SB 24, as introduced, Hill. STAKE Act: electronic cigarettes.
Existing law, the Stop Tobacco Access to Kids Enforcement Act (STAKE Act), establishes various requirements for distributors and retailers relating to tobacco sales to minors. Existing law makes it a crime, punishable by a fine not to exceed $500 or by imprisonment not exceeding 30 days in a county jail, to fail to post a notice, at each point of purchase, stating that the sale of tobacco products to minors is illegal. Existing law also permits enforcing agencies to assess various civil penalties for violations of the STAKE Act.
Existing law prohibits a person from selling or otherwise furnishing an electronic cigarette to minors, and makes a violation punishable as an infraction.
Existing law, the Cigarette and Tobacco Products Licensing Act, requires the State Board of Equalization to administer a statewide program to license manufacturers, importers, distributors, wholesalers, and retailers of cigarettes and tobacco products. Existing law makes a violation of the Cigarette and Tobacco Products Licensing Act a misdemeanor punishable by a fine not to exceed $5,000, by imprisonment not exceeding one year in a county jail, or by both the fine and imprisonment. Existing law also permits the State Board of Equalization to assess various civil penalties for violations of the Cigarette and Tobacco Products Licensing Act.
This bill would extend the STAKE Act to sales of electronic cigarettes to minors. The bill would require the State Department of Public Health to enforce the STAKE Act’s provisions with regard to sales of electronic cigarettes commencing July 1, 2016.
The bill would provide that the STAKE Act does not invalidate existing local government ordinances regulating the distribution or sale of cigarettes, electronic cigarettes, or tobacco products, or prohibit local goverments from adopting ordinances regulating the distribution or sale of cigarettes, electronic cigarettes, or tobacco products that are more restrictive than state law.
The bill would require that retailers apply for a license to sell electronic cigarettes commencing April 15, 2016, and to display the license at each retail location commencing June 30, 2016. The bill would require the State Board of Equalization to administer a statewide program to license retailers of electronic cigarettes.
The bill would make the failure to post a notice, on and after July 1, 2016, at each point of purchase, stating that the sale of electronic cigarettes to minors is illegal, a crime. The bill would also make retailers of electronic cigarettes subject to various civil and criminal penalties if they fail to comply with licensing requirements. By expanding the scope of existing crimes, the bill would impose a state-mandated local program.
The bill would require that cartridges for electronic cigarettes and solutions for filling electronic cigarettes be in child-proof packaging to protect children from opening and ingesting the contents.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 22950.1 is added to the Business and
2Professions Code, to read:
Nothing in this division nor any other law shall be
2construed to invalidate an existing ordinance of, or prohibit the
3adoption of an ordinance by, a city or county that regulates the
4distribution or sale of cigarettes, electronic cigarettes, or tobacco
5products in a manner that is more restrictive than this division, to
6the extent that the ordinance is not otherwise prohibited by federal
Section 22950.5 of the Business and Professions Code
9 is amended to read:
For purposes of this division, the following terms
11have the following meanings:
12(a) “Department” means the State Department of Public Health.
13(b) “Enforcing agency” means the State Department of Public
14Health, another state agency, including, but not limited to, the
15office of the Attorney General, or a local law enforcement agency,
16including, but not limited to, a city attorney, district attorney, or
Section 22951 of the Business and Professions Code
25 is amended to read:
The Legislature finds and declares that reducing and
27eventually eliminating the illegal purchase and consumption of
28tobacco products by minors is critical to
29ensuring the long-term health of our state’s citizens. Accordingly,
30California must fully comply with federal regulations, particularly
31the “Synar Amendment,” that restrict tobacco sales to minors and
32require states to vigorously enforce their laws prohibiting the sale
33and distribution of tobacco products to persons under 18 years of
34age. Full compliance and vigorous enforcement of the “Synar
35Amendment” requires the collaboration of multiple state and local
36agencies that license, inspect, or otherwise conduct business with
37 retailers, distributors, or wholesalers that sell tobacco.
Section 22952 of the Business and Professions Code
39 is amended to read:
begin deleteOn or before July 1, 1995, the end deleteState Department
2of Public Health shall do all of the following:
3(a) Establish and develop a program to reduce the availability
4of tobacco products to persons under 18
5years of age through the enforcement activities authorized by this
7(b) Establish requirements that retailers of tobacco products post conspicuously, at each point of purchase,
9a notice stating that selling tobacco products to anyone under 18 years of age is illegal and subject
11to penalties. The notice shall also state that the law requires that
12all persons selling tobacco products check
13the identification of a purchaser of tobacco products who reasonably appears to be under 18 years of age.
15The warning signs shall include a toll-free telephone number to
16the department for persons to report unlawful sales of tobacco
17products to minors.
18(c) Provide that primary responsibility for enforcement of this
19division shall be with the department. In carrying out its
20enforcement responsibilities, the department shall conduct random,
21onsite sting inspections at retail sites and shall enlist the assistance
22of persons that are 15 and 16 years of age in conducting these
23enforcement activities. The department may conduct onsite sting
24inspections in response to public complaints or at retail sites where
25violations have previously occurred, and investigate illegal sales
26of tobacco products to minors by telephone,
27mail, or the Internet. Participation in these enforcement activities
28by a person under 18 years of age does not constitute a violation
29of subdivision (b) of Section 308 of the Penal Code for the person
30under 18 years of age, and the person under 18 years of age is
31immune from prosecution thereunder, or under any other provision
32of law prohibiting the purchase of these products by a person under
3318 years of age.
34(d) In accordance with Chapter 3.5 (commencing with Section
3511340) of Part 1 of Division 3 of Title 2 of the Government Code,
36the department shall adopt and publish guidelines for the use of
37persons under 18 years of age in inspections conducted pursuant
38to subdivision (c) that shall include, but not be limited to, all of
P5 1(1) An enforcing agency may use persons under 18 years of age
2who are 15 or 16 years of age in random inspections to determine
3if sales of cigarettes or other tobacco
4products are being made to persons under 18 years of age.
