093_HB0276enr

HB0276 Enrolled                      LRB093 04546 SJM 04599 b

 1        AN ACT in relation to tobacco product manufacturers.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section  1.  Short  title.  This  Act may be cited as the
 5    Tobacco Products Manufacturers'  Escrow  Enforcement  Act  of
 6    2003.

 7        Section 5.  Findings; purpose. The General Assembly finds
 8    that  violations of the Tobacco Product Manufacturers' Escrow
 9    Act threaten the integrity of the tobacco  Master  Settlement
10    Agreement,  the fiscal soundness of the State, and the public
11    health. The General Assembly finds that  enacting  procedural
12    enhancements   will  help  prevent  violations  and  aid  the
13    enforcement of the Tobacco Product Manufacturers' Escrow  Act
14    and  thereby  safeguard  the Master Settlement Agreement, the
15    fiscal soundness of the State, and  the  public  health.  The
16    provisions  of  this Act are not intended to and shall not be
17    interpreted  to  amend  the  Tobacco  Product  Manufacturers'
18    Escrow Act.

19        Section 10.  Definitions. As used in this Act:
20        "Brand family" means all styles of cigarettes sold  under
21    the  same  trade  mark and differentiated from one another by
22    means of additional modifiers or descriptors, including,  but
23    not limited to, menthol, lights, kings, and 100s and includes
24    any  brand name (alone or in conjunction with any other word)
25    trademark, logo, symbol, motto, selling message, recognizable
26    pattern  of  colors,  or  any  other   indicia   of   product
27    identification identical or similar to, or identifiable with,
28    a previously known brand of cigarettes.
29        "Cigarette"  has  the  same  meaning in Section 10 of the
30    Escrow Act.
 
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 1        "Director" means the Director of Revenue.
 2        "Distributor" has the same meaning prescribed in  Section
 3    1  of  the  Cigarette Tax Act, Section 1 of the Cigarette Use
 4    Tax  Act,  and,  in  addition,   means   a   distributor   of
 5    roll-your-own  tobacco in accordance with Section 10-5 of the
 6    Tobacco Products Tax Act of 1995, as appropriate.
 7        "Escrow Act" means  the  Tobacco  Product  Manufacturers'
 8    Escrow Act.
 9        "Non-participating   manufacturer"   means   any  Tobacco
10    Product   Manufacturer   that   is   not   a    participating
11    manufacturer.
12        "Participating  manufacturer"  has the meaning given that
13    term in Section II(jj) of the Master Settlement Agreement and
14    all amendments thereto.
15        "Qualified escrow fund" has the same meaning as that term
16    is defined in Section 10 of the Escrow Act.
17        "Tobacco product manufacturer" has the  same  meaning  as
18    that term is defined in Section 10 of the Escrow Act.
19        "Units sold" has the same meaning as that term is defined
20    in Section 10 of the Escrow Act.

21        Section 15.  Certifications; directory; tax stamps.
22        (a)  Every  tobacco product manufacturer whose cigarettes
23    are  sold  in  this  State  whether  directly  or  through  a
24    distributor,   retailer,   or   similar    intermediary    or
25    intermediaries shall execute and deliver on a form prescribed
26    by  the  Attorney  General  a  certification  to the Attorney
27    General, no later than the thirtieth day of April each  year,
28    certifying  under  penalty of perjury that, as of the date of
29    the certification, the tobacco product  manufacturer  either:
30    (i)   is  a  participating  manufacturer  and  has  generally
31    performed  its  financial  obligations   under   the   Master
32    Settlement  Agreement; or (ii) is in full compliance with the
33    Escrow Act, including all quarterly installment payments.
 
