BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                                      VETO


          Bill No:  SB 400
          Author:   Corbett (D), et al
          Amended:  9/2/09
          Vote:     21

           
           PRIOR SENATE VOTES NOT RELEVANT

          SENATE HEALTH COMMITTEE  :  9-2, 9/10/09
          AYES:  Alquist, Aanestad, Cedillo, DeSaulnier, Leno,  
            Maldonado, Negrete McLeod, Pavley, Wolk
          NOES:  Strickland, Cox
           
          SENATE FLOOR  :  24-14, 9/11/09
          AYES:  Aanestad, Alquist, Cedillo, Corbett, Correa,  
            DeSaulnier, Ducheny, Florez, Hancock, Kehoe, Leno, Liu,  
            Lowenthal, Maldonado, Negrete McLeod, Oropeza, Pavley,  
            Price, Romero, Simitian, Steinberg, Wiggins, Wolk, Yee
          NOES:  Ashburn, Benoit, Calderon, Cogdill, Cox, Denham,  
            Dutton, Harman, Hollingsworth, Huff, Runner, Strickland,  
            Walters, Wyland
          NO VOTE RECORDED:  Padilla, Wright
           
          ASSEMBLY FLOOR  :  50-29, 9/8/09 - See last page for vote


           SUBJECT  :    Tobacco

           SOURCE  :     Author


           DIGEST  :     Assembly Amendments  delete the Senate version of  
          the bill making the manufacture of California green  
                                                           CONTINUED





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          vehicles," which the bill defines, eligible for subsidies  
          under the California Alternative Energy and Advanced  
          Transportation Financing Authority's program.  This bill  
          now updates the Stop Tobacco Access to Kids Enforcement Act  
          to define electronic cigarettes under state law and to halt  
          the sale of electronic cigarettes. 

           ANALYSIS  :    

          Existing law: 

          1. Requires states to enact and enforce laws that prohibit  
             the sale of cigarettes and tobacco products to minors  
             under the age of 18. 

          2. Makes it a misdemeanor, subject to civil action and  
             fines, any individual who knowingly or under  
             circumstances furnishes, gives, or sells cigarettes or  
             tobacco products to minors under the age of 18. 

          3. Provides that any individual desiring to engage in the  
             sale of cigarettes or tobacco products as a distributor  
             shall file with the Board of Equalization (BOE) an  
             application for a distributor's license.  A distributor  
             must apply and obtain a license for each place of  
             business where he or she will engage in the business of  
             distributing cigarettes or tobacco products. 

          4. Provides that any individual desiring to engage in the  
             sale of cigarettes or tobacco products as a wholesaler  
             shall file with the BOE an application for a  
             wholesaler's license.  A wholesaler must apply and  
             obtain a license for each place of business where he/she  
             will engage in the business of selling cigarettes or  
             tobacco products as a wholesaler. 

          5. Requires, under the Stop Tobacco Access to Kids  
             Enforcement (STAKE) Act: 

             A.    Retailers from selling cigarettes and tobacco  
                products to minors under the age of 18 and requires  
                that retailers check identification of individuals  
                trying to buy cigarettes and tobacco products who  
                appear under the age of 18.







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             B.    Increases civil penalties and expands the number  
                of agencies that are permitted to carry out  
                investigations of illegal tobacco sales to minors  
                from the Department of Public Health (DPH) to include  
                the Attorney General and other state and local  
                agencies.

             C.    Makes certain violations of the STAKE Act a  
                criminal offense.

             D.    Requires DPH to take primary responsibility for  
                enforcement of the STAKE Act and requires DPH to  
                conduct random, onsite inspections of retail sites.

             E.    Requires DPH to enlist the assistance of persons  
                who are 15 or 16 years of age for this purpose and  
                requires DPH to adopt and publish guidelines for the  
                use of minors in inspections.
              