5(2) A photograph or video recording of the person under 18
6years of age shall be taken prior to each inspection or shift of
7inspections and retained by the enforcing agency for purposes of
9(3) An enforcing agency may use video recording equipment
10when conducting the inspections to record and document illegal
11sales or attempted sales.
12(4) The person under 18 years of age, if questioned about his
13or her age, need not state his or her actual age but shall present a
14true and correct identification if verbally asked to present it. Any
15failure on the part of the person under 18 years of age to provide
16true and correct identification, if verbally asked for it, shall be a
17defense to an action pursuant to this section.
18(5) The person under 18 years of age shall be under the
19supervision of a regularly employed peace officer during the
21(6) All persons under 18 years of age used in this manner by an
22enforcing agency shall display the appearance of a person under
2318 years of age. It shall be a defense to an action under this division
24that the person’s appearance was not that which could be generally
25expected of a person under 18 years of age, under the actual
26circumstances presented to the seller of the cigarettes or other tobacco products at the time of the alleged
29(7) Following the completion of the sale, the peace officer
30accompanying the person under 18 years of age shall reenter the
31 retail establishment and shall inform the seller of the random
32inspection. Following an attempted sale, the enforcing agency shall
33notify the retail establishment of the inspection.
34(8) Failure to comply with the procedures set forth in this
35subdivision shall be a defense to an action brought pursuant to this
37(e) Be responsible for ensuring and reporting the state’s
38compliance with Section 1926 of Title XIX of the federal Public
39Health Service Act (42 U.S.C. Sec. 300x-26) and any implementing
40regulations adopted in relation thereto by the United States
P6 1Department of Health and Human Services. A copy of this report
2shall be made available to the Governor and the Legislature.
3(f) Provide that any civil penalties imposed pursuant to Section
422958 shall be enforced against the owner or owners of the retail
5 business and not the employees of the business.
Section 22956 of the Business and Professions Code
9 is amended to read:
All persons engaging in the retail sale of tobacco
11products shall check the identification of
begin delete tobaccoend delete purchasers, to establish the age of the
13purchaser, if the purchaser reasonably appears to be under 18 years
Section 22958 of the Business and Professions Code
16 is amended to read:
(a) An enforcing agency may assess civil penalties
18against any person, firm, or corporation that sells, gives, or in any
19way furnishes to another person who is under the age of 18 years,
20any tobacco, cigarette, cigarette papers, any
21other instrument or paraphernalia that is designed for the smoking
22or ingestion of tobacco, products prepared from tobacco, or any
23controlled substance, according to the following schedule: (1) a
24civil penalty of from four hundred dollars ($400) to six hundred
25dollars ($600) for the first violation, (2) a civil penalty of from
26nine hundred dollars ($900) to one thousand dollars ($1,000) for
27the second violation within a five-year period, (3) a civil penalty
28of from one thousand two hundred dollars ($1,200) to one thousand
29eight hundred dollars ($1,800) for a third violation within a
30five-year period, (4) a civil penalty of from three thousand dollars
31($3,000) to four thousand dollars ($4,000) for a fourth violation
32within a five-year period, or (5) a civil penalty of from five
33thousand dollars ($5,000) to six thousand dollars ($6,000) for a
34fifth violation within a five-year period.
35(b) (1) In addition to the civil penalties described in subdivision
36(a), upon the assessment of a civil penalty for the third, fourth, or
37fifth violation, the department, within 60 days of the date of service
38of the final administrative adjudication on the parties or payment
39of the civil penalty for an uncontested violation, shall notify the
40State Board of Equalization of the violation. The State Board of
P7 1Equalization shall then assess a civil penalty of two hundred fifty
2dollars ($250) and suspend or revoke a license issued pursuant to
3Chapter 2 (commencing with Section 22972) of Division 8.6 in
4accordance with the following schedule:
5(A) A 45-day suspension of the license for a third violation at
6the same location within a five-year period.
7(B) A 90-day suspension of the license for a fourth violation at
8the same location within a five-year period.
9(C) Revocation of the license for a fifth violation at the same
10location within a five-year period.
11(2) The provisions of Chapter 4 (commencing with Section
1255121) of Part 30 of Division 2 of the Revenue and Taxation Code
13apply with respect to the collection of the penalty imposed by the
14State Board of Equalization pursuant to paragraph (1).
15(c) (1) For each suspension or revocation pursuant to
16subdivision (b), the civil penalty of two hundred fifty dollars ($250)
17assessed pursuant to that subdivision, notwithstanding Section
1822953, shall be deposited into the Cigarette and Tobacco Products
19Compliance Fund established pursuant to Section 22990. Moneys
20from that civil penalty deposited into this fund shall be made
21available to the State Board of Equalization, upon appropriation
22by the Legislature, for the purposes of meeting its duties under
24(2) The department shall, upon request, provide to the State
25Board of Equalization information concerning any person, firm,
26or corporation that has been assessed a civil penalty for violation
27of the STAKE Act pursuant to this section when the department
28has notified the State Board of Equalization of the violation.
enforcing agency shall assess penalties pursuant to the
30schedule set forth in subdivision (a) against a person, firm, or
31corporation that sells, offers for sale, or distributes tobacco products
32 from a cigarette or tobacco products
33vending machine, or a person, firm, or corporation that leases,
34furnishes, or services these machines in violation of Section 22960.
35(e) An enforcing agency may assess civil penalties against a
36person, firm, or corporation that sells or deals in tobacco or any
37preparation thereof, and fails to post conspicuously and keep posted
38in the place of business at each point of purchase the notice
39required pursuant to subdivision (b) of Section 22952. The civil
40penalty shall be in the amount of two hundred dollars ($200) for
P8 1the first offense and five hundred dollars ($500) for each additional
3(f) An enforcing agency shall assess penalties in accordance
4with the schedule set forth in subdivision (a) against a person, firm,
5or corporation that advertises or causes to be advertised a tobacco
6product on an outdoor billboard in violation
7of Section 22961.
