PACT, the bill it's self!

[danielan]

As I understand, UPS does/will not ship cigarettes to consumers.

http://ups.com/tobacco

USPS won't ship any tobacco to consumers.

But I don't trust any of them.

[timholian]

I love that cigar are excluded.... Gee I wonder why they would exclude them? What tobacco do the rich white men use in this country? Oh, cigars, thats right.

Ridiculous.

[tom502]

Well, it's this part that has me wondering:

"With mailing cigarettes and smokeless tobacco products being illegal and companies including UPS, Federal Express and DHL no longer delivering tobacco products to customers, Internet sellers will be unable to transact business as usual."

And this:
"In addition, the proposed rule states that USPS also concluded that cigarettes, roll-your-own tobacco and smokeless tobacco cannot be handled through the U.S. Mail either outbound to international destinations or inbound from international locations.

According to the notice, which was cited by NATO: "The Postal Service does not believe that any alternative exists at this time to allow U.S. mailers to tender cigarettes and smokeless tobacco as outbound international mail or to receive them as inbound international mail under the PACT Act's exceptions."

[danielan]

"The Postal Service does not believe that any alternative exists at this time to allow U.S. mailers to tender cigarettes and smokeless tobacco as outbound international mail or to receive them as inbound international mail under the PACT Act's exceptions."

UPS, FedEx, DHL are specifically NOT "mail".

It is against the law to compete with the USPS.

[tom502]

Right, but it says this:
"With mailing cigarettes and smokeless tobacco products being illegal and companies including UPS, Federal Express and DHL no longer delivering tobacco products to customers, Internet sellers will be unable to transact business as usual."

Will they, or not? I haven't seen an official UPS statement.

[danielan]

There official statement as of today is http://ups.com/tobacco

They made that deal with NY in like 2005.

As long as the shipment is otherwise legal (taxes paid, age verification, marking, etc) I think they could continue to deliver.

Here is a link to the full bill: http://frwebgate.access.gpo.gov/cgi-...147enr.txt.pdf

The bit at the top is a summary or something.

But I am stashing and recommend you do too.

[tom502]

Seneca to Obama: ‘You betrayed our trust’
By Gale Courey Toensing

Story Published: May 14, 2010

Story Updated: May 17, 2010

BUFFALO, N.Y. – The Seneca Nation of Indians welcomed President Barack Obama to Buffalo with protesters in the street and a full page ad in the local newspaper saying he broke his promise to honor treaties when he signed a law that will devastate the Indian tobacco trade and put thousands of people out of work in Western New York.

The ad was in the form of an open letter.

“Dear Mr. President, Last fall you invited Native American leaders to Washington, D.C. and promised to listen to our concerns and respect our treaty rights. You pledged meaningful consultation and dialogue before any changes in federal policies impacting Indian Country.

“Your words instilled confidence and hope in the hearts of the Seneca people. We believed your pledge to make tribes full partners in the economy and give Indian children a shot at the American Dream. But, Mr. President, you failed to keep your word,” the ad said.

At issue is the Prevent All Cigarette Trafficking Act, which Obama signed into law in March. The new law bans the U.S. Postal Service from delivering cigarettes, effectively extinguishing the mail order tobacco trade that was largely developed and nurtured by Seneca Nation-licensed business owners over the past two decades.

The post office was the only remaining delivery system since former New York Gov. Eliot Spitzer pressured private carriers like FedEx and UPS to stop transporting from Indian lands a few years ago. The PACT Act is due to come into effect in late June.

Obama made a tightly scripted short stop in Buffalo May 13 to visit Industrial Support, Inc., a metal fabrication business that has grown successfully from a handful of employees to around 60 employees in 14 years.

The company was chosen to highlight Obama’s theme that small businesses are the engine for job growth and the focus of his efforts revitalize the economy.

The contradiction was not lost on Seneca Nation President Barry E. Snyder Sr.

“We find it sadly ironic that the president of the United States is coming to Buffalo to boast about his efforts to improve the economy when he signed a bill last month that will wipe out as many as 3,000 local jobs,” Snyder said.

“We want the people of Western New York to know their president is saying one thing and doing another. The Seneca Nation is extremely disappointed and disheartened that President Obama has failed to keep his promises to the Seneca people, and all Native Americans, that he would help us grow our economies and treat us with respect.”

Hundreds of people waited for hours in a downpour for the president to arrive. After a tour of the facility, Obama stood next to a large industrial machine and addressed an audience of around 250 people.