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 1             (1)  A participating manufacturer shall  include  in
 2        its  certification  a  list  of  its  brand families. The
 3        participating manufacturer shall update the list 30  days
 4        prior  to  any  addition  to or modification of its brand
 5        families  by  executing  and  delivering  a  supplemental
 6        certification to the Attorney General.
 7             (2)  A non-participating manufacturer shall  include
 8        in  its certification a complete list of all of its brand
 9        families:  (i)  separately  listing  brand  families   of
10        cigarettes  and  the  number of units sold for each brand
11        family that were sold in the State during  the  preceding
12        calendar  year;  (ii)  listing  all of its brand families
13        that have been sold in the State at any time  during  the
14        current  calendar  year; (iii) indicating by an asterisk,
15        any brand family sold in the State during  the  preceding
16        calendar  year  that is no longer being sold in the State
17        as of the date of the certification; and (iv) identifying
18        by name and address any other manufacturer of  the  brand
19        families    in   the   preceding   calendar   year.   The
20        non-participating manufacturer shall update the  list  30
21        days  prior  to  any  addition  to or modification of its
22        brand families by executing and delivering a supplemental
23        certification to the Attorney General.
24             (3)  In   the   case    of    a    non-participating
25        manufacturer, the certification shall further certify:
26                  (A)  that the non-participating manufacturer is
27             registered  to  do  business  in  this  State or has
28             appointed a resident agent for  service  of  process
29             and provided notice thereof as required by item 4 of
30             subsection (a) of this Section;
31                  (B)  that  the  non-participating  manufacturer
32             has  (i)  established  and  continues  to maintain a
33             qualified escrow fund as that  term  is  defined  in
34             Section  10  of  the Escrow Act, and (ii) executed a
 
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 1             qualified escrow agreement that  has  been  reviewed
 2             and  approved  by  the  Attorney  General  and  that
 3             governs the qualified escrow fund;
 4                  (C)  that the non-participating manufacturer is
 5             in full compliance with the Escrow Act and this Act,
 6             and any regulations promulgated pursuant thereto;
 7                  (D)  the  name, address and telephone number of
 8             the     financial     institution     where      the
 9             non-participating  manufacturer  has established the
10             qualified escrow fund required pursuant  to  Section
11             15 of the Escrow Act and all regulations promulgated
12             thereto;
13                  (E)  the account number of the qualified escrow
14             fund and sub-account number for this State;
15                  (F)  the     amount    the    non-participating
16             manufacturer placed in the fund for cigarettes  sold
17             in  the  State  during  the preceding calendar year,
18             including the dates and amount of each deposit,  and
19             such  evidence  or  verification  as  may  be deemed
20             necessary by the Attorney  General  to  confirm  the
21             foregoing; and
22                  (G)  the amounts of and dates of any withdrawal
23             or   transfer   of   funds   the   non-participating
24             manufacturer  made at any time from the fund or from
25             any other qualified escrow fund into which  it  ever
26             made  escrow  payments pursuant to Section 15 of the
27             Escrow Act and all regulations promulgated thereto.
28             (4)  A tobacco product manufacturer may not  include
29        a  brand  family  in its certification unless: (i) in the
30        case of a participating manufacturer,  the  participating
31        manufacturer  affirms  that  the  brand  family  is to be
32        deemed to be its cigarettes for purposes  of  calculating
33        its  payments  under  the master settlement agreement for
34        the relevant year, in the volume  and  shares  determined
 
