BILL ANALYSIS                                                                                                                                                                                                    

                          Senator Ed Hernandez, O.D., Chair

          BILL NO:                    ABX2 9    
          |AUTHOR:        |Thurmond                                       |
          |VERSION:       |March 3, 2016    Amended                       |
          |HEARING DATE:  |March 7, 2016  |               |               |
          |CONSULTANT:    |Reyes Diaz                                     |
           SUBJECT  :  Tobacco use programs

           SUMMARY  : Extends current tobacco use prevention funding eligibility and  
          requirements for county offices of education and school  
          districts to include charter schools. Broadens the definition of  
          products containing tobacco and nicotine, as specified, and  
          prohibits their use in specified areas of schools and school  
          districts, regardless of funding. Requires specified signs to be  
          prominently displayed at all entrances to school property.
          Existing law:
          1)Establishes the Tobacco Education and Research Oversight  
            Committee to provide advice to the Departments of Education  
            (CDE) and Public Health (DPH) regarding policy development,  
            integration, and evaluation of tobacco education programs.

          2)Requires CDE to allocate funds to county offices of education  
            (COEs) for tobacco use prevention, intervention, and cessation  

          3)Requires all school districts and COEs that receive Tobacco  
            Use Prevention and Education (TUPE) program funding to adopt  
            and enforce tobacco-free policies, no later than July 1 of  
            each fiscal year, prohibiting the use of tobacco products, any  
            time, in district-owned or leased buildings, on district  
            property, and in district vehicles; prominently display signs  
            stating "Tobacco use is prohibited" at all entrances to school  
            property; and provide information about smoking cessation  
            support programs to students and staff.
          This bill:
          1)Expands eligibility for TUPE funding to include charter  


          ABX2 9 (Thurmond)                                  Page 2 of ?

          2)Extends to charter schools, as a condition of receiving TUPE  
            funding, all current requirements, including adopting and  
            enforcing a tobacco-free campus policy prohibiting the use of  
            products containing tobacco and nicotine, as defined;  
            prominently displaying "Tobacco use is prohibited" signs at  
            all entrances to school property; and providing information  
            about smoking cessation support programs to students and  

          3)Broadens the definition of products containing tobacco and  
            nicotine to include, but not limited to, smokeless tobacco,  
            snuff, chew, clove cigarettes, and electronic cigarettes  
            (e-cigs) that can deliver nicotine and non-nicotine vaporized  
            solutions, at any time, in charter school or school  
            district-owned or leased buildings, on school or district  
            property, and in school or district vehicles.

          4)Exempts the use and possession of prescription products,  
            nicotine patches, or nicotine gum.

          5)Prohibits the use of tobacco and nicotine products, regardless  
            of funding, at any time in COE, charter school, or school  
            district-owned or leased buildings, on school or district  
            property, and in school or district vehicles.

          6)Requires school districts, charter schools, and COEs to  
            prominently display signs at all entrances to school property  
            stating "Tobacco use is prohibited."

          EFFECT  :  According to the Assembly Finance Committee, potential  
          state reimbursable mandate costs, in the range of $130,000 to  
          $165,000 (Proposition 98 of 1988/General Fund) due to the  
          requirement that schools post signs at all entrances notifying  
          the public that tobacco use is prohibited. Potential cost  
          pressure on existing TUPE funding due to the possible increase  
          in participating charter schools. Currently charter schools are  
          eligible to receive TUPE funds; however, participation among  
          charter schools is low.

           COMMENTS  :
          1)Author's statement. According to the author, many Local  
            Education Agencies (LEAs) receive grants and are required to  
            be tobacco-free. However, not all LEAs are tobacco-free.  


          ABX2 9 (Thurmond)                                  Page 3 of ?
            Research shows that schools that consistently enforce  
            tobacco-free policies have shown decreased rates of smoking  
            among their students. By requiring all LEAs to become 100%  
            tobacco-free, and by including smokeless tobacco and  
            e-cigarettes to the law, ABX2 9 will help ensure that schools  
            protect the health of students and personnel while reducing  
            tobacco use among our youth.
          2)Background. Proposition 99, approved by the California voters  
            in the November 1988 general election, increased the tax on  
            each pack of cigarettes sold in the state by 25 cents. The  
            annual Budget Act appropriates funds from the Tobacco Surtax  
            Fund for several purposes, including the TUPE program in  
            schools. According to CDE, the TUPE program provides funding  
            for programs in grades six through 12 through a competitive  
            application process for tobacco-specific student instruction,  
            reinforcement activities, special events, and intervention and  
            cessation programs for students. All LEAs (currently school  
            districts and COEs) that are certified as having a fully  
            implemented tobacco-free school district board policy are  
            eligible to apply for funding. Programs are locally developed,  
            but they are expected to align with the federal Principles of  
            Effectiveness, the recommended California guidelines for  
            tobacco prevention in Getting Results and the Health Framework  
            for California Public Schools. Each COE is eligible to receive  
            funding through the County Technical Assistance and Leadership  
            Funds application to assist school districts within their  
            county in program development, to provide staff development  
            for school and district personnel, and to provide technical  
            assistance as needed. CDE states that the purpose of the TUPE  
            program is to reduce youth tobacco use by helping young people  
            make healthful tobacco-related decisions through  
            tobacco-specific, research-validated educational instruction  
            and activities that build knowledge, as well as social skills  
            and youth development assets. 

