BILL ANALYSIS Ó ABX2 11 Page 1 Date of Hearing: August 25, 2015 ASSEMBLY COMMITTEE ON PUBLIC HEALTH AND DEVELOPMENTAL SERVICES Rob Bonta, Chair ABX2 11 (Nazarian) - As Introduced July 16, 2015 SUBJECT: Cigarette and tobacco product licensing: fees and funding. SUMMARY: Updates the Cigarette and Tobacco Products Licensing Program under the Board of Equalization (BOE) by increasing licensing, distributor, and wholesaler fees. Specifically, this bill: 1)Increases, beginning January 1, 2016, the current one-time retailer license fee of $100 per location to $265 per location and imposes a $265 fee for the annual renewal of a tobacco retailer license. 2)Increases, beginning January 1, 2016, the annual distributor and wholesaler licensing fee from $1,000 to $1,200. 3)Requires BOE to report back to the Legislature no later than January 1, 2019, regarding the adequacy of funding for the Cigarette and Tobacco Products Licensing Act of 2003. Requires the report to include data and recommendations about whether the annual licensing fee funding levels are set at an appropriate level to maintain an effective enforcement ABX2 11 Page 2 program. EXISTING LAW: 4)Requires, under the Cigarette and Tobacco Licensing Act of 2003 (Licensing Act), a retailer to have in place and maintain a license to engage in the sale of cigarettes or tobacco products. Provides that a retailer license is valid for a 12-month period and must be renewed annually. 5)Requires a retailer, in order to obtain a license, to file a license application accompanied by a one-time license fee of $100 for each retail location. Requires the retailer to renew the license annually but only requires the $100 fee per retail location with the initial application. 6)Requires, if a retailer's license has expired, that as a condition of reinstatement, they pay an additional fee of $100. 7)Establishes the Stop Tobacco Access to Kids Enforcement (STAKE) Act, which charges the Department of Public Health (DPH) with developing a program to reduce the availability of tobacco products to persons under 18 years of age and specifies that various agencies, including, but not limited to, DPH, the Attorney General, or local law enforcement agencies may enforce the STAKE Act. Requires DPH, after a third, fourth, or fifth violation, to notify the BOE of the violation and for the BOE to then assess an additional civil penalty and to suspend or revoke the sellers' license for a specific amount of time, based on the number of violations in a given period. ABX2 11 Page 3 FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee. COMMENTS: 1)PURPOSE OF THIS BILL. According to the author the one-time tobacco licensing fee is not adequate to cover costs associated with maintaining a viable enforcement program, which is crucial to help maintain Master Settlement Agreement (MSA) compliance and enforce the STAKE Act. The author states this bill serves businesses by stopping violators from circumventing the law and competing with legitimate businesses. The author notes this bill ends BOE's practice of relying on the administrative funds generated by tobacco taxes such as Proposition 10 which funds First 5, to cover the administration of the licensing program. The author contends the licensing program must be funded solely by licensing fee revenue, and this bill protects the viability of tobacco health and education programs. The author concludes additional revenue made available by this bill will eliminate the need to divert tobacco excise taxes from their intended purpose to instead pay for the deficit in the tobacco licensing program. 2)BACKGROUND. a) MSA. The MSA is an accord reached in November 1998 between the state Attorneys General of forty-six states (including California), five U.S. territories, the District of Columbia and the five largest tobacco companies in ABX2 11 Page 4 America concerning the advertising, marketing and promotion of tobacco products. In addition to requiring the tobacco industry to pay the settling states approximately $10 billion annually for the indefinite future, the MSA also set standards for, and imposed restrictions on, the sale and marketing of cigarettes by participating cigarette manufacturers. Under the MSA states must pass laws requiring non-participating manufacturers to make payments to the state based on their cigarette sales, and to diligently enforce the payments requirements by tracking all cigarettes sold in the state. To fulfill California's obligations under the MSA, the Legislature created new programs administered by the BOE and the Department of Justice, including BOE's cigarette and Tobacco Licensing Program. b) Legislative