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 1        pursuant  to the master settlement agreement; and (ii) in
 2        the  case  of  a  non-participating   manufacturer,   the
 3        non-participating  manufacturer  affirms  that  the brand
 4        family is to be deemed to be its cigarettes for  purposes
 5        of Section 15 of the Escrow Act.
 6             Nothing  in  this  Section  shall  be  construed  as
 7        limiting  or  otherwise  affecting  the  State's right to
 8        maintain that a brand family constitutes cigarettes of  a
 9        different  tobacco  product  manufacturer for purposes of
10        calculating  payments   under   the   master   settlement
11        agreement  or  for  purposes  of Section 15 of the Escrow
12        Act.
13             (5)  The   tobacco   product   manufacturers   shall
14        maintain all invoices  and  documentation  of  sales  and
15        other  information  relied  upon  for certification for a
16        period of 5 years, unless otherwise required  by  law  to
17        maintain them for a greater period of time.
18        (b)  Not  later than 6 months after the effective date of
19    this  Act,  the  Attorney  General  shall  develop  and  make
20    available for public inspection, through  publishing  on  its
21    website,    a   directory   listing   all   tobacco   product
22    manufacturers  that  have  provided  current   and   accurate
23    certifications  conforming  to the requirements of subsection
24    (a) of Section 15 and all brand families that are  listed  in
25    the certifications, except for the following:
26             (1)  The  Attorney  General  shall  not  include  or
27        retain in the directory the name or brand families of any
28        non-participating  manufacturer that fails to provide the
29        required  certification  or   whose   certification   the
30        Attorney  General  determines  is  not in compliance with
31        subsections (a)(2) or (a)(3) of Section  15,  unless  the
32        Attorney  General  has  determined that the violation has
33        been cured to the satisfaction of the Attorney General.
34             (2)  Neither  a  tobacco  product  manufacturer  nor
 
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 1        brand  family  shall  be  included  or  retained  in  the
 2        directory if the Attorney General concludes that: (i)  in
 3        the  case  of a non-participating manufacturer all escrow
 4        payments required pursuant to Section 15  of  the  Escrow
 5        Act  for  any period for any brand family, whether or not
 6        listed by the non-participating  manufacturer,  have  not
 7        been  fully paid into a qualified escrow fund governed by
 8        a qualified escrow agreement that has  been  approved  by
 9        the  Attorney  General;  or  (ii)  all  outstanding final
10        judgments, including interest thereon, for violations  of
11        Section  15  of  the  Escrow  Act  have  not  been  fully
12        satisfied for that brand family and manufacturer.
13        (c)  The  Attorney  General shall update the directory as
14    necessary in order to correct mistakes and to add or remove a
15    tobacco product manufacturer or brand families  to  keep  the
16    directory in conformity with the requirements of this Act.
17        (d)  Every   distributor  shall  provide  and  update  as
18    necessary an electronic mail address to the Attorney  General
19    for  the  purpose  of  receiving  any notifications as may be
20    required by this Act.
21        (e)  It shall be unlawful for any person: (i) to affix  a
22    stamp  to  a  package  or  other container of cigarettes of a
23    tobacco product manufacturer or brand family not included  in
24    the  directory or to sell, offer, or possess for sale in this
25    State; or (ii) import for personal consumption in this State,
26    cigarettes of a tobacco product manufacturer or brand  family
27    not included in the directory.

28        Section 20.  Agent for service of process.
29        (a)  Any   non-resident   or   foreign  non-participating
30    manufacturer that has not registered to do business  in  this
31    State as a foreign corporation or business entity shall, as a
32    condition  precedent  to  having its brand families listed or
33    retained in the directory,  appoint  and  continually  engage
 
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 1    without  interruption  the services of an agent in this State
 2    to act as agent for  the  service  of  process  on  whom  all
 3    process,  and  any action or proceeding against it concerning
 4    or arising out of the enforcement of this Act and the  Escrow
 5    Act,  may  be  served  in  any  manner authorized by law. The
 6    service shall constitute legal and valid service  of  process
 7    on  the non-participating manufacturer. The non-participating
 8    manufacturer shall provide the name, address,  phone  number,
 9    and proof of the appointment and availability of the agent to
10    and to the satisfaction of the Director and Attorney General.
11        (b)  The  non-participating  manufacturer  shall  provide
12    notice  to the Director and Attorney General 30 calendar days
13    prior to termination of the authority of an agent  and  shall
14    further  provide  proof  to  the satisfaction of the Attorney
15    General of the appointment of a new  agent  no  less  than  5
16    calendar  days  prior to the termination of an existing agent
17    appointment. In the  event  an  agent  terminates  an  agency
18    appointment,  the non-participating manufacturer shall notify
19    the Director and Attorney General of the termination within 5
20    calendar days and shall include proof to the satisfaction  of
21    the Attorney General of the appointment of a new agent.
22        (c)  Any  non-participating  manufacturer  whose products
23    are sold in this State, without appointing or designating  an
24    agent  as  herein  required shall be deemed to have appointed
25    the Secretary of State as the  agent  and  may  be  proceeded
26    against  in  courts  of this State by service of process upon
27    the Secretary of  State;  however,  the  appointment  of  the
28    Secretary  of  State  as  an  agent  shall  not  satisfy  the
29    condition  precedent  to  having its brand families listed or
30    retained in the directory.

