BILL ANALYSIS Ó
AB 768
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Date of Hearing: April 7, 2015
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Ian Charles Calderon, Chair
AB 768
(Thurmond) - As Introduced February 25, 2015
SUBJECT: Tobacco Free Baseball Act.
SUMMARY: Would prohibit the use of tobacco products in any
baseball stadium as defined. Specifically, this bill:
1)Prohibits the use of a tobacco product at any time at a
baseball stadium.
2)Requires each baseball stadium to conspicuously post, at every
entrance, a sign clearly communicating that the use of tobacco
products, including smokeless tobacco, is prohibited.
Further provides that these signs shall also be posted in all
dugouts, bullpens, locker rooms, and bathrooms.
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3)Contains the following definitions:
a) "Baseball stadium" means the physical area in which a
professional, collegiate, high school, or other organized
baseball game or practice is occurring, including all open,
semi-open, and enclosed spaces and structures. A baseball
stadium includes, but is not limited to, playing fields,
dugouts, bullpens, training rooms, locker rooms, team bench
areas, spectator seating areas, pedestrian walkways,
bathrooms, dining areas, vendor areas, offices, and
recreational areas.
b) "Organized baseball" means baseball games played in
connection with an established league or other association
of persons.
c) "Smokeless tobacco" means a product that contains cut,
ground, powdered, or leaf tobacco and is intended to be
placed in the oral or nasal cavity, including, but not
limited to, snuff, chewing tobacco, dipping tobacco,
dissolvable tobacco products, and sinus.
d) "Tobacco product" as one that includes all of the
following:
i) A product made or derived from tobacco or nicotine
that is intended for human consumption, whether smoked,
heated, chewed, absorbed, dissolved, inhaled, snorted,
sniffed, or ingested by any other means, including, but
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not limited to, cigarettes, cigars, little cigars,
chewing tobacco, pipe tobacco, and snuff.
ii) An electronic device that delivers nicotine or other
substances to the person inhaling from the device,
including, but not limited to, an electronic cigarette,
cigar, pipe, or hookah.
iii) A component, part, or accessory of a tobacco
product, whether or not sold separately.
e) Excludes from the definition of "Tobacco product" any
product that has been approved by the United States Food
and Drug Administration for sale as a tobacco cessation
product or for other therapeutic purposes where the product
is marketed and sold solely for that approved purpose.
4)Makes various legislative findings and declarations.
EXISTING LAW:
1)Prohibits the smoking or use of cigarettes or other tobacco
products in or nearby various places, as specified, including
among other places: schools, public buildings, workplaces and
playgrounds.
2)Provides for various definitions relating to smoke, smoking,
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cigarettes or tobacco products, among other things in relation
to the aforementioned prohibitions.
FISCAL EFFECT: Unknown
COMMENTS:
1)Author and supporter's statements of need for legislation.
The author points to recent events as reason for introducing
AB 768, saying, "Last year Hall of Fame batting champion, Tony
Gwynn, died of cancer. He was 54 and succumbed to cancer of
the mouth and salivary glands. In the same year, Curt
Schilling, a three-time World Series champion, was also
diagnosed with cancer of the mouth. More specifically, both
men were diagnosed with cancer of the lining of the mouth, and
both men attributed their diagnoses to a single habit -
chewing tobacco. And, according to the National Cancer
Institute at the National Institutes of Health, smokeless
tobacco does, in fact, cause oral cancer, esophageal cancer,
and pancreatic cancer. AB 768 is an attempt, primarily, to
reduce the use of smokeless tobacco (e.g. chewing and dipping)
among youth. Because there exists a disproportionately high
level of smokeless tobacco use in baseball, as well as a
well-established 'role model effect' between professional
players and baseball youth, this bill takes aim at the use of
smokeless tobacco only at a baseball stadium in the hopes that
impressionable youth never begin to use smokeless tobacco
products or associate smokeless tobacco with the sport of
baseball."
According to the bill's sponsor, The Campaign for Tobacco-Free
Kids, "By eliminating the use of all tobacco products -
including smokeless tobacco - at all baseball venues in
California, (AB 768) sends a simple and powerful message to
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children: baseball and tobacco don't mix. Sports should be
about promoting a healthy and active lifestyle, not a product
that addicts, sickens and kills?Each year, more than half a
million kids age 12-17 use smokeless tobacco for the first
time. Even as cigarette use continues to decline among youth,
smokeless tobacco use has remained troublingly steady. Sadly,
baseball is one reason. The Tobacco Free Baseball Act is about
the health and future of our children. Because young fans
idolize and imitate them, baseball players are powerful role
models for our kids. Using smokeless tobacco is one thing we
don't want kids imitating."
