BILL ANALYSIS Ó
SENATECOMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 24
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|AUTHOR: |Hill |
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|VERSION: |April 6, 2015 |
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|HEARING DATE: |April 15, 2015 | | |
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|CONSULTANT: |Reyes Diaz |
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SUBJECT : Electronic cigarettes: licensing and restrictions
SUMMARY : Extends 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.
Existing law:
1.Authorizes the California Department of Public Health (DPH),
under the Stop Tobacco Access to Kids Enforcement (STAKE) Act,
to assess civil penalties ranging from $400 to $6,000,
depending on the number of infractions, against any person,
firm, or corporation that sells, gives, or in any way
furnishes tobacco products to a person who is under the age of
18.
2.Establishes "smoke-free laws," which prohibit the smoking of
tobacco products in various places, including, but not limited
to, school campuses, public buildings, places of employment,
apartment buildings, day care facilities, retail food
facilities, health facilities, and vehicles when minors are
present, and makes a violation of some of the prohibitions
punishable as an infraction.
3.Defines "tobacco product" as any product containing tobacco
leaf, including, but not limited to, cigarettes, cigars, pipe
tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or
any other preparation of tobacco.
SB 24 (Hill) Page 2 of ?
4.Defines "electronic cigarette" as a device that can provide an
inhalable dose of nicotine by delivering a vaporized solution.
Prohibits a person from selling or otherwise furnishing an
electronic cigarette to a person under the age of 18.
5.Requires the Board of Equalization (BOE), under the Cigarette
and Tobacco Products Licensing Act, to administer a statewide
program to license cigarette and tobacco products
manufacturers, importers, distributors, wholesalers, and
retailers. Requires a retailer to obtain a separate license
for each retail location that sells cigarettes and tobacco
products. Requires BOE to suspend or revoke a retailer's
license upon notification by DPH of certain STAKE Act
violations. Permits BOE to assess various civil penalties for
violations of the Licensing Act.
This bill:
1.Extends the requirements of the STAKE Act to the sale of
e-cigs, distinct from the definition of tobacco products, and
requires DPH to enforce the provisions related to e-cigs
beginning July 1, 2016. Makes it a crime if retailers fail to
post a notice on or after July 1, 2016, at each point of
purchase that states the sale of e-cigs to minors is illegal.
2.Adds e-cigs to current smoke-free laws and makes the use of
them in restricted areas a crime, which is subject to the same
penalties as tobacco products. Requires establishments that
are currently required to post "no smoking" signs to also post
"no using electronic cigarettes" signs.
3.Requires all cartridges for e-cigs and solutions for filling
or refilling an e-cig to be in childproof packaging, defined
as packaging that contains elements, including, but not
limited to, safety caps or blister packs, designed to protect
children from being able to open and ingest the contents.
4.Broadens the current definition of e-cigs to include any
aerosol or vapor cartridge or other container of a solution,
that may or may not contain nicotine, that is intended to be
used with or in an e-cig.
5.Requires retailers of e-cigs to apply for a license from BOE
to sell e-cigs beginning July 1, 2016, and to display the
license at each retail location by September 30, 2016.
SB 24 (Hill) Page 3 of ?
Requires BOE to administer a statewide program to license
e-cig retailers.
FISCAL
EFFECT : This bill has not been analyzed by a fiscal committee.
COMMENTS :
1.Author's statement. According to the author, youth use of
e-cigs is on the rise. According to the National Institute on
Drug Abuse, youth use is now higher than that of traditional
cigarettes: 17.1 percent of 12th graders reported using an
e-cig in the past month, while only 13.6 percent reported
smoking a traditional cigarette in the past month.
Nevertheless, California's premier law to prevent youth access
to cigarettes and other tobacco products-STAKE Act-does not
extend to e-cigs. E-cig retailers also do not have to be
licensed by the state. Additionally, an increasing number of
children in California are being poisoned by e-cig liquids. In
2012, there were 28 calls to the California Poison Control
System for liquid nicotine poisoning; in 2013, there were 106
calls; and in 2014, there were 243 calls. At least 60 percent
of calls were for children 5 years old or younger. Nothing in
current law requires that e-cig liquids be equipped with child
proof packaging. Children can easily open and ingest the often
fruit flavored e-cig liquids. Nicotine liquids can be toxic
even if ingested in small amounts-just one teaspoon of liquid
nicotine can be deadly.