“Buffalo, I didn’t run for president to watch America decline,” Obama said. “I ran for president to keep the American Dream alive in our time, for our kids and our grandkids and the next generations. … It’s not a recovery until people feel it in their own lives, until Americans who want to find work can find it. That’s our goal and we can say beyond a shadow of a doubt today that we’re headed in the right direction.”

The Seneca Nation’s ad in the morning paper foreshadowed the president’s words.

“You tell Americans things are getting better, yet you struck a severe and deliberate blow to our economy by barring us from shipping our legal products via the U.S. Postal Service. Shame on you, Mr. President. You betrayed our trust and dishonored our sovereign rights. We believed you would be different, but you are continuing a shameful legacy of broken treaties and broken promises,” the ad said.

J.C. Seneca, a Seneca Nation tribal councilor and tobacco business entrepreneur who employees 120 people, most of them non-Indians, said the PACT Act will erode tribal sovereignty all over Indian country.

“Certainly, it affects us at Seneca in regard to our tobacco businesses, but it affects all Indian nations with the implications that this law grants the states unprecedented rights and jurisdiction to exercise authority on Indian reservations and territories.”

Seneca said the PACT Act was developed in “a conspiracy” by states, congressmen and tobacco company Philip Morris, which will gain market share from a devastated Indian tobacco trade, and pushed through the process without hearings or consultation with the Indian nations.

“It’s just a slap in the face of the Native people in this country,” Seneca said.

Richard Nephew, chair of Seneca Nation Council, said Indian nations historically have been on the receiving end of “bad deals, bad faith, broken promises and federal abrogation of our treaty rights.”

Just six months ago at the first White House Tribal Nations Conference, Obama promised to improve relations with the tribes, pledged to listen to tribal leaders and provide full consultation on issues affecting the nations, Nephew said.

“With respect to the Seneca Nation and his signing of the PACT Act, he effectively did none of that and let us down.”

Nephew noted Seneca’s significant contributions to the state’s economy over the past decade from its casino operations and private sector – more than $1.3 billion, according to a recent study by Harvard economist Jonathan Taylor.

“The president says he is about creating jobs in a sorely needed region and a badly hit state, but he killed thousands of jobs that the Seneca Nation had a hand in creating. President Obama promised change; nothing seems to be changing here except our unemployment rate.”

White House spokesman Shin Inouye said the president recognizes that some Native American tribes have concerns about the PACT Act.

"However, the act was adopted by an overwhelming bipartisan majority in the House and unanimously by the Senate, and it addresses important issues such as cutting off revenue for illegal activities and ending easy access to tobacco products for minors,” Inouye said. “Importantly, there are also key protections for tribal governments and the president is committed to working with Indian country – that is why the Justice Department will consult with tribes as we develop regulations to implement the law."

[tom502]

Senecas tell feds PACT snuffs out jobs
Updated: Tuesday, 08 Jun 2010, 7:18 PM EDT
Published : Tuesday, 08 Jun 2010, 7:18 PM EDT

Posted by: Eli George
WASHINGTON, D.C. (RELEASE) - Seneca Nation Tribal Council Chairman Richard E. Nephew today told federal regulators the PACT Act will eliminate 3,000 Western New York jobs and gut the Nation's $100 million a year tobacco economy.

"This is tragic day for the Seneca Nation. It is tragic because the PACT Act reflects a targeted effort by the United States government to destroy a significant economic opportunity for our nation and to give power over Indian nations to state governments," Nephew told U.S. Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) representatives.

"The PACT Act is the culmination of a concerted effort by the United States government, the 50 states, anti-smoking organizations, and the largest cigarette company in the world to destroy the cigarette mail order businesses operated by our people. We have been demonized by these interests as promoters of terrorism, and sellers of cigarettes to children with no substantial evidence from the BATFE to support these assertions," Nephew said. "In our view, we have been targeted for economic destruction by the very government that pledged to us in 1794 that it would protect us from harm and further economic destruction."

The Senecas and other tribal nation view the PACT Act as a deliberate violation of Native American treaty rights.

The PACT (Prevent All Cigarette Trafficking) Act, which was approved by Congress and the Senate this spring and signed into law by President Barack Obama on March 31, bans U.S. Postal Service shipment of cigarettes ordered via the Internet or telephone. The ban goes into effect on June 29.

While several other tribal nations across the U.S. sell tobacco products, the Senecas dominate the Native American tobacco industry with some 80 percent of total sales.

Nephew reminded the BATFE panel the Senecas have been praised by the agency for their state-of-the-art 'stamping' procedures which track cigarette importation, sale and export. He noted the Senecas and other Nations were never given an opportunity to detail their efforts to control illegal sales during the PACT Act approval process.

