BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 882| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 SB 882 Page 2 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 SB 882 Page 3 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 SB 882 Page 4 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 SB 882 Page 5 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 SB 882 Page 6 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 SB 882 Page 7 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 **** END ****