31        Section    25.  Reporting    of    information;    escrow
32    installments.
33        (a)  Not later  than  20  days  after  the  end  of  each
 
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 1    calendar  quarter,  and more frequently if so directed by the
 2    Attorney  General,  each   distributor   shall   submit   the
 3    information  as  the  Attorney General requires to facilitate
 4    compliance with this Act, including, but not  limited  to,  a
 5    list  by brand family of the total number of cigarettes or in
 6    the case of roll-your-own, the  equivalent  stick  count  for
 7    which  the  distributor  affixed  stamps  during the previous
 8    calendar quarter or otherwise paid  the  tax  due  for  these
 9    cigarettes.   The   distributor   shall  maintain,  and  make
10    available  to  the  Attorney  General,   all   invoices   and
11    documentation  of sales of all non-participating manufacturer
12    cigarettes and any other information relied upon in reporting
13    to the Attorney General for a period of 5 years.
14        (b)  The  Director  is  authorized  to  disclose  to  the
15    Attorney General any information received under this Act  and
16    requested by the Attorney General for purposes of determining
17    compliance with and enforcing the provisions of this Act. The
18    Director and Attorney General shall share with each other the
19    information  received  under  this  Act,  and  may  share the
20    information with other federal, State, or local agencies only
21    for purposes of enforcement of this Act, the Escrow  Act,  or
22    corresponding laws of other states.
23        (c)  The  Attorney  General may require at any time, from
24    the non-participating manufacturer, proof from the  financial
25    institution  in  which  the  manufacturer  has  established a
26    qualified escrow fund for the purpose of compliance with  the
27    Escrow  Act  of the amount of money in the fund being held on
28    behalf of the State and the dates of  deposits,  and  listing
29    the  amounts  of  all withdrawals from the fund and the dates
30    thereof.
31        (d)  In  addition  to  the  information  required  to  be
32    submitted pursuant to this  Act,  the  Attorney  General  may
33    require  a  distributor  or  tobacco  product manufacturer to
34    submit any additional information including, but not  limited
 
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 1    to,  samples  of  the  packaging  or  labeling  of each brand
 2    family, as is necessary to enable  the  Attorney  General  to
 3    determine  whether  a  tobacco  product  manufacturer  is  in
 4    compliance with this Act.
 5        (e)  To  promote  compliance  with the provisions of this
 6    Act,  the  Attorney  General   may   promulgate   regulations
 7    requiring  a  tobacco  product  manufacturer  subject  to the
 8    requirements of subsection (a)(2) of Section 15 to  make  the
 9    escrow deposits required in quarterly installments during the
10    year in which the sales covered by the deposits are made. The
11    Attorney   General  may  require  production  of  information
12    sufficient to enable the Attorney General  to  determine  the
13    adequacy of the amount of the installment deposit.