"Destroying mail order cigarette sales will not result in one less cigarette from being sold. But it will eliminate the ability of consumers across the United States to purchase reasonably-priced cigarettes and force them to purchase premium brands manufactured by Philip Morris and other major tobacco companies. Make no mistake. The PACT Act is nothing more than a money grab by Big Tobacco to expand its market share. It should be called the "Marlboro Protection Act of 2010."

Nephew also called into question the mechanics of PACT Act enforcement as ATF agents will not be allowed to open packages brought to post offices to inspect their contents.

"I have a difficult time imagining how you will be able to enforce this law against our people. The only way I can see that it is possible is through some kind of "racial profiling," where Indians with too many packages at the post office are presumed to be selling cigarettes and thus become targets for prosecution.

[Snusdog]

Well, it's this part that has me wondering:

"With mailing cigarettes and smokeless tobacco products being illegal and companies including UPS, Federal Express and DHL no longer delivering tobacco products to customers, Internet sellers will be unable to transact business as usual."

And this:
"In addition, the proposed rule states that USPS also concluded that cigarettes, roll-your-own tobacco and smokeless tobacco cannot be handled through the U.S. Mail either outbound to international destinations or inbound from international locations.

According to the notice, which was cited by NATO: "The Postal Service does not believe that any alternative exists at this time to allow U.S. mailers to tender cigarettes and smokeless tobacco as outbound international mail or to receive them as inbound international mail under the PACT Act's exceptions."

I'm not too worried by NATO's summery. Remember NATO is writing this with a definite spin. Thus at times they blur distinctions and are less precise than they could be. NATO is trying to get State law makers to refrain from raising taxes (and thus cutting into Big Tobacco's now protected Market- this has been a two pronged attack- chase out competition. Hold off the tax hounds). They are doing this by spinning the bill as an "almost certain windfall" for the states. Thus there is no need to raise taxes.

As it stands now:
There is no way to ship vis USPS
UPS, Fed-X, and others will not ship cigarettes (the primary focus of NATO)
However, there has been no indication that UPS and Fed-X will not ship snus (in fact every indication is that they will)

[Snusdog]

Senecas tell feds PACT snuffs out jobs
Updated: Tuesday, 08 Jun 2010, 7:18 PM EDT
Published : Tuesday, 08 Jun 2010, 7:18 PM EDT

Posted by: Eli George
WASHINGTON, D.C. (RELEASE) - Seneca Nation Tribal Council Chairman Richard E. Nephew today told federal regulators the PACT Act will eliminate 3,000 Western New York jobs and gut the Nation's $100 million a year tobacco economy.

Oh one more thing...............if I were frank, or Tom from Nick Rush, or David from Mr Snuff, or the Buysnus folks, or Roderick.............I would be on the phone ASAP with Mr Nephew and ask how we could consolidate our interests and voices against this law. I'd want to ride his coat tails into giving some testimonies as well

[tom502]

If Seneca is making $100 mill a year, maybe they should start their own courier service?

[Snusdog]

I posted this over at snushouse but wanted to add it here as well because I really am perplexed by the whole legal process involved with PACT and have yet to have anyone provide an explanation.

Anyway

My concern is that the law is writing itself. I do not believe that the law (as it is written) requires tax collection on any but domestic sales (In the definition section of the law "sales into a state" is qualified under the heading "Interstate Commerce". As such, the stipulation regarding the collection of state taxes applies only to those sellers within the jurisdictional boundaries of the USA- in fact I have written the US Attorneys' General for clarification on this very point but have yet to receive a response- oh surprise)

My concern is that everyone…… by acting as if the law reads one way……. will in essence set a precedent of how the law IS read........ a precedent that will then take a court hearing (which no one can afford) to over turn.

However, had everyone done like the Pipe shops and just said "nope that doesn't apply to us" it would have never been an issue.

[danielan]

But look at the context:

‘‘(9) INTERSTATE COMMERCE.—
‘‘(A) IN GENERAL.—The term ‘interstate commerce’
means commerce between a State and any place outside
the State, commerce between a State and any Indian
country in the State, or commerce between points in the
same State but through any place outside the State or
through any Indian country.
‘‘(B) INTO A STATE, PLACE, OR LOCALITY.—A sale, shipment,
or transfer of cigarettes or smokeless tobacco that
is made in interstate commerce, as defined in this paragraph,
shall be deemed to have been made into the State,
place, or locality in which such cigarettes or smokeless
tobacco are delivered.