8(g) If a civil penalty has been assessed pursuant to this section
9against a person, firm, or corporation for a single, specific violation
10of this division, the person, firm, or corporation shall not be
11prosecuted under Section 308 of the Penal Code for a violation
12based on the same facts or specific incident for which the civil
13penalty was assessed. If a person, firm, or corporation has been
14prosecuted for a single, specific violation of Section 308 of the
15Penal Code, the person, firm, or corporation shall not be assessed
16a civil penalty under this section based on the same facts or specific
17incident upon which the prosecution under Section 308 of the Penal
18Code was based.
19(h) (1) In the case of a corporation or business with more than
20one retail location, to determine the number of accumulated
21violations for purposes of the penalty schedule set forth in
22subdivision (a), violations of this division by one retail location
23shall not be accumulated against other retail locations of that same
24corporation or business.
25(2) In the case of a retail location that operates pursuant to a
26franchise as defined in Section 20001, violations of this division
27accumulated and assessed against a prior owner of a single
28franchise location shall not be accumulated against a new owner
29of the same single franchise location for purposes of the penalty
30schedule set forth in subdivision (a).
31(i) Proceedings under this section shall be conducted pursuant
32to Section 131071 of the Health and Safety Code, except in cases
33where a civil penalty is assessed by an enforcing agency other than
34the department, in which case proceedings shall be conducted
35pursuant to the procedures of that agency that are consistent with
36Section 131071 of the Health and Safety Code.
Section 22960 of the Business and Professions Code
38 is amended to read:
(a) Except as provided in subdivision (b),
begin delete noend delete cigarette or tobacco product shall be sold, offered
P9 1for sale, or distributed from a vending machine or appliance, or
2any other coin or token operated mechanical device designed or
3used for vending purposes, including, but not limited to, machines
4or devices that use remote control locking mechanisms.
begin deleteCommencing January 1, 1996, cigarette end delete or tobacco product vending machines or
7appliances may be located at least 15 feet away from the entrance
8of a premise issued an on-sale public premises license as defined
9in Section 23039 by the Department of Alcoholic Beverage Control
10to sell alcoholic beverages.
11(2) As used in this subdivision “at least 15 feet away from the
12entrance” means within the premises of the licensed establishment
13and not outside those premises.
14(c) This section and subdivision (b) of Section 22958 set forth
15minimum state restrictions on the sale of cigarettes or tobacco products from vending machines or devices
17and do not preempt or otherwise prohibit the adoption of a local
18standard that further restricts access to and reduces the availability
19of cigarette or tobacco products from
20vending machines or devices or that imposes a complete ban on
21the sale of cigarettes or tobacco products from vending machines
22or devices. A local standard that further restricts or imposes a
23complete ban on the sale of cigarettes or
24tobacco products from vending machines or devices shall control
25in the event of an inconsistency between this section and a local
Section 22961 of the Business and Professions Code
30 is amended to read:
(a) No person, firm, corporation, partnership, or other
32organization shall advertise or cause to be advertised any tobacco
33products on any outdoor billboard located
34within 1,000 feet of any public or private elementary school, junior
35high school, or high school, or public playground.
36(b) This section sets forth minimum state restrictions on the
37advertisement of any tobacco products on
38outdoor billboards near schools and public playgrounds and does
39not preempt or otherwise prohibit the adoption of a local standard
40that imposes a more restrictive or complete ban on billboard
P10 1advertising or on tobacco-related billboard advertising. A local
2standard that imposes a more restrictive or complete ban on
3billboard advertising or on tobacco-related billboard advertising
4shall control in the event of any inconsistency between this section
5and a local standard.
6(c) This section shall not be construed to prohibit the display
7of a message or advertisement opposing the use of tobacco products
8. However, this subdivision shall not be
9construed to permit an advertisement promoting the use of tobacco
10products by including a message opposing
11the use of tobacco products within that
Section 22962 of the Business and Professions Code
14 is amended to read:
(a) For purposes of this section, the following terms
16have the following meanings:
17(1) “Self-service display” means the open display of tobacco products or tobacco paraphernalia in a manner
19that is accessible to the general public without the assistance of
20the retailer or employee of the retailer.
21(2) “Tobacco paraphernalia” means cigarette papers or wrappers,
22blunt wraps as defined in Section 308 of the Penal Code, pipes,
23 holders of smoking materials of all types, cigarette rolling
24machines, or other instruments or things designed for the smoking
25or ingestion of tobacco products.
26(3) “Tobacco product” means any product containing tobacco
27leaf, including, but not limited to, cigarettes, cigars, pipe tobacco,
28snuff, chewing tobacco, dipping tobacco, bidis, or any other
29preparation of tobacco.
31 “Tobacco store” means a retail business that meets all of the
33(A) Primarily sells tobacco products.
34(B) Generates more than 60 percent of its gross revenues
35annually from the sale of tobacco
begin delete productsend delete
36 and tobacco paraphernalia.
37(C) Does not permit any person under 18 years of age to be
38present or enter the premises at any time, unless accompanied by
39the person’s parent or legal guardian, as defined in Section 6903
40of the Family Code.
P11 1(D) Does not sell alcoholic beverages or food for consumption
2on the premises.
3(b) (1) (A) Except as permitted in subdivision (b) of Section
422960, it is unlawful for a person engaged in the retail sale of
5tobacco products to sell, offer for sale, or
6display for sale any tobacco
begin delete productend delete
7 or tobacco paraphernalia by self-service display. A person who
8violates this section is subject to those civil penalties specified in
9the schedule in subdivision (a) of Section 22958.
10(B) A person who violates this section is subject to those civil
11penalties specified in the schedule in subdivision (a) of Section
13(2) It is unlawful for a person engaged in the retail sale of blunt
14wraps to place or maintain, or to cause to be placed or maintained,
15any blunt wraps advertising display within two feet of candy,
16snack, or nonalcoholic beverage displayed inside any store or
18(3) It is unlawful for any person or business to place or maintain,
19or cause to be placed or maintained, any blunt wrap advertising
20display that is less than four feet above the floor.