14        Section 30.  Penalties and other remedies.
15        (a)  In  addition  to  or  in  lieu of any other civil or
16    criminal remedy provided by law, upon a determination that  a
17    distributor  has violated subsection (c) of Section 15 or any
18    regulation adopted pursuant thereto, the Director may  revoke
19    or  suspend  the  license of any stamping agent in the manner
20    provided by Section 6 of the Cigarette Tax Act, Section 6  of
21    the  Cigarette  Use  Tax Act, or Section 10-25 of the Tobacco
22    Products Tax Act of 1995, as appropriate. Each stamp  affixed
23    and  each offer to sell cigarettes in violation of subsection
24    (c) of Section 15 shall constitute a separate violation.  For
25    each  violation, the Director may also impose a civil penalty
26    in an amount not to exceed the greater of 500% of the  retail
27    value  of  the cigarettes sold or $5,000 upon a determination
28    of  violation  of  subsection  (c)  of  Section  15  or   any
29    regulations adopted pursuant thereto.
30        (b)  Any  cigarettes  that  have  been  sold, offered for
31    sale, or possessed for sale in this State,  or  imported  for
32    personal consumption in this State in violation of subsection
33    (c)  of Section 15 shall be subject to seizure and forfeiture
 
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 1    as provided in Sections 18, 18a, and 20 of the Cigarette  Tax
 2    Act  and Sections 24, 25, 25a and 26 of the Cigarette Use Tax
 3    Act, and all cigarettes so  seized  and  forfeited  shall  be
 4    destroyed and not resold.
 5        (c)  The  Attorney  General  may  seek  an  injunction to
 6    restrain a threatened or actual violation of  subsection  (c)
 7    of  Section  15,  subsection (a) of Section 25, or subsection
 8    (d) of Section 25 by a  stamping  agent  and  to  compel  the
 9    stamping agent to comply with such subsections. In any action
10    brought pursuant to this Section, the State shall be entitled
11    to  recover  the costs of investigation, costs of the action,
12    and reasonable attorney fees.
13        (d)  It shall be unlawful for a person to:  (i)  sell  or
14    distribute  cigarettes;  or (ii) acquire, hold, own, possess,
15    transport, import, or cause to be  imported  cigarettes  that
16    the person knows or should know are intended for distribution
17    or  sale  in  the  State  in  violation  of subsection (c) of
18    Section 15. A violation of this Section shall be  a  Class  2
19    felony.
20        (e)  A  person  who violates subsection (c) of Section 15
21    engages  in  an  unfair  and  deceptive  trade  practice   in
22    violation of the Uniform Deceptive Trade Practices Act.

23        Section 35.  Miscellaneous provisions.
24        (a)  A  determination of the Attorney General to not list
25    or to remove from the directory a  brand  family  or  tobacco
26    product manufacturer shall be subject to review in the manner
27    prescribed by rule.
28        (b)  No  person  shall  be  issued a license or granted a
29    renewal of a license to  act  as  a  distributor  unless  the
30    person  has  certified  in writing, under penalty of perjury,
31    that the person will comply fully with this Act.
32        (c)  The Attorney General may promulgate rules  necessary
33    to effect the purposes of this Act.
 
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 1        (d)  In  any  action brought by the State to enforce this
 2    Act, the State shall be entitled  to  recover  the  costs  of
 3    investigation,  expert witness fees, costs of the action, and
 4    reasonable attorney fees.
 5        (e)  If a court determines that  a  person  has  violated
 6    this  Act,  the  court  shall  order any profits, gain, gross
 7    receipts, or other benefit from the violation to be disgorged
 8    and paid to the General Revenue Fund.
 9        (f)  Unless otherwise expressly provided the remedies  or
10    penalties  provided  by this Act are cumulative to each other
11    and to the remedies or penalties available  under  all  other
12    laws of this State.

13        Section 40.  Severability.
14        (a)  If  any  provision of this Act or its application to
15    any person or circumstance is held  invalid,  the  invalidity
16    does  not affect other provisions or applications of this Act
17    that can be given effect without  the  invalid  provision  or
18    application.
19        (b)  If  a court of competent jurisdiction finds that the
20    provisions of this Act and of the  Escrow  Act  conflict  and
21    cannot  be  harmonized, then the provisions of the Escrow Act
22    shall control.
23        (c)  If any Section, subsection, subdivision,  paragraph,
24    sentence,  clause,  or  phrase  of  this  Act  (excluding the
25    amendatory provisions of Section 300) causes the  Escrow  Act
26    to  no  longer  constitute  a qualifying or model statute, as
27    those terms are defined in the Master  Settlement  Agreement,
28    then that portion of this Act shall not be valid.

