BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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  








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            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.









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          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  








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               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  








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                 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  








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                 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  








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               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  








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               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  








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               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:









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          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.












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          Analysis Prepared by:Lara Flynn / HEALTH / (916) 319-2097