21(c) Subdivision (b) shall not apply to the display in a tobacco
22store of cigars, pipe tobacco, snuff, chewing tobacco, or dipping
23tobacco, provided that in the case of cigars they are generally not
24sold or offered for sale in a sealed package of the manufacturer or
25importer containing less than six cigars. In any enforcement action
26brought pursuant to this division, the retail business that displays
27any of the items described in this subdivision in a self-service
28display shall have the burden of proving that it qualifies for the
29exemption established in this subdivision.
30(d) The Attorney General, a city attorney, a county counsel, or
31a district attorney may bring a civil action to enforce this section.
32(e) This section does not preempt or otherwise prohibit the
33adoption of a local standard that imposes greater restrictions on
34the access to tobacco products than the
35restrictions imposed by this section. To the extent that there is an
36inconsistency between this section and a local standard that
37imposes greater restrictions on the access to tobacco products, the greater restriction on the access to tobacco
39products in the local standard shall prevail.
Section 22963 of the Business and Professions Code
2 is amended to read:
(a) The sale, distribution, or nonsale distribution of
4tobacco products directly or indirectly to
5any person under the age of 18 years through the United States
6Postal Service or through any other public or private postal or
7package delivery service at locations, including, but not limited
8to, public mailboxes and mailbox stores, is prohibited.
9(b) Any person selling or distributing, or engaging in the nonsale
10distribution of, tobacco products directly
11to a consumer in the state through the United States Postal Service
12or by any other public or private postal or package delivery service,
13including orders placed by mail, telephone, facsimile transmission,
14or the Internet, shall comply with the following provisions:
15(1) (A) Before enrolling a person as a customer, or distributing
16or selling, or engaging in the nonsale distribution of, the tobacco
17product through any of these means, the
18distributor or seller shall verify that the purchaser or recipient of
19the product is 18 years of age or older. The distributor or seller
20shall attempt to match the name, address, and date of birth provided
21by the customer to information contained in records in a database
22of individuals whose age has been verified to be 18 years or older
23by reference to an appropriate database of government records
24kept by the distributor, a direct marketing firm, or any other entity.
25In the case of a sale, the distributor or seller shall also verify that
26the billing address on the check or credit card offered for payment
27by the purchaser matches the address listed in the database.
28(B) If the seller, distributor, or nonsale distributor, is unable to
29verify that the purchaser or recipient is 18 years of age or older
30pursuant to subparagraph (A), he or she shall require the customer
31or recipient to submit an age-verification kit consisting of an
32attestation signed by the customer or recipient that he or she is 18
33years of age or older and a copy of a valid form of government
34identification. For the purposes of this section, a valid form of
35government identification includes a driver’s license, state
36identification card, passport, an official naturalization or
37immigration document, such as an alien registration receipt card
38 (commonly known as a “green card”) or an immigrant visa, or
39military identification. In the case of a sale, the distributor or seller
40shall also verify that the billing address on the check or credit card
P13 1provided by the consumer matches the address listed in the form
2of government identification.
3(2) In the case of a sale, the distributor or seller shall impose a
4two-carton minimum on each order of cigarettes, and shall require
5payment for the purchase of any tobacco product to be made by personal check of the purchaser or the
7purchaser’s credit card. No money order or cash payment shall be
8received or permitted. The distributor or seller shall submit to each
9credit card acquiring company with which it has credit card sales
10identification information in an appropriate form and format so
11that the words “tobacco product” may
12be printed in the purchaser’s credit card statement when a purchase
13of a tobacco product is made by credit card
15(3) In the case of a sale, the distributor or seller shall make a
16telephone call after 5 p.m. to the purchaser confirming the order
17prior to shipping the tobacco products.
18The telephone call may be a person-to-person call or a recorded
19message. The distributor or seller is not required to speak directly
20with a person and may leave a message on an answering machine
21or by voice mail.
22(4) The nonsale distributor shall deliver the tobacco product to the recipient’s verified mailing address, or
24in the case of a sale, the seller or distributor shall deliver the
25tobacco product to the purchaser’s verified
26billing address on the check or credit card used for payment. No
27delivery described under this section shall be permitted to any post
29(c) Notwithstanding subdivisions (a) and (b), if a seller,
30distributor, or nonsale distributor, complies with all of the
31requirements of this section and a minor obtains a tobacco product
32 by any of the means described in subdivision
33(b), the seller, distributor, or nonsale distributor is not in violation
34of this section.
35(d) For the purposes of the enforcement of this section pursuant
36to Section 22958, the acts of the United States Postal Service or
37other common carrier when engaged in the business of transporting
38and delivering packages for others, and the acts of a person,
39whether compensated or not, who transports or delivers a package
P14 1for another person without any reason to know of the package’s
2contents, are not unlawful and are not subject to civil penalties.
3(e) (1) (A) For the purposes of this section, a “distributor” is
4any person or entity, within or outside the state, who agrees to
5distribute tobacco products to a customer
6or recipient within the state. The United States Postal Service or
7any other public or private postal or package delivery service are
8not distributors within the meaning of this section.
9(B) A “nonsale distributor” is any person inside or outside of
10this state who, directly or indirectly, knowingly provides tobacco
11products to any person in this state as part
12of a nonsale transaction. “Nonsale distributor” includes the person
13or entity who provides the tobacco product
14 for delivery and the person or entity who delivers the product to
15the recipient as part of a nonsale transaction.
16(C) “Nonsale distribution” means to give
begin delete tobaccoend delete or cigarettes to the general public at
18no cost, or at nominal cost, or to give coupons, coupon offers, gift
19certificates, gift cards, or other similar offers, or rebate offers for
begin delete tobaccoend delete or cigarettes to
21the general public at no cost or at nominal cost. Distribution of
22 tobacco products, coupons, coupon offers,
23gift certificates, gift cards, or other similar offers, or rebate offers
24in connection with the sale of another item, including tobacco products, cigarette lighters, magazines, or
26newspapers shall not constitute nonsale distribution.
