BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC HEALTH AND DEVELOPMENTAL SERVICES
Senator Ed Hernandez, O.D., Chair
BILL NO: SBX2 5
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|AUTHOR: |Leno |
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|VERSION: |July 16, 2015 |
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|HEARING DATE: |August 19, | | |
| |2015 | | |
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|CONSULTANT: |Shannon Muir |
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SUBJECT : Electronic cigarettes
SUMMARY : Recasts and broadens 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; extends current
licensing requirements for manufacturers, importers,
distributors, wholesalers, and retailers of tobacco products to
electronic cigarettes; and requires electronic cigarette
cartridges to be child-resistant.
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.
SBX2 5 (Leno) 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. Prohibits selling tobacco products without a valid
license, and makes violations punishable as a misdemeanor.
6)Requires a retailer, for purposes of collecting a tobacco tax,
to obtain a separate license for each retail location that
sells cigarettes and tobacco products and pay a one-time fee
of $100. Requires BOE to suspend or revoke a retailer's
license upon notification by DPH of certain STAKE Act
violations.
This bill:
1)Recasts and broadens the definition of "tobacco product" to
include 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, and includes
electronic devices that deliver nicotine or other substances
to the person inhaling from the device, including, but not
limited to, an electronic cigarette, cigar, pipe, or hookah;
and any component, part, or accessory of a tobacco product,
whether or not sold separately. By broadening the definition
of "tobacco products," this bill would extend all existing
laws that relate to tobacco products to electronic cigarettes.
2)Exempts from the definition of "tobacco product" a product
that has been approved by the Food and Drug Administration
(FDA) for sale as a tobacco cessation product or for other
therapeutic purposes where the product is marketed and sold
solely for such an approved purpose.
SBX2 5 (Leno) Page 3 of ?
3)Requires retailers of electronic cigarettes, which are not
subject to a tobacco tax, to apply for a license and pay a
license fee, in an amount to be determined by the BOE,
beginning October 1, 2016.
4)Requires all cartridges for electronic cigarettes and
solutions for filling or refilling an electronic cigarette to
be in child-resistant packaging, as defined by the Code of
Federal Regulations.
FISCAL
EFFECT : This bill has not yet been analyzed by a fiscal
committee.
COMMENTS :
1)Author's statement. According to the author, California has
invested 25 years and $2.5 billion in public health measures
aimed at reducing tobacco use. However, that investment is now
threatened by a new tobacco product: electronic cigarettes.
According to a DPH report, e-cigarette aerosol contains at
least ten chemicals that are on California's Proposition 65
list of chemicals known to cause cancer, birth defects or
other reproductive harm. Despite industry claims that
e-cigarettes do not present secondhand smoke concerns, studies
have found formaldehyde, benzene, and tobaccospecific
nitrosamines (a carcinogen) coming from the secondhand
emissions of ecigarettes.
Despite these potentially serious risks to public health,
e-cigarette use is growing nationwide. The Center for Disease
Control and Prevention found that more than a quarter of a
million youth who had never smoked a cigarette used
e-cigarettes in 2013. E-cigarettes come in enticing flavors
such as gummy bear and mango. While California currently bans
the sale of e-cigarettes to minors under the age of 18, many
youth are still able to access the product.
DPH recommends that "[e]xisting laws that currently protect
minors and the general public from traditional tobacco
products should be extended to cover e-cigarettes." SBX2 5
will do exactly this by including e-cigarettes within
California's smoke-free laws and the STAKE Act.
2)What is an electronic cigarette? According to a 2014 report by
the World Health Organization (WHO), electronic cigarettes are
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battery heated devices that deliver nicotine by heating a
solution that users inhale. Electronic cigarette 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 electronic cigarettes are
shaped to look like conventional cigarettes, they also take
the form of everyday items such as pens and USB flash drives.
3)Electronic cigarette safety. The FDA states that the safety
and efficacy of electronic cigarettes 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 electronic
cigarette device, the e-liquid, the inhaled aerosol, and the
exhaled aerosol that may be inhaled secondhand. Electronic
cigarette 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 "[t]here is
poor correlation between labeled and actual nicotine content."
