BILL ANALYSIS Ó
SB 648
Page 1
Date of Hearing: August 14, 2013
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Isadore Hall, Chair
SB 648 (Corbett) - As Amended: August 5, 2013
SENATE VOTE : 21-10
SUBJECT : Electronic cigarettes: restrictions of use and
advertising.
SUMMARY : Extends the restrictions and prohibitions against the
smoking of tobacco products to include restrictions or
prohibitions against electronic cigarettes (e-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.
Specifically, this bill :
1)Extends the prohibition of advertising of tobacco products in
any state-owned and state-occupied building to include
e-cigarettes.
2)States 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.
3)Expands current legislative findings and declarations relating
to smoking of tobacco products in the workplace to also
include e-cigarettes.
4)Codifies that the Legislature finds and declares that the use
of e-cigarettes, as defined, is a hazard to the health of the
general public.
5)Declares that any reference to, or prohibition of, the smoking
of tobacco, as specified shall also be construed to refer to
the use of e-cigarettes.
EXISTING LAW
1)Prohibits or restricts the smoking of tobacco products in
various places, including, but not limited to, school
campuses, public buildings, places of employment, day care
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facilities, retail food facilities, and health facilities.
2)Defines "electronic cigarette" as a device that can provide an
inhalable dose of nicotine by delivering a vaporized solution.
3)Prohibits, to the extent not preempted by federal law, for a
person to sell or otherwise furnish an e-cigarette to a person
less than 18 years of age.
4)Makes it a violation of the prohibition against selling
e-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.
5)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.
6)Provides that no tobacco product advertising shall be allowed
in any state-owned and state-occupied building except for
advertising contained in a program, leaflet, newspaper,
magazine, or other written material lawfully sold, brought, or
distributed within a building. Current 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.
7)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.
FISCAL EFFECT : Unknown
COMMENTS :
Author's Statement : According to the author, SB 648 will
strengthen our existing smoke free laws and provide consistent
regulation with regards to the use of e-cigarettes.
The author claims that e-cigarettes are not emission-free and
that studies have shown the vaporized substances create an
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aerosol of ultrafine particles that is, in fact released into
the air. In a recent study published in March 2013, researchers
from the University of California examined in detail the aerosol
contents of e-cigarettes. They found particles of silver, iron,
aluminum, silicate, and nanoparticles of tin, chromium and
nickel. The researchers noted that concentrations of these
metal components were higher than or equal to the corresponding
concentrations in conventional cigarette smoke, and that many of
the elements identified in e-cigarette vapor are known to cause
respiratory distress and disease.
The author further argues that a growing number of state and
local governments have moved to prohibit the use of e-cigarettes
in various public places, often under existing or new smoke-free
laws. Amtrak has banned their use on trains, and the Navy
banned them below decks in submarines. The U.S. Department of
Transportation has also proposed a ban aboard airplanes because
of concerns about health risks from vapors.
What are E-Cigarettes ?: E-cigarettes are devices that emit
doses of vaporized nicotine that are inhaled by the user. Most
resemble long-shaped tubes, and many look like the product the
user used to smoke, such as a cigarette, cigar, or pipe, while
others look like ballpoint pens. The majority are reusable with
replaceable and refillable cartridges.
Most of the current e-cigarettes on the market today are
automatic, meaning that the user sucks on it and a sensor
activates a heating element that vaporizes a liquid solution
held in the mouthpiece. The basic design is generally similar.
E-cigarettes consist of a plastic tube, an electronic heating
element, a liquid nicotine cartridge, and a lithium battery and
atomization chamber with a membrane to suspend ingredients.
Some contain a light emitting diode in the tip which illuminates
when the user inhales, or "vapes", giving the appearance of the
burning end of conventional cigarettes.
E-cigarettes were first developed in China in 2004 with the goal
of imitating the efficient nicotine delivery system of a
conventional cigarette without the significant harmful effects
of tobacco smoke. Chemicals introduced into a liquid vehicle
produce aromas and flavors of tobacco, chocolate, mint, and
various other flavors. The concentration of nicotine varies
both across different manufacturers and sometimes within the
same brand.