27(2) For the purpose of this section, a “seller” is any person or
28entity, within or outside the state, who agrees to sell tobacco
29products to a customer within the state.
30The United States Postal Service or any other public or private
31postal or package delivery service are not sellers within the
32meaning of this section.
33(3) For the purpose of this section, a “carton” is a package or
34container that contains 200 cigarettes.
35(f) A district attorney, city attorney, or the Attorney General
36may assess civil penalties against any person, firm, corporation,
37or other entity that violates this section, according to the following
P15 1(1) A civil penalty of not less than one thousand dollars ($1,000)
2and not more than two thousand dollars ($2,000) for the first
4(2) A civil penalty of not less than two thousand five hundred
5dollars ($2,500) and not more than three thousand five hundred
6dollars ($3,500) for the second violation.
7(3) A civil penalty of not less than four thousand dollars ($4,000)
8and not more than five thousand dollars ($5,000) for the third
9violation within a five-year period.
10(4) A civil penalty of not less than five thousand five hundred
11dollars ($5,500) and not more than six thousand five hundred
12dollars ($6,500) for the fourth violation within a five-year period.
13(5) A civil penalty of ten thousand dollars ($10,000) for a fifth
14or subsequent violation within a five-year period.
Section 22970.2 of the Business and Professions
16Code is amended to read:
The board shall administer a statewide program to
18license manufacturers, importers, distributors, wholesalers, and
19retailers of cigarettes and tobacco products.
Section 22971 of the Business and Professions Code
22 is amended to read:
For purposes of this division, the following terms shall
24have the following meanings:
25(a) “Board” means the State Board of Equalization.
26(b) “Brand family” has the same meaning as that term is defined
27in paragraph (2) of subdivision (a) of Section 30165.1 of the
28Revenue and Taxation Code.
29(c) “Cigarette” means a cigarette as defined in Section
3030003 of the Revenue and Taxation Code.
33(d) (1) “Control” or “controlling” means possession, direct or
34indirect, of the power:
35(A) To vote 25 percent or more of any class of the voting
36securities issued by a person.
37(B) To direct or cause the direction of the management and
38policies of a person, whether through the ownership of voting
39securities, by contract, other than a commercial contract for goods
40or nonmanagement services, or as otherwise provided; however,
P16 1no individual shall be deemed to control a person solely on account
2of being a director, officer, or employee of that person.
3(2) For purposes of subparagraph (B) of paragraph (1), a person
4who, directly or indirectly, owns, controls, holds, with the power
5to vote, or holds proxies representing 10 percent or more of the
6then outstanding voting securities issued by another person, is
7presumed to control that other person.
8(3) For purposes of this division, the board may determine
9whether a person in fact controls another person.
10(e) “Display for sale” means the placement of cigarettes or tobacco products in a vending machine
12or in retail stock for the purpose of selling or gifting the cigarettes or tobacco products. For purposes of this
14definition, the clear and easily visible display of cigarettes or tobacco products shall create a rebuttable
begin delete eitherend delete were displayed for sale.
17(f) “Distributor” means a distributor as defined in Section 30011
18of the Revenue and Taxation Code.
19(g) “Gifting” means any transfer of title or possession without
20consideration, exchange, or barter, in any manner or by any means,
21of cigarettes or tobacco products that have
22been purchased for resale under a license issued pursuant to this
23division if the transfer occurs while the license is suspended or
24after the effective date of its revocation.
25(h) “Importer” means an importer as defined in Section 30019
26of the Revenue and Taxation Code.
enforcement agency” means a sheriff, a police
28department, or a city, county, or city and county agency or
29department designated by the governing body of that agency to
30enforce this chapter or to enforce local smoking and tobacco
31ordinances and regulations.
32(j) “License” means a license issued by the board pursuant to
34(k) “Licensee” means any person holding a license issued by
35the board pursuant to this division.
36(l) “Manufacturer” means a manufacturer of cigarettes or tobacco products sold in this state.
38(m) “Notice” or “notification” means, unless as otherwise
39provided, the written notice or notification provided to a licensee
40by the board by either actual delivery to the licensee or by
P17 1first-class mail addressed to the licensee at the address on the
3(n) “Package of cigarettes” means a package as defined in
4Section 30015 of the Revenue and Taxation Code.
5(o) “Person” means a person as defined in Section 30010 of the
6Revenue and Taxation Code.
7(p) “Retailer” means a person who engages in this state in the
8sale of cigarettes or tobacco products directly
9to the public from a retail location. Retailer includes a person who
10operates vending machines from which cigarettes or tobacco products are sold in this state.
12(q) “Retail location” means both of the following:
13(1) Any building from which cigarettes
14 or tobacco products are sold at retail.
15(2) A vending machine.
16(r) “Sale” or “sold” means a sale as defined in Section 30006
17of the Revenue and Taxation Code.
18(s) “Tobacco products” means tobacco products as defined in
19subdivision (b) of Section 30121 and subdivision (b) of Section
2030131.1 of the Revenue and Taxation Code.
21(t) “Unstamped package of
cigarettes” means a package of
22cigarettes that does not bear a tax stamp as required under Part 13
23(commencing with Section 30001) of Division 2 of the Revenue
24and Taxation Code, including a package of cigarettes that bears a
25tax stamp of another state or taxing jurisdiction, a package of
26cigarettes that bears a counterfeit tax stamp, or a stamped or
27unstamped package of cigarettes that is marked “Not for sale in
28the United States.”
29(u) “Wholesaler” means a wholesaler as defined in Section
3030016 of the Revenue and Taxation Code.
Section 22972 of the Business and Professions Code
32 is amended to read:
begin deleteCommencing June 30, 2004, a end deleteretailer shall have
34in place and maintain a license to engage in the sale of cigarettes or tobacco products. A retailer that owns or
36controls more than one retail location shall obtain a separate license
37for each retail location, but may submit a single application for
39(b) The retailer shall conspicuously display the license at each
40retail location in a manner visible to the public.
