BILL ANALYSIS Ó ABX2 6 Page 1 Date of Hearing: August 25, 2015 ASSEMBLY COMMITTEE ON PUBLIC HEALTH AND DEVELOPMENTAL SERVICES Rob Bonta, Chair ABX2 6 (Cooper) - As Introduced July 16, 2015 SUBJECT: Electronic cigarettes. SUMMARY: Defines the term smoking for purposes of the Stop Tobacco Access to Kids Enforcement (STAKE) Act; expands the definition of a tobacco product to include electronic cigarettes (e-cigarettes) and extends current restrictions and prohibitions against the use of tobacco products to electronic cigarettes. Extends current licensing requirements for manufacturers, importers, distributors, wholesalers, and retailers of tobacco products to electronic cigarettes. Specifically, this bill: 1)Defines smoking as inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, whether natural or synthetic, in any manner or in any form. Includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking. 2)Expands the definition of tobacco product to include an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but ABX2 6 Page 2 not limited to an electronic cigarette, cigar, pipe, or hookah. Includes in the definition any component, part, or accessory of a tobacco product, whether or not sold separately. 3)Clarifies that a tobacco product does not include a product that has been approved by the United States Food and Drug Administration (FDA) for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose. 4)Requires all cartridges for electronic cigarettes and solution for filling or refilling an electronic cigarette to be in childproof packaging. Defines child-resistant packaging as packaging that meets current federal regulations. EXISTING LAW: 1)Authorizes the California Department of Public Health (DPH), under the STAKE Act, to assess civil penalties ranging from $400 to $6,000, depending on the number of infractions, against any person, firm, or corporation that sells, gives, or in any way furnishes tobacco products to a person who is under the age of 18. 2)Establishes smoke-free laws, which prohibit the smoking of tobacco products in various places, including, but not limited to, school campuses, public buildings, places of employment, apartment buildings, day care facilities, retail food facilities, health facilities, and vehicles when minors are present, and makes a violation of some of the prohibitions punishable as an infraction. ABX2 6 Page 3 3)Defines a tobacco product as any product containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco. 4)Defines e-cigarette as a device that can provide an inhalable dose of nicotine by delivering a vaporized solution. Prohibits a person from selling or otherwise furnishing an electronic cigarette to a person under the age of 18. 5)Requires the Board of Equalization (BOE), under the Cigarette and Tobacco Products Licensing Act, to administer a statewide program to license cigarette and tobacco products manufacturers, importers, distributors, wholesalers, and retailers. Prohibits selling tobacco products without a valid license, and makes violations punishable as a misdemeanor. 6)Requires a retailer, for purposes of collecting a tobacco tax, to obtain a separate license for each retail location that sells cigarettes and tobacco products and pay a one-time fee of $100. Requires BOE to suspend or revoke a retailer's license upon notification by DPH of certain STAKE Act violations. 7)Prohibits, under the STAKE Act, any person from distributing or selling tobacco products via the United States Postal Service (USPS), or any other public or private postal or package delivery service, to any purchaser who is a minor. ABX2 6 Page 4 8)Bans, under the federal Prevent All Cigarette Trafficking Act (PACT Act), the shipment of tobacco products through the USPS. 9)Federal law, the Poison Prevention Packaging Act of 1970 requires the use of child-resistant packaging for prescription drugs, over-the-counter drugs, household chemicals, and other hazardous materials that could be considered dangerous for children. FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee. COMMENTS: 1)PURPOSE OF THIS BILL. According to the author e-cigarette usage by youth is exploding, for example, amongst high school students use has shot up from 600,000 in 2013 to around 2 million in 2014. The author states this bill is about preventing an entire new generation of nicotine addicts. The author contends that licensing e-cigarette retailers like tobacco retailers will prevent young people from accessing e-cigarettes. The author points out that prohibiting the use of e-cigarettes in all the places where smoking is currently prohibited is important because, while the health effects of e-cigarettes are still being determined, we do know that both inhaled and exhaled e-cigarette aerosol contains particulate matter that has shown to be potentially harmful to the lungs and that 10 chemicals in the Prop 65 warning on chemicals that cause cancer and birth defects have been