American Lung Association of California points to statements
from an expert from the Centers for Disease Control and
Prevention (CDC), who opines that: "Professional athletes in
certain sports, including baseball?have traditionally had high
levels of smokeless tobacco use. Athletes serve as role models
for youth, and smokeless tobacco manufacturers have used
advertising, images, and testimonials featuring athletes and
sports to make smokeless tobacco products appear attractive to
youth. Children and teens closely observe athletes' actions,
including their use of tobacco products, and are influenced by
what they see. Adolescents tend to mimic the behaviors of
those they look up to and identify with, including baseball
players and other athletes."
The American Heart Association shared the following in
support, "Smokeless tobacco use is on the rise, and is highest
in young men between the ages of 18 and 24. Smokeless tobacco
contains at least 28 known carcinogens and causes oral,
pancreatic and esophageal cancer - as well as other serious
health problems such as cardiovascular disease, gum disease,
tooth decay and mouth lesions." The California American
College of Emergency Physicians adds, "In 2012, approximately
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1 in 15 middle school students and 1 in 4 high school
students, nationally, were current tobacco users. Children are
easily influenced and become lifelong tobacco users, whether
it be by the tobacco industry or by a baseball player they
view as a role model. AB 768 is an important step toward
reducing tobacco use by banning tobacco products, including
smokeless tobacco, from baseball stadiums across California.
Eliminating tobacco products at baseball stadiums will help
change the culture of smokeless tobacco use by baseball
players and set an example to children that no form of tobacco
is safe."
2)Current tobacco policies in baseball for players, teams and
fans.
a) Major League Baseball.
According to information supplied by the author, Major
League Baseball (MLB) is supportive of the concept put
forth in AB 768. In a press release shared with the
Committee, "Major League Baseball issued the following
statement today on the announcement from California
lawmakers and the Campaign for Tobacco-Free Kids on its
"Knock Tobacco Out of the Park" program:
Major League Baseball has long supported a ban of
smokeless tobacco at the Major League level. We have
sought a ban of its use on-field in discussions with
the Major League Baseball Players Association.
Currently, players, managers and coaches cannot use
smokeless tobacco during interviews or Club
appearances. Personnel may not carry tobacco
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products in uniform when fans are in the ballpark.
The use of smokeless tobacco has long been banned in
the Minor Leagues, where the matter is not subject
to collective bargaining.
Currently all baseball stadiums have restrictions on
smoking, which vary from designated smoking areas within
the ballpark to total bans on any form of smoking. In
addition, according to the sponsors, five stadiums have
also prohibited the use of smokeless tobacco in the
ballpark; Cleveland, Milwaukee, Saint Louis, San Diego and
Seattle.
b) Minor League Baseball.
As of 1993, all minor league players, coaches and umpires
are forbidden to smoke or chew tobacco anywhere in their
ball parks or on team buses. The ban applies to more than
6,000 uniformed baseball personnel on the 160 minor league
teams, but not to fans, employees of the clubs or to any
major league players, including those sent down to the
minors for rehabilitation.
Under the policy, violators are subject to ejection and
fines -- ranging from $100 to $300 depending on the league
level -- for each offense.
c) National Collegiate Athletic Association.
Players and coaches using "spit tobacco" during college
baseball games since 2003 are subject to immediate
expulsion under the zero-tolerance policy of the National
Collegiate Athletic Association (NCAA). Approved in July,
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2002, the rule requires umpires to immediately eject any
player or coach using the substance. According to news
reports, "The use of tobacco by players, coaches,
administrators, and officials during practices and
competitions has been illegal since 1993 under NCAA bylaws.
But enforcement focused on warning rule-breakers and giving
programs time to comply, says Dave Yeast, NCAA National
Umpire Coordinator. The new policy will force umpires to
toss players and coaches out of contests for infractions."
3)Committee comments:
a) Scope of proposed ban extends far beyond stated goals.
The scope of AB 768 is truly ambitious, as it aspires to
cover all organized baseball from Tiny Tot T Ball to the
MLB, and reach all "persons" who are within the physical
areas of the broadly defined "baseball stadium" at any and
all times a baseball game or practice is taking place.