P18 1(c) A license is not assignable or transferable. A person who
2obtains a license as a retailer who ceases to do business as specified
3in the license, or who never commenced business, or whose license
4is suspended or revoked, shall immediately surrender the license
5to the board.
6(d) A license shall be valid for a 12-month period, and shall be
Section 22973 of the Business and Professions Code
11 is amended to read:
(a) An application for a license shall be filed
begin delete on or on a form prescribed by the board and shall
13before April 15, 2004,end delete
14include the following:
15(1) The name, address, and telephone number of the applicant.
16(2) The business name, address, and telephone number of each
17retail location. For applicants who control more than one retail
18location, an address for receipt of correspondence or notices from
19the board, such as a headquarters or corporate office of the retailer,
20shall also be included on the application and listed on the license.
21Citations issued to licensees shall be forwarded to all addressees
22on the license.
23(3) A statement by the applicant affirming that the applicant
24has not been convicted of a felony and has not violated and will
25not violate or cause or permit to be violated any of the provisions
26of this division or any rule of the board applicable to the applicant
27or pertaining to the manufacture, sale, or distribution of cigarettes or tobacco products. If the applicant is unable
29to affirm this statement, the application shall contain a statement
30by the applicant of the nature of any violation or the reasons that
31will prevent the applicant from complying with the requirements
32with respect to the statement.
33(4) If any other licenses or permits have been issued by the
34board or the Department of Alcoholic Beverage Control to the
35applicant, the license or permit number of those licenses or permits
36then in effect.
37(5) A statement by the applicant that the contents of the
38application are complete, true, and correct. Any person who signs
39a statement pursuant to this subdivision that asserts the truth of
40any material matter that he or she knows to be false is guilty of a
P19 1misdemeanor punishable by imprisonment of up to one year in the
2county jail, or a fine of not more than one thousand dollars
3($1,000), or both the imprisonment and the fine.
4(6) The signature of the applicant.
5(7) Any other information the board may require.
6(b) The board may investigate to determine the truthfulness and
7completeness of the information provided in the application. The
8board may issue a license without further investigation to an
9applicant for a retail location if the applicant holds a valid license
10from the Department of Alcoholic Beverage Control for that same
12(c) The board shall provide electronic means for applicants to
13download and submit applications.
14(d) (1) A one-time license fee of one hundred dollars ($100)
15shall be submitted with each application. An applicant that owns
16or controls more than one retail location shall obtain a separate
17license for each retail location, but may submit a single application
18for those licenses with a one-time license fee of one hundred dollars
19($100) per location.
20(2) The one-time fee required by this subdivision does not apply
21to an application for renewal of a license for a retail location for
22which the one-time license fee has already been paid. If a license
23is reinstated after its expiration, the retailer, as a condition
24precedent to its reinstatement, shall pay a reinstatement fee of one
25hundred dollars ($100).
Section 22974 of the Business and Professions Code
33 is amended to read:
A retailer shall retain purchase invoices that meet the
35requirements set forth in Section 22978.4 for all cigarettes or tobacco products the retailer purchased
37for a period of four years. The records shall be kept at the retail
38location for at least one year after the purchase. Invoices shall be
39made available upon request during normal business hours for
40review inspection and copying by the board or by a law
P20 1enforcement agency. Any retailer found in violation of these
2requirements or any person who fails, refuses, or neglects to retain
3or make available invoices for inspection and copying in
4accordance with this section shall be subject to penalties pursuant
5to Section 22981.
Section 22974.7 of the Business and Professions
7Code is amended to read:
In addition to any other civil or criminal penalty
9provided by law, upon a finding that a retailer has violated any
10provision of this division, the board may take the following actions:
11(a) In the case of the first offense, the board may revoke or
12suspend the license or licenses of the retailer pursuant to the
13procedures applicable to the revocation of a license set forth in
14Section 30148 of the Revenue and Taxation Code.
15(b) In the case of a second or any subsequent offense, in addition
16to the action authorized under subdivision (a), the board may
17impose a civil penalty in an amount not to exceed the greater of
18either of the following:
19(1) Five times the retail value of the seized cigarettes or tobacco products.
21(2) Five thousand dollars ($5,000).
Section 22980 of the Business and Professions Code
23 is amended to read:
(a) (1) Any peace officer, or board employee granted
25limited peace officer status pursuant to paragraph (6) of subdivision
26(a) of Section 830.11 of the Penal Code, upon presenting
27appropriate credentials, is authorized to enter any place as described
28in paragraph (3) and to conduct inspections in accordance with the
29following paragraphs, inclusive.
30(2) Inspections shall be performed in a reasonable manner and
31at times that are reasonable under the circumstances, taking into
32consideration the normal business hours of the place to be entered.
33(3) Inspections may be at any place at which cigarettes or tobacco products are sold, produced, or
35stored or at any site where evidence of activities involving evasion
36of cigarette or tobacco products tax and violations of Section
3730165.1 of the Revenue and Taxation Code may be discovered.
38(4) Inspections shall be requested or conducted no more than
39once in a 24-hour period.
P21 1(b) Any person that refuses to allow an inspection shall be
2subject to the penalties imposed pursuant to Section 22981.
Section 22980.1 of the Business and Professions
4Code is amended to read:
(a) No manufacturer or importer shall sell cigarettes or tobacco products to a distributor,
7wholesaler, retailer, or any other person who is not licensed
8pursuant to this division or whose license has been suspended or
10(b) (1) Except as provided in paragraph (2), no distributor or
11wholesaler shall sell cigarettes or tobacco
12products to a retailer, wholesaler, distributor, or any other person
13who is not licensed pursuant to this division or whose license has
14been suspended or revoked.
15(2) This subdivision does not apply to any sale of cigarettes or tobacco products by a distributor,
17wholesaler, or any other person to a retailer, wholesaler, distributor,
18or any other person that the state, pursuant to the United States
19Constitution, the laws of the United States, or the California
20Constitution, is prohibited from regulating.