            According to CDE's Web page, a tobacco-free school prohibits  
            all tobacco use anytime, anywhere, and by anyone on all school  
            property, and at all school-sponsored events. School property  
            includes buildings, grounds, and vehicles owned or leased by  
            the school. School-sponsored events include sporting events,  
            school dances, and other events held on and off school  
            property. The goal of CDE's tobacco-free school district  
            certification process is to protect children's health by  
            encouraging all school districts and COEs to adopt a model  


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            100% tobacco-free policy. CDE staff works closely with DPH's  
            California Tobacco Control Program to promote smoke-free  
            environments and tobacco-free lifestyles throughout the state,  
            particularly among youth.

          3)Smoking prevalence. According to the 2012 Surgeon General's  
            Report, nearly 90% of smokers in the U.S. started smoking by  
            the age of 18, and 99% started by age 26. In California, 64%  
            of smokers start by the age of 18, and 96% start by age 26.  
            According to DPH, in 2010, 36.8% of high school students had  
            smoked a whole cigarette by age 13 or 14, and in 2012, illegal  
            tobacco sales to minors rose to 8.7% from 5.6% in 2011.  
            According to DPH, in 2010, 11.9% of the state's adults smoked,  
            down from 13.1% in 2009, making California one of only two  
            states to reach the federal Healthy People 2020 target of  
            reducing the adult smoking prevalence rate to 12%. However,  
            research highlights that the burdens of smoking do not fall  
            evenly across the state. According to the American Lung  
            Association (ALA), African-American men and women have the  
            highest smoking usage rate at 21.3% and 17.1% respectively,  
            followed by white men at 17.2% and Latino men at 16%. The ALA  
            reports that Korean men have an unusually high tobacco usage  
            rate at 27.9%, as do Lesbian, Gay, Bisexual, and Transgender  
            women who smoke at almost triple the rate of women in general.

          4)Tobacco-related diseases. Every year, an estimated 443,000  
            people in the U.S. die from tobacco and smoking-related  
            illnesses or exposure to secondhand smoke, according to the  
            federal Centers for Disease Control and Prevention (CDC).  The  
            CDC also reports that another 8.6 million people suffer from  
            serious smoking-related illnesses. According to DPH, smoking  
            causes ischemic heart disease, cancer, stroke, and chronic  
            lower respiratory diseases, which are the leading causes of  
            death and disability among adults in California.  
            Smoking-attributed diseases are an economic burden due not  
            only to health care expenses but also productivity losses  
            related to disability or early death. DPH asserts that since  
            the passage of Proposition 99 adult smoking rates declined by  
            more than 40%, from 22.7% to 13.3% in 2008. As smoking rates  
            declined, mortality and morbidity rates for diseases related  
            to smoking also declined. This parallel trend, according to  
            DPH, supports causal association between these conditions and  
          5)E-cigs. According to a 2014 report by the World Health  


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            Organization (WHO), e-cigs are battery heated devices that  
            deliver nicotine by heating solution that users inhale. E-cig  
            cartridges (e-liquids) contain liquid nicotine, and chemicals  
            introduced into a liquid vehicle produce aromas and various  
            flavors such as tobacco, chocolate mint, cotton candy, gummy  
            bear, and grape. The concentration of nicotine varies both  
            across different manufacturers and sometimes within the same  
            brand. The report states that although some e-cigs are shaped  
            to look like conventional cigarettes, they also take the form  
            of everyday items like pens and USB flash drives.

          6)Health risks and increase in use of e-cigs. DPH's State Health  
            Officer released a report in January 2015, "A Community Health  
            Threat," about e-cigs that cites, among other things, the  
            concern about the health risks of e-cigs and the growing  
            number of e-cig users. E-cig poisonings increased from seven  
            in 2012 to 154 in 2014. By the end of 2014, e-cig poisonings  
            to young children tripled in one year, making up more than 60%  
            of all e-cig poisoning calls, according to the report. The  
            State Health Officer also noted that in California, use of  
            e-cigs among those between the ages of 18 and 29 tripled in  
            one year, from 2.3% to 7.6%. Nearly 20% of these young adult  
            e-cig users had never smoked traditional cigarettes. The State  
            Health Officer concludes that there is a high need to educate  
            the public about e-cig safety concerns and that existing laws  
            currently in place to protect minors and the general public  
            from traditional tobacco products should be extended to cover  
          7)Marketing of e-cigs as cessation devices. The DPH report also  
            cites the unrestricted marketing tactics for e-cigs. E-cig  
            marketing continues to claim they are a safer alternative to  
            traditional cigarettes. To date, the effectiveness of e-cigs  
            as cessation aids has not been proven by e-cig companies or  
            approved by the FDA as such. The report states that a number  
            of studies actually show that e-cig users are no more likely  
            to quit than smokers of traditional cigarettes, and in one  
            study, 89% of e-cig users were still using them one year  
            later. Dual use of e-cigs and traditional cigarettes continues  
            to rise, which, according to the report, may be attributed to  
            the unrestricted marketing of e-cigs. E-cig companies are  
            using tactics previously used by tobacco companies that have  
            since been banned. These include running unrestricted ads and  
            promotions on TV, radio, and social media, and in magazines,  
            newspapers, and retail stores, as well as sponsoring sport and  