             F.    Requires the peace officer accompanying the minor  
                to re-enter the retail site following the completion  
                of a sale and inform the seller of the random  
                inspection.  Existing law requires DPH, following an  
                attempted sale, to notify the retailer of the  
                inspection.

             G.    Permits DPH to enter into an agreement with a  
                local law enforcement agency for delegation of  
                enforcement of the STAKE Act.

             H.    Requires any enforcement by DPH, in cases where  
                DPH has delegated enforcement to a local law  
                enforcement agency, to be coordinated with the local  
                law enforcement agency and prohibits duplication of  
                enforcement activities that result in a duplication  
                of civil penalties or assessments.
              
             I.    Requires DPH to reimburse local law enforcement  
                agencies for enforcement costs pursuant to delegation  
                contracts from the Sale of Tobacco to Minors Control  
                Account, which was created under the STAKE Act and  
                receives moneys collected as civil penalties under  
                the Act. 







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          This bill:

          1. Deletes "tobacco substitute" from this bill's definition  
             of tobacco product. 

          2. Deletes proposed definition of "tobacco substitute." 

          3. Classifies electronic cigarettes and any similar devices  
             that can provide inhaled doses of nicotine by delivering  
             a vaporized solution as a drug. 

          4. Expands the duties of DPH's Food and Drug Section  
             inspectors so they can enforce the prohibition of the  
             sale, distribution, or offering for sale of electronic  
             cigarettes if they have not been approved or cleared by  
             the federal Food and Drug Administration (FDA). 

          5. Requires that the suppliers and sellers of electronic  
             cigarettes be in full compliance of established state  
             law relevant to the distribution of tobacco products to  
             minors. 

          6. Adds co-authors. 

          7. Makes technical and conforming changes. 

           Background  

          In 1992, Congress passed Section 1926 of Title XIX of the  
          federal Public Health Service Act, commonly called the  
          Synar Amendment.  The Synar Amendment requires states to  
          pass and enforce laws that prohibit the sale of tobacco to  
          individuals under 18 years of age.  It also requires that  
          federal alcohol and substance abuse block grant funding be  
          applied to enforcing state law in a manner that can  
          reasonably be expected to reduce the illegal sales rate of  
          tobacco products to minors.  Up to 40 percent of the block  
          grant funding can be withheld from states for not complying  
          with the Synar Amendment. 

          In May 1994, the Department of Health Services, Tobacco  
          Control Section and tobacco control advocates from 23  
          counties throughout the state undertook an unprecedented  







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          massive effort to document how easily available tobacco  
          products were to minors.  Over 400 youth, 13-17 years of  
          age, surveyed more than 1,800 retail stores.  The results  
          of the 1994 Youth Purchase Survey indicated that the  
          illegal sales rate was 52.1 percent. 

           Synar Amendment and the STAKE Act  .  In 1992, Congress  
          passed the Synar Amendment, which requires states to pass  
          and enforce laws that prohibit the sale of tobacco to  
          minors.  It also requires that federal alcohol and  
          substance abuse block grant funding be applied to enforcing  
          state law in a manner that can reasonably be expected to  
          reduce the illegal sales rate of tobacco products to  
          minors.  Up to 40 percent of the block grant funding can be  
          withheld from states for not complying with the Synar  
          Amendment.  

          SB 1927 (Hayden), Chapter 1009, Statutes of 1994, enacted  
          the STAKE Act to address the increase in tobacco sales to  
          minors in California and fulfill the federal mandate.   
          Authority for enforcement and responsibility for  
          implementation of the Act was delegated to the  
          then-Department of Health Services' Food and Drug Branch,  
          which is required to: 

          1. Implement the program to reduce the illegal sale of  
             tobacco products to minors and to conduct sting  
             operations using 15 and 16 year old minors.