A 2014 article in the journal Addiction states that because of
device inconsistencies, there is also no correlation between
the nicotine content in the e-liquid and the resulting inhaled
aerosol. A July 2014 report, "Electronic nicotine delivery
systems (ENDS)," by the WHO stated that existing evidence
shows electronic cigarettes 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 electronic cigarette users
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
SBX2 5 (Leno) Page 5 of ?
prohibiting the sale of electronic cigarettes to minors, the
Attorney General's office has been investigating a number of
electronic cigarette 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)DPH report. The California State Health Officer released a
report in January 2015, "A Community Health Threat," about
electronic cigarettes that cites, among other things, the
concern about the health risks of electronic cigarettes, the
growing number of electronic cigarette users, and the
unrestricted marketing tactics for electronic cigarettes.
Electronic cigarette poisonings increased from seven in 2012
to 154 in 2014. By the end of 2014, electronic cigarette
poisonings to young children tripled in one year, making up
more than 60 % of all electronic cigarette poisoning calls,
according to the report. The state health officer also noted
that in California, use of electronic cigarettes among those
between the ages of 18 and 29 tripled in one year, from 2.3 %
to 7.6 %. Nearly 20 % of these young adult electronic
cigarette users had never smoked traditional cigarettes.
Electronic cigarette marketing continues to claim they are a
safer alternative to traditional cigarettes. To date, the
effectiveness of electronic cigarettes as cessation aids has
not been proven or approved by the FDA as such. The report
states that a number of studies actually show that electronic
cigarette users are no more likely to quit than regular
smokers, and in one study, 89 % of electronic cigarette users
were still using them one year later. Dual use of electronic
cigarettes and traditional cigarettes continues to rise,
which, according to the report, may be attributed to the
unrestricted marketing of electronic cigarettes. Electronic
cigarette 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,
and sponsoring sport and music events and giving out free
samples, according to the report. The State Health Officer
concludes that there is a high need to educate the public
about electronic cigarette safety concerns and that existing
laws currently in place to protect minors and the general
public from traditional tobacco products should be extended to
SBX2 5 (Leno) Page 6 of ?
cover electronic cigarettes.
5)Child-resistant packaging. Federal poison prevention packaging
standards state that child-resistant packages are those that
85 % of children, between the ages of 42 months and 51 months,
are unable to open within five minutes under specified
circumstances, and those in which only 80 % of children are
able to open within five minutes, under specified
circumstances, after a demonstration showing how to do so.
6) Related legislation. AB X2 6 (Cooper) recast and broaden
the definition of "tobacco product" in current law to include
electronic cigarettes as specified; extend current
restrictions and prohibitions against the use of tobacco
products to electronic cigarettes; extend current licensing
requirements for manufacturers, importers, distributors,
wholesalers, and retailers of tobacco products to electronic
cigarettes; and, require electronic cigarette cartridges to
be child-resistant. AB X2 6 is pending in the Assembly.
SBX2 6 (Monning)/AB X2 7 (Stone) prohibit smoking in
owner-operated businesses and remove specified exemptions in
existing law that allow tobacco smoking in certain
workplaces. SB X2 6 will be heard on August 19, 2015 in this
committee and AB X2 7 is pending in the Assembly.
SBX2 7 (Hernandez)/AB X2 8 (Wood) increase the minimum legal
age to purchase or consume tobacco from 18 to 21. SB X2 7
will be heard on August 19, 2015 in this committee and AB X2
8 is pending in the Assembly.
SBX2 8 (Liu)/ABX2 9 (Thurmond and Nazarian) extend current
tobacco use prevention funding eligibility and requirements
to charter schools; broaden the definition of products
containing tobacco and nicotine, as specified, and prohibit
their use in specified areas of schools and school districts,
regardless of funding; and require specified signs to be
prominently displayed at all entrances to school property. SB
X2 8 will be heard on August 19, 2015 in this committee and
AB X2 9 is pending in the Assembly.
SBX2 9 (McGuire)/ABX2 10 (Bloom) allow counties to impose a
tax on the privilege of distributing cigarettes and tobacco
products. SB X2 9 will be heard on August 19, 2015 in this
committee and AB X2 10 is pending in the Assembly.
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SBX2 10 (Beall)/ABX2 11 (Nazarian) revise the Cigarette and
Tobacco Products Licensing Act of 2003 to change the retailer
license fee from a $100 one-time fee to a $265 annual fee,
and increase the distributor and wholesaler license fee from
$1,000 to $1,200. SB X2 10 will be heard on August 19, 2015
in this committee and AB X2 11 is pending in the Assembly.
