BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 648 (Corbett)
As Amended April 22, 2013
Hearing Date: April 30, 2013
Fiscal: Yes
Urgency: No
RD
SUBJECT
Electronic Cigarettes: Restriction of Use and Advertising
DESCRIPTION
This bill would expand various provisions of existing law that
regulate the use of tobacco products or cigarettes to also apply
to electronic cigarettes. This bill would also provide that the
existing prohibition against advertising of tobacco products in
public buildings shall include the advertising of electronic
cigarettes.
BACKGROUND
Since 1994, California has banned smoking in all workplaces,
including all restaurants and in 1998 this smoking ban was
extended to bars. Current law prohibits public employees and
members of the public from smoking a cigarette or tobacco
product inside a public building or within 20 feet of any door,
window, or air intake of any government building within the
state, including buildings owned or occupied by any government
entity, including public universities, or public buildings
leased to private entities. Additionally, it is an infraction
for a person to smoke within 25 feet of a playground or tot lot
sandbox or for a person to smoke in the presence of a minor
while in a moving vehicle.
Those existing bans are supported by an overwhelming amount of
evidence that demonstrates cigarette smoke can cause or
exacerbate a wide variety of adverse health effects, such as
asthma, respiratory infections, and even cancer, among other
things. Those health effects apply not only to those persons
(more)
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smoking the cigarettes, but also to those subjected to
secondhand smoke.
In order to help reduce the number of new smokers, the state has
also taken significant steps to ban advertising of cigarettes or
tobacco products in public buildings, and near schools. (See
Gov. Code Sec. 19994.35 (banning tobacco product advertising in
state-owned or state-occupied buildings, except as specified);
see also Bus. & Prof. Code Sec. 22961 (banning tobacco product
advertisements near schools, as specified).)
In recent years, the use of electronic cigarettes (e-cigarettes)
has become more and more prevalent. E-cigarettes, unlike
cigarettes, are "vaped" instead of "smoked." Many people attest
to using these e-cigarettes to overcome their addiction to
cigarettes, though the U.S. Food and Drug Administration (FDA)
does not currently list these as a smoking cessation device.
(See FDA 101: Smoking Cessation Products (Dec. 2012)
< http://www.fda.gov/downloads/ForConsumers/ConsumerUpdates/UCM331
925.pdf > [as of Apr. 18, 2013].) The FDA also acknowledges a
lack of conclusive evidence on either side of the e-cigarette
science. "As the safety and efficacy of e-cigarettes have not
been fully studied, consumers of e-cigarette products currently
have no way of knowing: [1] whether e-cigarettes are safe for
their intended use; [2] how much nicotine or potentially harmful
chemicals are being inhaled during use, or [3] if there are any
benefits associated with using these products." (FDA News &
Events, Electronic Cigarettes (e-cigarettes) (Oct. 9, 2012)
< http://www.fda.gov/newsevents/publichealthfocus/ucm172906.htm >
[as of Apr. 19, 2013].)
This bill would add "electronic cigarettes" to various
prohibitions against smoking in certain places, in order to
similarly prohibit the vaping of e-cigarettes. Among other
things, the bill would also expand the ban on cigarettes
advertising in public buildings to e-cigarettes as well.
This bill was approved by the Senate Committee on Health on
April 17, 2013 by a vote of 6-2.
CHANGES TO EXISTING LAW
1. Existing law prohibits the smoking or use of cigarettes or
other tobacco products in or nearby various places, as
specified, including among other places: schools, public
buildings, state-owned vehicles, workplaces, private
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residences licensed as a family day care home, licensed day
care centers, playgrounds, tot lot sandbox areas, ice storage
and processing areas, nonprofit charitable temporary food
facilities, passenger railroad or airline carriers, or youth
buses. Existing law provides for various definitions relating
to smoke, smoking, cigarettes or tobacco products, among other
things in relation to the aforementioned prohibitions. (See
Ed. Code Sec. 48901(a); Gov. Code Secs. 7596(a)(3), 7597;
Health & Saf. Code Secs. 1596.795, 110995(b), 114332.3,
114332.3(f), 104495(b), 104495(a)(4), 104495(a)(5); Labor Code
Sec. 6404.5(a), 6404.5(b), 6404.5(d)(4); Pub. Util. Code Secs.
