This case of first impression involves the interpretation of the term “tobacco product manufacturer” in the Georgia Qualifying Statute,1 which was enacted as a result of nationwide litigation brought by the states over public health costs associated with smoking. We granted Carolina Tobacco Co.’s “Carolina” application for discretionary appeal to review the superior court’s affirmance of the Attorney General’s “AG” ruling that Carolina was not a “tobacco product manufacturer” under OCGA § 10-13-2 92 and therefore could not sell cigarettes under its “Roger” brand in Georgia. For the reasons set forth below, we agree with the AG’s determination that StateStateCarolinawas not the “tobacco product manufacturer” of Roger cigarettes prior to 2005. However, because the AG incorrectly decided that he retained no discretion to permit StateCarolinato cure certain certification requirements in order to sell Roger cigarettes in StateStateGeorgia after 2005, we reverse and remand this case for proceedings consistent with this opinion. The facts are not in dispute. David Redmond formed StateStateCarolinain 1999 to manufacture and sell Roger cigarettes. Until April 2003, StateStateCarolinaoutsourced the production of the cigarettes to House of Prince Riga “HOPR”, a Latvian company. During the 13-month period between July 2003 and August 2004, StateStateCarolina contracted with two South African companies, African American Tobacco PTY Ltd. “AAT”, and Mastermind Tobacco S.A. PTY Ltd. “Mastermind”, to produce the cigarettes.3 Mastermind fabricated the cigarettes pursuant to the AAT contract. It is undisputed that at all times, Carolina owned the trademark to Roger cigarettes; that the cigarettes were assembled in Roger packaging; that once the cigarettes were assembled, Carolina picked them up and AAT had no further involvement with them; that Carolina shipped them to the United States, handled customs and paid excise taxes, and arranged to have them shipped to distributers in the United States; and that neither AAT nor Mastermind could sell Roger cigarettes. In late August 2004, AAT filed for liquidation, and Roger cigarettes were not produced thereafter until February 2005. StateCarolinathen opened its own facility in StateStateSouth Africa and has produced the cigarettes itself since 2005.
In 1998, the year before Carolina was formed, 46 states, including Georgia, and the District of Columbia, the Commonwealth of Puerto Rico and four territories, entered into a master settlement agreement the “MSA”,4 with four major tobacco companies5 to resolve the litigation brought by the states over public health costs associated with smoking. The MSA provided for the settling states to enact legislation, known as Qualifying Statutes, which required cigarette manufacturers who did not sign the MSA, defined therein as non-participating manufacturers, to make annual deposits into an escrow account to cover public health costs related to smoking.6 The payments are based on market share. StateStateCarolinais a non-participating manufacturer.
