BILL ANALYSIS Ó
SB 5 X2
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(Without Reference to File)
SENATE THIRD READING
SB 5
X2 (Leno)
As Amended March 2, 2016
Majority vote
SENATE VOTE: 25-13
SUMMARY: Defines the term smoking for purposes of the Stop
Tobacco Access to Kids Enforcement (STAKE) Act; expands the
definition of a tobacco product to include electronic cigarettes
(e-cigarettes); and, extends current restrictions and
prohibitions against the use of tobacco products to
e-cigarettes. Establishes an annual e-cigarette retailer
licensing fee of $265 per location. Specifically, this bill:
1)Defines smoking as inhaling, exhaling, burning, or carrying
any lighted or heated cigar, cigarette, or pipe, or any other
lighted or heated tobacco or plant product intended for
inhalation, whether natural or synthetic, in any manner or in
any form. Includes the use of an electronic smoking device
that creates an aerosol or vapor, in any manner or in any
form, or the use of any oral smoking device for the purpose of
circumventing the prohibition of smoking.
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2)Expands the definition of tobacco product to include an
electronic device that delivers nicotine or other vaporized
liquids to the person inhaling from the device, including, but
not limited to an e-cigarette, cigar, pipe, or hookah.
Includes in the definition any component, part, or accessory
of a tobacco product, whether or not sold separately.
3)Clarifies that a tobacco product does not include a product
that has been approved by the United States 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.
4)Requires all cartridges for e-cigarettes and solution for
filling or refilling an e-cigarette to be in childproof
packaging. Defines child-resistant packaging as packaging
that meets current federal law.
5)Establishes an annual e-cigarette retailer licensing fee of
$265 per location; specifies the format for the application;
and, requires the Board of Equalization (BOE) to provide
electronic means for applicants to download and submit
applications.
1)Contains double-jointing language to resolve potential code
conflict with AB 6 X2 (Cooper), SB 6 X2 (Monning), AB 7 X2
(Stone), SB 7 X2 (Hernandez), and AB 8 X2 (Wood) of the
current legislative session.
EXISTING LAW:
1)Authorizes the California Department of Public Health (DPH),
under the STAKE Act, to assess civil penalties ranging from
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$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 a 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.
4)Defines an e-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
e-cigarette to a person under the age of 18.
5)Requires the 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
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license upon notification by DPH of certain STAKE Act
violations.
7)Prohibits, under the STAKE Act, any person from distributing
or selling tobacco products via the United States Postal
Service (USPS), or any other public or private postal or
package delivery service, to any purchaser who is a minor.
8)Bans, under the federal Prevent All Cigarette Trafficking Act
(PACT Act), the shipment of tobacco products through the USPS.
9)Federal law, the Poison Prevention Packaging Act of 1970
requires the use of child-resistant packaging for prescription
drugs, over-the-counter drugs, household chemicals, and other
hazardous materials that could be considered dangerous for
children.
FISCAL EFFECT: This bill, as amended, has not been analyzed by
a fiscal committee.
COMMENTS: 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: e-cigarettes. According
to a DPH report, e-cigarette aerosol contains at least 10
chemicals that are on California's Proposition 65 (1986) 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.
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The author notes, despite these potentially serious risks to
public health, e-cigarette use is growing nationwide. The
Centers 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.
The author concludes that 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," and this bill will do exactly this by including
e-cigarettes within California's smoke-free laws and the STAKE
Act.
BACKGROUND. E-cigarettes are defined in California law as a
device that can provide an inhalable dose of nicotine by
delivering a vaporized solution. Typically, they are composed
of a rechargeable, battery-operated heating element, a
replaceable cartridge that may contain nicotine or other
chemicals, and an atomizer that, when heated, converts the
contents of the cartridge into a vapor. This vapor is then
inhaled by the user. These products are often made to look like
such products as cigarettes, cigars, and pipes. They are also
sometimes made to look like everyday items such as pens and
Universal Serial Bus memory sticks, for people who wish to use
the product without others noticing.
The health effects of e-cigarettes have not been fully studied,
so consumers currently don't know the potential risks of
e-cigarettes, how much nicotine or other potentially harmful
chemicals are being inhaled during use, or whether there are any
benefits associated with using these products. According to the
January 2015 State Health Officer's report on e-Cigarettes, "A
Community Health Threat," e-cigarette use is rising rapidly.
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The report notes that while the long-term health impact
resulting from use of this product is presently unknown, it is
known that e-cigarettes emit at least 10 chemicals that are
found on California's Proposition 65 list of chemicals known to
cause cancer, birth defects, or other reproductive harm.
The FDA has issued a proposed rule that would extend the
agency's tobacco authority to cover additional products that
meet the legal definition of a tobacco product, such as
e-cigarettes. The agency intends to regulate e-cigarettes and
related products in a manner consistent with its mission of
protecting the public health. The FDA has not completed its
evaluation of e-cigarettes for safety or effectiveness. When
the FDA conducted limited laboratory studies of certain samples,
they found significant quality issues that indicate that quality
control processes used to manufacture these products are
substandard or non-existent. They also found that cartridges
labeled as containing no nicotine did contain nicotine and that
three different e-cigarette cartridges with the same label
emitted a markedly different amount of nicotine with each puff.
Experts have also raised concerns that the marketing of products
such as e-cigarettes can increase nicotine addiction among young
people and may lead kids to try other tobacco products.
In California, use of e-cigarettes among young adults ages 18 to
29 tripled in one year. A 2015 study funded by the National
Institute of Health and published in the Journal of the American
Medical Association, compared tobacco use initiation among 222
students who had used e-cigarettes, but not combustible tobacco
products, and 2,308 who had neither used e-cigarettes or
combustible tobacco products when initially surveyed at the
start of ninth grade. During the first six months after being
surveyed, 30.7% of those who had used e-cigarettes started using
combustible tobacco products, such as cigarettes, cigars, and
hookahs, compared to only 8.1% of those who had never used
e-cigarettes.
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A study published July 27, 2015, in the Journal of Pediatrics
surveyed almost 2,100 California high school students, and found
that one-quarter had tried e-cigarettes. Ten percent were
currently using e-cigarettes, and those current users where much
more likely than their peers to also smoke cigarettes.
Analysis Prepared by:
Lara Flynn / P.H. & D.S. / FN: 0002645