BILL ANALYSIS
SB 882
Page 1
Date of Hearing: June 23, 2010
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Joe Coto, Chair
SB 882 (Corbett) - As Amended: June 17, 2010
SENATE VOTE : 28-0
SUBJECT : Electronic cigarettes.
SUMMARY : Prohibits the sale or distribution of an electronic
cigarette (e-cigarette) to a minor less than 18 years of age and
establishes infractions for violating this prohibition.
Specifically, this bill :
1)Makes it unlawful for a person to sell or otherwise furnish an
e-cigarette to a minor less than 18 years of age to the extent
not preempted by federal law, including but not limited to
regulation of e-cigarettes by the federal Food and Drug
Administration (FDA).
2)Defines "electronic cigarette" as a device that can provide an
inhalable dose of nicotine by delivering a vaporized solution.
3)Requires a violation of this section shall be an infraction
punishable by the following fine schedule:
a) A fine not exceeding $200 for the first violation,
b) A fine not exceeding $500 for the second violation,
c) A fine not exceeding $1,000 for a third or subsequent
violation.
4)Adds a preemption clause which states that neither this
section nor any other provision of law shall invalidate an
ordinance adopted by a city, county, or city and county if it
is more restrictive than this section to the extent that the
ordinance is not preempted by federal law.
5)Makes findings and declarations.
EXISTING LAW :
1)Makes it a misdemeanor, subject to civil action and fines, any
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individual who knowingly or under circumstances furnishes,
gives, or sells cigarettes or tobacco products to minors under
the age of 18.
2)Provides that any individual desiring to engage in the sale of
cigarettes or tobacco products as a distributor shall file
with the State 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.
3)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 or she will engage in the business of
selling cigarettes or tobacco products as a wholesaler.
4)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.
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 State 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 the DPH
to adopt and publish guidelines for the use of minors in
inspections.
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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.
FISCAL EFFECT : Unknown.
COMMENTS : This bill is similar to legislation introduced last
year (Corbett, SB 400, 2009 Legislative Session), which sought
to prohibit the sale of e-cigarettes to minors under the STAKE
Act. This bill places the prohibition under its own stand-alone
section of the Health and Safety Code.
Background . According to a 2008 report titled " Current
Practices in Enforcement of California Laws Regarding Youth
Access to Tobacco Products and Exposure to Secondhand Smoke "
that was prepared by the Public Health Institute for DPH and the
California Tobacco Control Program, found that law enforcement
agencies continue to rank policies and procedures, such as
suspension or revocation of business licenses and civil and
criminal penalties for owners and clerks who sell tobacco to
minors, as effective strategies to reduce youth access to
tobacco.
According to the author, another 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
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peer pressure. The author 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.
According to the author, e-cigarettes are unregulated by both
state and federal laws. The author 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 shopping mall kiosks and promoting flavored
cartridges.
This bill seeks to define e-cigarettes and, make illegal, the
sale of these devices to minors.
Electronic cigarettes . The most recent innovation in marketing
tobacco products to the public are electronic cigarettes
(e-cigarettes). E-cigarettes are considered to be 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 FDA, e-cigarettes generally contain cartridges
filled with nicotine, flavor (e.g. chocolate and mint) and other
chemicals. These devices work by turning nicotine and the other
chemicals into a vapor that is inhaled by the user.
E-cigarette brands, like NJOY, can argue that these devices can
serve as an "alternative to traditional smoked tobacco products"
and are "designed to replicate the adult experience of smoking
without combustion or the use of cancerous by-products."
In a July 22, 2009 press release, the FDA states, "These
products are marketed and sold to young people and are readily
available online and in shopping malls." FDA also says,
"[T]hese products do not contain any health warnings comparable
to FDA-approved nicotine replacement products or conventional
cigarettes." The FDA and the e-cigarette manufacturers disagree
over these devices and whether they are safer than cigarettes.
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Civil litigation . FDA is being challenged in federal court by
e-cigarette manufacturers and distributors regarding its
jurisdiction over certain e-cigarettes in a federal district
court case (Smoking Everywhere, Inc., and Sottera, Inc., doing
business as NJOY, v. U.S. Food and Drug Administration, et al.,
Civil Case No. 09-771).
