BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 400|
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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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