BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: AB 216 --------------------------------------------------------------- |AUTHOR: |Cristina Garcia | |---------------+-----------------------------------------------| |VERSION: |April 13, 2015 | --------------------------------------------------------------- --------------------------------------------------------------- |HEARING DATE: |June 24, 2015 | | | --------------------------------------------------------------- --------------------------------------------------------------- |CONSULTANT: |Reyes Diaz | --------------------------------------------------------------- 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 AB 216 (Cristina Garcia) Page 2 of ? 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 : ----------------------------------------------------------------- |Assembly Floor: |77 - 0 | |------------------------------------+----------------------------| |Assembly Appropriations Committee: |17 - 0 | |------------------------------------+----------------------------| |Assembly Governmental Organization |20 - 0 | |Committee: | | ----------------------------------------------------------------- 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 AB 216 (Cristina Garcia) Page 3 of ? 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 AB 216 (Cristina Garcia) Page 4 of ? 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 AB 216 (Cristina Garcia) Page 5 of ? 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 AB 216 (Cristina Garcia) Page 6 of ? 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 : AB 216 (Cristina Garcia) Page 7 of ? 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. -- END --