21(c) No retailer, distributor, or wholesaler shall purchase packages
22of cigarettes or tobacco products from a manufacturer or importer
23who is not licensed pursuant to this division or whose license has
24been suspended or revoked.
25(d) (1) No retailer, or wholesaler shall purchase cigarettes or tobacco products from any person who is
27not licensed pursuant to this division or whose license has been
28suspended or revoked.
29(2) Notwithstanding subdivision (c), no distributor shall purchase
30cigarettes or tobacco products from any
31person who is required to be licensed pursuant to this division but
32who is not licensed or whose license has been suspended or
34(e) Each separate sale to, or by, a retailer, wholesaler, distributor,
35importer, manufacturer, or any other person who is not licensed
36pursuant to this division shall constitute a separate violation.
37(f) No manufacturer, distributor, wholesaler, or importer may
38sell cigarettes or tobacco products to any
39retailer or wholesaler whose license has been suspended or revoked
40unless all outstanding debts of that retailer or wholesaler that are
P22 1owed to a wholesaler or distributor for cigarettes or tobacco products are paid and the license of that
3retailer or wholesaler has been reinstated by the board. Any
4payment received from a retailer or wholesaler shall be credited
5first to the outstanding debt for cigarettes
6 or tobacco products and must be immediately reported to the board.
7The board shall determine the debt status of a suspended retailer
8or wholesaler licensee 25 days prior to the reinstatement of the
10(g) No importer, distributor, or wholesaler, or distributor
11functioning as a wholesaler, or retailer, shall purchase, obtain, or
12otherwise acquire any package of cigarettes to which a stamp or
13meter impression may not be affixed in accordance with
14subdivision (b) of Section 30163 or subdivision (e) of Section
1530165.1 of the Revenue and Taxation Code, or any cigarettes
16obtained from a manufacturer or importer that cannot demonstrate
17full compliance with all requirements of the federal Cigarette
18Labeling and Advertising Act (15 U.S.C. Sec. 13335a et seq.) for
19the reporting of ingredients added to cigarettes.
20(h) (1) Failure to comply with the provisions of this section
21shall be a misdemeanor subject to penalties pursuant to Section
paragraph (1), a manufacturer or importer
24who uses the most up-to-date licensing information provided by
25the board on the board’s Web site to determine a person’s
26licensing status is presumed to be in compliance with this section.
27(i) The amendments that are made to this section by the act
28adding this subdivision shall become operative May 1, 2007.
Section 22980.2 of the Business and Professions
30Code is amended to read:
(a) A person or entity that engages in the business
32of selling cigarettes or tobacco products in
33this state either without a valid license or after a license has been
34suspended or revoked, and each officer of any corporation that so
35engages in this business, is guilty of a misdemeanor punishable as
36provided in Section 22981.
37(b) Each day after notification by the board or by a law
38enforcement agency that a manufacturer, wholesaler, distributor,
39importer, retailer, or any other person required to be licensed under
40this division offers cigarettes and tobacco
P23 1products for sale or exchange without a valid license for the
2location from which they are offered for sale shall constitute a
4(c) Continued sales or gifting of cigarettes
5 and tobacco products either without a valid license or after a
6notification of suspension or revocation shall constitute a violation
7punishable as provided in Section 22981, and shall result in the
8seizure of all cigarettes and tobacco products
9in the possession of the person by the board or a law enforcement
10agency. Any cigarettes and tobacco products
11seized by the board or by a law enforcement agency shall be
Section 22980.3 of the Business and Professions
14Code is amended to read:
(a) Licenses issued pursuant to this division shall be
16subject to suspension or revocation for violations of this division
17or the Revenue and Taxation Code as provided in this section.
18(1) In addition to any applicable fines or penalties for a violation,
19upon first conviction of a violation, a licensee shall receive a
20written notice from the board detailing the suspension and
21revocation provisions of this division. At its discretion, the board
22may also suspend a license for up to 30 days.
23(2) In addition to any applicable fines or penalties for a violation,
24upon a second conviction of a violation within four years of a
25previous violation, the license shall be revoked.
26(b) The date of the occurrence of a violation shall be used to
27calculate the duration between subsequent violations. A violation
28shall be noted in the license record at the board only after judicial
29conviction or final adjudication of a violation.
30(c) Upon updating a record for a violation triggering a
31suspension, the board shall serve the licensee with a notice of
32suspension and shall order the licensee to cease the sale, gifting,
33or displaying for sale of cigarettes or tobacco
34products for the period of the suspension. The notice of suspension
35shall inform the licensee of the effective dates of the suspension.
36(d) Continued sales or gifting of cigarettes
37 or tobacco products after the effective date of the suspension shall
38constitute a violation of this division and result in the revocation
39of a license.
P24 1(e) Upon completion of a suspension period, a license shall be
2reinstated by the board upon certification that all outstanding debts
3of that retailer or wholesaler that are owed to a wholesaler or
4distributor for the purchase of cigarettes and
5tobacco products are paid.
6(f) Upon updating a record for a violation triggering a
7revocation, the board shall serve the licensee with a notice of
8revocation and shall order the licensee to cease the sale, gifting,
9or displaying for sale of cigarettes or tobacco
10products on and after the effective date of the revocation. The
11notice of revocation shall inform the licensee of the effective date
12of the revocation.
13(g) After a revocation, a previously licensed applicant may apply
14for a new license after six months. The board may, at its discretion,
15issue a new license.
16(h) Upon updating a license record for a violation, suspension,
17or revocation to a license of a person or entity that owns or controls
18more than one location, the board shall send notice in writing of
19the violations, suspensions, or revocations within 15 days of the
20board’s action to the address included in the application and listed
21on the license for receipt of correspondence or notices from the
23(i) Upon suspension or revocation of a license
pursuant to this
24section, the board shall notify all licensed distributors and
25wholesalers by electronic mail within 48 hours of the suspension
26or revocation of that license. All licensed distributors and
27wholesalers shall provide the board and shall update, as necessary,
28an electronic mail address that the board can use for purposes of
29making the notifications required by this subdivision.