          ABX2 9 (Thurmond)                                  Page 6 of ?
            music events and giving out free samples, according to the  
           8)  Related legislation. SBX2 5 (Leno) recasts and broadens the  
            definition of "tobacco product" in current law to include  
            electronic cigarettes as specified; 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; requires electronic cigarette cartridges to be  
            child-resistant; and exempts active duty military personnel,  
            as specified, from the requirement of being 21 years of age or  
            older to purchase tobacco products. SBX2 5 is pending on the  
            Senate Floor.

            SBX2 7 (Hernandez) increases the minimum legal age to purchase  
            or consume tobacco from 18 to 21. The bill also removes  
            penalty provisions for those under 21 in possession of tobacco  
            and exempts military personnel from the age increase. SBX2 7  
            is pending on the Senate Floor.

            ABX2 7 (Stone) removes many, but not all, exemptions in  
            existing law that allow tobacco smoking in certain indoor  
            workplaces and expands the prohibition on smoking in a place  
            of employment to include owner-operated businesses. ABX2 7  
            will be heard in this committee on March 7, 2016.

            ABX2 10 (Bloom) allows counties to impose a tax on the  
            privilege of distributing cigarettes and tobacco products.  
            ABX2 10 will be heard in this committee on March 7, 2016.

            ABX2 11 (Nazarian) revises 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.  
            ABX2 11 will be heard in this committee on March 7, 2016.

          9)Prior legislation. SB 648 (Corbett, of 2014) would have made  
            the provision of the STAKE Act restricting the sale of  
            cigarette and tobacco products from vending machines  
            applicable to e-cigs, as defined. SB 648 died in the Assembly  
            Appropriations Committee.

            AB 320 (Nazarian, of 2013) was substantially similar to this  


          ABX2 9 (Thurmond)                                  Page 7 of ?
            bill. AB 320 died in the Assembly Appropriations Committee.

            SB 882 (Corbett, Chapter 310, Statutes of 2010), made it  
            unlawful, to the extent not preempted by federal law, for a  
            person to sell or otherwise furnish an e-cig to a person under  
            the age of 18.

            SB 400 (Corbett, 2009), would have defined e-cigs as drugs  
            under state law, made them subject to the Sherman Food, Drug,  
            and Cosmetic Law, and allowed DPH to halt the sale,  
            distribution, or offering of e-cigs as part of its enforcement  
            of the STAKE Act. SB 400 was vetoed by Governor Schwarzenegger  
            who stated that while he supported restricting access of  
            e-cigs to children under the age of 18, he could not sign a  
            measure that also declared them a federally regulated drug  
            when the matter is being decided through pending litigation.  
            He noted that items defined as "tobacco products" are legal  
            for anyone over the age of 18, and if adults want to purchase  
            and consume these products with an understanding of the  
            associated health risks, they should be able to do so unless  
            and until federal law changes the legal status of these  
            tobacco products.

            SB 1927 (Hayden, Chapter 1009, Statutes of 1994), enacted the  
            STAKE Act to address the increase in tobacco sales to minors  
            in California and fulfill the federal mandate that prohibited  
            the sale of cigarettes and tobacco products to minors.

          10)Support. Supporters of this bill argue that, under current  
            law, only school districts that receive TUPE funding are  
            required to implement 100% tobacco-free policies, which  
            currently equates to only 46% of school districts, leaving  
            more school districts with no obligation to ban tobacco and  
            other nicotine and non-nicotine products on their campuses.  
            Supporters argue that smoking increases the risk of heart  
            disease and stroke by two to four times, and is linked to  
            vision loss and reduced school attendance, physical fitness,  
            and learning abilities for youth. Supporters state that  
            schools that consistently enforce tobacco-free policies have  
            shown decreased rates of smoking among their students. 

          Support:American Academy of Pediatrics
                    American Cancer Society Cancer Action Network 
                    American Lung Association in California 


          ABX2 9 (Thurmond)                                  Page 8 of ?
                    Association of Northern California Oncologists 
                    California Academy of Family Physicians 
                    California Chronic Care Coalition 
                    California Dental Association 
                    California Medical Association 
                    California Optometric Association 
                    California Pan-Ethnic Health Network 
                    California Society of Anesthesiologists 
                    Children Now 
                    County Health Executives Association of California 
                    First 5 Association of California 
                    Health Access California 
                    Los Angeles County Board of Supervisors 
                    March of Dimes California Chapter 
                    Medical Oncology Association of Southern California 
                    Planned Parenthood Affiliates of California
                    San Francisco Tobacco Free Coalition 
                    Service Employees International Union of California 
                    State Superintendent of Public Instruction Tom  
          Oppose:   None received.

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