561(a), 561(c), 99580(a), 99580(b)(4); Veh. Code Sec.
12523(d)(2).)
Existing law defines electronic cigarette as a device that can
provide an inhalable dose of nicotine by delivering a
vaporized solution. (Health & Saf. Code Sec. 119405(b).)
This bill would add electronic cigarettes, as defined under
existing law, throughout the above existing law provisions, as
specified.
2. Existing law , the U.S. Constitution, provides that Congress
shall make no law . . . abridging the freedom of speech, or of
the press, or the right of the people peaceably to assemble,
and to petition the government for a redress of grievances.
(U.S. Const., 1st Amend., as applied to the states through the
14th Amendment's Due Process Clause; see Gitlow v. New York
(1925) 268 U.S. 652; see also Cal. Const. art. I, Sec. 2,
which states a law may not restrain or abridge liberty of
speech or press.)
Existing federal case law provides a four prong test by which
to determine whether a regulation of commercial speech is
consistent with the First Amendment as follows: (1) the speech
must be about a lawful activity and cannot be false or
misleading; (2) the government must have a substantial
interest; (3) the law must directly advance that interest; and
(4) the law must be no more extensive than necessary to serve
that interest. (Central Hudson Gas & Elec. Corp. v. Public
Service Commission (1980) 447 U.S. 559, 566.)
Existing law provides that no tobacco product advertising
shall be allowed in any state-owned and state-occupied
building excepting advertising contained in a program,
leaflet, newspaper, magazine, or other written material
lawfully sold, brought, or distributed within a building.
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Existing law defines advertising for these purposes as the
display of any poster, sign or other written or visual
material that is intended to communicate commercial
information or images to the public. Existing law defines
tobacco product to mean any product containing tobacco, as
specified, including, but not limited to, cigarettes, loose
tobacco, cigars, snuff, chewing tobacco, or any other
preparation of tobacco. (Gov. Code Sec. 19994.35.)
This bill would amend the above to specify that "no tobacco
product advertising" shall include electronic cigarette
advertising.
3. Existing federal law , the Family Smoking Prevention and
Tobacco Control Act (Tobacco Control Act or TCA), provides the
Food and Drug Administration (FDA) with authority to regulate
tobacco products, as specified. (21 U.S.C. Sec. 387 et seq.)
Existing federal law, the TCA, prohibits any state or
political subdivision of a state from establishing or
continuing in effect with respect to a tobacco product any
requirement which is different from, or in addition to, any
requirement under specified provisions relating to tobacco
product standards, premarket review, adulteration,
misbranding, labeling, registration, good manufacturing
standards, or modified risk tobacco products. The TCA,
however, also contains a saving clause that allows states to
enact tougher laws relating to the sale, distribution,
possession, information reporting to the State, exposure to,
access to, the advertising and promotion of, or use of,
tobacco products by individuals of any age, or relating to
fire safety standards for tobacco products. (21 U.S.C. Sec.
387p.)
Existing federal law , the Federal Cigarette Labeling and
Advertising Act (FCLAA), states the policy of Congress to
establish a comprehensive federal program to deal with
cigarette labeling and advertising with respect to any
relationship between smoking and health, as specified. The
FCLAA prohibits any requirement or prohibition based on
smoking and health from being imposed under state law with
respect to the advertising or promotion of any cigarettes the
packages of which are labeled in conformity with the FCLAA.
