BILL ANALYSIS Ó
AB 216
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Date of Hearing: April 22, 2015
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Adam Gray, Chair
AB 216
Cristina Garcia - As Amended April 13, 2015
SUBJECT: Product sales to minors: vapor products
SUMMARY: Prohibits the sale of any device intended to deliver a
nonnicotine product in a vapor state, to be directly inhaled by
the user, to a person under 18 years of age. Specifically, this
bill:
1) Provides it shall be unlawful for a person to sell or
otherwise furnish any device intended to deliver a nonnicotine
product in a vapor state, to be directly inhaled by the user, to
a person under 18 years of age.
2) Specifies that a violation of provision shall be an
infraction punishable by a fine not exceeding five hundred
dollars ($500) for the first violation, by a fine not exceeding
one thousand dollars ($1,000) for the second violation, or by a
fine not exceeding one thousand five hundred dollars ($1,500)
for a third or subsequent violation.
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3) Exempts from the prohibition the sale of a drug or medical
device that has been approved by the federal Food and Drug
Administration.
EXISTING LAW:
1) Prohibits a person from selling or otherwise furnishing an
electronic cigarette to a person under the age of 18.
2) Defines "electronic cigarette" as a device that can provide
an inhalable dose of nicotine by delivering a vaporized
solution.
3) Defines "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)Requires, under the Stop Tobacco Access to Kids Enforcement
Act (STAKE Act), the State Department of Public Health to
establish and develop a program to reduce the availability of
tobacco products to minors and to enforce those provisions.
5)Authorizes, under the STAKE Act, the adoption of more
restrictive local standards that further restrict access to and
reduce the availability of cigarette or tobacco products from
vending machines or devices or ban the sale entirely.
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6) 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.
7) 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.
8) Requires the Board of Equalization (BOE), under the
Cigarette and Tobacco Products Licensing Act (CTPLA), to
administer a statewide program to license cigarette and tobacco
products manufacturers, importers, distributors, wholesalers,
and retailers. Requires a retailer to obtain a separate license
for each retail location that sells cigarettes and tobacco
products. Requires BOE to suspend or revoke a retailer's license
upon notification by DPH of certain STAKE Act violations.
Permits BOE to assess various civil penalties for violations of
the CTPLA.
FISCAL EFFECT: Unknown
COMMENTS:
Purpose of the bill : According to the author, the intent of
this bill is to make it illegal for retail stores to sell
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non-nicotine vaping/electronic cigarette devices to anyone under
the age of 18. Current law only prevents minors from purchasing
vaping/electronic cigarette devices with nicotine cartridges.
Even though these devices come without nicotine, it is still a
filtration device that can be used for smoking cannabis,
nicotine, or other herbal substances.
The author declares that e-cigarettes and vape pens often target
a younger audience using sweet flavored compounds that carry the
names of popular kid's treats such as gummy bears and fruit
loops. Although they do not have nicotine, these compounds have
been shown to contain other harmful chemicals, masked by the
candy-flavored vapor. Minors under the age of 18 years old are
now free to purchase and use these products. Retailers have
taken the opportunity to market and sell them to minors by
promoting flavored cartridges such as caramel, cherry limeade,
strawberry, banana bread, papaya, and others.
The author maintains, "While some are using e-cigarettes and
vape pens as a way to quit smoking, studies suggest that
adolescents who use ecigarettes are more likely to progress from
experimenting with the product to becoming established smokers.
In fact, the number of children using e-cigarettes or vape pens
has doubled every year since 2009."
The author states, the goal of this bill is "to protect our
children who have become prey to vendors with strategically
named, non-nicotine products, with fun flavors like 'Kool-Aid'
and 'Skittles.' Unlike candy cigarettes, that became socially
unacceptable, these products are dangerous for children and act
as a gateway to future tobacco use."
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Background :
What is vaping ? Vaping is defined as the act of inhaling water
vapor through a personal vaporizer or electronic cigarette.
