BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 882|
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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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