BILL NUMBER: SB 882 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Corbett
JANUARY 14, 2010
An act to amend Sections 22950.5, 22955, 22962, and 22971 of the
Business and Professions Code, and to add Section 111247 to the
Health and Safety Code, relating to tobacco, and declaring the
urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 882, as introduced, Corbett. Tobacco: nicotine delivery
devices.
Existing law, the Stop Tobacco Access to Kids Enforcement Act
(STAKE Act), establishes various requirements for retailers relating
to tobacco sales to minors. A violation of this act is a crime.
This bill would authorize action to halt the sale, distribution,
or offering for sale of electronic cigarettes that have not been
approved or cleared by the federal Food and Drug Administration. By
changing the definition of an existing crime, this bill would impose
a state-mandated local program.
The Sherman Food, Drug, and Cosmetic Law requires the State
Department of Public Health to regulate the manufacture, sale,
labeling, and advertising activities related to food, drugs, devices,
and cosmetics in conformity with the Federal Food, Drug, and
Cosmetic Act. A violation of these provisions is a crime.
This bill would deem any article that can provide inhaled doses of
nicotine by delivering a vaporized solution a drug under these
provisions. By expanding the definition of an existing crime, this
bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 22950.5 of the Business and Professions Code is
amended to read:
22950.5. For purposes of this division, the following terms have
the following meanings:
(a) "Department" means the State Department of Public Health.
(b) "Enforcing agency" means the State Department of Public
Health, another state agency, including, but not limited to, the
office of the Attorney General, or a local law enforcement agency,
including, but not limited to, a city attorney, district attorney, or
county counsel.
(c) "Tobacco product" means a product containing tobacco leaf,
including, but not limited to, cigarettes, cigars, pipe tobacco,
snuff, chewing tobacco, dipping tobacco, bidis, or other preparation
of tobacco, or a tobacco substitute.
(d) "Tobacco substitute" means an article that can provide inhaled
doses of nicotine by delivering a vaporized solution, including, but
not limited to, an electronic cigarette.
SEC. 2. Section 22955 of the Business and Professions Code is
amended to read:
22955. Agents of the state department, while conducting
enforcement activities pursuant to this division, are peace officers
and are subject to all of the powers and immunities granted to Food
and Drug Section inspectors pursuant to Section 106500 of the Health
and Safety Code in the same manner as are any Food and Drug Section
inspectors of the state department. These agents may take
enforcement action to halt the sale, distribution, or offering for
sale to minors of tobacco substitutes that have not been approved or
cleared by the federal Food and Drug Administration.
SEC. 3. Section 22962 of the Business and Professions Code is
amended to read:
22962. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Self-service display" means the open display of tobacco
products or tobacco paraphernalia in a manner that is accessible to
the general public without the assistance of the retailer or employee
of the retailer.
(2) "Tobacco paraphernalia" means cigarette papers or wrappers,
blunt wraps as defined in Section 308 of the Penal Code, pipes,
holders of smoking materials of all types, cigarette rolling
machines, or other instruments or things designed for the smoking or
ingestion of tobacco products.
(3) "Tobacco product" means any product containing tobacco leaf,
including, but not limited to, cigarettes, cigars, pipe tobacco,
snuff, chewing tobacco, dipping tobacco, bidis, or any other
preparation of tobacco.
(4)
(3) "Tobacco store" means a retail business that meets
all of the following requirements:
(A) Primarily sells tobacco products.
(B) Generates more than 60 percent of its gross revenues annually
from the sale of tobacco products and tobacco paraphernalia.
(C) Does not permit any person under 18 years of age to be present
or enter the premises at any time, unless accompanied by the person'
s parent or legal guardian, as defined in Section 6903 of the Family
Code.
(D) Does not sell alcoholic beverages or food for consumption on
the premises.
(b) (1) (A) Except as permitted in subdivision (b) of Section
22960, it is unlawful for a person engaged in the retail sale of
tobacco products to sell, offer for sale, or display for sale any
tobacco product or tobacco paraphernalia by self-service display.
A person who violates this section is subject to those civil
penalties specified in the schedule in subdivision (a) of Section
22958.
(B) A person who violates this section is subject to those civil
penalties specified in the schedule in subdivision (a) of Section
22958.
(2) It is unlawful for a person engaged in the retail sale of
blunt wraps to place or maintain, or to cause to be placed or
maintained, any blunt wraps advertising display within two feet of
candy, snack, or nonalcoholic beverage displayed inside any store or
business.
(3) It is unlawful for any person or business to place or
maintain, or cause to be placed or maintained, any blunt wrap
advertising display that is less than four feet above the floor.