In the definition section of the law "sales into a state" is qualified under the heading "Interstate Commerce". As such, the stipulation regarding the collection of state taxes applies only to those sellers within the jurisdictional boundaries of the USA

IMO, "Interstate Commerce" is being defined as, "commerce between a State and any place outside the State".

Then it defines, "INTO A STATE, PLACE, OR LOCALITY" to be "A sale, shipment, or transfer of cigarettes or smokeless tobacco that is made in "interstate commerce" (which was defined as, "commerce between a State and any place outside the State").

How does this not include international shipments? International places are certainly, "any place outside the State".

Even ignoring that - what stops the US AG from adding any foreign seller that chooses not to voluntarily comply to the list of non-compliant sellers? (And I agree that any foreign compliance would essentially be voluntary (i.e., no jurisdiction).)

Once they are on that list, then it is a crime for the courier service to deliver your package.

[Snusdog]

danielan,

Your certainly stand in good company. Your reading seems to be the predominate one.

I think the issue boils down to this one point: which term in the law takes precedence. Here is my position taken from an earlier post. Let me know what you think

If "Interstate Commerce" is the definitive term then it qualifies our understanding of "a place outside the state" to mean any place (however designated) within the jurisdictional boundaries of the USA. {This is the most natural and less problematic of the readings}

If "a place outside the State" is understood as the definitive term then the the restrictions of the law apply to all sales regardless of whether they originate in Oregano, Sweden, or Mars. {in this reading a sub category has taken precedence over a category and clarification has become insidious and covert redefinition- in that one term (Interstate Commerce) is being used to mask the presence of another entirely different term (International Commerce). Such then is not a clarification of meaning but a willful distortion of meaning}

The problem I see with the second option is that it makes much of the law nonsensical. For example, if the second option is indeed the reading intended by the lawmakers then why use the term Interstate Commerce at all. The proper designation would simply be Commerce (with no qualifying term prefixed since no qualification is intended). Likewise, why do all the clarifications listed concern traditional interstate transactions (tribal nations, territories, etc)? Why is there not one mention of foreign vendors? If indeed International Commerce is intended as an equal focus of the law then it seems it would require the same clarification and attention that the traditional understanding of Interstate commerce has received. {Notice the entire law is absolutely and utterly silent on the issue of Foreign vendors. There is not ONE mention, not one. The entirety of the law deals with sales within the USA. And now I am to believe that one phrase under the clear heading of Interstate Commerce is to assume International meaning and implications?! Really?!}

Generally, the subject heading sets the parameters of the subject discussed. Thus if a law had a section titled South Carolina Education and then goes on to stipulate that All students must wear blue shirts . The understanding would be that All South Carolina students must wear blue shirts since that is limitation established by subject heading of the law.

By analogy: in our case with Pact it seems that the Subject heading designates South Carolina Education but then we are reading the stipulations as if they redefined "South Carolina Education" to mean "International or Universal Education" (All Students must wear blue shirts regardless of whether they live in SC or not). If that were the case then why make the original designation at all.

Interstate commerce is not International commerce. A discussion of commerce under the designation of Interstate must assume Interstate qualifications.

The question then is this: does the heading qualify the discussion or does the discussion in essence redefine the heading to the extent that it becomes a wholly open-ended and meaningless term. Interstate Commerce no longer means commerce between the states, territories and jurisdictions of a nation. The term now means anything and thus designates nothing in particular.

Like I said earlier this will probably take a court to decide.

However, if this IS how language is used in law, And if this manner of elastic language is deemed acceptable......... then every law maker and every Lawyer should be seized, taken out, and shot at once for treason. For such is to the demise and the mis-leading of the people

[danielan]

Let me know what you think

I think, if they had said:

‘‘(9) South Carolina.—
‘‘(A) IN GENERAL.—The term ‘South Carolina’ means any US state.

Then all of your hypothetical students would be in blue shirts, because, for the purpose of the bill, the term "South Carolina" would mean "any US state".

Which is basically what they did here. Sure, "Interstate Commerce" may have an established, common meaning, like "South Carolina" does, but for their purposes they defined "Interstate Commerce" exactly the way they wanted to for the purpose of the bill.

Maybe it is sloppy.

But they clearly defined it and it would be hard to argue that Sweden does not constitute a place outside the state or that they said "any place" when what they really meant was "some places".

I suspect that they used the "Interstate Commerce" term to telegraph their view that this legislation was Constitutional based on the Commerce clause.