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U.S. Food and Drug Administration (FDA) : In 2008 the FDA
sought to regulate e-cigarettes as drug delivery devices by
blocking new e-cigarette shipments into the United States. In
response, an e-cigarette manufacturer sued the FDA in federal
court, claiming that the agency did not have the authority over
e-cigarettes as drug delivery devices and therefore could not
stop the shipments.
In 2010, the federal court ruled in favor of the manufacturer
stating that the FDA may not regulate e-cigarettes as drug
delivery devices if they are not marketed as tobacco cessation
products. However, the court also found that the FDA does have
the authority to regulate e-cigarettes as tobacco products. As
a result, the FDA issued a warning letter to various e-cigarette
distributors informing them that the FDA intends to regulate
e-cigarettes in a manner consistent with its mission of
protecting the public health.
Currently, the FDA is in the process of developing regulations
that would extend its "tobacco product" authority to other
categories of tobacco products that meet the statutory
definition of "tobacco product." The additional tobacco product
categories would be subject to general controls, such as
registration, product listing, ingredient listing, good
manufacturing practice requirements, and user fees for certain
products.
Many expect that regulations will be issued by the end of 2013.
Conflicting Studies : Much of the literature concerning the
effects of e-cigarettes is not only extremely scarce, but also
quite conflicting. A 2009 study performed by the FDA concluded
that e-cigarettes contain carcinogens, albeit at lower levels
than conventional cigarettes. In a sampling of a relatively
small number of cartridges, the FDA found that one cartridge
contained one percent diethylene glycol, a known toxicant that
has been involved in prior mass poisonings.
Additionally, a 2013 study by the German Cancer Research Center
on e-cigarettes found that the liquids in e-cigarettes contain
ingredients that with short-term use irritate airways. This may
lead to allergic reactions and may be harmful to health when
inhaled repeatedly over a prolonged period of time. The study
also found that adverse health effects for third parties exposed
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cannot be excluded because the use of electronic cigarettes
leads to emissions of fine and ultrafine inhalable liquid
particles, nicotine, and cancer-causing substances. The same
study however also found that e-cigarettes regardless of their
nicotine content can reduce the desire to smoke and withdrawal
symptoms and that some smokers cut down on smoking or quit
smoking as a result of using e-cigarettes.
A 2012 study in Inhalation and Toxicology entitled, "Comparison
of the effects of e-cigarette vapor and cigarette smoke on
indoor air quality" found that 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 e-cigarettes. The study also found 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 that no apparent risk to human
health from e-cigarette emissions based on the compounds
analyzed.
In addition, a 2013 study by the Department of Environmental and
Occupational Health School of Public Health at Drexel University
titled, "Peering through the mist: What does the chemistry of
contaminants in electronic cigarettes tell us about health
risks," concluded that even when compared to workplace standards
for involuntary exposures, and using several conservative
assumptions, the exposures from using e-cigarettes fall well
below the threshold for concern for compounds with known
toxicity.
The study also found that, "the only unintentional exposure,
that seem to rise to the level that is worth further research
are the carrier chemicals themselves, propylene glycol and
glycerin. This exposure is not known to cause health problems,
but the magnitude of the exposure is novel and thus is at the
levels for concern based on the lack of reassuring data.
Policy Considerations : Most legislation dealing with the
restriction or prohibition of smoking is intended to protect
bystanders from the dangerous effects of secondhand smoke.
Various studies have in fact concluded and most everyone has
come to the conclusions that exposure to secondhand smoke from
conventional cigarettes is detrimental to an individual's
health. However, research on e-cigarettes is a lot less
conclusive. As previously stated, there are various studies
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that suggest that the effects of e-cigarettes on non-vapers are
minimal or possibly even nonexistent. In fact the one thing
that seems to be clear from the small amount of studies on
e-cigarettes is that there is a lack of consensus among the
studies. This suggest, and in fact some studies conclude, that
there is insufficient data to precisely evaluate the health
effects of e-cigarettes.
