BILL ANALYSIS Ó
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Date of Hearing: August 25, 2015
ASSEMBLY COMMITTEE ON PUBLIC HEALTH AND DEVELOPMENTAL SERVICES
Rob Bonta, Chair
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(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