Existing law, however, provides a savings clause whereby a
state or locality may enact statutes and promulgate
regulations, based on smoking and health, that take effect
after the effective date of the TCA, imposing specific bans or
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restrictions on the time, place, and manner, but not content,
of the advertising or promotion of any cigarettes. (15 U.S.C.
Secs. 1331, 1334.)
This bill would state the intent of the Legislature to
regulate the use of electronic cigarettes, as defined under
existing law, to the same extent and in the same manner as
cigarettes and other tobacco products, to the extent not
preempted by federal law.
4. Existing law codifies several legislative findings and
declarations related to smoking of tobacco products in the
workplace. (Labor Code Sec. 6404.5(a).)
This bill would expand those legislative findings and
declarations to electronic cigarettes, as defined under
existing law.
5. Existing law codifies that the Legislature finds and
declares that tobacco smoke is a hazard to general public's
health. (Health & Saf. Code Sec. 118875; see also Health &
Saf. Code Sec. 118950 for findings on to the harms of smoking
and indoor air.)
This bill would codify that the Legislature finds and declares
that the use of electronic cigarettes, as defined, is a hazard
to the health of the general public. This bill would declare
that any reference to, or prohibition of, the smoking of
tobacco, as specified shall also be construed to refer to the
use of electronic cigarettes.
COMMENT
1.Stated need for the bill
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 in as a drug device. In
December 2010, the U.S. Court of Appeals for the D.C. Circuit
issued a decision in Sottera [Inc. v. Food and Drug
Administration], stating that e-cigarettes and other products
made or derived from tobacco are not drugs, devices, or
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combination products, unless they are marketed for therapeutic
proposes. The decision also stated that the FDA can regulate
them as tobacco products under the historic Tobacco Control
Act of 2009.
E-cigarette manufacturers won the lawsuit and the right to
keep selling their product as 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.
Existing law restricts/prohibits the smoking of tobacco
products in various places such as residential dwelling units,
day care facilities, school campuses, public buildings, places
of employment, day care facilities, retail food facilities,
and health facilities. SB [648] would include e-cigarettes in
existing smoke-free laws.
2.Commercial speech
This bill, among other things, would extend the existing
prohibitions against advertising of tobacco products in state
owned and state occupied buildings to the advertising of
electronic cigarettes. Although that prohibition does restrict
commercial speech, such a restriction can be upheld if it meets
the appropriate constitutional test, as articulated by the
United States Supreme Court.
While commercial speech is a type of content-based restriction
that ordinarily receives strict scrutiny analysis under the
First Amendment jurisprudence of the U.S. Supreme Court, the
Supreme Court has held that the First Amendment accords it
lesser protection than other constitutionally guaranteed
expression. This is in part because, unlike other varieties of
speech, speech proposing a commercial transaction occurs in an
area traditionally subject to governmental regulation. (Central
Hudson Gas & Elec. Corp. v. Public Service Commission (1980) 447
U.S. 557, 562, 563.) Moreover, only truthful, non-misleading
speech is protected by the First Amendment as commercial speech.
The protection accorded to commercial speech is based on the
recognition that the free flow of information is important so
that people can make informed decisions; that implicit in the
right of speech is a right to listen.
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In Central Hudson Gas & Elec. Corp. v. Public Service Commission
(1980), the U.S. Supreme Court articulated a four-part test by
which commercial speech regulations are evaluated for
constitutionality. This test asks: (1) whether the expression
concerns lawful activity and is not misleading; (2) whether the
asserted governmental interest is substantial; (3) whether the
regulation directly advances the governmental interest asserted;
and (4) whether it is not more extensive than is necessary to
achieve that interest.
