BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE COMMITTEE ON HEALTH
                          Senator Ed Hernandez, O.D., Chair

          BILL NO:       SB 648                                      
          AUTHOR:        Corbett
          INTRODUCED:    February 22, 2013
          HEARING DATE:  April 17, 2013
          CONSULTANT:    Bain

           SUBJECT  :  Electronic cigarettes: restriction of use and  
          advertising.
           
          SUMMARY  :  Extends the restrictions and prohibitions against the  
          smoking of tobacco products to include restrictions or  
          prohibitions against electronic cigarettes in various places,  
          including, but not limited to, places of employment school  
          campuses, public buildings, day care facilities, retail food  
          facilities, and health facilities. 

          Existing law:
          1.Restricts or prohibits the smoking of tobacco products in  
            various places, including, but not limited to, school  
            campuses, public buildings, places of employment, day care  
            facilities, retail food facilities, and health facilities. 

          2.Permits the landlord of a residential dwelling unit, as  
            defined to prohibit the smoking of a cigarette or other  
            tobacco product on the property or in any building or portion  
            of the building, including any dwelling unit, other interior  
            or exterior area, or the premises on which it is located.

          3.Makes it unlawful, to the extent not preempted by federal law,  
            for a person to sell or otherwise furnish an electronic  
            cigarette to a person under 18 years of age. 

          4.Defines an "electronic cigarette" as a device that can provide  
            an inhalable dose of nicotine by delivering a vaporized  
            solution.

          5.Makes it a violation of the prohibition against selling  
            electronic cigarettes to minors 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.

          6.Prohibits existing law prohibiting the sale of electronic  
                                                         Continued---



          SB 648 | Page 2




            cigarettes to minors from be construed to invalidate an  
            existing ordinance, or to prohibit the adoption of an  
            ordinance, by a city or county that regulates the distribution  
            of electronic cigarettes in a manner that is more restrictive  
            than state law, to the extent that the ordinance is not  
            otherwise prohibited by federal law.

          This bill:
          1.Extends the restrictions and prohibitions against the smoking  
            of tobacco products to include restrictions or prohibitions  
            against electronic cigarettes in various places, including,  
            but not limited to, places of employment school campuses,  
            public buildings, day care facilities, retail food facilities,  
            and health facilities.
          2.Permits the landlord of a residential dwelling unit, as  
            defined to prohibit the smoking of an electronic cigarette on  
            the property or in any building or portion of the building,  
            including any dwelling unit, other interior or exterior area,  
            or the premises on which it is located.

          3.States legislative intent in enacting this act to regulate the  
            use of electronic cigarettes to the same extent and in the  
            same manner as cigarettes and other tobacco products, to the  
            extent not preempted by federal law.

          4.Makes a legislative findings and declaration in the existing  
            California Indoor Clean Air Act of 1976 that the use of  
            electronic cigarettes is a hazard to the health of the general  
            public. 

           FISCAL EFFECT  :  This bill has not been analyzed by a fiscal  
          committee.

           COMMENTS  :  

           1.Author's statement.  According to the author, one of the most  
            controversial issues affecting the regulation of electronic  
            cigarettes has been whether to regulate them as drug delivery  
            devices or tobacco products. In 2010 e-cigarette manufacturers  
            sued the FDA to prevent electronic cigarettes from being  
            regulated as a drug device. In December 2010, the U.S. Court  
            of Appeals for the D.C. Circuit issued a decision in Sottera,  
            stating that e-cigarettes and other products made or derived  
            from tobacco are not drugs, devices, or combination products,  
            unless they are marketed for therapeutic purposes. The  
            decision also stated that the FDA can regulate them as tobacco  




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            products under the historic Tobacco Control Act of 2009.  
            E-cigarette manufacturers won the lawsuit and the right to  
            keep selling their product as a type of tobacco product. They  
            are, however, now subjected to the Tobacco Control Act. A  
            number of state and local governments have already passed  
            legislation to restrict the sale, marketing, and use of  
            e-cigarettes. Many of these provisions are included in  
            smoke-free laws.


