BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 768


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          Date of Hearing:   April 27, 2015


                   ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION


                                  Adam Gray, Chair


          AB 768  
          Thurmond - As Amended April 6, 2015


          SUBJECT:  Tobacco Free Baseball Act


          SUMMARY:  Prohibits the use of tobacco products, as defined,  
          including smokeless tobacco, in a baseball stadium, which  
          includes the physical area in which a professional, collegiate,  
          high school, or other organized baseball game or practice is  
          occurring, as specified.  Specifically, this bill:  


          1)  Provides a person shall not use a tobacco product at any  
          time at a baseball stadium.





          2)  Defines "Baseball stadium" as 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.









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          3)  Defines "Organized baseball" as baseball games played in  
          connection with an established league or other association of  
          persons.





          4)  Defines "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.





          5)  "Tobacco product" includes all of the following:





             a)   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 not limited to,  
               cigarettes, cigars, little cigars, chewing tobacco, pipe  
               tobacco, and snuff.



             b)   An electronic device that delivers nicotine or other  
               substances to the person inhaling from the device,  








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               including, but not limited to, an electronic cigarette,  
               cigar, pipe, or hookah.



             c)   A component, part, or accessory of a tobacco product,  
               whether or not sold separately.



             d)   "Tobacco product" does not include a 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.








          6)  Requires a baseball stadium to have posted at every entrance  
          a conspicuous sign clearly communicating that the use of tobacco  
          products, including smokeless tobacco, is prohibited. 


          7)  Provides that, if any provision or its application is held  
          invalid, that invalidity shall not affect other provisions or  
          applications that can be given effect without the invalid  
          provision or application.


          8)  Makes legislative findings and declarations.


          EXISTING LAW:  









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          1)  Prohibits the smoking of tobacco in every publicly owned  
          building open to the general public for the primary purpose of  
          exhibiting a motion picture, stage drama, music recital, or any  
          other performance, with the exception of any indoor sporting  
          event, except in designated areas.


          2)  Prohibits any person from smoking in any public workplace or  
          restaurant, inside a public building or within 20 feet of any  
          air intake door or window of any government building.


          3)  Defines "tobacco product" to mean any product containing  
          tobacco, as specified, including, but not limited to,  
          cigarettes, loose tobacco, cigars, snuff, chewing tobacco, or  
          any other preparation of tobacco.


          4)  Defines an electronic cigarette as a device that can provide  
          an inhalable dose of nicotine by delivering an inhalable  
          solution. 





          FISCAL EFFECT:  Unknown


          COMMENTS:  


           Background  :  Since 1994, California has banned smoking in most  
          workplaces.  Current law prohibits public employees and members  
          of the public from smoking inside a public building or within 20  
          feet of any door, window, or air intake of any government  
          building within the state.  In addition, it is an infraction for  
          a person to smoke within 25 feet of a playground or for a person  








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          to smoke in presence of a minor in a vehicle.  


                     


          In 2006, the State of California Air Resources Board identified  
          second hand smoke as a Toxic Air Contaminant, meaning that  
          secondhand smoke is now identified as an airborne toxic  
          substance that may cause death or serious illness.  The United  
          States Environmental Protection Agency has classified secondhand  
          smoke as a group A carcinogen, the most dangerous class of  
          carcinogen. According the Centers for Disease control and  
          Prevention (CDC), secondhand smoke is responsible for an  
          estimated 49,400 deaths among nonsmokers each year in the United  
          States, which includes 3,400 lung cancer deaths and 46,000  
          deaths due to heart disease. 





          In addition, studies have shown that secondhand smoke can be  
          especially harmful to children because children breathe in more  
          air than adults.  This means that their bodies are exposed to  
          more harmful chemicals from secondhand smoke.  According to a  
          1997 study by the California Environmental Protection Agency,  
          effects on children from secondhand smoke causes an estimated  
          120 child deaths per year from sudden infant death syndrome.





           Purpose of the bill  :  According to the author, this measure  
          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  








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          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. In addition,  
          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.  This  
          measure 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."


           In support  :  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  
          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."





          The American Heart Association sates, "Smokeless tobacco use is  








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          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 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.  This bill 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."


          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." 





           More Background  :









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          1)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  
                 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  








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               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  
               ballparks 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 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. However,  
          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  








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          contests for infractions."








           This issue is part of an existing collective bargaining  
          agreement between MLB and the Player's Union (Major League  
          Baseball Players Association)  :  As stated in the above-mentioned  
          MLB press release, smokeless tobacco use by baseball players is  
          an issue that 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.


           Smoking Policies at Major League Baseball Stadiums in  
          California  :  


          Los Angeles Angels - Angel Stadium: Smoking is not permitted in  
          the seating areas, suites, concourses, and restrooms.  Smoking  
          is allowed in designated areas such as the ramps and the Plaza  
          Courtyard area.  Electronic cigarettes are subject to the same  
          restrictions. 


          Los Angeles Dodgers - Dodger Stadium: Dodger Stadium is a  
          smoke-free facility with designated smoking areas.  Electronic  
          cigarettes are subject to the same restrictions.








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          Oakland Athletics - O.co Coliseum:  In accordance with the City  
          of Oakland's smoking ordinance, Section 8.30.40, all A's events  
          are smoke-free.  Violators of this policy are subject to  
          ejection and/or citation. There are no designated smoking areas  
          anywhere in the stadium.  Electronic Cigarettes are not  
          permitted.


          San Diego Padres - Petco Park: The stadium is a smoke-free  
          facility.  Guests who use standard or electronic smoking devices  
          at a Petco Park event are required to utilize the designated  
          locations outside the ballpark. 


