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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