          2.Food and Drug Administration information on electronic  
            cigarettes. According to the Food and Drug Administration  
            (FDA), electronic cigarettes are products designed to deliver  
            nicotine or other substances to a user in the form of a vapor.  
            Typically, electronic cigarettes are composed of a  
            rechargeable, battery-operated heating element, a replaceable  
            cartridge that may contain nicotine or other chemicals, and an  
            atomizer that, when heated, converts the contents of the  
            cartridge into a vapor. This vapor can then be inhaled by the  
            user. These products are often made to look like such products  
            as cigarettes, cigars, and pipes. They are also sometimes made  
            to look like everyday items such as pens and memory sticks,  
            for people who wish to use the product without others  
            noticing.


          The FDA states that, as the safety and efficacy of e-cigarettes  
            has not been fully studied, consumers of e-cigarette products  
            currently have no way of knowing whether electronic cigarettes  
            are safe for their intended use, how much nicotine or other  
            potentially harmful chemicals are being inhaled during use, or  
            if there are any benefits associated with using these  
            products. Additionally, the FDA states it is not known if  
            e-cigarettes may lead young people to try other tobacco  
            products, including conventional cigarettes, which are known  
            to cause disease and lead to premature death. A 2009  
            evaluation by the FDA's Division of Pharmaceutical Analysis  
            evaluated two brands of electronic cigarettes for nicotine  
            content and other impurities. Nicotine was found in both  
            products and other possible tobacco specific impurities were  
            detected, such as menthol.
          3.California tobacco smoking regulation. This bill amends  
            existing provisions of law regulating or prohibiting tobacco  
            smoking. The chart below describes each issue, the existing  
            state law provision and the change made by SB 648. 




          SB 648 | Page 4





             ------------------------------------------------------------ 
            |  Tobacco   |      Existing Law       |  SB 648 (Corbett)   |
            |   Issue    |                         |                     |
            |------------+-------------------------+---------------------|
            |Smoking in  |Permits the landlord of  |Permits landlords to |
            |residential |a residential dwelling   |prohibit the smoking |
            |dwellings   |unit to prohibit the     |of electronic        |
            |            |smoking of tobacco       |cigarettes.          |
            |            |products on the property |                     |
            |            |or in any building       |                     |
            |------------+-------------------------+---------------------|
            |Smoking in  |Prohibits an employer    |Extends the existing |
            |places of   |from knowingly or        |law smoking          |
            |employment  |intentionally            |prohibition to       |
            |            |permitting, and          |include electronic   |
            |            |individuals from         |cigarettes.          |
            |            |engaging in, the smoking |                     |
            |            |of tobacco products in   |                     |
            |            |an enclosed space at a   |                     |
            |            |place of employment, as  |                     |
            |            |defined.                 |                     |
            |------------+-------------------------+---------------------|
            |Smoking in  |Prohibits schools from   |Extends the existing |
            |schools by  |allowing tobacco smoking |law prohibition to   |
            |students    |or the use of any        |include electronic   |
            |            |tobacco or nicotine      |cigarettes.          |
            |            |product, by pupils of    |                     |
            |            |the school while on      |                     |
            |            |campus, while attending  |                     |
            |            |school-sponsored         |                     |
            |            |activities, or while     |                     |
            |            |under the supervision    |                     |
            |            |and control of school    |                     |
            |            |district employees.      |                     |
            |------------+-------------------------+---------------------|
            |Use of      |Prohibits smoking inside |Extends the existing |
            |tobacco     |a public building, or in |law prohibition to   |
            |products in |an outdoor area within   |include electronic   |
            |and near    |20 feet of a main exit,  |cigarettes.          |
            |state       |entrance or operable     |                     |
            |buildings   |window of a public       |                     |
            |and         |window, or in a          |                     |
            |state-owned |state-owned passenger    |                     |
            |vehicles    |vehicle.                 |                     |
            |------------+-------------------------+---------------------|