While this vast scope of reach may be well intended, it
extends far beyond the stated goal of AB 768 of preventing
Major League Baseball players from setting a poor example
of personal behavior for California youth.
i) Scope of persons covered under AB 768: includes
office and stadium employees, along with Little League
parents and park maintenance crews
While the author and supporters state that the target of
AB 768 is professional baseball players, the language of
the bill applies to any "person" in the "physical area in
which a professional, collegiate, high school or other
organized baseball game or practice is occurring." This
restriction would be placed upon fans, players, vendors,
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stadium employees and visiting teams, both on the field
and in offices and facilities. It would also reach
parents in the stands of Little League baseball and
public facilities such as bathrooms in city parks where
they play. An example of how broadly this language could
be applied finds that it could be read to cover employees
of private batting cage facilities when teams take
practice there, along with other customers of the batting
cage business in adjacent cages.
ii) Scope of territory covered by bill extends from
stated target of MLB stadiums to private businesses and
city parks.
The bill defines baseball stadium to mean the physical
area in which a professional, collegiate, high school, or
other organized baseball game or practice is occurring
(emphasis added). It encompasses "all open, semi-open,
and enclosed spaces and structures including, but not
limited to, playing fields, dugouts, bullpens, training
rooms, locker rooms, team bench areas, spectator seating
areas, pedestrian walkways, bathrooms, dining areas,
vendor areas, offices, and recreational areas."
The bill attempts to refine its reach with a definition
of "organized baseball" which it defines as, "baseball
games played in connection with an established league or
other association of persons," but this language is
subject to many different interpretations and therefore
may be too imprecise to be an effective limitation.
Instead, the bill's language opens its provisions up to
all recreational leagues and the parks they play in. As
mentioned in comment (a)(i) above, the bill would apply
to a broad array of persons. In addition, a plain reading
of the language could prohibit any unrelated person in a
recreational area such as a park, relaxing in the same
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physical area where a group is practicing recreation
league baseball from using any legal tobacco product, in
addition to the players and spectators of the
baseball-related activity.
b) Why target only baseball?
This measure is focused upon the sport of baseball.
However, the issue of tobacco use is a much broader one in
both society and professional athletics. In professional
auto racing the Winston cigarette company famously
sponsored the NASCAR Winston Cup and the National
Association of Stock Car Auto Racing (NASCAR), as of this
writing, continues to allow smokeless tobacco sponsorships
for driving teams. In formula racing, the Marlborough Grand
Prix remains well known on the international circuit. In
addition, the Professional Rodeo Cowboy Association
continues to be strongly associated with U.S. Smokeless
Tobacco Company (USSTC), even though their official
sponsorship ended in 2009. Federation Internationale de
Football Association (FIFA), the world sanctioning body for
soccer - the most popular sport in the world - continues to
allow teams to accept tobacco sponsorships. To a lesser
extent, players and coaches on the sidelines of football
and basketball games have also been known to use smokeless
tobacco, such as the Illinois coach recently caught dipping
on the sideline of a televised football game.
When committee staff raised the question of why AB 768 only
targeted baseball, and not other sports, the author
responded that the problem is mostly one of baseball,
saying, "According to the Journal of Athletic Training,
athletes, particularly baseball players, are known to be
heavy users of smokeless tobacco. Moreover, while the use
of smokeless tobacco may also be prevalent at rodeos, for
instance, AB 768, primarily, is focused on youth, and
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baseball is a sport that is professional and gathers a very
substantial amount of media exposure. That is to say, a lot
of youth aspire to be professional baseball players, many
of whom use smokeless tobacco, and there aren't nearly as
many kids that aspire to perform in a rodeo."
c) This issue is part of an existing collective bargaining
agreement between MLB and the Player's Union (Major League
Baseball Players Association).
As mentioned by the MLB press release in Comment 2 (a)
above, smokeless tobacco use by baseball players is an
issue which is the subject of an existing collective
bargaining agreement. Currently, baseball players do not
carry tobacco tins or packages in their pockets when fans
are allowed in the ballpark or use tobacco during pregame
or postgame interviews or team functions, as part of their
existing contracts. The players have agreed to these
restrictions based in part upon their understanding of the
importance of their status as role models; however the
players union strongly opposes any further limitation of
their private rights to engage in legal conduct.
d) Drafting issue: "Smokeless" Tobacco could still be
allowed under AB 768.