Accordingly, the proposed prohibition against advertising
electronic cigarettes in state-owned and state-occupied
buildings must meet that four-part test to pass constitutional
review. In applying the first prong of the Central Hudson test,
the bill involves the restriction of a lawful and non-misleading
activity, insofar as the advertising of a lawful product
(e-cigarettes) is not in and of itself unlawful. The asserted
governmental interest here, according the author, is to
strengthen the state's existing smoke free laws and provide
consistent regulation with regards to the use of e-cigarettes
given associated health risks. Arguably, the state also has an
interest in preventing advertisements that could be seen to
promote smoking on state property, particularly where children,
who generally may not be able to differentiate between
cigarettes and e-cigarettes, may be present. This bill would be
directly aimed at those interests by regulating e-cigarettes in
similar fashion as tobacco products or cigarettes.
As with most commercial speech regulations, the ultimate
determination of constitutionality may hinge upon the fourth
prong, which over the years has evolved from an
intermediate-scrutiny (is it a reasonable fit) analysis to a
more strict scrutiny-like (is it narrowly tailored) analysis.
Recent Supreme Court jurisprudence suggests that while the
regulation chosen does not have to be the least restrictive
alterative, it must use a means that is narrowly tailored to
achieve the desired objective. (See e.g. Greater New Orleans
Broadcasting Assn. v. U.S. (1999) 527 U.S. 173 and Thompson v.
Western States Med. Center (2002) 535 U.S. 357, compared to
Board of Trustees of Southern University of New York v. Fox
(1989) 492 U.S. 469.)
Given that this bill focuses on an expanding existing provision
to also encompass e-cigarettes, as opposed to creating separate
and potentially broader advertising regulations for e-cigarettes
or banning advertisement of e-cigarettes completely (which would
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certainly ebb the free flow of information), it appears that the
bill would arguably be a narrowly tailored means to achieve the
desired objective.
3.Federal preemption
The Supremacy Clause of Article VI of the U.S. Constitution
establishes that wherever there is a conflict between federal
and state law, the U.S. Constitution, federal statutes, and U.S.
Treaties are "the supreme law of the land" and therefore take
precedence. Federal preemption of state law becomes an issue
where either a federal law expressly preempts (i.e. precludes)
state or local law, or where preemption is implied by a clear
congressional intent to occupy the whole field.
In 2009, the federal government enacted the Family Smoking
Prevention and Tobacco Control Act (TCA) to provide the FDA with
comprehensive authority to regulate the manufacturing,
marketing, and sale of tobacco products. In addition to
granting the FDA this broad authority, the TCA included a
savings clause whereby Congress expressly allows states to enact
tougher laws relating to the sale, distribution, possession,
information reporting to the state, exposure to, access to, the
advertising and promotion of, or use of, tobacco products by
individuals of any age, or relating to fire safety standards for
tobacco products. (21 U.S.C. Sec. 387p(a)(2)(B).) Also
important for the purpose of this bill's provision related to
advertising, the TCA also lessened the federal preemption of
state regulations of cigarette advertising in the Federal
Cigarette Labeling and Advertising Act by allowing states to
restrict the time, place, and manner (but not content) of
cigarette advertisements. As a result, since the enactment of
the TCA, states are no longer prohibited from restricting
cigarette advertising and promotion specifically based on
concerns related to smoking and health. (15 U.S.C. 1334(c).)
Additionally, in 2010, the Court of Appeals for the District of
Columbia ruled, in part, that "the FDA has authority to regulate
customarily marketed tobacco products-including
e-cigarettes-under the Tobacco Act." (Sottera Inc. v. FDA
(2010) 627 F.3d 891, 899.) This decision arguably brings state
regulations on electronic cigarettes within the purview of the
TCA as well.
In opposition to this bill, the Electronic Cigarette Industry
Group raises an issue that the FDA is to begin rulemaking this
month to regulate electronic cigarettes under the TCA and that
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it would be prudent for the Legislature to reserve action until
those rules are promulgated.
Staff notes, however, that even if the FDA is to promulgate
regulations as directed under the TCA, the savings clause of the
TCA makes explicitly clear that Congress did not intend to
occupy the whole field and prohibit all state regulations.