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            |Tobacco     |Prohibits tobacco        |Extends the existing |
            |advertising |product advertising from |law advertising      |
            |in state    |being allowed in any     |prohibition to       |
            |buildings   |state-owned and          |include electronic   |
            |            |state-occupied building  |cigarettes.          |
            |            |except advertising       |                     |
            |            |contained in a program,  |                     |
            |            |leaflet, newspaper,      |                     |
            |            |magazine, or other       |                     |
            |            |written material         |                     |
            |            |lawfully sold, brought,  |                     |
            |            |or distributed within a  |                     |
            |            |state building.          |                     |
            |------------+-------------------------+---------------------|
            |Smoking in  |Prohibits smoking in     |Extends the existing |
            |clinics     |patient areas of a       |law smoking          |
            |            |clinic, except those     |prohibition to       |
            |            |rooms designated for     |include electronic   |
            |            |occupancy exclusively by |cigarettes.          |
            |            |smokers.                 |                     |
            |------------+-------------------------+---------------------|
            |Smoking in  |Prohibits smoking in     |Extends the existing |
            |health      |patient care areas,      |law smoking          |
            |facilities  |waiting rooms, and       |prohibition to       |
            |            |visiting rooms of a      |include electronic   |
            |            |health facility, except  |cigarettes.          |
            |            |those areas specifically |                     |
            |            |designated as smoking    |                     |
            |            |areas, and in patient    |                     |
            |            |rooms, as specified      |                     |
            |------------+-------------------------+---------------------|
            |Smoking in  |Prohibits tobacco        |Extends the existing |
            |family day  |smoking in a private     |law smoking          |
            |care homes  |residence that is        |prohibition to       |
            |            |licensed as a family day |include electronic   |
            |            |care home during the     |cigarettes.          |
            |            |hours of operation as a  |                     |
            |            |family day care home and |                     |
            |            |in those areas of the    |                     |
            |            |family day care home     |                     |
            |            |where children are       |                     |
            |            |present.                 |                     |
            |------------+-------------------------+---------------------|
            |Smoking at  |Prohibits tobacco        |Extends the existing |
            |day care    |smoking on the premises  |law smoking          |




          SB 648 | Page 6




            |centers     |of a licensed day care   |prohibition to       |
            |            |center.                  |include electronic   |
            |            |                         |cigarettes.          |
            |------------+-------------------------+---------------------|
            |Smoking on  |Prohibits smoking a      |Extends the existing |
            |playgrounds |cigarette, cigar, or     |law smoking          |
            |            |other tobacco-related    |prohibition to       |
            |            |product within 25 feet   |include electronic   |
            |            |of any playground or tot |cigarettes.          |
            |            |lot sandbox area.        |                     |
            |------------+-------------------------+---------------------|
            |Smoking at  |Prohibits smoking in     |Extends the existing |
            |charitable  |nonprofit charitable     |law smoking          |
            |food        |temporary food           |prohibition to       |
            |facilities  |facilities.              |include electronic   |
            |            |                         |cigarettes.          |
            |------------+-------------------------+---------------------|
            |Smoking in  |Requires every railroad  |Extends the existing |
            |the seating |corporation, passenger   |law smoking          |
            |areas of    |stage corporation,       |prohibition to       |
            |planes and  |passenger air carrier,   |include electronic   |
            |trains      |and street railroad      |cigarettes.          |
            |            |corporation providing    |                     |
            |            |departures originating   |                     |
            |            |in this state to         |                     |
            |            |prohibit tobacco smoking |                     |
            |            |in the passenger seating |                     |
            |            |area of every passenger  |                     |
            |            |car, passenger stage,    |                     |
            |            |aircraft, or other       |                     |
            |            |vehicle.                 |                     |
            |------------+-------------------------+---------------------|
            |Non-smoking |Prohibits a person from  |Extends the existing |
            |passenger   |smoking any tobacco      |law smoking          |
            |areas       |product in a space known |prohibition to       |
            |            |to be designated for     |include electronic   |
            |            |nonsmoking passengers.   |cigarettes.          |
            |------------+-------------------------+---------------------|
            |Public      |Permits a public         |Extends the existing |
            |transportati|transportation agency to |law smoking          |
            |on agency   |enact and enforce an     |prohibition to       |
            |smoking     |ordinance to impose and  |include electronic   |
            |            |enforce an               |cigarettes.          |
            |            |administrative penalty   |                     |
            |            |for specified acts       |                     |
            |            |including smoking in or  |                     |




