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
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 :
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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
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
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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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