BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON HEALTH
                          Senator Ed Hernandez, O.D., Chair

          BILL NO:                    AB 216    
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          |AUTHOR:        |Cristina Garcia                                |
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          |VERSION:       |April 13, 2015                                 |
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          |HEARING DATE:  |June 24, 2015  |               |               |
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          |CONSULTANT:    |Reyes Diaz                                     |
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           SUBJECT  :  Product sales to minors:  vapor products

           SUMMARY  :  Prohibits the sale or furnishing of any vapor products, as  
          specified, to a person under 18 years of age. Exempts drugs or  
          medical devices, as specified. Makes the violation of the  
          provisions in this bill an infraction punishable by specified  
          fines.
          
          Existing law:
          1)Prohibits the sale or furnishing of electronic cigarettes  
            (e-cigs) to a person under 18 years of age. Defines e-cigs as  
            a device that can provide an inhalable dose of nicotine by  
            delivering a vaporized solution. 

          2)Authorizes the Department of Public Health (DPH), under the  
            Stop Tobacco Access to Kids Enforcement (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.

          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.
          
          This bill:
          1)Prohibits the sale or furnishing of any device intended to  
            deliver a non-nicotine product in a vapor state, to be  
            directly inhaled by the user, to a person under 18 years of  
            age.

          2)Exempts the sale or furnishing of a drug or medical device  







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            that has been approved by the federal Food and Drug  
            Administration (FDA) pursuant to the federal Food, Drug, and  
            Cosmetic Act.

          3)Specifies that a violation of the provisions in this bill is  
            an infraction punishable by a fine not to exceed $500, $1,000,  
            or $1,500 for a first, second, and third or subsequent  
            violation, respectively.

           FISCAL  
          EFFECT  :  According to the Assembly Appropriations Committee,  
          this bill has minor reimbursable local law enforcement costs,  
          offset to a limited degree by fine revenue.

           PRIOR  
          VOTES  :  
          
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          |Assembly Floor:                     |77 - 0                      |
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          |Assembly Appropriations Committee:  |17 - 0                      |
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          |Assembly Governmental Organization  |20 - 0                      |
          |Committee:                          |                            |
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          COMMENTS  :
          1)Author's statement.  According to the author, this bill will  
            make it illegal for retail stores to sell non-nicotine vaping  
            devices/e-cigs to anyone under the age of 18. Current law only  
            prevents minors from purchasing e-cigs with nicotine  
            cartridges. Even though these devices may come without  
            nicotine, they are still a filtration device that can be used  
            for smoking cannabis, nicotine, or other herbal substances.  
            E-cigs and vaping devices often target a younger audience  
            using sweet flavored compounds that carry the names of popular  
            kids' treats, such as gummy bears and Fruit Loops. Although  
            they may not have nicotine, these compounds have been shown to  
            contain other harmful chemicals, masked by the candy-flavored  
            vapor. Those under the age of 18 are now free to purchase and  
            use these products. Retailers have taken the opportunity to  
            market and sell them to minors. While some individuals may use  
            e-cigs and vaping devices as a way to quit smoking, studies  








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            suggest that adolescents who use ecigs are more likely to  
            progress from experimenting with these products to becoming  
            established smokers. In fact, the number of 2)children using  
            e-cigs or vaping devices has doubled every year since 2009.
            
          3)What is "vaping?" Vaping is generally believed to be the act  
            of inhaling water vapor through a personal vaporizer, or  
            e-cig. When users draw on the e-cig, the battery heats the  
            liquid, which is then atomized into an inhalable water vapor.  
            Vaping products/e-cigs, which can deliver nicotine, flavor,  
            and other chemicals, are available in specialty stores and  
            convenience stores around the U.S. with varying restrictions  
            on purchase by those under 18 years of age. The term "vaping"  
            is used to distinguish e-cigs from traditional cigarettes.   
            Available information supports that vaping is done with  
            e-cigs, and, therefore, vaping products and e-cigs are one in  
            the same.

          4)E-cigs. According to the FDA, e-cigs are battery-operated  
            products designed to deliver nicotine, flavor (with and  
            without nicotine), and other chemicals. They turn chemicals,  
            including highly addictive nicotine, into an aerosol that is  
            inhaled by the user. Most e-cigs are manufactured to look like  
            conventional cigarettes, cigars, or pipes. Some resemble  
            everyday items, such as pens and USB memory sticks. 