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            |            |on a system facility or  |                     |
            |            |vehicle in those areas   |                     |
            |            |where those activities   |                     |
            |            |are prohibited by that   |                     |
            |            |system.                  |                     |
            |------------+-------------------------+---------------------|
            |Smoking by  |Requires an operator of  |Extends the existing |
            |youth bus   |a youth bus to refrain   |law smoking          |
            |operators   |from smoking at all      |prohibition to       |
            |            |times when operating a   |include electronic   |
            |            |youth bus.               |cigarettes.          |
            |------------+-------------------------+---------------------|
            |Smoking in  |Regulates smoking within |Extends the existing |
            |public      |indoor rooms, indoor     |law smoking          |
            |meetings in |chambers, or indoor      |regulation to        |
            |public      |places of public         |include electronic   |
            |buildings   |assembly in publicly     |cigarettes.          |
            |            |owned buildings in which |                     |
            |            |public business is       |                     |
            |            |conducted requiring or   |                     |
            |            |providing direct         |                     |
            |            |participation or         |                     |
            |            |observation by the       |                     |
            |            |general public           |                     |
             ------------------------------------------------------------ 


          4.Double referral. This bill is double referred. Should it pass  
            out of this committee, it will be referred to the Senate  
            Committee on Judiciary.

          5.Prior legislation. SB 882 (Corbett), Chapter 312, Statutes of  
            2010 made it unlawful, to the extent not preempted by federal  
            law, for a person to sell or otherwise furnish an electronic  
            cigarette to a person under 18 years of age. 

            AB 13 (T. Friedman), Chapter 310, Statutes of 1994, prohibits  
            employers from knowingly or intentionally permitting, or any  
            person from engaging in, the smoking of tobacco products in  
            enclosed places of employment, with specific exemptions.  
          
          6.Related legislation. AB 320 (Nazarian), which is currently  
            pending hearing in the Assembly Appropriations Committee,  
            would prohibit the use of tobacco and nicotine products at any  
            time in a county office of education, charter school or school  




          SB 648 | Page 8




            district-owned or leased buildings, on school or district  
            property, and in school or district vehicles. Included within  
            this prohibition are nicotine-delivery devices, such as  
            electronic cigarettes.

          7.Support.  The California Black Health Network (CBHN) writes in  
            support that electronic cigarettes have only been available  
            for a short period of time, and because research is scare on  
            the possible health issues caused by inhaling these vapors, it  
            doesn't know with any certainty of possible addiction or  
            health problems. CBHN writes that because the FDA is concerned  
            about the safety of these products, and because these products  
            have not been submitted to the FDA for evaluation or approval,  
            and there are possible toxic and cancerous chemicals in these  
            products, CBHN believes California should proceed with caution  
            and that the use of electronic cigarettes should be prohibited  
            in schools and public buildings. The California Medical  
            Association writes in support that e-cigarettes have the  
            potential to be harmful and should be approached with caution  
            until additional evidence shows that they are not harmful to  
            users' health and do not undermine California's successful  
            effort to decrease tobacco use.

          8.Opposition. This bill is opposed by over 140 individuals.  
            Generally, opponents argue smoking bans are enacted to protect  
            the public from second-hand smoke, but electronic cigarettes  
            have not been shown to cause harm to bystanders, and the  
            evidence to date shows that health risk associated with  
            electronic cigarettes is comparable to other smokeless  
            nicotine products. Opponents argue there is no smoke or ash  
            associated with electronic cigarettes, the use of electronic  
            cigarettes has helped individuals to quit smoking, and the use  
            of electronic cigarettes in public spaces actually improves  
            public health by inspiring other smokers to switch and by  
            allowing the users of e-cigarettes to avoid second-hand  
            tobacco smoke.