          San Francisco Giants - AT&T Park:  In accordance with San  
          Francisco City Ordinance, AT&T Park is a smoke free facility  
          with no smoking areas.  Smoking is not permitted anywhere in the  
          ballpark.  Electronic smoking and any other vaporized smoking is  
          not permitted anywhere inside AT&T Park. 


           Committee comments  :  


          The scope of proposed ban extends far beyond stated goals:  The  
          scope of AB 768 covers all organized baseball from 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 MLB players from setting a  
          poor example of personal behavior for California youth. 


           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  








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          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, 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.  


           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.   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.  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 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. 


           Related legislation  :  SB 69 of 2015 (Leno), would recast and  








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          broaden the definition of "tobacco product" in current law to  
          include electronic cigarettes as specified; extends current  
          restrictions and prohibitions against the use of tobacco  
          products to electronic cigarettes; and,  extends current  
          licensing requirements for manufacturers, importers,  
          distributors, wholesalers, and retailers of tobacco products to  
          electronic cigarettes.  SB 69 passed the Senate Health Committee  
          on April 8, 2015.





          SB 24 (Hill) of 2015, would extend Stop Tobacco Access to Kids  
          Enforcement Act requirements to the sale of electronic  
          cigarettes (e-cigs), distinct from the definition of tobacco  
          products, and requires enforcement, as specified, to begin July  
          1, 2016; 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, as  
          specified; and requires all retailers of e-cigs to apply for  
          licensure to sell e-cigs, as specified.  SB 24 passed the Senate  
          Health Committee on April 15, 2015.


           


          SB 151 (Hernandez) of 2015, would raise the legal age to  
          purchase tobacco products to 21.  SB 151 passed the Senate  
          Health Committee on April 8, 2015.


           


          AB 48 (Stone) of 2015, would prohibit a person or entity from  
          selling, giving, or in any way furnishing to another person of  
          any age in this state a cigarette utilizing a single-use filter  








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          made of any material, including cellulose acetate.


           


          Prior legislation  : AB 1819 (Hall), Chapter 459, Statutes of  
          2014.  Extends the existing prohibition against tobacco smoking  
          in a private residence that is licensed as a family day care  
          home to outside the hours of operation of the home.





          SB 648 (Corbett), 2013-2014 Legislative Session.  Would have  
          prohibited the offer, sale, or distribution of electronic  
          cigarettes (e-cigarettes) from a vending machine or other coin  
          or token operated mechanical device or appliance, unless that  
          machine or appliance is located on a premises issued an on-sale  
          public license to sell alcoholic beverages and is at least 15  
          feet from the entrance to that premises. (Failed Passage in  
          Assembly Appropriations Committee).





          AB 1500 (Dickinson), 2013-2014 Legislative Session.  Would have  
          prohibited a seller that delivers products via shipping or  
          mailing from selling or delivering an electronic cigarette  
          (e-cigarette) to a person under 18 years of age.  (Failed  
          Passage in Assembly Appropriations Committee).





          AB 352 (Hall), Chapter 291, Statutes of 2013.  Prohibited the  








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          smoking of tobacco products in foster care homes.





          SB 332 (Padilla), Chapter 264, Statutes of 2011.  Codified a  
          landlord's right to prohibit smoking on their properties.





          SB 882 (Corbett), Chapter 310, Statutes of 2010.  The bill made  
          it unlawful, to the extent not preempted by federal law, for a  
                                                 person to sell or otherwise furnish an e-cigarette to a person  
          under 18 years of age. 





          SB 400 (Corbett), 2009-2010 Legislative Session.  The bill would  
          have defined e-cigarettes as drugs under state law, making them  
          subject to the Sherman Food, Drug, and Cosmetic Law, and would  
          have allowed the Department of Public Health (DPH) to halt the  
          sale, distribution, or offering of e-cigarettes as part of its  
          enforcement of the STAKE Act.  (Vetoed by the Governor)





          SB 1766 (Ortiz), Chapter 686, Statutes of 2002.  The bill  
          requires that all sales of cigarettes in the State be  
          vendor-assisted, face-to-face sales unless the seller receives  
          valid identification, that the purchaser is over 18, the product  
          is shipped to the address provided on the identification, the  
          sales is at least for two cartons, and the seller either  








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          provides the State Board of Equalization with all taxes due on  
          the sale or includes with the shipment a notice that the  
          purchaser is  


          responsible for state taxes.  





          AB 1830 (Frommer), Chapter 685, Statutes of 2002.  The bill  
          prohibits the sales of tobacco products to minors through the  
          United States Postal Service or through any other public or  
          private postal or package delivery service, and imposes  
          specified age-verification requirements on tobacco product  
          sellers or distributors.





          SB 1927 (Hayden), Chapter 1009, Statutes of 1994.  The bill  
          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.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          American Academy of Pediatrics, California









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          American Cancer Society Cancer Action Network


          American College of Emergency Physicians


          American Heart Association


          American Lung Association


          American Stroke Association


          Berkeley City Council


          CA Dental Hygienists' Association


          California Academy of Family Physicians


          California Black Health Network


          California Children's Hospital Association


          California Dental Association


          California Medical Association


          Campaign for Tobacco-Free Kids









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          Children's Defense Fund - California


          Health Access California


          Medical Oncology Association of Southern California, Inc.


          UCSF Benioff Children's Hospital


          University of Southern California




          Opposition


          None on file




          Analysis Prepared by:Eric Johnson / G.O. / (916) 319-2531




















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