When users draw on the device, the battery heats the liquid,
which is then atomized into an inhalable vapor. Vaping products
are available in specialty stores and convenience stores around
the US with varying restrictions on purchase by youth under 18.
What are electronic cigarettes ? Electronic cigarettes are
battery-operated inhalers that consist 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. The user can then inhale this vapor. The product is
often made to look like such products as cigarettes, cigars, and
pipes. Electronic cigarettes are sometimes made to look like
everyday items such as pens and USB memory sticks.
According to the World Health Organization (WHO), electronic
nicotine delivery systems, of which electronic cigarettes are
the most common prototype, are devices that do not burn or use
tobacco leaves but instead vaporize. The main components of the
solution, in addition to nicotine when nicotine is present, are
propylene glycol, with or without glycerol and flavoring agents.
ENDS solutions and emissions contain other chemicals, some of
them considered to be toxicants. There are more than 450 brands
and more than 7,500 flavors on the market, according to the
policy report. There have been an average of 10 new brands
entering the market every month for the last two years, a recent
Internet survey found.
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Electronic cigarettes have been sold in the USA since 2007. The
biggest markets are Europe and North America. Sales are banned
in 13 of the 59 countries that regulate the devices, the WHO
reported, but most of those 13 countries say they are still
available because of illicit trade and cross-border Internet
sales.
Reports have stated that adolescents might be influenced to try
e-cigarettes because of how they are priced and promoted. They
can be cheaper than traditional cigarettes and may be perceived
as safer. Other features, like flavors can also support use in
this age group.
California Department of Public Health (DPH) Report : DPH's
State Health Officer released a report in January 2015, "A
Community Health Threat," about e-cigarettes that cites, among
other things, the concern about the health risks of e-cigarettes
and the growing number of e-cigarettes.
Electronic cigarettes poisonings increased from seven in 2012 to
154 in 2014. The State Health Officer stated that there is a
high need to educate the public about electronic cigarettes
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 electronic cigarettes.
Are Electronic Cigarettes Safe ? The Food and Drug
Administration (FDA) states that the safety and efficacy of
electronic cigarettes has not been fully studied. Some of the
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uncertainty stems from the wide variety of devices and liquids
available, and therefore separate components need to be studied,
including the electronic cigarettes device, the e-liquid, the
inhaled aerosol, and the exhaled aerosol that may be inhaled
secondhand. Electronic cigarettes devices vary in their
engineering, battery voltage, and ability to heat the e-liquid,
meaning e-liquids can deliver a different aerosol and nicotine
dose depending on the device. E-liquids currently have no
requirements for labeling.
FDA Regulation : In 2008, the FDA sought to regulate
e-cigarettes as drug delivery devices by blocking new
e-cigarette shipments into the United States. In response, an
e-cigarette manufacturer sued the FDA in federal court, claiming
that the agency did not have the authority over e-cigarettes as
drug delivery devices and therefore could not stop the
shipments.
In 2010, the federal court ruled in favor of the manufacturer
stating that the FDA may not regulate e-cigarettes as drug
delivery devices if they are not marketed as tobacco cessation
products. However, the court also found that the FDA does have
the authority to regulate e-cigarettes as tobacco products.
On April 24, 2014, the FDA released proposed regulations. As
part of those proposed rules, the FDA would ban the sale of
e-cigarettes to minors. In addition, the proposed regulations
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would prohibit companies from distributing free e-cigarette
samples and prohibit the sale of e-cigarettes through vending
machines, unless the vending machine is in a facility that never
admits anyone under the age of 18. It has been reported that
the FDA is in the process of finalizing these regulations.
Policy consideration : The bill is similar to SB 882 (Corbett),
Chapter 310, Statutes of 2010 in that it is attempting to make
unlawful, for a person to sell or otherwise furnish a
"non-tobacco product" to a person under 18 years of age.
Related legislation : SB 69 of 2015 (Leno), would recast and
broaden 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; and, extends current
licensing requirements for manufacturers, importers,
distributors, wholesalers, and retailers of tobacco products to
electronic cigarettes. SB 69 passed the Senate Health Committee
on April 8, 2015.
