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