2.E-cigs. According to a 2014 report by the World Health
Organization (WHO), e-cigs are battery heated devices that
deliver nicotine by heating solution that users inhale. E-cig
cartridges (e-liquids) contain liquid nicotine, and chemicals
introduced into a liquid vehicle produce aromas and various
flavors such as tobacco, chocolate mint, cotton candy, gummy
bear, and grape. The concentration of nicotine varies both
across different manufacturers and sometimes within the same
brand. The report states that although some e-cigs are shaped
to look like conventional cigarettes, they also take the form
of everyday items like pens and USB flash drives.
3.Are e-cigs safe? The Food and Drug Administration (FDA) states
that the safety and efficacy of e-cigs has not been fully
studied. Some of the uncertainty stems from the wide variety
of devices and liquids available, and therefore separate
components need to be studied, including the e-cig device, the
SB 24 (Hill) Page 4 of ?
e-liquid, the inhaled aerosol, and the exhaled aerosol that
may be inhaled secondhand. E-cig devices vary in their
engineering, battery voltage, and ability to heat the
e-liquid, meaning e-liquids can deliver a different aerosol
and nicotine dose depending on the device. E-liquids currently
have no requirements for labeling, and The National Institute
of Health (NIH) states that there is poor correlation between
labeled and actual nicotine content.
A July 2014 report, "Electronic nicotine delivery systems
(ENDS)," by the WHO stated that existing evidence shows e-cigs
do not produce merely a water vapor but an aerosol that poses
serious threats to adolescents and fetuses. The aerosol
inhaled by smokers contains ultra-fine particulate matter that
gets trapped in the small airways of the lungs. According to a
2013 study entitled "Does electronic cigarette consumption
cause passive vaping?," aerosol exhaled by e-cig smokers
contains nicotine, formaldehyde, and other chemicals, although
at much lower levels than emissions from conventional
cigarettes, and nicotine metabolites were found in nonsmokers
exposed to the exhaled aerosol. A 2012 publication from
Reproductive Toxicology showed a wide variety of toxicity on
human cells, and that toxicity did not correlate with nicotine
concentration but did correlate with the amount of flavor
additives that were used. Since California passed legislation
prohibiting the sale of e-cigs to minors, the Attorney
General's office has been investigating a number of e-cig
companies that sell products on the Internet to ensure
compliance with the statute, as well as other consumer
protection provisions. Many companies are coming into
compliance voluntarily.
4.Health risks and increase in use of e-cigs. DPH's State Health
Officer released a report in January 2015, "A Community Health
Threat," about e-cigs that cites, among other things, the
concern about the health risks of e-cigs and the growing
number of e-cig users. E-cig poisonings increased from seven
in 2012 to 154 in 2014. By the end of 2014, e-cig poisonings
to young children tripled in one year, making up more than 60
percent of all e-cig poisoning calls, according to the report.
The State Health Officer also noted that in California, use of
e-cigs among those between the ages of 18 and 29 tripled in
one year, from 2.3 percent to 7.6 percent. Nearly 20 percent
of these young adult e-cig users had never smoked traditional
cigarettes. The State Health Officer concludes that there is a
SB 24 (Hill) Page 5 of ?
high need to educate the public about e-cig safety concerns
and that existing laws currently in place to protect minors
and the general public from traditional tobacco products
should be extended to cover e-cigs.
5.Marketing of e-cigs as cessation devices. The DPH report also
cites the unrestricted marketing tactics for e-cigs. E-cig
marketing continues to claim they are a safer alternative to
traditional cigarettes. To date, the effectiveness of e-cigs
as cessation aids has not been proven by e-cig companies or
approved by the FDA as such. The report states that a number
of studies actually show that e-cig users are no more likely
to quit than smokers of traditional cigarettes, and in one
study, 89 percent of e-cig users were still using them one
year later. Dual use of e-cigs and traditional cigarettes
continues to rise, which, according to the report, may be
attributed to the unrestricted marketing of e-cigs. E-cig
companies are using tactics previously used by tobacco
companies that have since been banned. These include running
unrestricted ads and promotions on TV, radio, and social
media, and in magazines, newspapers, and retail stores, as
well as sponsoring sport and music events and giving out free
samples, according to the report.
6.Related legislation. SB 140 (Leno), recasts and broadens the
definition of "tobacco product" in current law to include
e-cigs as specified; extends current restrictions and
prohibitions against the use of tobacco products to e-cigs;
and extends current licensing requirements for manufacturers,
importers, distributors, wholesalers, and retailers of tobacco
products to e-cigs. SB 140 passed the Senate Health Committee
by a vote of 6-1.