29        (30 ILCS 169/Act rep.)
30        Section  200.  The Tobacco Products Manufacturers' Escrow
31    Enforcement Act is repealed.
 
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 1        Section 300.  The Tobacco Product  Manufacturers'  Escrow
 2    Act  is  amended by changing Section 15 and by adding Section
 3    20 as follows:

 4        (30 ILCS 168/15)
 5        Sec. 15.  Requirements.
 6        (a)  Any tobacco product manufacturer selling  cigarettes
 7    to  consumers  within the State of Illinois (whether directly
 8    or through a distributor, retailer, or  similar  intermediary
 9    or intermediaries) after the effective date of this Act shall
10    do one of the following:
11             (1)  become  a  participating  manufacturer (as that
12        term  is  defined  in  Section  II(jj)  of   the   Master
13        Settlement    Agreement)  and   generally   perform   its
14        financial  obligations  under   the   Master   Settlement
15        Agreement; or
16             (2) (A)  place into a qualified escrow fund by April
17             15  of  the  year following the year in question the
18             following amounts (as such amounts are adjusted  for
19             inflation):
20                       (i)  For  1999:   $0.0094241 per unit sold
21                  after the effective date of this Act;
22                       (ii)  For 2000:  $0.0104712 per unit sold;
23                       (iii)  For  each   of   2001   and   2002:
24                  $0.0136125  per unit sold;
25                       (iv)  For   each  of  2003  through  2006:
26                  $0.0167539  per unit sold;
27                       (v)  For  each  of  2007  and  each   year
28                  thereafter:  $0.0188482 per unit sold.
29                  (B)  A tobacco product manufacturer that places
30             funds  into escrow pursuant to subdivision (a)(2)(A)
31             shall receive the interest or other appreciation  on
32             the  funds as earned.  The funds themselves shall be
33             released  from  escrow  only  under  the   following
 
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 1             circumstances:
 2                       (i)  to  pay  a  judgment or settlement on
 3                  any released claim brought against the  tobacco
 4                  product   manufacturer  by  the  State  or  any
 5                  releasing party  located  or  residing  in  the
 6                  State.   Funds  shall  be  released from escrow
 7                  under this  subdivision  (a)(2)(B)(i):  (I)  in
 8                  the  order  in  which  they  were  placed  into
 9                  escrow; and (II)  only to the extent and at the
10                  time  necessary to make payments required under
11                  such judgment or settlement;
12                       (ii)  to the extent that a tobacco product
13                  manufacturer establishes that the amount it was
14                  required to place into  escrow  on  account  of
15                  units  sold  in  the State in a particular year
16                  was  greater   than   the   Master   Settlement
17                  Agreement  payments,  as determined pursuant to
18                  Section  IX(i)  of  that  Agreement,  including
19                  after final determination of  all  adjustments,
20                  that such manufacturer would have been required
21                  to  make  on  account  of  such  units sold the
22                  State's allocable share of the  total  payments
23                  that such manufacturer would have been required
24                  to   make   in   that  year  under  the  Master
25                  Settlement Agreement (as determined pursuant to
26                  Section  IX(i)(2)  of  the  Master   Settlement
27                  Agreement, and before any of the adjustments or
28                  offsets  described  in Section IX(i)(3) of that
29                  Agreement other than the Inflation  Adjustment)
30                  had  it  been a Participating Manufacturer, the
31                  excess shall be released from escrow and revert
32                  back to such tobacco product manufacturer; or
33                       (iii)  to the  extent  not  released  from
34                  escrow   under   subdivisions  (a)(2)(B)(i)  or
 
