A. Every tobacco product manufacturer whose cigarettes are sold in the Commonwealth whether directly or through a distributor, retailer or similar intermediary or intermediaries shall execute and deliver on a form prescribed by the Attorney General, requesting such information as the Attorney General deems reasonably necessary to enable him to make the determinations required in § 3.2-4206, a certification to the Attorney General no later than the thirtieth day of April each year, certifying under penalty of perjury that, as of the date of such certification, such tobacco product manufacturer either: (i) is a participating manufacturer and has made all payments calculated by the independent auditor to be due from it under the Master Settlement Agreement, except to the extent it is disputing any of such payments; or (ii) is in full compliance with Article 1 (§ 3.2-4200 et seq.) of this chapter.

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B. A participating manufacturer shall include in its certification a list of its brand families. The participating manufacturer shall update such list 30 days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General.

C. A nonparticipating manufacturer shall include in its certification a complete list of all of its brand families (i) separately listing brand families of cigarettes and the number of units sold for each brand family that were sold in the Commonwealth during the preceding calendar year, (ii) that have been sold in the Commonwealth at any time during the current calendar year, (iii) indicating by an asterisk, any brand family sold in the Commonwealth during the preceding calendar year that is no longer being sold in the Commonwealth as of the date of such certification, and (iv) identifying by name and address, any other manufacturer of such brand families in the preceding calendar year. The nonparticipating manufacturer shall update such list 30 days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General.

D. In the case of a nonparticipating manufacturer, such certification shall further certify:

1. That such nonparticipating manufacturer is registered to do business in the Commonwealth or has appointed a resident agent for service of process and provided notice thereof as required by § 3.2-4208;

2. That such nonparticipating manufacturer has (i) established and continues to maintain a qualified escrow fund as that term is defined in Article 1 (§ 3.2-4200 et seq.) of this chapter; and (ii) executed a qualified escrow agreement that conforms to the requirements in Article 1 of this chapter;

3. That such nonparticipating manufacturer is in full compliance with Article 1 (§ 3.2-4200 et seq.) of this chapter and this article, and any regulations promulgated pursuant thereto;

4. The (i) name, address and telephone number of the financial institution where the nonparticipating manufacturer has established such qualified escrow fund required pursuant to Article 1 (§ 3.2-4200 et seq.) of this chapter; (ii) account number of such qualified escrow fund and subaccount number for the Commonwealth; (iii) amount such nonparticipating manufacturer placed in such fund for cigarettes sold in the Commonwealth during the preceding calendar year, the date or dates and amount of each such deposit, and verification of those dates and amounts of deposits as may be deemed necessary by the Attorney General; and (iv) amounts of and dates of any withdrawal or transfer of funds the nonparticipating manufacturer made at any time from such fund or from any other qualified escrow fund into which it has at any time made escrow payments pursuant to Article 1 of this chapter; and

5. In the case of a nonparticipating manufacturer located outside of the United States, that it has provided a declaration on a form prescribed by the Attorney General from each of its importers into the United States of any of its brand families to be sold in Virginia that such importer accepts joint and several liability with the nonparticipating manufacturer for all escrow deposits due in accordance with § 3.2-4201, for all penalties assessed in accordance with § 3.2-4201, and for payment of all costs and attorney fees imposed in accordance with this article. Such declaration shall appoint for the declarant a resident agent for service of process in Virginia in accordance with subsection A of § 3.2-4208.

E. A tobacco product manufacturer may not include a brand family in its certification unless (i) in the case of a participating manufacturer, such participating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of calculating its payments under the Master Settlement Agreement for the relevant year, in the volume and shares determined pursuant to the Master Settlement Agreement; and (ii) in the case of a nonparticipating manufacturer, said nonparticipating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of Article 1 (§ 3.2-4200 et seq.) of this chapter. Nothing in this section shall be construed as limiting or otherwise affecting the Commonwealth’s right to maintain that a brand family constitutes cigarettes of a different tobacco product manufacturer for purposes of calculating payments under the Master Settlement Agreement or for purposes of Article 1 of this chapter.

F. The tobacco product manufacturers shall maintain all invoices and documentation of sales and other such information relied upon for such certification for a period of five years, unless otherwise required by law to maintain them for a greater period of time.

2003, c. 798, § 3.1-336.4; 2006, c. 31; 2008, cc. 758, 860.