Section 323.804 - Liability of nonparticipating manufacturer for equity assessment; annual certification; credits or refunds; civil actions; penalties(1) Except for a Participating Manufacturer, as that term is defined in the Master Settlement Agreement, that is generally performing its financial obligations under the Master Settlement Agreement, a tobacco product manufacturer is liable for an equity assessment for units sold within the State of Oregon after January 1, 2024.(2) The equity assessment is $0.0188482 per unit sold, as this amount is adjusted for inflation.(3)(a) Each tobacco product manufacturer that is liable for an equity assessment shall annually certify to the Attorney General that it is in compliance with this section and remit the required equity assessment to this state by April 15 of the year following the sales year at issue. Tobacco product manufacturers have a continuing obligation to submit amended certificates of compliance if their sales or payment information changes.(b) The Attorney General may issue amended notices of equity assessment if additional units sold are discovered through audit or otherwise. The tobacco product manufacturer shall cause the assessed amount to be remitted to this state within 30 days of the date of the amended notice.(c) Any amounts recovered under this section are the property of the state, and this section creates no cause or right of action in any party except the State of Oregon. Amounts recovered under this section shall be deposited in the Oregon Health Authority Fund established under ORS 413.101 and shall be used for expenses of the Oregon Health Plan.(d) Nothing in this section operates to: (A) Waive the right of the state to bring a claim against a tobacco product manufacturer, except that any funds paid to the state under this section shall be credited on a dollar-for-dollar basis against any such judgment or settlement; or(B) Relieve a tobacco product manufacturer from any obligation or duty imposed pursuant to ORS 180.400 to 180.455 or any other provision of Oregon law.(e) A tobacco product manufacturer may seek and receive a credit or refund of equity assessment payments to the extent that the tobacco product manufacturer establishes that the amount of the equity assessment paid on account of units sold in Oregon in a particular year was greater than the Master Settlement Agreement payments, as determined pursuant to section IX(i) of that agreement after final determination of all adjustments, that the manufacturer would have been required to make an account of such units sold, had it been a Participating Manufacturer, as that term is defined in the Master Settlement Agreement. A tobacco product manufacturer may seek a credit or refund within one year after the due date of the assessment.(4) The Attorney General may bring a civil action on behalf of the State of Oregon against any tobacco product manufacturer that fails to remit the amount due under subsection (2) of this section. In addition to recovering the equity assessment, the Attorney General shall be entitled to reasonable attorney fees, costs and expenses incurred in prosecuting the action and any appeal. Attorney fees, costs and expenses recovered under this subsection shall be deposited in the Tobacco Enforcement Fund established under ORS 180.205.(5)(a) The court, upon a finding of a violation of subsection (1) of this section, may impose a civil penalty upon the tobacco product manufacturer to be paid to the General Fund of this state in an amount not to exceed five percent of the amount improperly withheld per day of the violation and in a total amount not to exceed 100 percent of the original amount improperly withheld.(b) The court, upon a finding of a knowing violation of subsection (1) of this section, may impose a civil penalty upon the tobacco product manufacturer to be paid to the General Fund of this state in an amount not to exceed 15 percent of the amount improperly withheld per day of the violation and in a total amount not to exceed 300 percent of the original amount improperly withheld.(c) In the case of a second knowing violation of subsection (1) of this section, the tobacco product manufacturer shall be prohibited from selling cigarettes to consumers within the State of Oregon (whether directly or through a distributor, retailer or similar intermediary or intermediaries) for a period not to exceed two years. Each failure to make a payment required under this section shall constitute a separate violation.(6) In the case of units sold that are cigarettes manufactured outside the United States and imported into the United States by an importer: (a) Importers shall be jointly and severally liable with the tobacco product manufacturer of the cigarettes for the equity assessments required under subsection (1) of this section;(b) Importers may be sued under subsection (4) of this section to the same extent as the tobacco product manufacturer, and shall be subject to all of the same civil penalties, remedies or other relief that may be awarded against the tobacco product manufacturer of the cigarettes as provided in subsection (4) of this section;(c) If the importer fails or refuses within 15 days of the Attorney General's written demand to remit the equity assessment for which it is jointly and severally liable under paragraph (a) of this subsection, all cigarettes imported into the United States by the importer shall constitute contraband cigarettes as defined in ORS 323.010 and shall be subject to seizure and forfeiture as provided under ORS 323.248; and(d) A nonparticipating manufacturer located outside the United States that conducts business in this state shall provide to the Attorney General on a form prescribed by the Attorney General a declaration from each importer that imports the cigarettes of the nonparticipating manufacturer intended for sale in this state stating that the importer accepts liability pursuant to subsection (1) of this section and consents to the jurisdiction of the courts of this state for the purposes of enforcing this section.Added by 2023 Ch. 401, § 8