BILL ANALYSIS Ó AB 768 Page 1 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. AB 768 Page 2 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, AB 768 Page 3 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: AB 768 Page 4 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 AB 768 Page 5 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 AB 768 Page 6 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 AB 768 Page 7 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 : AB 768 Page 8 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 AB 768 Page 9 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 AB 768 Page 10 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. AB 768 Page 11 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 AB 768 Page 12 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 AB 768 Page 13 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 AB 768 Page 14 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 AB 768 Page 15 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 AB 768 Page 16 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 AB 768 Page 17 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 AB 768 Page 18 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 AB 768 Page 19