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 1                  (a)(2)(B)(ii), funds  shall  be  released  from
 2                  escrow  and revert back to such tobacco product
 3                  manufacturer 25 years after the date  on  which
 4                  they were placed into escrow.
 5                  (C)  Each  tobacco  product  manufacturer  that
 6             elects  to  place funds into escrow pursuant to this
 7             subdivision (a)(2) shall  annually  certify  to  the
 8             Attorney  General that it is in compliance with this
 9             subdivision (a)(2).  The Attorney General may  bring
10             a  civil  action  on behalf of the State of Illinois
11             against any tobacco product manufacturer that  fails
12             to  place  into escrow the funds required under this
13             subdivision    (a)(2).     Any    tobacco    product
14             manufacturer that fails in any year  to  place  into
15             escrow  the  funds  required  under this subdivision
16             (a)(2) shall:
17                       (i)  be required within 15 days  to  place
18                  such  funds  into escrow as shall bring it into
19                  compliance with this Section.  The court,  upon
20                  a  finding  of  a violation of this subdivision
21                  (a)(2), may impose a civil penalty to  be  paid
22                  into  the General Revenue Fund in an amount not
23                  to exceed 5% of the amount improperly  withheld
24                  from  escrow  per day of the violation and in a
25                  total amount not to exceed 100% of the original
26                  amount improperly withheld from escrow;
27                       (ii)  in the case of a knowing  violation,
28                  be  required within 15 days to place such funds
29                  into escrow as shall bring it  into  compliance
30                  with  this  Section.  The court, upon a finding
31                  of a  knowing  violation  of  this  subdivision
32                  (a)(2),  may  impose a civil penalty to be paid
33                  into the General Revenue Fund in an amount  not
34                  to exceed 15% of the amount improperly withheld
 
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 1                  from  escrow  per day of the violation and in a
 2                  total amount not to exceed 300% of the original
 3                  amount improperly withheld from escrow; and
 4                       (iii)  in the case  of  a  second  knowing
 5                  violation,    be    prohibited   from   selling
 6                  cigarettes to consumers  within  the  State  of
 7                  Illinois   (whether   directly   or  through  a
 8                  distributor, retailer, or similar intermediary)
 9                  for a period not to exceed 2 years.
10        (b)  Each failure to  make  an  annual  deposit  required
11    under this Section shall constitute a separate violation.  If
12    a  tobacco product manufacturer is successfully prosecuted by
13    the Attorney General for a violation of  subdivision  (a)(2),
14    the tobacco product manufacturer must pay, in addition to any
15    fine  imposed  by  a  court, the State's costs and attorney's
16    fees incurred in the prosecution.
17    (Source: P.A. 91-41, eff. 6-30-99.)

18        (30 ILCS 168/20 new)
19        Sec. 20.  If this amendatory  Act  of  the  93rd  General
20    Assembly  or  any  portion  of  the  amendment to subdivision
21    (2)(B)(ii) of subsection (a)  of  Section  15  made  by  this
22    amendatory  Act  of  the  93rd  General Assembly is held by a
23    court of competent jurisdiction to be unconstitutional,  then
24    such  subdivision  (2)(B)(ii) of subsection (a) of Section 15
25    shall  be  deemed  to  be  repealed  in  its  entirety.    If
26    subdivision  (2)(B)(ii) of subsection (a) of Section 15 shall
27    thereafter be held by a court of competent jurisdiction to be
28    unconstitutional,  then  this  amendatory  Act  of  the  93rd
29    General Assembly shall be  deemed  repealed  and  subdivision
30    (2)(B)(ii)  of subsection (a) of Section 15 shall be restored
31    as if no such amendments had been made.  Neither any  holding
32    of   unconstitutionality   nor   the  repeal  of  subdivision
33    (2)(B)(ii) of subsection (a)  of  Section  15  shall  affect,
 
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 1    impair,  or invalidate any other portion of Section 15 or the
 2    application  of  such  Section  to  any   other   person   or
 3    circumstance, and such remaining portions of Section 15 shall
 4    at all times continue in full force and effect.