(c) Subdivision (b) shall not apply to the display in a tobacco
store of cigars, pipe tobacco, snuff, chewing tobacco, or dipping
tobacco, provided that in the case of cigars they are generally not
sold or offered for sale in a sealed package of the manufacturer or
importer containing less than six cigars. In any enforcement action
brought pursuant to this division, the retail business that displays
any of the items described in this subdivision in a self-service
display shall have the burden of proving that it qualifies for the
exemption established in this subdivision.
(d) The Attorney General, a city attorney, a county counsel, or a
district attorney may bring a civil action to enforce this section.
(e) This section does shall not
preempt or otherwise prohibit the adoption of a local standard that
imposes greater restrictions on the access to tobacco products than
the restrictions imposed by this section. To the extent that there is
an inconsistency between this section and a local standard that
imposes greater restrictions on the access to tobacco products, the
greater restriction on the access to tobacco products in the local
standard shall prevail.
SEC. 4. Section 22971 of the Business and Professions Code is
amended to read:
22971. For purposes of this division, the following terms shall
have the following meanings:
(a) "Board" means the State Board of Equalization.
(b) "Importer" means an importer as defined in Section 30019 of
the Revenue and Taxation Code.
(c) "Distributor" means a distributor as defined in Section 30011
of the Revenue and Taxation Code.
(d) "Manufacturer" means a manufacturer of cigarettes or tobacco
products sold in this state.
(e) "Retailer" means a person who engages in this state in the
sale of cigarettes or tobacco products directly to the public from a
retail location. Retailer includes a person who operates vending
machines from which cigarettes or tobacco products are sold in this
state.
(f) "Retail location" means both of the following:
(1) Any building from which cigarettes or tobacco products are
sold at retail.
(2) A vending machine.
(g) "Wholesaler" means a wholesaler as defined in Section 30016 of
the Revenue and Taxation Code.
(h) "Cigarette" means a cigarette as defined in Section 30003 of
the Revenue and Taxation Code.
(i) "License" means a license issued by the board pursuant to this
division.
(j) "Licensee" means any person holding a license issued by the
board pursuant to this division.
(k) "Sale" or "sold" means a sale as defined in Section 30006 of
the Revenue and Taxation Code.
(l) "Tobacco products" means tobacco products as defined in
subdivision (b) of Section 30121 and subdivision (b) of Section
30131.1 of the Revenue and Taxation Code.
(m) "Tobacco substitute" means an article that can provide inhaled
doses of nicotine by delivering a vaporized solution, including, but
not limited to, an electronic cigarette.
(m)
(n) "Unstamped package of cigarettes" means a package
of cigarettes that does not bear a tax stamp as required under Part
13 (commencing with Section 30001) of Division 2 of the Revenue and
Taxation Code, including a package of cigarettes that bears a tax
stamp of another state or taxing jurisdiction, a package of
cigarettes that bears a counterfeit tax stamp, or a stamped or
unstamped package of cigarettes that is marked "Not for sale in the
United States."
(n)
(o) "Person" means a person as defined in Section 30010
of the Revenue and Taxation Code.
(o)
(p) "Package of cigarettes" means a package as defined
in Section 30015 of the Revenue and Taxation Code.
(p)
(q) (1) "Control" or "controlling" means possession,
direct or indirect, of the power:
(A) To vote 25 percent or more of any class of the voting
securities issued by a person.
(B) To direct or cause the direction of the management and
policies of a person, whether through the ownership of voting
securities, by contract (other than a commercial contract for goods
or nonmanagement services), or otherwise provided; however, no
individual shall be deemed to control a person solely on account of
being a director, officer, or employee of such person.
(2) For purposes of subparagraph (B) of this subdivision
paragraph (1) , a person who, directly or
indirectly, owns, controls, holds, with the power to vote, or holds
proxies representing 10 percent or more of the then outstanding
voting securities issued by another person, is presumed to control
such that other person.
(3) For purposes of this division, the board may determine whether
a person in fact controls another person.
(q)
(r) "Law enforcement agency" means a
sheriff, a police department, or a city, county, or city and county
agency or department designated by the governing body of that agency
to enforce this chapter or to enforce local smoking and tobacco
ordinances and regulations.
(r)
(s) "Brand family" has the same meaning as
that term is defined in paragraph (2) of subdivision (a) of Section
30165.1 of the Revenue and Taxation Code.
(s)
(t) The amendments made to this section by
the act adding this subdivision shall become operative May 1, 2007.
SEC. 5. Section 111247 is added to the Health and Safety Code, to
read:
111247. Any article that can provide inhaled doses of nicotine by
delivering a vaporized solution, including, but not limited to, an
electronic cigarette, shall be deemed to be a drug as defined in
Section 109925. This section shall not be construed as bearing on or
being relevant to the question of whether any other product is a drug
as defined in Section 109925 or a device as defined in Section
109920.
SEC. 6. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
SEC. 7. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to protect the health of minors from a product with
contents that have not been comprehensively studied and are
unregulated on the market, it is necessary for this bill to go into
immediate effect.