          9.Recommended amendment. The provisions of existing law  
            restricting or prohibiting tobacco smoking were enacted prior  
            to a general prohibition on smoking in enclosed places of  
            employment added to the Labor Code in 1994 by AB 13. While  
            this law included limited exceptions, the Labor Code  
            provisions are more restrictive than the existing law  
            provisions this bill amends, which would appear to render  
            these existing provisions out of date. This bill amends that  
            Labor Code section to include electronic cigarettes but also  




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            amends the existing language restricting smoking in health  
            facilities, public buildings, and retail food facilities. To  
            reduce confusion, the author should consider deleting from  
            this bill the amendments to the outdated provision of existing  
            law that are less restrictive than the Labor Code's general  
            prohibition on tobacco smoking in any place of employment.

          10.Policy issue. The goal of the author of this bill is twofold:  
            (a) to minimize the use of products that pose unknown health  
            risks particularly unregulated products that deliver drugs  
            such as nicotine to the user; and (b) to prevent confusion in  
            the enforcement of smoke-free laws caused by the perception  
            that e-cigarette smokers are actually smoking conventional  
            cigarettes. The author argues allowing e-cigarettes could  
            cause conventional smokers to assume that smoking is permitted  
            and nonsmokers might become needlessly concerned at what they  
            see as a violation of a smoke-free law. Opponents contest this  
            view, and argue electronic cigarettes have not been shown to  
            cause harm to bystanders, and the evidence to date shows that  
            health risk associated with electronic cigarettes is  
            comparable to other smokeless nicotine products, and  
            e-cigarettes have enabled people to stop tobacco smoking. 

          A 2010 study published in Nicotine & Tobacco Research stated  
            that little is known about the health benefits and risks of  
            e-cigarettes. Only three studies have examined the contents of  
            the aerosol produced by e-cigarettes. One, done by the FDA,  
            reached the conclusion that e-cigarettes contain carcinogens,  
            albeit at lower levels than conventional cigarettes  
            (Westenberger, 2009). In a sampling of a relatively small  
            number of cartridges, the FDA found that one cartridge  
                                                                                         contained 1 percent diethylene glycol, a known toxicant that  
            has been involved in prior mass poisonings (Ballentine, 1981;  
            Westenberger). The second analytic study, funded by a leading  
            e-cigarettes manufacturer, concluded that e-cigarettes were  
            safer than conventional brands, mainly because the levels of  
            carcinogens in e-cigarettes are reduced (Laugesen, 2008). The  
            third study did not find measurable levels of polycyclic  
            aromatic hydrocarbons in e-cigarette aerosol (Leondiadis,  
            2009). The study states the lack of consensus among these  
            studies combined with the paucity of work on e-cigarettes  
            demonstrates that there is insufficient data to evaluate the  
            health effects associated with e-cigarette usage and that  
            further research on e-cigarettes is urgently needed.





          SB 648 | Page 10




          A 2012 study in Inhalation Toxicology entitled "Comparison of  
            the effects of e-cigarette vapor and cigarette smoke on indoor  
            air quality" states a number of surveys and studies have shown  
            that a substantial number of smokers significantly reduce  
            tobacco use and/or transition completely from tobacco  
            cigarettes to electronic cigarettes (Bullen, 2010; Etter,  
            2010, Etter & Bullen 2011; Foulds 2011; McQueen 2011; Polosa  
            2011; Siegel 2011). The 2012 study concluded that there are  
            very low indoor air quality impacts from the use of an  
            electronic cigarette based on the risk screening of measured  
            emissions, and also indicated no apparent risk to human health  
            from e-cigarette emissions based on the compounds analyzed.  
            The authors of the study state they recognize that future  
            research assessing exposure to bystanders and users will be  
            imperative for fully understanding the impacts from use of an  
            e-cigarette.

          In response to question from committee staff of whether  
            electronic cigarettes pose a health risk to people not using  
            electronic cigarettes, the California Department of Public  
            Health (DPH) states the vapor created by e-cigarettes has been  
            found to contain carcinogens and toxic chemicals. DPH adds  
            that the FDA released an analysis in 2009 of the two leading  
            brands of e-cigarettes found nitrosamines (a carcinogen) and  
            the antifreeze ingredient diethylene glycol, and a more recent  
            study tested 12 e-cigarette brands and found formaldehyde and  
            nitrosamines and other chemicals in the vapor. 

           SUPPORT AND OPPOSITION  :
          Support:  California Black Health Network
                    California Medical Association

          Oppose:   156 individuals







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