacco products into the United States. (3) MASTER SETTLEMENT AGREEMENT- The term ‘Master Settlement Agreement’ means the agreement executed November 23, 1998, between the attorneys general of 46 States, the District of Columbia, the Commonwealth of Puerto Rico, and 4 territories of the United States and certain tobacco manufacturers. (4) MODEL STATUTE; QUALIFYING STATUTE- The terms ‘Model Statute’ and ‘Qualifying Statute’ means a statute as defined in section IX(d)(2)(e) of the Master Settlement Agreement. (5) TOBACCO PRODUCT MANUFACTURER- The term ‘Tobacco Product Manufacturer’ has the meaning given that term in section II(uu) of the Master Settlement Agreement. SEC. 5.[/quote] Remember, the above was eliminated from the version of the bill that the Senate passed. In other words, by striking this, PACT is essentially toothless. (By the way, “a state that is a party to the Master Settlement Agreement” refers to the 46 states that reached a settlement agreement with the four major tobacco companies in November 1998. Mississippi, Florida, Texas and Minnesota were not party to the Master Settlement Agreement, having previously reached their own individual agreements with the tobacco companies.) All that remains of Sec. 4 is its final sentence. Sec. 4 now simply reads: [quote]INSPECTION BY BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES OF RECORDS OF CERTAIN CIGARETTE AND SMOKELESS TOBACCO SELLERS; CIVIL PENALTY. [/quote] This is a power that the ATF has always had. Nothing new to see here. Section 7 was eliminated altogether: [quote] SEC. 7. ENHANCED CONTRABAND TOBACCO ENFORCEMENT. (a) Requirements- The Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives shall-- (1) not later than the end of the 3-year period beginning on the effective date of this Act, create a regional contraband tobacco trafficking team in each of New York, New York, the District of Columbia, Detroit, Michigan, Los Angeles, California, Seattle, Washington, and Miami, Florida; (2) create a Tobacco Intelligence Center to oversee investigations and monitor and coordinate ongoing investigations and to serve as the coordinator for all ongoing tobacco diversion investigations within the Bureau of Alcohol, Tobacco, Firearms, and Explosives, in the United States and, where applicable, with law enforcement organizations around the world; (3) establish a covert national warehouse for undercover operations; and (4) create a computer database that will track and analyze information from retail sellers of tobacco products that sell through the Internet or by mail order or make other non-face-to-face sales. (b) Authorization of Appropriations- There is authorized to be appropriated to carry out subsection (a) $8,500,000 for each of fiscal years 2010 through 2014. [/quote] Translation: “All right, states. You want PACT? OK, but we are not going to allocate any funds or personnel for it. It is your problem, not ours. Goodbye, Sec. 7! We are not going to mess with the Jenkins Act, sorry. As for your precious Sec. 4, we took a razor to that as well. Leave the federal judiciary out of it, and the US Attorney General, too; no, your state attorneys general WILL NOT have the right to bring your PACT cases to a federal court. We do not want to hear about it. Enforcement is your state problem; we are not getting involved. We gave you your PACT. Leave us alone. Now good luck with all that!” These changes make it seem that the revised PACT was designed to die in Committee once bounced back to the House, OR it is approved by the House, signed into law and means absolutely nothing. I feel that this is a subject worth analyzing in more detail.
Like was said before. Sometimes its more important to look like you’re doing something then to actualy do something.
Please correct me if I am wrong, but I just read the revised bill, and it looks like the restriction on USPS shipping has been removed, and we will just have to sign for the package. Is this correct, or did I just skim over that part?
No, the bill will still make snuff legally “non-mailable”, but there are exceptions.
We have no idea how this will play out. There can always be 11th hour shenanigans; the House Committee can decide to put it all back in, everyone could vote in favor of it, and Obama can sign it. Or not. It’s not over until it’s over. Meanwhile I think it is fascinating to look at the inner workings of this. No Senator wants to be on record being in favor of “$8,500,000 for each of fiscal years 2010 through 2014” to fund PACT enforcement. Why do you think they removed that?
Of course. And no one wants to look like they support tobacco smuggling and underage sales either, which is why they all voted for it.
I certainly don’t understand all the inner workings of congress, but from what I do understand if the house does put it back it has to go back to the senate for approval. Both houses have to pass the same bill.
Actually the Senate never did take a vote on PACT. They rammed it through via a unanimous consent procedure. Meaning that the bill passes so long as no senator objects. No one did. If they had allowed the Sec. 7 funding to remain, someone undoubtedly would have objected, and PACT would have been back to square one in the Senate. As it now stands, they are sending a severely crippled bill back to the House. The House can either approve the PACT bill revised by the Senate and send it straight on to Obama, or they can call for a conference. In that case, a committee made up of members of both the House and Senate will meet and attempt to hammer out an agreed upon version of PACT. At this stage, if indeed it comes to that, any number of things can transpire. The bill can be bounced back to committee in both the House and Senate, it could die or it could go through as is. Or it can reach the president’s desk and he can refuse to sign it. It happens. PACT is like a hot potato being passed around. No one in the Senate wants to be perceived as “voting in favor of underage smoking and terrorism,” but they also don’t want to face an angry constituency if they do vote in favor of it. Hence the weasel tactic of the unanimous consent procedure. We just don’t know yet how this will all go down, or even if it will.