On January 14, 2010, the U.S. District Court for the District of
Columbia ruled against the FDA from taking action to regulate
e-cigarettes as drugs/devices under the federal Food, Drug, and
Cosmetics Act, thus allowing e-cigarette brands to sell and
distribute their products in retail facilities throughout the
United States. In short, these devices can be regulated as
tobacco products under the federal Family Smoking Prevention and
Tobacco Control Act of 2009. The federal judge in the case
opined that, "[T]he FDA has no authority to regulate the
products and can't stop them from entering the country."
The FDA is appealing the federal district court's ruling and has
asked a federal appeals court to immediately stay an order that
prevents them from blocking the entry of e-cigarettes from
entering the country. The U.S. Court of Appeals ruled to
temporarily reinstate the FDA's authority and granted the stay.
Related legislation . SB 400 (Corbett, 2009 Legislative Session)
would have amended the STAKE Act to include electronic
cigarettes in its definition of tobacco product and halt the
sale of electronic cigarettes to minors. Vetoed by the Governor
on October 11, 2009.
Prior legislation . SB 1927 (Hayden, Chapter 1009, Statutes of
1994) enacts the Stop Tobacco Access to Kids Enforcement (STAKE)
Act to address the increase in tobacco sales to minors in
California and fulfill the federal mandate that prohibited the
sale of cigarettes and tobacco products to minors.
AB 71 (Jerome Horton, Chapter 890, Statutes of 2003) enacts the
Cigarette and Tobacco Products Licensing Act of 2003 and imposes
licensing requirements on tobacco manufacturers, wholesalers,
retailers, and importers. Requires manufacturers to pay a
one-time fee. Imposes civil and criminal penalties on
individuals and businesses that violate tobacco-related,
anti-contraband laws, and laws prohibiting tobacco-related sales
to minors.
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AB 2344 (Beall, 2008 Legislative Session) would have required
tobacco retailers to pay an annual licensing fee of $185 to
offset the State Board of Equalization's funding shortfall for
the administration and enforcement of the California Cigarette
and Tobacco Products Act. Vetoed by the Governor on September
27, 2008.
SB 400 (Kuehl, 2005 Legislative Session) would seek to make
changes to the penalties imposed on a retailer convicted of
furnishing cigarettes or tobacco products to a minor under 18
years of age. Held on the Senate Appropriations Committee
Suspense File.
SB 433 (Ortiz, 2004 Legislative Session) would change the
conditions under which the State Board of Equalization levies
penalties against tobacco retailers for sales to minors and
requires local agencies to report convictions for illegal sales
to the State Board of Equalization. Held on the Senate
Appropriations Committee Suspense File.
SB 1843 (Budget and Fiscal Review Committee, 2002 Legislative
Session) would have enacted the Cigarette and Tobacco Products
Licensing Act of 2002. Also, would have established licensing
requirements for cigarettes and tobacco products retailers,
wholesalers and importers, creates an enhanced cigarette tax
compliance and enforcement program; revises the cigarette
"distributor discount" for applying tax stamps; appropriates
funds to implement the program in 2002-2003; establishes a
long-term funding mechanism for the program. Held in the
Assembly.
AB 2205 (Koretz, Chapter 687, Statutes of 2002) creates an
additional $100 penalty on each knowingly possessed carton of
untaxed cigarettes where the proceeds would be used to fund a
local competitive grant program to reduce availability of
tobacco products on the black market. The program had a sunset
clause that took place on January 1, 2006.
SB 1766 (Ortiz, Chapter 686, Statutes of 2002) requires that all
sales of cigarettes in the State be vendor-assisted,
face-to-face sales unless the seller receives valid
identification, that the purchaser is over 18, the product is
shipped to the address provided on the identification, the sales
is at least for two cartons, and the seller either provides the
State Board of Equalization with all taxes due on the sale or
includes with the shipment a notice that the purchaser is
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responsible for state taxes.
AB 1830 (Frommer, Chapter 685, Statutes of 2002) prohibits the
sales of tobacco products to minors through the United States
Postal Service or through any other public or private postal or
package delivery service, and imposes specified age-verification
requirements on tobacco product sellers or distributors.
REGISTERED SUPPORT / OPPOSITION :
Support
First 5 Association of California
Health Officers Association of California
Opposition
None on file
Analysis Prepared by : Rod Brewer / G. O. / (916) 319-2531