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 -- END --