Yes, I know what unanimous consent procedure is. They all voted by failing to object. Not a technically correct, I apologize for the phrasing. Things that pass my unanimous consent are usually things that most reasonable people could not object to. Something that doesn’t cost anything financially or politcally, like passing resolution to congratulate all of our Olympic atheletes.
I know from reading your posts that you understand how Congress works. I don’t doubt that. I just want to explain all of this thoroughly for the benefit of those who do not understand this. I have read so much misinformed speculation on PACT all over the internet lately, I think it is necessary to be very clear on these matters. There are also a lot of non-American members at snuffhouse who are probably scratching their heads, wondering how this crazy Congressional process operates. (Although why they would care about PACT, I have no idea.)
@ kjoerup Thank you for taking the time to visit Govtrack and post the revised version of this Bill, not to mention your very thorough analysis. I’ve been so busy today, I haven’t even had the time to think about this, which is lucky, because it enabled me to get some work done. Things are much murkier than I thought they were. I’m glad I specialize in Macroeconomic Theory, which is comparatively straightforward compared to the legerdemain that accompanies the passage of legislation like this. The one thing I don’t understand is that the amount budgeted for enforcement of the Bill, as estimated by the CBO, is very small. Even way back in the 60s, Senator Everett Dirksen famously said “A billion here, a billion there, and pretty soon you’re talking about REAL money.” I therefore can’t imagine the sections of the Bill that were cut by the Senate were excised purely for budgetary reasons. I have been unable to find out precisely who cut those sections. I am officially clueless. No one’s bizarre speculations are likely to be as bizarre as the truth, whatever it turns out to be. [url]http://www.cbo.gov/ftpdocs/112xx/doc11258/s1147.pdf[/url] I can imagine visitors to this forum from other countries shaking their heads in complete bewilderment, as I am right now.
Since we’re speculating, now that I read Sec. 4 more carefully, could it’s intent be to still enable Native American Brands (small tobacco) to still be sold in States where Big Tobacco entered into that weird profit sharing agreement with the States? If so, not only would it render the act unenforcable, it would also seem to greatly reduce it’s impact on its main target: big internet companies on Indian Reservations that manufacture their own cigarettes. But if that’s the case, who would they be going after? Swedish Snus and nasal snuff. Talk about small potatos!
Small potatoes indeed. I don’t think they are thinking about snuff, and snus is probably only a blip on the radar. When I was still smoking I looked into online cigarette buying. There were dozens, perhaps hundreds, of fly-by-night “discount” cigarette vendors out there. Many of these were not even on Indian land. I haven’t looked in some time, but I think there are a lot less of them now, probably becuase they saw the writing on the wall. I’m sure a great deal of it was counterfeits or smuggled tax exempt versions. I used to get those tax free ones when working deep sea on ships. (Most ships have a small store called a ‘slop chest’ that sells cigarettes and other odds and ends). I’ve also been on many a street corner in New York to see cartons of cigs being sold for $10-$15!! Something not real legit about that.
Maybe they’re going after places like this?Airport Cigarettes
Many sites sell Ukrainian versions of American cigarettes. I am sure they are after them. I think referring to the Indians being able to sell on tribal lands refers to brick and mortar sales at casinos and Indian smoke shops. They have no intention of letting the Senacas continue selling over the internet. The one small loophole I see is the ability to sell up to 500 units of smokeless tobacco per year. Can each one of us sell each other 499 tins of snuff a year? Could we all be testers for assorted snuff companies?
Harmless, perhaps… Scary sh… Definitely… they shouldn’t have the right to even ATTEMPT certain things IMO and apparently the opinion of a lot of people I know. Tobacco (especially rolling tobacco, and smokeless tob. etc.) businesses in many places here, and the people who support them ( reference to adults of course) are getting the royal screw job- even if this doesn’t pass. My soapbox moment here is just to say what some have always been saying, adults should have their rights during the course of our lives to make our own decisions. Stupid or smart, most decisions should be considered our birthright, to the extent that you don’t hurt others or thier property, or what they’re doing in trying to make our decisions for us, most of us aren’t total idiots, right? Let us live our lives eh?
Well, this Canuck cares about PACT for the practical reason that I get the vast majority of my pipe tobacco from the States. Even with shipping, duty and taxes it still comes in about about half of the local price. And the last sort-of tobacco shop in the city closed a month ago. I don’t think the non US members are too mystified: at least the goings-on are reasonably transparent-excluding the action of the lobbying industry, of course. In Canada all the practical governing power has slowly accrued to the Prime Minister’s Office, in practice responsible to no one. And I get the idea that the EU would put anything that goes on in North America to shame. The non-practical reason for caring? Not to overstate the importance of PACT, it’s more of a big picture thing…how can I put this without sounding sappy? The Founding Fathers of the States accomplished something remarkable in history; it’s sad to see it whittled away from within. I know that throughout the world there are many who excoriate all things American. But the demonstraters of Tianneman (sp?) Square weren’t singing the Marseilles or waving the Union Jack: they were gathered around a model of the Statue of Liberty. And that’s why some of us care about what goes on down there. Sorry. Sometimes I get a little carried away. Back to my Frank Capra world now!
@ Mr. O and Alcyon Nobody ever accused me of overt patriotism, but well said, gentlemen: very well said indeed!