BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                              UNFINISHED BUSINESS


          Bill No:  SB 882
          Author:   Corbett (D)
          Amended:  6/17/10
          Vote:     27 - Urgency

           
           SENATE BUSINESS, PROF. & ECON. DEV. COMMITTEE  :  5-2,  
            4/19/10
          AYES:  Negrete McLeod, Aanestad, Correa, Oropeza, Yee
          NOES:  Wyland, Walters
          NO VOTE RECORDED:  Calderon, Florez

           SENATE HEALTH COMMITTEE  :  9-0, 5/5/10
          AYES:  Alquist, Strickland, Aanestad, Cedillo, Cox, Leno,  
            Negrete McLeod, Pavley, Romero

           SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8

           SENATE FLOOR  :  28-0, 5/28/10
          AYES:  Alquist, Ashburn, Calderon, Cedillo, Corbett,  
            Correa, DeSaulnier, Ducheny, Dutton, Florez, Hancock,  
            Huff, Kehoe, Leno, Liu, Lowenthal, Negrete McLeod,  
            Padilla, Pavley, Price, Romero, Simitian, Steinberg,  
            Strickland, Wolk, Wright, Wyland, Yee
          NO VOTE RECORDED:  Aanestad, Cogdill, Cox, Denham, Harman,  
            Hollingsworth, Oropeza, Runner, Walters, Wiggins,  
            Vacancy, Vacancy

           ASSEMBLY FLOOR  :  Not available


           SUBJECT  :    Tobacco:  electronic cigarettes

                                                           CONTINUED





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           SOURCE  :     Author


           DIGEST  :    This bill makes it unlawful, to the extent it is  
          not preempted by federal law, to sell or otherwise furnish  
          electronic cigarettes to a person under the age of 18  
          punishable as an infraction, as specified.

           Assembly Amendments  add 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, and revise the bill's legislative findings. 

           ANALYSIS  :    

          Existing law:

          1. Authorizes cities and counties to issue business  
             licenses, set licensing fees and collect licensing fees.

          2. Establishes the Stop Tobacco Access to Kids Enforcement  
             (STAKE) Act which contains several provisions, including  
             civil penalties for the sale of tobacco to minors.   
             Requires a retailer to maintain a license issued by the  
             Board of Equalization to engage in the sale of  
             cigarettes or tobacco products.  

          3. Prohibits any person, firm, or corporation from selling,  
             giving or in any way furnishing cigarettes or tobacco  
             products to any person who is under the age of 18 years  
             and provides that the punishment for violations shall be  
             a fine of $200 for the first offense, $500 for the  
             second offense, and $1,000 for the third offense. 

          This bill:

          1. Makes it unlawful, to the extent it is not preempted by  
             federal law, to sell or otherwise furnish electronic  
             cigarettes to a person less than 18 years of age.  

          2. Defines "electronic cigarette" as any device that can  
             provide inhaled doses of nicotine by delivering a  







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             vaporized solution.  

          3. Provides that a violation of this bill is an infraction  
             punishable by a fine not exceeding $200 for the first  
             violation, by a fine not exceeding $500 for the second  
             violation, or by 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. Contains related legislative findings.
          
           Background 

           Electronic Cigarettes  

          Electronic cigarettes are neither cigarettes nor a tobacco  
          product.  They are electronic devices that are manufactured  
          to look like cigarettes that cost between $40 and $70.   
          They are battery powered and provide the person who uses  
          them a vaporized liquid to inhale.  The liquid solution may  
          contain nicotine, which is then delivered to the user.  The  
          solution also comes in a variety of flavors, such as  
          chocolate, mint and apple, which are thought to make them  
          appealing to children and adolescents.

          Since electronic cigarettes are not cigarettes, they fall  
          outside of the tobacco regulatory scheme at the state and  
          federal levels.  As an unregulated product, there is no age  
          limit for purchasing them.  Electronic cigarettes do not  
          contain warnings, which are required on nicotine  
          replacement therapies and tobacco products.  These products  
          have also not been subject to an analysis to determine the  
          possible impact on consumer health.  The amount of nicotine  
          they deliver is unknown.  The existence and possible levels  
          of other compounds they may contain is uncertain, although  
          the Food and Drug Administration (FDA) has researched some  
          samples and announced that they contain toxic and  
          carcinogenic chemicals.  Studies are underway to examine  







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          the health effects, but the results will not be known for  
          many years.

           Nicotine
           
          Nicotine is highly addictive.  It is both a stimulant and a  
          sedative to the central nervous system.  The ingestion of  
          nicotine has an almost immediate effect because it causes a  
          discharge of epinephrine from the adrenal cortex.  This  
          stimulates the central nervous system and other endocrine  
          glands, which causes a sudden release of glucose.   
          Stimulation is then followed by depression and fatigue,  
          leading the abuser to seek more nicotine.  
          Nicotine is absorbed readily from tobacco smoke in the  
          lungs, and it does not matter whether the tobacco smoke is  
          from cigarettes, cigars, or pipes.  Nicotine also is  
          absorbed readily when tobacco is chewed.  With regular use  
          of tobacco, levels of nicotine accumulate in the body  
          during the day and persist overnight.  Thus, daily smokers  
          or chewers are exposed to the effects of nicotine for 24  
          hours each day.  Nicotine taken by cigarette or cigar  
          smoking takes only seconds to reach the brain and has a  
          direct effect on the body for up to 30 minutes.