Analyst Office (LAO) Budget Brief. According to a 2015-16 LAO Budget Brief: Cigarette Tax and Licensing Programs, the initial influx of revenue from the licensing program was sufficient to pay the program's costs, however in subsequent years fee revenue has been one-tenth of the initial level and expenditures consistently exceed revenue. Beginning in 2005-06, annual expenditures averaged $7 million more than annual fee revenue. As a result, the Legislature, in fiscal year 2006-07, allowed the BOE to charge the funds that receive cigarette and tobacco excise tax revenue to cover the administration of the licensing program. Consequently, the funds pay about four-fifths of the licensing program's costs, which have led to reduced programmatic resources. The funds affected are: i) The California Children and Families First Trust Fund. Passage of Proposition 10 in November 1998 increased both the cigarette and tobacco products tax ABX2 11 Page 5 rates. Proposition 10 requires that revenues from the tax increase be deposited in the California Children and Families First Trust Fund (First 5) for the purpose of promoting, supporting, and improving the development of children from the prenatal stage to five years of age. ii) The Cigarette and Tobacco Products Surtax Fund. Enacted by voters in November 1988, the California Tobacco Health Protection Act of 1988, also known as Proposition 99, increased the state cigarette tax by $0.25 per pack and added an equivalent amount on other tobacco products. The new revenues were earmarked for programs to reduce smoking, to provide health care services to indigents, to support tobacco-related research, and to fund resource programs for the environment. iii) The Breast Cancer Fund. Created by AB 2055 (Friedman) Chapter 661, Statues of 1993, to fund breast cancer-related research and breast cancer screening for uninsured women. iv) The General Fund (GF). Funds deposited into the GF are available for appropriation by the Legislature. c) BOE report on funding options. In 2014 representatives from Proposition 10 programs expressed concern about the administrative costs and funding of BOE's Cigarette and Tobacco Program resulting in reduced funds for other special programs, and the Legislature required BOE to report back with other funding options. Some BOE's proposals include: i) Instituting a recurring fee at the retail level to ABX2 11 Page 6 increase the share of costs covered by the licensing fees; ii) Increasing the taxes assessed on cigarettes and tobacco products by an unspecified amount; iii) Tax electronic cigarettes, dissolvable tobacco, and other recently developed products by expanding the definition of tobacco product; iv) Paying for the cigarette and tobacco products licensing program with funds from the GF; and, v) Reduce spending and cap administrative costs on the cigarette and tobacco products licensing program. The LAO brief notes that closing the funding gap through reduced spending would be risky because the Legislature created the licensing program to comply with the MSA requirement for diligent enforcement of tobacco laws, and states found not to be diligent have had their revenues reduced. According to the BOE report, there are currently 37,000 licensed retailers. Staff notes, if they each paid an additional $265 annual renewal fee as proposed by this bill it would generate an additional $9.8 million which more closely aligns with the BOE's cost to run the program. d) Other licensing fees. The state tobacco license fee is ABX2 11 Page 7 currently only a one-time $100 fee. Many other businesses in California pay much larger license fees, for example, the state liquor license fees for stores that sell beer, wine and spirits for consumption off premises is $13,800 for the original license with an annual renewal fee of $582. A state pharmacy license costs $260 for the original application with a biennial renewal fee of $207. 3)SUPPORT. The American Lung Association (ALA) in California, and numerous other organizations including the California Dental Association, California Pan-Ethnic Health Network, Health Access California, and California Black Health Network support this bill, stating, adjusting state tobacco licensee fees to ensure that they cover the cost of administering the licensing program will eliminate a chronic shortfall in the BOE's costs to administer the program and allow the current diversion of tobacco excise taxes to cease. The ALA notes that siphoning of funds into the licensing programs means that there are fewer Proposition 99 funds available for reducing smoking, providing health care services, supporting tobacco-related research, and funding resource programs for the environment - the intended purposes of the Proposition 99 funds. 