          2. Operate a toll-free number for the public to report  
             illegal tobacco sales to minors.

          3. Assure that tobacco retailers post signs, which include  
             the toll-free number, to report violations.

          4. Assure that clerks check the identification of  
             youthful-appearing persons prior to a sale.

          5. Assess civil penalties ranging from $200 to $6,000  
             against store owners for violations.

          6. Comply with the Synar Amendment and prepare an annual  
             report for the federal government, Legislature, and the  
             Governor regarding enforcement activities and their  







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             effectiveness. 

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

          According to the Assembly Appropriations Committee, costs  
          are deemed minor, if any, nonreimbursable incarceration  
          costs as this bill changes the definition of an existing  
          crime. 

           SUPPORT  :   (Verified  9/9/09)

          Breathe California
          California Medical Association
          California Tobacco Control Alliance
          Community Advocate Teens of Today Coalition


           ARGUMENTS IN SUPPORT  :    According to the author's office,  
          a study published by the Journal of the National Cancer  
          Institute found that teens were more likely to be  
          influenced to smoke by cigarette marketing than by peer  
          pressure.  The author's office states that a similar report  
          published by the Journal of the American Medical  
          Association discovered that approximately one-third of  
          underage experimentation with smoking was attributable to  
          tobacco company marketing efforts. 

          The most recent innovation in marketing tobacco products to  
          the public is electronic cigarettes.  Electronic cigarettes  
          are a tobacco substitute that is being marketed as a  
          healthy and smokeless alternative to traditional  
          cigarettes.  These devices are battery-operated,  
          rechargeable drug delivery devices that look similar to  
          cigarettes and allow the user to inhale a smokeless vapor  
          that often contains nicotine. 

          According to the author's office, electronic cigarettes are  
          unregulated by both state and federal laws.  The author's  
          office claims that because the producers of electronic  
          cigarettes, many of which are predominantly foreign-based  
          companies, have not applied for approval from the FDA, some  
          retailers have taken the opportunity to market and sell  
          these products to adults and minors, alike, through using  







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          shopping mall kiosks and promoting flavored cartridges. 

          This bill seeks to prohibit the sale, distribution, or  
          offering for sale of electronic cigarettes in California as  
          long as they have not been approved or certified by the  
          federal FDA. 


           GOVERNOR'S VETO MESSAGE:
           
             "I am returning Senate Bill 400 without my signature.  


             While I support restricting access of electronic  
             cigarettes to children under the age of 18, I cannot  
             sign a measure that also declares them a federally  
             regulated drug when the matter is currently being  
             decided through pending litigation. 

             Items defined as 'tobacco products' are legal for  
             anyone over the age of 18. If adults want to purchase  
             and consume these products with an understanding of  
             the associated health risks, they should be able to  
             do so unless and until federal law changes the legal  
             status of these tobacco products. 

             For this reason, I am unable to sign this bill."
           

           ASSEMBLY FLOOR  : 
          AYES:  Ammiano, Arambula, Beall, Block, Blumenfield,  
            Brownley, Buchanan, Caballero, Charles Calderon, Carter,  
            Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans,  
            Feuer, Fong, Fuentes, Furutani, Galgiani, Hall, Hayashi,  
            Hernandez, Hill, Huber, Huffman, Jones, Krekorian, Lieu,  
            Bonnie Lowenthal, Ma, Mendoza, Monning, Nava, John A.  
            Perez, V. Manuel Perez, Portantino, Ruskin, Salas,  
            Saldana, Skinner, Solorio, Swanson, Torlakson, Torres,  
            Torrico, Yamada, Bass
          NOES:  Adams, Anderson, Bill Berryhill, Tom Berryhill,  
            Blakeslee, Conway, Cook, DeVore, Duvall, Emmerson,  
            Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,  
            Harkey, Jeffries, Knight, Logue, Miller, Nestande,  
            Niello, Nielsen, Silva, Smyth, Audra Strickland, Tran,  







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            Villines
          NO VOTE RECORDED:  Vacancy


          DLW:mw  1/11/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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