30(j) Violations by a licensee at one location may not be
31accumulated against other locations of that same licensee.
32Violations accumulated against a prior owner at a licensed location
33may not be accumulated against a new owner at the same licensed
35(k) For purposes of this section, a violation includes violations
36of the Revenue and Taxation Code relating to cigarettes and
37tobacco products, and violations of this division. Only one violation
38per discrete action shall be counted toward a suspension or
39revocation of a license.
Section 22980.4 of the Business and Professions
2Code is amended to read:
A person who, after receiving a notice of suspension
4or revocation, continues to display for sale cigarettes or tobacco products shall be subject to a civil penalty
6of one thousand dollars ($1,000) for each offense, and shall not
7be subject to Section 22981.
Section 119406 is added to the Health and Safety
9Code, to read:
(a) All cartridges for electronic cigarettes and
11solutions for filling or refilling an electronic cigarette shall be in
13(b) “Child-proof packaging” means packaging that contains
14elements, including, but not limited to, safety caps or blister packs,
15designed to protect children from being able to open and ingest
Section 308 of the Penal Code is amended to read:
(a) (1) Every person, firm, or corporation that knowingly
19or under circumstances in which it has knowledge, or should
20otherwise have grounds for knowledge, sells, gives, or in any way
21furnishes to another person who is under the age of 18 years any
22tobacco, cigarette, or cigarette papers, or blunts wraps, or any other
23preparation of tobacco, or any other instrument or paraphernalia
24that is designed for the smoking or ingestion of tobacco, products
25prepared from tobacco, or any controlled substance, is subject to
26either a criminal action for a misdemeanor or to a civil action
27brought by a city attorney, a county counsel, or a district attorney,
28punishable by a fine of two hundred dollars ($200) for the first
29offense, five hundred dollars ($500) for the second offense, and
30one thousand dollars ($1,000) for the third offense.
31Notwithstanding Section 1464 or any other law, 25 percent of
32each civil and criminal penalty collected pursuant to this
33subdivision shall be paid to the office of the city attorney, county
34counsel, or district attorney, whoever is responsible for bringing
35the successful action, and 25 percent of each civil and criminal
36penalty collected pursuant to this subdivision shall be paid to the
37city or county for the administration and cost of the community
38service work component provided in subdivision (b).
39Proof that a defendant, or his or her employee or agent,
40demanded, was shown, and reasonably relied upon evidence of
P26 1majority shall be defense to any action brought pursuant to this
2subdivision. Evidence of majority of a person is a facsimile of or
3a reasonable likeness of a document issued by a federal, state,
4county, or municipal government, or subdivision or agency thereof,
5including, but not limited to, a motor vehicle operator’s license, a
6registration certificate issued under the federal Selective Service
7Act, or an identification card issued to a member of the Armed
9For purposes of this section, the person liable for selling or
10furnishing tobacco products to minors by a tobacco vending
11machine shall be the person authorizing the installation or
12placement of the tobacco vending machine upon premises he or
13she manages or otherwise controls and under circumstances in
14which he or she has knowledge, or should otherwise have grounds
15for knowledge, that the tobacco vending machine will be utilized
17(2) For purposes of this section, “blunt wraps” means cigar
18papers or cigar wrappers of all types that are designed for smoking
19or ingestion of tobacco products and contain less than 50 percent
21(b) Every person under the
age of 18 years who purchases,
22receives, or possesses any tobacco, cigarette, or cigarette papers,
23or any other preparation of tobacco, or any other instrument or
24paraphernalia that is designed for the smoking of tobacco, products
25prepared from tobacco, or any controlled substance shall, upon
26conviction, be punished by a fine of seventy-five dollars ($75) or
2730 hours of community service work.
28(c) Every person, firm, or corporation that sells, or deals in
29tobacco or any preparation thereof, shall post conspicuously and keep so posted in his, her,
32or their place of business at each point of purchase the notice
33required pursuant to subdivision (b) of Section 22952 of the
34Business and Professions Code, and any person failing to do so
35shall, upon conviction, be punished by a fine of fifty dollars ($50)
36for the first offense, one hundred dollars ($100) for the second
37offense, two hundred fifty dollars ($250) for the third offense, and
38five hundred dollars ($500) for the fourth offense and each
39subsequent violation of this provision, or by imprisonment in a
40county jail not exceeding 30 days.
P27 1(d) For purposes of determining the liability of persons, firms,
2or corporations controlling franchises or business operations in
3multiple locations for the second and subsequent violations of this
4section, each individual franchise or business location shall be
5deemed a separate entity.
6(e) Notwithstanding subdivision (b), any person under 18 years
7of age who purchases, receives, or possesses any tobacco, cigarette,
8 or cigarette papers, or any other preparation
9of tobacco, any other instrument or paraphernalia that is designed
10for the smoking of tobacco, or products prepared from tobacco is
11immune from prosecution for that purchase, receipt, or possession
12while participating in either of the following:
13(1) An enforcement activity that complies with the guidelines
14adopted pursuant to subdivisions (c) and (d) of Section 22952 of
15the Business and Professions Code.
16(2) An activity conducted by the State Department of Public
17Health, a local health department, or a law enforcement agency
18for the purpose of determining or evaluating youth tobacco
20(f) It is the Legislature’s intent to regulate the subject matter of
21this section. As a result, a city, county, or city and county shall not
22adopt any ordinance or regulation inconsistent with this section.
No reimbursement is required by this act pursuant to
24Section 6 of Article XIII B of the California Constitution because
25the only costs that may be incurred by a local agency or school
26district will be incurred because this act creates a new crime or
27infraction, eliminates a crime or infraction, or changes the penalty
28for a crime or infraction, within the meaning of Section 17556 of
29the Government Code, or changes the definition of a crime within
30the meaning of Section 6 of Article XIII B of the California