found in e-cigarettes. ABX2 6 Page 5 2)BACKGROUND. E-cigarettes are defined in California law as a device that can provide an inhalable dose of nicotine by delivering a vaporized solution. Typically, they 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 USB memory sticks, for people who wish to use the product without others noticing. The health effects of e-cigarettes have not been fully studied, so consumers currently don't know the potential risks of e-cigarettes, how much nicotine or other potentially harmful chemicals are being inhaled during use, or whether there are any benefits associated with using these products. According to the January 2015 State Health Officer's report on E-Cigarettes, A Community Health Threat, e-cigarette use is rising rapidly. The report notes that while the long-term health impact resulting from use of this product is presently unknown, it is known that e-cigarettes emit at least 10 chemicals that are found on California's Proposition 65 list of chemicals known to cause cancer, birth defects, or other reproductive harm. The FDA has issued a proposed rule that would extend the agency's tobacco authority to cover additional products that meet the legal definition of a tobacco product, such as e-cigarettes. The agency intends to regulate electronic cigarettes and related products in a manner consistent with its mission of protecting the public health. The FDA has not completed its' evaluation of e-cigarettes for safety or effectiveness. When the FDA conducted limited laboratory studies of certain samples, they found significant quality ABX2 6 Page 6 issues that indicate that quality control processes used to manufacture these products are substandard or non-existent. They also found that cartridges labeled as containing no nicotine contained nicotine and that three different electronic cigarette cartridges with the same label emitted a markedly different amount of nicotine with each puff. Experts have also raised concerns that the marketing of products such as e-cigarettes can increase nicotine addiction among young people and may lead kids to try other tobacco products. In California, use among young adults ages 18 to 29 tripled in one year. A 2015 study funded by the National Institute of Health and published in the Journal of the American Medical Association, compared tobacco use initiation among 222 students who had used e-cigarettes, but not combustible tobacco products, and 2,308 who had neither used e-cigarettes or combustible tobacco products when initially surveyed at the start of ninth grade. During the first six months after being surveyed, 30.7% of those who had used e-cigarettes started using combustible tobacco products, such as cigarettes, cigars, and hookahs, compared to only 8.1% of those who had never used e-cigarettes. A study published July 27, 2015, in the Journal of Pediatrics surveyed almost 2,100 California high school students, and found that one-quarter had tried e-cigarettes. Ten percent were currently using e-cigarettes, and those current users where much more likely than their peers to also smoke cigarettes. California law prohibits anyone from selling or furnishing an electronic cigarette to anyone under the age of 18. There are no restrictions on where they may be used. 3)SUPPORT. Numerous organizations support this bill, including the California Primary Care Association, the California Medical Association, the California Society of Addiction Medicine, and Planned Parenthood Affiliates of California. Supporters state that they are deeply concerned that ABX2 6 Page 7 e-cigarettes are starting kids on a lifetime of addiction to nicotine. Supporters note that there are more than 470 brands of e-cigarettes for sale, offered in more than 7,700 flavors including Captain Crunch, gummy bear, cotton candy, and Fruit Loops. They also contend that youth are clearly the marketing targets, noting that in the last two years youth usage rates for electronic cigarettes have tripled. Finally, supporters note that very little is known about the health effects of electronic cigarettes or the aerosol they release, and there is no evidence that show the aerosol emitted by e-cigarettes is safe for non-users to inhale. 4)OPPOSITION. The Smoke-Free Alternatives Trade Association (SFATA) states they are opposed to this bill unless it is amended to remove the definition of e-cigarettes and vapor products as tobacco. SFATA states the classification of vapor products as tobacco is grossly inappropriate given that the products clearly do not contain tobacco. SFATA contends that defining e-cigarettes and vapor products is scientifically inaccurate, and appears to be part of a broader and misleading campaign to equate vapor products with tobacco, and has potentially unfair and unwarranted tobacco tax-related implications. Finally, SFATA notes that California is the birthplace of innovative technologies that continue to drive new markets and growing industries and stifling innovation runs counter to the FDA, which encourages manufacturers to use innovation to reduce risk and exposure. 