BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SBX2 5|
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UNFINISHED BUSINESS
Bill No: SBX2 5
Author: Leno (D), et al.
Amended: 3/2/16
Vote: 21
SENATE PUBLIC HEALTH & DEV. SERVICES COMMITTEE: 9-3, 8/19/15
AYES: Hernandez, Beall, Hall, Leno, McGuire, Mitchell,
Monning, Pan, Wolk
NOES: Morrell, Moorlach, Nielsen
NO VOTE RECORDED: Anderson
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/24/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
SENATE FLOOR: 25-13, 8/27/15
AYES: Allen, Beall, Block, Glazer, Hall, Hancock, Hernandez,
Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu,
McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth, Stone,
Wieckowski, Wolk
NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines,
Huff, Moorlach, Morrell, Nguyen, Nielsen, Runner, Vidak
NO VOTE RECORDED: De León, Galgiani
ASSEMBLY FLOOR: 52-21, 3/3/16 - See last page for vote
SUBJECT: Electronic cigarettes
SOURCE: American Cancer Society Cancer Action Network
American Heart Association/American Stroke
Association
American Lung Association in California
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DIGEST: This bill 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.
Assembly Amendments:
1)Revise the fee for the license that retailers must obtain to
an annual rate of $265 to be effective January 1, 2017.
2)Incorporate changes made to law that became effective January
1, 2016, pursuant to SB 413 (Wieckowski, Chapter 765, Statutes
of 2015) and AB 731 (Gallagher, Chapter 303, Statutes of
2015).
3)Double-joint this bill to SBX2 6 (Monning) and ABX2 7 (Mark
Stone) because of changes made to the same sections of
statute, and to SBX2 7 (Hernandez) and ABX2 8 (Wood), which
would raise the minimum age for purchasing tobacco products
from 18 to 21.
4)Exempt active duty military personnel who are 18 years of age
or older and have an identification card issued by the United
States Armed Forces as proof of age from the requirement of
being 21 years of age or older to purchase tobacco products.
5)Add Senator Pavley as a co-author.
ANALYSIS:
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
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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.
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
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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 extends 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.
3)Requires retailers of electronic cigarettes, which are not
subject to a tobacco tax, to apply for a license and pay an
annual license fee of $265 beginning January 1, 2017.
4)Incorporates changes made to law that became effective January
1, 2016, pursuant to SB 413 (Wieckowski, Chapter 765, Statutes
of 2015) and AB 731 (Gallagher, Chapter 303, Statutes of
2015).
5)Double-joints this bill to SBX2 6 (Monning) and ABX2 7 (Mark
Stone), related to smoking in the workplace, and to SBX2 7
(Hernandez) and ABX2 8 (Wood), which would raise the minimum
age for purchasing tobacco products from 18 to 21, to avoid
conflicts in statute.
6)Exempts active duty military personnel who are 18 years of age
or older and have an identification card issued by the United
States Armed Forces as proof of age from the requirement of
being 21 years of age or older to purchase tobacco products.
7)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.
Comments
1)Author's statement. According to the author, California has
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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 10 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 carcinog2)en) coming from the secondhand
emissions of ecigarettes.
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.
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.
3)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.
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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
cover electronic cigarettes.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
1)One-time costs of about $180,000 to revise regulations and
educational materials relating to the prohibition on the sale
of tobacco products to minors by the DPH (General Fund or
tobacco tax funds).
2)Ongoing costs in the tens of thousands to low hundreds of
thousands per year for additional survey activities at retail
stores selling electronic cigarettes (General Fund or tobacco
tax funds).
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3)Ongoing costs in the hundreds of thousands per year for
enforcement actions relating to illegal sales of electronic
cigarettes to minors (General Fund or tobacco tax funds).
4)Ongoing licensing costs of about $300,000 for the BOE to
license retailers who sell electronic cigarettes but are not
currently licensed because they do not sell tobacco products
(Compliance Fund). These costs would be offset by an increase
in the licensing fee, from the current one-time $100 to an
annual licensing fee of $265.
No anticipated change in tobacco tax revenue (General Fund and
special fund). This bill does not change the definition of
"tobacco product" in the Revenue and Taxation Code to include
electronic cigarettes. Thus, this bill does not extend the
state's existing tax on those products to electronic cigarettes.
SUPPORT: (Verified 2/29/16)
American Cancer Society Cancer Action Network (co-source)
American Heart Association/American Stroke Association
(co-source)
American Lung Association in California (co-source)
Attorney General Kamala Harris
Alameda County Board of Supervisors
American Academy of Pediatrics
Americans for Nonsmokers' Rights
Association of California Healthcare Districts
Association of Northern California Oncologists
Breathe California
California Academy of Family Physicians
California Academy of Preventive Medicine
California Black Health Network
California Chapter of the American College of Emergency
Physicians
California Chronic Care Coalition
California College and University Police Chiefs
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California Dental Association
California Medical Association
California Narcotic Officers' Association
California Optometric Association
California Pan-Ethnic Health Network
California Peace Officers Association
California Pharmacists Association
California Police Chiefs Association
California Primary Care Association
California Society of Addiction Medicine
California State Association of Counties
Common Sense Kids Action
Community Action Fund of Planned Parenthood Orange and San
Bernardino Counties
County Health Executives Association of California
First 5 Association of California
Health Officers Association of California
Kaiser Permanente
Los Angeles City Attorney Mike Feuer
March of Dimes California Chapter
Medical Oncology Association of Southern California
Planned Parenthood Action Fund of the Pacific Southwest
Planned Parenthood Advocacy Project Los Angeles
Planned Parenthood Mar Monte
Planned Parenthood Northern California Action Fund
San Dieguito Alliance for Drug Free Youth
San Francisco Bay Area Rapid Transit District
San Mateo County Tobacco Education Coalition
Santa Clara County Board of Supervisors
Save Lives California
SEIU California
Sonoma County Board of Supervisors
Tobacco Education and Research Oversight Committee
OPPOSITION: (Verified 2/29/16)
Smoke-Free Alternatives Trade Association
ARGUMENTS IN 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
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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 5 is 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.
ARGUMENTS IN OPPOSITION: The Smoke-Free Alternatives 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 achieve the public policy goals of protection of
children and minors.
ASSEMBLY FLOOR: 52-21, 3/3/16
AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Bonta, Brown,
Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper,
Dababneh, Daly, Dodd, Eggman, Cristina Garcia, Eduardo Garcia,
Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger
Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low,
McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,
Thurmond, Ting, Weber, Williams, Wood, Atkins
NOES: Travis Allen, Bigelow, Brough, Chávez, Dahle, Beth
Gaines, Gallagher, Gatto, Harper, Jones, Kim, Lackey, Linder,
Mathis, Mayes, Melendez, Obernolte, Patterson, Steinorth,
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Wagner, Wilk
NO VOTE RECORDED: Chang, Frazier, Grove, Maienschein, Olsen,
Waldron
Prepared by:Reyes Diaz / P.H. & D.S. /
3/4/16 12:56:45
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