Without regulation from the FDA, the committee may wish to
consider whether it is prudent to act on legislation before the
FDA establishes its own regulations on e-cigarettes.
Arguments in Support : According to the California Medical
Association (CMA), the safety of e-cigarettes is currently
unknown since these devices have not been submitted to the U.S.
Food and Drug Administration (FDA) for approval. As such, they
should not be marketed or used to help people stop smoking.
Additionally, in a random analysis of e-cigarettes, the FDA
found carcinogens and other toxic chemicals. CMA further states
that e-cigarettes have the potential to be harmful. They also
undermine California's successful efforts to change social norms
about smoking by reintroducing "smoking" or at least the look of
it, into settings previously free from both tobacco's toxic air
contaminants and its visual cues.
According to Breathe California, the safety and efficacy of
e-cigarettes is still unknown and of concern. E-cigarettes
deliver an unknown mix of potentially carcinogenic and toxic
compounds. It is possible that secondhand vapors would contain
these toxics as they are exhaled in workplace environments where
people breathe the same air. Breathe California is concerned
that without further study and medical guidance that e-cigarette
use could worsen a person's nicotine addiction rather than be
effective for cessation. Breathe California further states that
in their experience working with adults and children who want to
quit smoking, they have found that some individuals who use
e-cigarettes also continue to smoke traditional cigarettes.
Arguments in Opposition : Opponents of the measure, including
NJOY and RAI Services Co., argues that there is no scientific
evidence that e-cigarettes, which neither contain nor combust
tobacco, create the type of toxicant-containing second-hand
smoke produced by tobacco cigarettes. The proposed ban would
only be justified if there was evidence that they produce such
second-hand smoke. In addition, electronic cigarettes do not
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produce litter or unpleasant odors, and are non-offensive to
those in the vicinity of a consumer of such a product.
Moreover, there has been no scientific evidence establishing a
gateway effect from these products to traditional cigarettes.
To the contrary, the evidence is that they are being used by
committed adult smokers, as a temporary or permanent alternative
to tobacco cigarettes. This is something to be encouraged, not
made more difficult through legislation such as this.
The Consumer Advocates for Smoke-free Alternatives Association
(CASSA) also write in opposition to SB 648 arguing that
smoke-free laws were passed ostensibly to protect bystanders
from the effects of second-hand smoke. However, because there
is no combustion involved in their use, e-cigarettes do not
produce smoke. The vapor, which contains no products of
combustion or harmful concentrations of any toxic substances,
begins to dissipate almost immediately, and there is typically
little or no detectable odor. Including e-cigarettes in smoking
bans when there is absolutely no proof of appreciable risk to
bystanders is not only inappropriate, it represents legislative
over reaching.
CASAA further argues that numerous medical and anti-smoking
organizations across the globe are encouraging policy makers to
keep an open mind about e-cigarettes. Though their research,
they have found that a significant portion of e-cigarette users
have used e-cigarettes to quit smoking altogether. Moreover,
they have found that unlike cigarette smoke, the vapor from an
-cigarette does not illicit a negative reaction from bystanders.
Prior Legislation : SB 882 (Corbett), Chapter 310, Statutes of
2010. The bill 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.
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. The bill was vetoed by the Governor.
REGISTERED SUPPORT / OPPOSITION :
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Support
Alameda County Board of Supervisors
American Academy of Pediatrics, California
Breathe California
California Academy of Preventive Medicine
California Black Health Network
California Medical Association
California Society of Addiction Medicine
City of Carson
Coalition of Lavender Americans on Smoking & Health
Tobacco Education and Research Oversight Committee
Various Individuals
Opposition
California Association for Alcohol/Drug Educators
California NORML
Consumer Advocates for Smoke-free Alternatives Association
NJOY
RAI Services Co.
Various Individuals
Analysis Prepared by : Felipe Lopez / G. O. / (916) 319-2531