Moreover, the provisions of this bill relating to the
advertising of e-cigarettes and extending existing regulations
of smoking cigarette or other tobacco or nicotine products in
various places appear to fall within the scope of the FCLAA and
TCA savings clauses described above. Ultimately, this bill
states the intent of the Legislature to regulate the use of
electronic cigarettes, as otherwise defined by the bill, to the
same extent and in the same manner as cigarettes and other
tobacco products, to the extent not preempted by federal law.
(Emphasis added.)
4.Author's clarifying and technical amendments
The following clarifying amendments are offered by the author:
Author's amendments
On page 7, lines 31-32, strike "including an electronic
cigarette, as defined in subdivision (b) of Section 119405"
On page 7, line 35, after "electronic cigarette" insert ", as
defined in subdivision (b) of Section 119405"
On page 11, line 37, strike "is" and insert "may be"
On page 12, line 32, after insert quotation marks surrounding
"smoking of tobacco products"
5.Opposition arguments
Approximately 40 individuals have written in opposition to this
bill as of the time of this analysis. One such individual
writes, that:
All evidence to date shows that the low health risk associated
with e-cigarettes is comparable to other smokeless nicotine
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products. I smoked cigarettes for thirty years and have tried
to quite numerous times using hypnosis, the patch, nicotine
gum, Wellbutrin, and SmokEnders, and I was unable to quit.
The use of an e-cigarette is the only option that has kept me
from smoking tobacco, and I have now been smoke-free for over
six months. E-cigarette use is easy to distinguish from
actual smoking. Although some e-cigarettes resemble real
cigarettes, many do not. [ . . . ] It is easy to tell when
someone lights a cigarette, from the smell of smoke.
E-cigarette vapor, on the other hand, is practically odorless
and generally any detectable odor is not unpleasant and smells
nothing like smoke. The ability to use electronic cigarettes
in public spaces will actually improve public health by
inspiring other smokers to switch.
This sentiment is echoed in numerous letters of opposition from
other constituents. Another individual argues in opposition
that this bill will (erroneously) send a message that vaping is
as much of a risk as smoking. Relatedly, another individual
adds that putting restrictions on e-cigarettes will actually
cause less people to quit cigarettes, which are known to be
harmful. Finally, yet another individual argues in opposition
that: "There is quite a bit of prejudice in regards to
e[-]cigarette usage because it looks a lot like smoking.
Passing this bill without [examining] the facts and benefits of
e[-] cigarettes would be devastating to the local shops and
multitudes of smokers who might quit if they could only visit a
shop and sample juices until they find one that they are willing
to trade their regular cigarettes for."
Support : California Black Health Network; California Medical
Association
Opposition : Electronic Cigarette Industry Group (ECIG); 39
individuals
HISTORY
Source : Author
Related Pending Legislation : AB 320 (Nazarian) would prohibit
the use of tobacco and nicotine products, as specified, and
would include in its prohibition nicotine-delivery devices, such
as electronic cigarettes. That bill is in the Assembly
Appropriations Committee.
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Prior Legislation :
SB 882 (Corbett, Ch. 312, Stats. 2010) was an urgency measure
that made 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.
SB 400 (Corbett, 2009) would have defined electronic cigarettes
as drugs under state law, making them subject to the Sherman
Food, Drug, and Cosmetic Law, and would have allowed the
Department of Public Health (DPH) to halt the sale,
distribution, or offering of electronic cigarettes as part of
its enforcement of the Stop Tobacco Access to Kids Enforcement
(STAKE) Act. This bill was vetoed.
SJR 8 (Corbett, 2009) would have requested that the federal Food
and Drug Administration (FDA) prohibit all sales of electronic
cigarettes until the FDA has found them to be safe. That bill
died without hearing in the Assembly Governmental Organization
Committee.
Prior Vote : Senate Health Committee (Ayes 6, Noes 2)
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