As drafted, AB 768 contains a definition of "smokeless
tobacco" which is not included in the definition of
prohibited tobacco products, and therefore smokeless
tobacco products could be read as exempt from the
prohibition against use of other tobacco products in
baseball stadiums. Should this measure move forward, the
author may consider including smokeless tobacco in the
language of proposed 118916(4)(A).
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4)Recent amendments. The author removed language from the
findings and declarations which would have stated the
Legislature's intent to cover the field of tobacco regulation
in baseball stadiums. By striking the phrase, "thereby
eliminating the need for local governments to enact tobacco
restrictions within their respective jurisdictions", the
author intends to allow local jurisdictions to act in this
area.
5)Double referral. This bill has been double referred and should
it pass will be sent to the Assembly Governmental Organization
Committee for further consideration.
6)Prior and Related Legislation.
e) SB 648 (Corbett) of 2013, would have extended the
restrictions and prohibitions against the smoking of
tobacco products to include restrictions or prohibitions
against e-cigarette in various places, including, but not
limited to, places of employment, school campuses, public
buildings, day care facilities, retail food facilities, and
health facilities. Failed passage in the Assembly
Governmental Organization Committee.
f) SB 575 (DeSaulnier) of 2011, would have expanded the
prohibition on smoking in a place of employment to include
an owner-operated business, and also eliminates most of the
specified exemptions that permit smoking in certain work
environments, such as hotel lobbies, bars and taverns,
banquet rooms, warehouse facilities, private residences
used as family day care homes, and employee break rooms.
Held in the Assembly Governmental Organization Committee.
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g) AB 217 (Carter) of 2011, would have modified an
exemption in current law authorizing smoking in "patient
smoking areas" in long-term health care facilities. As
recently amended, the bill would allow for patient smoking
areas that meet specified conditions. The bill was vetoed
by Governor Brown.
h) AB 1467 (DeSaulnier) of 2007, would have removed the
exemptions that permit smoking in specified bars,
warehouses, hotel lobbies, employee break rooms, and
meeting and banquet rooms, while retaining exemptions for
other types of businesses. In addition, the bill would
have prohibited smoking in specified owner-operated
businesses regardless of whether or not they have
employees. The bill was vetoed by Governor Schwarzenegger.
i) AB 2067 (Oropeza), Chapter 736, Statutes of 2006,
prohibits smoking in covered parking lots and adds to the
definition of "enclosed spaces" lobbies, lounges, waiting
areas, elevators, stairwells and restrooms that are a
structural part of the building, thereby prohibiting
smoking in those areas.
j) AB 3037 (Cannella), Chapter 989, Statutes of 1996,
extends exemptions to the prohibition of smoking in bars,
taverns, and gaming clubs to January 1, 1998. Smoking in
bars, taverns, and gaming clubs could only continue beyond
that date if regulations were adopted by either the
Occupational Safety and Health Standards Board or the
federal Environmental Protection Agency on an exposure
level of environmental tobacco smoke that carried
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insignificantly harmful effects to exposed persons.
aa) AB 13 (Friedman), Chapter 310, Statutes of 1994,
prohibits employers from knowingly or intentionally
permitting, or any person from engaging in, the smoking of
tobacco products in enclosed places of employment, with
specific exemptions. The bill allowed for the smoking of
tobacco products in bars, taverns, and gaming clubs until
January 1, 1997 if regulations were adopted by either the
Occupational Safety and Health Standards Board or the
federal Environmental Protection Agency on an exposure
level of environmental tobacco smoke that carried
insignificantly harmful effects to exposed persons.
REGISTERED SUPPORT / OPPOSITION:
Support
American Academy of Pediatrics
American Heart Association
American Lung Association
California Academy of Family Physicians
California American College of Emergency Physicians
California Black Health Network
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California Children's Hospital Association
California Dental Association
California Dental Hygienists' Association
California Medical Association
Cancer Action Network
Children's Defense Fund - California
County Health Executives Association of California
Health Access California
The Campaign for Tobacco-Free Kids
Shasta County Tobacco Education Coalition
University of Southern California, Trojans Athletic Compliance
UCSF Benioff Children's Hospital Oakland
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Opposition
There is no opposition on file.
Analysis Prepared by:Dana Mitchell / A.,E.,S.,T., & I.M. / (916)
319-3450