BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 216|
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THIRD READING
Bill No: AB 216
Author: Cristina Garcia (D)
Amended: 6/29/15 in Senate
Vote: 21
SENATE HEALTH COMMITTEE: 8-0, 6/24/15
AYES: Hernandez, Nguyen, Mitchell, Monning, Nielsen, Pan,
Roth, Wolk
NO VOTE RECORDED: Hall
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 77-0, 5/4/15 - See last page for vote
SUBJECT: Product sales to minors: vapor products
SOURCE: Author
DIGEST: This bill prohibits the sale or furnishing of any
vapor products, as specified, to a person under 18 years of age,
or under 21 years of age, as specified; exempts drugs or medical
devices, as specified; and makes the violation of the provisions
in this bill an infraction punishable by specified fines.
ANALYSIS:
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
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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. Raises the minimum age requirement to 21, contingent upon
the passage and enactment of SB 151 (Hernandez).
2)Exempts the sale or furnishing of a drug or medical device
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.
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
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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
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 children using
e-cigs or vaping devices has doubled every year since 2009.
2)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.
3)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.
4)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 Institutes of Health states that there is poor
correlation between label statements and actual nicotine
content.
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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
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.
5)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.
6)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
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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
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.
7)Policy comment. According to the Senate Health Committee
analysis, this bill is substantially similar to SB 882
(Corbett, 2010) 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.
Related Legislation
SB 151 (Hernandez) raises the minimum age to purchase tobacco
products to 21. SB 151 is pending in the Assembly Governmental
Organization Committee.
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 Governmental Organization Committee.
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
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raises the minimum age requirement to purchase and use e-cigs to
21, as specified. SB 24 failed passage on the Senate Floor, but
was granted reconsideration.
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 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
SUPPORT: (Verified7/14/15)
Breast Cancer Fund
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California Narcotic Officers' Association
California School Employees Association
California State PTA
City of San Marcos
Consumer Federation of California
OPPOSITION: (Verified7/14/15)
None received
ARGUMENTS IN 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 Proposition 65, which could cause serious health
consequences. Supporters further state that these devices are
increasingly becoming the preferred delivery system for illegal
substances.
ASSEMBLY FLOOR: 77-0, 5/4/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd,
Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,
Grove, Hadley, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,
Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Campos, Dahle, Harper
Prepared by:Reyes Diaz / HEALTH /
7/15/15 15:05:43
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