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 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  








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            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.










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          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.










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          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.  








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          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  








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            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  








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            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.








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             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.








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             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.








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             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.













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             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:










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          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









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          Opposition


          Smoke-Free Alternatives Trade Association




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