SB 24 (Hill) would have classified electronic cigarettes
separately from tobacco products, and adds electronic
cigarettes to the STAKE Act and smoking location prohibitions,
and mandates childproof packaging for e-liquid used in
electronic cigarettes. SB 24 failed passage on the Senate
Floor.
SB 140 (Leno) was substantially similar to this bill, but does
not mandate child-resistant packaging for electronic cigarette
cartridges. SB 140 was held in the Assembly Governmental
Organization Committee.
SB 151 (Hernandez) would raise the legal age to purchase
tobacco products to 21. SB 151 is currently pending hearing in
the Assembly Governmental Organization Committee.
AB 216 (Garcia) would raise the allowable fine for selling
electronic cigarettes to a minor. AB 216 is currently pending
hearing on the Senate Floor.
AB 768 (Thurmond) would prohibit the use of smokeless tobacco
in certain defined areas of a baseball stadium. AB 768 is
currently pending hearing on the Senate Floor.
7)Prior legislation. SB568 (Steinberg, Chapter 336, Statues of
2013), prohibits an operator of an Internet Web site, online
service, online application, or mobile application, as
specified, from marketing or advertising electronic cigarettes
to a minor.
SB 648 (Corbett), of 2013, would have restricted electronic
cigarettes from being sold in vending machines. SB 648 failed
passage in the Assembly Appropriations Committee.
SB 882 (Corbett, Chapter 312, Statutes of 2010), made it
unlawful, to the extent not preempted by federal law, for a
SBX2 5 (Leno) Page 8 of ?
person to sell or otherwise furnish an electronic cigarette to
a person less than 18 years of age.
SJR8 (Corbett), of 2009, would have requested that the FDA
prohibit sale of electronic cigarettes until they are deemed
safe. SJR8 failed passage in the Assembly.
AB 1500 (Dickinson), of 2014, would have prohibited a delivery
seller, as defined, from selling or delivering an electronic
cigarette to a person under 18 years of age. AB 1500 failed
passage in the Assembly Appropriations Committee.
8)Support. The American Cancer Society Cancer Action Network,
the cosponsor of this bill, the California Primary Care
Association, and the California Black Health Network state
that defining electronic cigarettes as a tobacco product in
the STAKE act tackles the issue of retailers selling
electronic cigarettes to minors, which is critical in
preventing youth tobacco use. The cosponsor also states that
this bill will address the issue of second-hand exposure to
electronic cigarette aerosol by prohibiting the use of
electronic cigarettes in all places where smoking is currently
prohibited. The American Lung Association, another cosponsor
of the bill, and Kaiser Permanente, state that SBX2 5 aligns
state laws with proposed federal regulations that define
electronic cigarettes as tobacco products per FDA oversight.
Breath California states that SBX2 5is the best way to face
the threat that electronic cigarettes pose to young people.
The California Dental Association states that SBX2 5 will
ensure electronic cigarettes receive the same oversight and
regulation as other harmful tobacco products sold at the
retail level. SEIU California, Common Sense Kids Action,
Association of Northern California Oncologists , and the
Medical Oncology Association of Southern California state
that, although California bans the sale of electronic
cigarettes to minors, many youth are still able to access
these products due to lack of oversight and enforcement. The
California Medical Association states that electronic
cigarettes should be classified as tobacco products because
they contain derived nicotine.
9)Opposition. The Smoke-Free Alternative Trade Association
states that enactment of SBX2 5 would shut down hundreds of
small business-owned vape shops throughout the state, and that
the existing statutory definition of electronic cigarettes can
SBX2 5 (Leno) Page 9 of ?
achieve the public policy goals of protection of children and
minors.
10)Technical amendment. The Author may wish to consider the
following amendment.
On page 25, line 5, replace "childproof" with
child-resistant .
SUPPORT AND OPPOSITION :
Support: American Cancer Society Cancer Action Network
(cosponsor)
American Heart Association/American Stroke Association
(cosponsor)
American Lung Association (cosponsor)
Association of Northern California Oncologists
Breathe California
California Black Health Network
California Chronic Care Coalition
California Dental Association
California Medical Association
California Pan-Ethnic Health Network
California Primary Care Association
California Society for Addiction Medicine
Common Sense Kids Action
First 5 Association of California
Kaiser Permanente
Los Angeles City Attorney Mike Feuer
Medical Oncology Association of Southern California
SEIU California
The Honorable Attorney General Kamala Harris
Oppose: Smoke-Free Alternative Trade Association
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