BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                       AB 216


                                                                      Page  1





          ASSEMBLY THIRD READING


          AB  
          216 (Cristina Garcia)


          As Amended  April 13, 2015


          Majority vote


           --------------------------------------------------------------------- 
          |Committee       |Votes |Ayes                   |Noes                 |
          |----------------+------+-----------------------+---------------------|
          |Governmental    |20-0  |Gray, Linder,          |                     |
          |Organizations   |      |Achadjian, Alejo,      |                     |
          |                |      |Bigelow, Cooley,       |                     |
          |                |      |Cooper, Daly, Cristina |                     |
          |                |      |Garcia, Eduardo        |                     |
          |                |      |Garcia, Gipson, Roger  |                     |
          |                |      |Hernández,             |                     |
          |                |      |Jones-Sawyer, Levine,  |                     |
          |                |      |Mayes, Perea, Salas,   |                     |
          |                |      |Steinorth, Waldron,    |                     |
          |                |      |Wilk                   |                     |
          |                |      |                       |                     |
          |----------------+------+-----------------------+---------------------|
          |Appropriations  |17-0  |Gomez, Bigelow, Bloom, |                     |
          |                |      |Bonta, Calderon,       |                     |
          |                |      |Chang, Daly, Eggman,   |                     |
          |                |      |Gallagher, Eduardo     |                     |
          |                |      |Garcia, Holden, Jones, |                     |
          |                |      |Quirk, Rendon, Wagner, |                     |
          |                |      |Weber, Wood            |                     |
          |                |      |                       |                     |
          |                |      |                       |                     |
           --------------------------------------------------------------------- 








                                                                       AB 216


                                                                      Page  2







          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 $500 for the first violation,  
            by a fine not exceeding $1,000 for the second violation, or by a  
            fine not exceeding $1,500 for a third or subsequent violation.


          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.









                                                                       AB 216


                                                                      Page  3






          4)Requires, under the Stop Tobacco Access to Kids Enforcement Act  
            (STAKE Act), the California Department of Public Health (DPH) to  
            establish and develop a program to reduce the availability of  
            tobacco products to minors and to enforce those provisions. 


          5)Authorizes 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.


          6)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.


          7)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:  According to the Assembly Appropriations  
          Committee, minor nonreimbursable local law enforcement costs,  
          offset to a limited degree by fine revenue.









                                                                       AB 216


                                                                      Page  4






          COMMENTS:


          Purpose of the bill:  According to the author, the intent of this  
          bill is to make it illegal for retail stores to sell nonnicotine  
          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 electronic 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  








                                                                       AB 216


                                                                      Page  5





          a gateway to future tobacco use." 


          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  
          United States 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 Universal Serial Bus (USB) memory sticks.  


          Electronic cigarettes have been sold in the United States since  
          2007.  The biggest markets are Europe and North America.  Sales  
          are banned in 13 of the 59 countries that regulate the devices,  
          the World Health Organization 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  
          electronic 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.








                                                                       AB 216


                                                                      Page  6







          DPH Report:  Although they do not contain nicotine, vaping  
          compounds have been shown to contain other harmful, potentially  
          carcinogenic chemicals.  The DPH's January 2015 report on  
          electronic cigarettes, A Community Health Threat, stated the  
          aerosol compounds used in vaping products were found to contain at  
          least 10 ingredients known to cause cancer, and that aerosols  
          contained higher concentrations of certain harmful heavy metals  
          and silicate particles than are present in traditional cigarettes.


          FDA Regulation:  On April 24, 2014, the federal Food and Drug  
          Administration released proposed regulations on electronic  
          cigarettes, including a ban on sales to minors.  It remains  
          unclear whether those rules will include nonnicotine vaping  
          products; they have yet to be finalized.


          Policy consideration:  This 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.


          Prior Legislation: SB 648 (Corbett) of the 2014 Regular Session,  
          would have prohibited the offer, sale, or distribution of  
          electronic 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 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) of the 2014 Regular Session, would have  
          prohibited a seller that delivers products via shipping or mailing  
          from selling or delivering an electronic cigarette to a person  
          under 18 years of age.  (Failed Passage in Assembly Appropriations  








                                                                       AB 216


                                                                      Page  7





          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.


          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 electronic cigarette to a person under 18  
          years of age. 


          SB 400 (Corbett) of the 2010 Regular Session, would have defined  
          electronic 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 electronic 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 BOE 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 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.









                                                                       AB 216


                                                                      Page  8






          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.




          Analysis Prepared by:                                               
          Eric Johnson / G.O. / (916) 319-2531  FN: 0000248