5)RELATED LEGISLATION. a) SBX2 5 (Leno) is substantially similar to this bill. 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 Page 8 b) 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. c) SBX2 7 (Ed Hernandez) and ABX2 8 (Wood) increase the minimum legal age to purchase or consume tobacco from 18 to 21. SBX2 7 was heard on August 19, 2015 in the Senate Committee on Public Health and Developmental Disabilities and passed on a 9 to 3 vote. SBX2 7 is currently pending in the Senate Appropriations Committee. ABX2 8 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 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. ABX2 6 Page 9 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. f) SBX2 10 (Beall) and ABX2 11 (Nazarian) revise the Cigarette and Tobacco Products Licensing Act of 2003 to change the retailer license fee from a $100 one-time fee to a $265 annual fee, and increase the distributor and wholesaler license fee from $1,000 to $1,200. SBX2 10 was heard on August 19, 2015 in the Senate Committee on Public Health and Developmental Disabilities and passed with a vote of 9 to 3 and is currently pending in the Senate Appropriations Committee. ABX2 11 is set for hearing on August 25th in this Committee. g) SB 24 (Hill) would have classified electronic cigarettes separately from tobacco products; added electronic cigarettes to the STAKE Act and smoking location prohibitions; and, mandated childproof packaging for e-liquid used in electronic cigarettes. SB 24 failed passage on the Senate Floor. h) SB 140 (Leno) was substantially similar to this bill, but did not mandate child-resistant packaging for electronic cigarette cartridges. SB 140 was held in the Assembly Governmental Organization Committee. ABX2 6 Page 10 i) SB 151 (Ed Hernandez) would raise the legal age to purchase tobacco products to 21. SB 151 is currently pending hearing in the Assembly Governmental Organization Committee. j) AB 216 (Garcia) would raise the allowable fine for selling electronic cigarettes to a minor. AB 216 is currently pending a vote on the Senate Floor. aa) AB 768 (Thurmond) would prohibit the use of smokeless tobacco in certain defined areas of a baseball stadium. AB 768 is currently pending a vote on the Senate Floor. 6)PREVIOUS LEGISLATION. a) AB 1500 (Dickinson) of 2014 would have prohibited a delivery seller, as defined, from selling or delivering an electronic cigarette to a person under 18 years of age. AB 1500 failed passage in the Assembly Appropriations Committee. b) SB 648 (Corbett) of 2013 would have restricted electronic cigarettes from being sold in vending machines. SB 648 failed passage in the Assembly Appropriations Committee. ABX2 6 Page 11 c) SB 568 (Steinberg), Chapter 336, Statues of 2013. Prohibits an operator of an Internet Web site, online service, online application, or mobile application, as specified, from marketing or advertising electronic cigarettes to a minor. d) SB 882 (Corbett), Chapter 312, Statutes of 2010, 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 less than 18 years of age. 7)SUGGESTED TECHNICAL AMENDMENTS. a) As currently drafted this bill requires all cartridges for electronic solutions to be in "childproof packaging," but defines "child-resistant packaging." To clarify the author's intent, the bill should be amended to solely require and define child-resistant packaging. b) The definition of smoking appears in 15 places in the bill. As currently drafted, the definition is rather awkwardly phrased as follows: "'smoking' has the meaning of the definition in subdivision (c) of Section 22950.5 of the Business and Professions Code. The language should be revised to instead read "'smoking' has the same meaning as in subdivision (c) of Section 22950.5 of the Business and Professions Code." REGISTERED SUPPORT / OPPOSITION: ABX2 6 Page 12 Support Kamala D. Harris, Attorney General of California American Cancer Society Cancer Action Network (cosponsor) American Heart Association/American Stroke Association (cosponsor) American Lung Association in California (cosponsor) California College and University Police Chiefs Association (cosponsor) California Narcotic Officers Association (cosponsor) Association of Northern California Oncologists California Academy of Preventative Medicine California Black Health Network California Chronic Care Coalition California Dental Association California Medical Association California Optometric Association California Pan-Ethnic Health Network California Police Chiefs Association California Primary Care Association California State Association of Counties 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 Santa Clara County Board of Supervisors ABX2 6 Page 13 Opposition Smoke-Free Alternatives Trade Association Analysis Prepared by:Lara Flynn / HEALTH / (916) 319-2097