          5)Are e-cigs safe? The FDA states that the safety and efficacy  
            of e-cigs has not been fully studied. Some of the uncertainty  
            stems from the wide variety of devices and liquids available,  
            and therefore separate components need to be studied,  
            including the e-cig device, the e-liquid, the inhaled aerosol,  
            and the exhaled aerosol that may be inhaled secondhand. E-cig  
            devices vary in their engineering, battery voltage, and  
            ability to heat the e-liquid, meaning e-liquids can deliver a  
            different aerosol or nicotine dose depending on the device.  
            E-liquids currently have no requirements for labeling, and The  
            National Institute of Health states that there is poor  
            correlation between label statements and actual nicotine  
            content.

            According to a 2013 study entitled "Does electronic cigarette  
            consumption cause passive vaping?," aerosol exhaled by e-cig  
            smokers often contains nicotine, formaldehyde, and other  
            chemicals, although at much lower levels than emissions from  
            conventional cigarettes, and nicotine metabolites were found  








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            in non-smokers exposed to the exhaled aerosol. A 2012  
            publication from Reproductive Toxicology showed a wide variety  
            of toxicity on human cells, and that toxicity did not  
            correlate with nicotine concentration but did correlate with  
            the amount of flavor additives that were used. Since  
            California passed legislation prohibiting the sale of e-cigs  
            to minors, the Attorney General's office has been  
            investigating a number of e-cig companies that sell products  
            on the Internet to ensure compliance with the statute, as well  
            as other consumer protection provisions. Many companies are  
            coming into compliance voluntarily.  
          
          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  
            percent 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 percent to 7.6 percent. Nearly 20 percent  
            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 e-cigs.

          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 percent 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  








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            media, and in magazines, newspapers, and retail stores, as  
            well as sponsoring sport and music events and giving out free  
            samples, according to the report. 

          8)Related legislation. SB 151 (Hernandez), raises the minimum  
            age to purchase tobacco products to 21. SB 151 is pending in  
            the Assembly.

            SB 140 (Leno), recasts and broadens the definition of "tobacco  
            product" in current law to include e-cigs as specified;  
            extends current restrictions and prohibitions against the use  
            of tobacco products to e-cigs; and extends current licensing  
            requirements for manufacturers, importers, distributors,  
            wholesalers, and retailers of tobacco products to e-cigs. SB  
            140 is pending in the Assembly.

            SB 24 (Hill), extends STAKE Act requirements to the sale of  
            e-cigs, distinct from the definition of tobacco products;  
            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; requires  
            all retailers of e-cigs to apply for licensure to sell e-cigs;  
            and raises the minimum age requirement to purchase and use  
            e-cigs to 21, as specified. SB 24 is failed passage on the  
            Senate Floor and reconsideration was granted.  
            
          9)Prior legislation. SB 648 (Corbett, 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.

            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  








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            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, health and labor  
            organizations, argue that refill solutions for e-cigs/vaping  
            devices, even if they claim not to contain nicotine, contain a  
            wide range of toxic chemicals found in California's Prop 65,  
            which could cause serious health consequences. Supporters  
            further state that these devices are increasingly becoming the  
            preferred delivery system for illegal substances. 

          11)Policy comments. 

               a)     This bill is substantially similar to SB 882 and is  
                 in line with current bills that seek to regulate e-cigs  
                 by fixing existing statute. Created by SB 882, current  
                 statute defines e-cig as a device that  can  provide an  
                 inhalable dose of nicotine by delivering a  vaporized   
                 solution. Therefore, one can surmise that the current  
                 e-cig definition also means a device that delivers a  
                 non-nicotine product, which this bill seeks to clarify.  
                 In the opinion of staff, the author may wish to amend  
                 this bill to change the existing e-cig statute to ensure  
                 continuity and cohesion in e-cig law, rather than  
                 creating a new definition.
                  
               b)     Current legislative bills seek to raise the minimum  
                 age requirement to purchase traditional tobacco products  
                 and e-cigs to 21. In the opinion of staff, the author may  
                 wish to raise the minimum age requirement in this bill to  
                 21 contingent upon the enactment of SB 151 (Hernandez),  
                 in order to avoid bifurcation in regulation of all  
                 similar products.
                 
           SUPPORT AND OPPOSITION  :








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          Support:  Breast Cancer Fund
                    California Narcotic Officers' Association
                    California School Employees Association
                    California State PTA
                    City of San Marcos
                    Consumer Federation of California
          
          Oppose:   None received.
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