SB 24 (Hill) of 2015, would extend Stop Tobacco Access to Kids
Enforcement Act requirements to the sale of electronic
cigarettes (e-cigs), distinct from the definition of tobacco
products, and requires enforcement, as specified, to begin July
1, 2016; extends current smoke-free laws and penalties to
e-cigs; requires e-cig cartridges to be in childproof packaging,
as defined; broadens the current definition of e-cigs, as
specified; and requires all retailers of e-cigs to apply for
licensure to sell e-cigs, as specified. SB 24 passed the Senate
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Health Committee on April 15, 2015.
SB 151 (Hernandez) of 2015, would raise the legal age to
purchase tobacco products to 21. SB 151 passed the Senate
Health Committee on April 8, 2015.
AB 768 (Thurmond) of 2015, would prohibit the use of electronic
cigarettes in any baseball stadium, including the dugout and
locker rooms. AB 768 passed the Assembly Committee on Arts,
Entertainment, Sports, Tourism, and Internet Media on April 7,
2015.
AB 48 (Stone) of 2015, would prohibit a person or entity from
selling, giving, or in any way furnishing to another person of
any age in this state a cigarette utilizing a single-use filter
made of any material, including cellulose acetate. SB 48 is
pending in the Assembly G.O. Committee.
Prior Legislation : SB 648 (Corbett), 2013-2014 Legislative
Session. Would have prohibited the offer, sale, or distribution
of electronic cigarettes (e-cigarettes) from a vending machine
or other coin or token operated mechanical device or appliance,
unless that machine or appliance is located on a premises issued
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an on-sale public license to sell alcoholic beverages and is at
least 15 feet from the entrance to that premises. (Failed
Passage in Assembly Appropriations Committee).
AB 1500 (Dickinson), 2013-2014 Legislative Session. Would have
prohibited a seller that delivers products via shipping or
mailing from selling or delivering an electronic cigarette
(e-cigarette) to a person under 18 years of age. (Failed
Passage in Assembly Appropriations Committee)
AB 320 (Nazarian), 2013-2014 Legislative Session. Would have
prohibited the use of tobacco and nicotine products at any time
in a county office of education, charter school, or school
district-owned or leased buildings, on school or district
property, and in school or district vehicles. The measure also
clarifies that charter schools are eligible participants in the
Tobacco Use Prevention and Education program. (The bill was
held on suspense by the Assembly Appropriations Committee)
SB568 (Steinberg) Chapter 336, Statues of 2013. Prohibited 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.
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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-cigarette to a person
under 18 years of age.
SB 400 (Corbett), 2009-2010 Legislative Session. Would have
defined e-cigarettes as drugs under state law, making them
subject to the Sherman Food, Drug, and Cosmetic Law, and would
have allowed the Department of Public Health to halt the sale,
distribution, or offering of e-cigarettes as part of its
enforcement of the STAKE Act. (Vetoed by the Governor)
SB 1766 (Ortiz), Chapter 686, Statutes of 2002. Required that
all sales of cigarettes in the State be vendor-assisted,
face-to-face sales unless the seller receives valid
identification, that the purchaser is over 18, the product is
shipped to the address provided on the identification, the sales
is at least for two cartons, and the seller either provides the
State Board of Equalization with all taxes due on the sale or
includes with the shipment a notice that the purchaser is
responsible for state taxes.
AB 1830 (Frommer), Chapter 685, Statutes of 2002. Prohibited
the sales of tobacco products to minors through the United
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States Postal Service or through any other public or private
postal or package delivery service, and imposes specified
age-verification requirements on tobacco product sellers or
distributors.
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.
REGISTERED SUPPORT / OPPOSITION:
Support
Breast Cancer Fund
California Narcotic Officers Association
California School Employees Association
Opposition
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None on file
Analysis Prepared by:Eric Johnson / G.O. / (916) 319-2531