AB 216 (Garcia), raises the allowable fine for selling e-cigs
to a minor. AB 216 is currently set for hearing in the
Assembly Governmental Organization Committee.
AB 768 (Thurmond), would prohibit the use of e-cigs in any
baseball stadium, including the dugout and locker rooms. AB
768 passed out of the Assembly Arts, Entertainment, Sports,
Tourism, and Internet Media Committee on April 7, 2015, on a
4-2 vote and is pending hearing in the Assembly Governmental
Organization Committee.
7.Prior legislation. SB 648 (Corbett), of 2014, would have made
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the provision of the STAKE Act restricting the sale of
cigarette and tobacco products from vending machines
applicable to e-cigs, as defined. SB 648 died in the Assembly
Appropriations Committee.
AB 320 (Nazarian), of 2013, would have prohibited the use of
tobacco and nicotine products in a county office of education,
charter school or school district-owned or leased building, on
school or district property, and in school or district
vehicles; would have also required school districts, charter
schools, and county offices of education to prominently
display signs at all entrances to school property stating
"Tobacco use is prohibited"; would have include in its
prohibition nicotine-delivery devices, such as e-cigs. AB 320
died in the Assembly Appropriations Committee.
SB 882 (Corbett), Chapter 310, Statutes of 2010, made it
unlawful, to the extent not preempted by federal law, for a
person to sell or otherwise furnish an e-cig to a person under
the age of 18.
SB 400 (Corbett), of 2009, would have defined e-cigs as drugs
under state law, made them subject to the Sherman Food, Drug,
and Cosmetic Law, and allowed DPH to halt the sale,
distribution, or offering of e-cigs as part of its enforcement
of the STAKE Act. SB 400 was vetoed by Governor Schwarzenegger
who stated that while he supported restricting access of
e-cigs to children under the age of 18, he could not sign a
measure that also declared them a federally regulated drug
when the matter is being decided through pending litigation.
He noted that items defined as "tobacco products" are legal
for anyone over the age of 18, and if adults want to purchase
and consume these products with an understanding of the
associated health risks, they should be able to do so unless
and until federal law changes the legal status of these
tobacco products.
SB 1927 (Hayden), Chapter 1009, Statutes of 1994, 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.
8.Support. Supporters argue that the increase in e-cig use,
sales, and marketing is alarming. They state that use has
increased particularly by youth who use the devices to smoke
SB 24 (Hill) Page 7 of ?
illegal substances. Calls to poison control centers have also
risen because of children accessing e-cig cartridges.
Supporters believe that this bill will curb youth e-cig use by
extending STAKE Act laws to e-cigs, as well as requiring that
e-cig packaging be childproof.
9.Support if amended. The BOE supports this bill if it is
amended to provide adequate funding for BOE to administer the
expansion of existing Licensing Act provisions to include
e-cigs, without any impact to the various cigarette and
tobacco product tax funds (the General Fund, Breast Cancer
Fund, Cigarette and Tobacco Products Surtax Fund [Prop.99],
and the California Children and Families Trust Fund [Prop.
10]).
10.Oppose unless amended. Organizations writing in opposition,
unless the bill is amended, argue that this bill threatens
decades of tobacco control and public health campaigns in
California by distinguishing e-cigs from tobacco products.
They state that the tobacco industry has been working
diligently to ensure that e-cigs are defined separately from
tobacco products in order to weaken regulation of e-cigs.
Also, by not including all components that make up e-cigs,
certain parts sold separately could still be sold to minors.
They argue that the FDA and DPH recommend that e-cigs be
regulated in the same manner as tobacco products. These
organizations would like to see this bill amended to include
only the requirement that e-cig cartridges be packaged in a
childproof manner.
11.Policy Comment. The FDA is in the process of finalizing
regulations to treat e-cigs like tobacco products, which is
also a recommendation in DPH's report. In the opinion of
staff, the author may wish to consider whether this bill's
distinction of e-cigs from tobacco products would create a
conflict with pending federal action regarding e-cigs.
SUPPORT AND OPPOSITION :
Support: California College and University Police Chiefs
California Poison Control System
Coalition Engaged in a Smoke-free Effort (CEASE)
Junior League of California, State Public Affairs
Committee
Kings County Tobacco-Free Partnership
SB 24 (Hill) Page 8 of ?
Oppose: American Cancer Society Cancer Action Network (unless
amended)
American Heart Association/American Stroke Association
(unless amended)
American Lung Association in California (unless
amended)
California Medical Association (unless amended)
Health Access California (unless amended)
An individual
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