4)RELATED LEGISLATION. a) SBX2 10 (Beall) is substantially similar to this bill. SBX2 10 was heard in the Senate Committee on Public Health and Developmental Disabilities on August 19, 2015 and passed out with a vote of 9 to3. SBX2 10 is currently pending in the Senate Appropriations Committee. b) SBX2 5 (Leno) and ABX2 6 (Cooper) define the term smoking for purposes of the Stop Tobacco Access to Kids Enforcement (STAKE) Act; expand the definition of a tobacco product to include e-cigarettes and extends current restrictions and prohibitions against the use of tobacco ABX2 11 Page 8 products to e-cigarettes. Extend current licensing requirements for manufacturers, importers, distributors, wholesalers, and retailers of tobacco products to e-cigarettes. SBX2 5 was heard in the Senate Committee on Public Health and Developmental Disabilities on August 19, 2015 and passed out on a vote of 9 to 3. SBX2 5 is currently pending in the Senate Committee on Appropriations. ABX2 6 is set to be heard on August 25th in this Committee. c) SBX2 6 (Monning) and ABX2 7 (Stone) prohibit smoking in owner-operated businesses and remove specified exemptions in existing law that allow tobacco smoking in certain workplaces. SBX2 6 was heard on August 19, 2015 in the Senate Committee on Public Health and Developmental Disabilities and passed on a 9 to 2 vote. SBX2 6 is currently pending in the Senate Appropriations Committee. ABX2 7 is set for hearing on August 25th in this Committee. d) SBX2 8 (Liu) and ABX2 9 (Thurmond and Nazarian) clarify charter school eligibility for tobacco use prevention program (TUPE) funds; require the California State Department of Education to require all school districts, charter schools, and county offices of education receiving TUPE funds to adopt and enforce a tobacco-free campus policy; prohibit the use of tobacco and nicotine products in any county office of education, charter school, or school district-owned or leased building, on school or district property, and in school or district vehicles; and, require all schools, districts, and offices of education to post a sign reading "Tobacco use is prohibited" at all entrances. SBX2 8 passed the Senate Committee on Public Health and Developmental Disabilities with a vote of 9 to 3 ABX2 11 Page 9 on August 19, 2015 and is currently pending in the Senate Committee on Appropriations. ABX2 9 is set for hearing on August 25th in this Committee. e) SBX2 9 (McGuire) and ABX2 10 (Bloom) allow counties to impose a tax on the privilege of distributing cigarettes and tobacco products. SBX2 9 was heard on August 19, 2015 in the Senate Committee on Public Health and Developmental Disabilities and passed with a vote of 9 to 2 and is currently pending in the Senate Appropriations Committee. ABX2 10 is set for hearing on August 25th in this Committee. 5)PREVIOUS LEGISLATION. a) SB 625 (Padilla), Chapter 654, Statutes of 2007, establishes a $100 reinstatement fee upon retailers that engage in the sale of cigarettes and tobacco products in this state but fail to renew the necessary licenses. b) AB 71 (Horton), Chapter 890, Statutes of 2003, enactes the Cigarette and Tobacco Products Licensing Act of 2003, which imposes licensing requirements on tobacco manufacturers, wholesalers, retailers and importers; requires manufacturers to pay a one-time fee; and, imposes additional civil and criminal penalties on individuals and businesses who violate tobacco-related, anti-contraband laws, and laws prohibiting tobacco-related sales to minors. REGISTERED SUPPORT / OPPOSITION: ABX2 11 Page 10 Support American Cancer Society Cancer Action Network American Heart Association/American Stroke Association American Lung Association in California Association of Northern California Oncologists California Black Health Network California Chronic Care Coalition California Dental Association California Medical Association California Optometric Association California Pan-Ethnic Health Network California Primary Care Association California Society of Addiction Medicine Community Action Fund of Planned Parenthood of Orange and San Bernardino Counties Health Access California Medical Oncology Association of Southern California, Inc. Planned Parenthood Action Fund of the Pacific Southwest Planned Parenthood Advocacy Project Los Angeles Planned Parenthood Affiliates of California Planned Parenthood Mar Monte Planned Parenthood Northern California Action Fund Opposition None on file. ABX2 11 Page 11 Analysis Prepared by:Lara Flynn / HEALTH / (916) 319-2097