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
SB 648 | Page
3
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. | |
|------------+-------------------------+---------------------|
SB 648 | Page
5
|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 | |
SB 648 | Page
7
| |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
SB 648 | Page
9
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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