          Nicotine is one of the most heavily used addictive drugs in  
          the United States.  Cigarette smoking has been the most  
          popular method of taking nicotine since the beginning of  
          the 20th century.  In 1989, the United States Surgeon  
          General issued a report that concluded that cigarettes and  
          other forms of tobacco, such as cigars, pipe tobacco, and  
          chewing tobacco, are addictive and that nicotine is the  
          drug in tobacco that causes addiction.  In addition, the  
          report determined that smoking was a major cause of stroke  
          and the third leading cause of death in the United States.

           Health Agency Response

           Because they deliver nicotine, these devices are sometimes  
          marketed for nicotine replacement therapy.  The World  
          Health Organization (WHO) does not consider the electronic  
          cigarette to be a legitimate smoking cessation aid, and has  
          demanded that marketers immediately remove from their  
          materials any suggestions that WHO considers electronic  
          cigarettes safe and effective.  WHO states that, to its  







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          knowledge, "No rigorous, peer-reviewed studies have been  
          conducted showing that the electronic cigarette is a safe  
          and effective nicotine replacement therapy.  WHO does not  
          discount the possibility that the electronic cigarette  
          could be useful as a smoking cessation aid."  
          Many countries have taken some action to regulate  
          electronic cigarettes.  The actions range from an outright  
          ban of nicotine in electronic cigarettes (Australia,  
          Singapore) to treating them as a medicinal product with the  
          attendant regulation as a device that delivers a drug  
          (Austria, Denmark).  Their use is not restricted currently  
          in the United Kingdom, but regulation as a medical device  
          is being considered by the nation's health agency.  In  
          Canada, Health Canada issued an advisory against electronic  
          cigarettes.  The advisory stated that, "Although these  
          electronic smoking products may be marketed as a safer  
          alternative to conventional tobacco products and, in some  
          cases, as an aid to quitting smoking, electronic smoking  
          products may pose risks such as nicotine poisoning and  
          addiction." 

          The FDA has opined that nicotine is a drug and therefore  
          subject to agency regulation and that electronic cigarettes  
          are devices used to deliver drugs. For that reason, the FDA  
          asserts that they must be approved by the FDA before being  
          marketed within the United States.  Before approval could  
          be gained, the manufacturers would have to show that  
          electronic cigarettes are safe and effective.

          Pursuant to its authority, the FDA has been examining and  
          detaining shipments of e-cigarettes at the United States  
          border.  The FDA states that the products it has examined  
          meet the definition of a combination drug-device product  
          under the Federal Food, Drug and Cosmetic Act.  However,  
          the FDA has not taken any steps to remove them from the  
          United States market.  The FDA has been challenged  
          regarding its jurisdiction over electronic cigarettes in a  
          case currently pending in federal courts (  Smoking  
          Everywhere, Inc. v. FDA  ).  The basis of the challenge is  
          that electronic cigarettes are nontherapeutic alternatives  
          to cigarettes; hence, they do not fall under FDA  
          regulation.  The lower court agreed with this logic and  
          stated that they should be regulated as tobacco products  
          and enjoined FDA from acting to block imports.  The FDA is  







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          appealing the ruling and the United States Court of Appeals  
          has reinstated the FDA's right to regulate the importation  
          of electronic cigarettes pending final disposition of the  
          case.

           Related Legislation

           SB 400 (Corbett), 2009-10 Session, would have provided that  
          electronic cigarettes are drugs under state law, making  
          them subject to the Sherman Food, Drug, and Cosmetic Law  
          and would have allowed the Department of Public Health to  
          halt the sale, distribution, or offering of electronic  
          cigarettes as part of its enforcement of the STAKE Act.   
          The bill was vetoed and the Governor stated in his veto  
          message, "I cannot sign a measure that also declares them  
          [electronic cigarettes] a federally regulated drug when the  
          matter is currently being decided through pending  
          litigation."

          SJR 8 (Corbett), 2009-10 Session, requests that the FDA  
          prohibit all sales of electronic cigarettes until they have  
          been found by the FDA to be safe.  The resolution is in the  
          Assembly Governmental Organization Committee.

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

           SUPPORT  :   (Verified  5/24/10)

          Breathe California
          California Medical Association
          First 5 Association of California
          Health Officers Association of California


           ARGUMENTS IN SUPPORT  :    The Health Officers Association of  
          California asserts that, "SB 882 would take significant  
          steps to prevent minors from purchasing electronic  
          cigarettes.  Tobacco use is a major public health problem,  
          and cigarette use among minors is of great concern to  
          public health professionals.  Electronic cigarettes are an  
          unregulated 'alternative' to cigarettes which, because they  
          have not yet been reviewed by the FDA, are not yet illegal  
          to sell to minors.  Manufacturers and distributors of  







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          electronic cigarettes are taking advantage of this  
          technicality to sell electronic cigarettes in mall kiosks  
          and other places frequented by teenagers.  SB 882 would  
          close this loophole."


          JJA:mwk  8/10/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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