BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 140
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|AUTHOR: |Leno |
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|VERSION: |March 10, 2015 |
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|HEARING DATE: |April 8, 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; and, extends current
licensing requirements for manufacturers, importers,
distributors, wholesalers, and retailers of tobacco products to
electronic cigarettes.
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.
4.Defines "electronic cigarette" as a device that can provide an
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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.
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.
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.
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According to a DPH report, electronic 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 electronic cigarettes do not present secondhand smoke
concerns, studies have found formaldehyde, benzene and
tobaccospecific nitrosamin2.es (a carcinogen) coming from the
secondhand emissions of ecigarettes.
Despite these potentially serious risks to public health,
electronic cigarette use is growing nationwide. The Center for
Disease Control (CDC) found that more than a quarter of a
million youth who had never smoked a cigarette used electronic
cigarettes in 2013. Electronic cigarettes come in enticing
flavors such as gummy bear and mango. While California
currently bans the sale of electronic 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 electronic cigarettes."
SB 140 will do exactly this by including electronic cigarettes
within the Smoke Free Act and the STAKE Act.
3.What is an electronic cigarette? According to a 2014 report by
the World Health Organization (WHO), electronic cigarettes are
battery heated devices that deliver nicotine by heatina
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.
4.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
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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 that "There
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 cigarettes 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 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.
5.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
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to 154 in 2014. By the end of 2014, electronic cigarette
poisonings to young children tripled in one year, making up
more than 60 percent 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 percent to 7.6 percent. Nearly 20 percent 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 percent 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.
6.Related legislation. SB 24 (Hill) classifies 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 is set for hearing on
April 15, 2015 in the Senate Health Committee.
SB 151 (Hernandez) raises the legal age to purchase tobacco
products to 21. SB 151 is set for hearing on April 8, 2015 in
the Senate Health Committee.
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AB 216 (Garcia) raises the allowable fine for selling
electronic cigarettes to a minor. AB 216 is currently pending
hearing in the Assembly Governmental Organization Committee.
AB 768 (Thurmond) would prohibit the use of electronic
cigarettes in any baseball stadium, including the dugout and
locker rooms. AB 768 set for hearing on April 7, 2015 in the
Assembly Committee on Arts, Entertainment, Sports, Tourism,
and Internet Media.
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) from 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
person to sell or otherwise furnish an electronic cigarette to
a person less than 18 years of age.
SJR8 (Corbett) from 2009 would have requested that the US Food
and Drug Administration prohibit sale of electronic cigarettes
until they are deemed safe. SJR8 failed passage in the
Assembly.
AB 1500 (Dickinson) from 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 Medical Oncology Association of Southern
California, Yolo County Tobacco Prevention Coalition,
California Police Chiefs Association, Coalition for a
Tobacco-free Sonoma County, San Mateo County Tobacco Education
Coalition, Campaign for Tobacco-free Kids, Yuba County Tobacco
Coalition, and Solano County Tobacco Education Coalition state
that electronic cigarettes contain known carcinogens and toxic
chemicals, and that enticing flavors are part of the reason
why young people like them. These supporters state that
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inclusion of electronic cigarettes in the STAKE Act will make
them less accessible to youth. Solano County Tobacco Education
Coalition and Health Officers Association of California add
that this bill will align California law with local ordinances
that are already in place. Breathe California states that the
lack of statutory consistency among the regulation of
electronic cigarettes and tobacco products has led to
confusion at schools about the application of campus smoking
bans. California College and University Police Chiefs and the
California Narcotics Officers Association state that
electronic cigarettes have become the preferred delivery
system of Butane Hash Oil, an extraordinarily potent,
marijuana-derived product, and this bill will protect the
health and safety of minors. The California School Employees
Association says that it is important to do everything
possible to prevent children from purchasing e cigarette
products, and they support the inclusion of electronic
cigarettes in under the STAKE act. According to March of
Dimes, the addictive nature of nicotine in electronic
cigarettes is concerning because smoking during pregnancy can
cause complications for both the mother and infant, including
premature delivery and low-birth weight. The Association of
Northern California Oncologists states that electronic
cigarettes are known to emit toxic chemicals, and that the
best treatment for cancer is prevention, therefore electronic
cigarettes should be regulated. They add that, because
electronic cigarettes contain known carcinogens derived from
tobacco, it makes sense to regulate them like other tobacco
products. California Alliance for Retired Americans states
that electronic cigarettes subject the public to exposure and
addiction.
9.Oppose unless amended. The California Chapter of the National
Organization for the Reform of Marijuana Laws (NORML) states
that this bill will require medical marijuana patients go
outside or to designated smoking rooms, which contain harmful
cigarette smoke. They state that vaporization is fundamentally
different than smoking because there is no combustion reaction
that produces substances that cause smoking-related diseases
and that electronic cigarettes are an important harm-reduction
tool that helps users reduce and quit smoking cigarettes.
NORML objects to a landlords' right to restrict electronic
cigarettes on their properties. NORML and The Fresno Cannabis
Association recommend that the definition of a tobacco product
should be amended to remove "or other substances."
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10.Policy comment. This bill mandates licensure of an electronic
cigarette and tobacco product accessory or component (tobacco
device) manufacturer, importer, distributor, wholesaler, and
retailer, which is currently required for traditional
cigarettes. In a draft analysis of this bill, BOE states that
the purpose of the wholesaler and distributor license is to
track the payment of taxes associated with tobacco and that
including electronic cigarettes is a departure from BOE's
traditional tax collection and enforcement functions. BOE
further states that provisions in the Cigarette and Tobacco
Licensing Act help stem the tide of untaxed distributions and
that this bill's inclusion of electronic cigarettes relates to
health, public safety, or other non-tax purposes. At this time
there are no specific taxes on electronic cigarettes;
therefore, it is unclear what purpose BOE licensure may serve.
However, the FDA is in the process of finalizing regulations
to treat electronic cigarettes as tobacco products, just as
this law proposes to do. If this bill is signed into law,
California would have a licensing requirement in place when
the FDA finalizes this rule. The author may wish to consider
whether requiring licensure of electronic cigarettes like
traditional cigarettes, absent the inclusion of electronic
cigarettes in the current tax framework, is premature.
11.Technical amendments. The author requests the committee
approve the following amendments:
a. Delete references to "no smoking tobacco products",
and instead use the original statute language requiring
food facilities to have signs that read "No Smoking".
b. Add the definition of "smoking" to Section 22950.5
of the Business and Professions Code (c) to read:
"Smoking" means 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. "Smoking" also includes the use of
an electronic smoking device which 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.
c. Amend Business and Professions Code Section 22950.5
to read: An electronic device that delivers nicotine or
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other substances vaporized liquids to the person inhaling
from the device, including, but not limited to, an
electronic cigarette, cigar, pipe, or hookah.
SUPPORT AND OPPOSITION :
Support: American Cancer Society Cancer Action Network
(co-sponsor)
American Heart Association/American Stroke Association
(co-sponsor)
American Lung Association (co-sponsor)
Association of Northern California Oncologists
Breathe California
California Alliance for Retired Americans
California Chapter of the American College of
Cardiology
California Chapter of American College of Emergency
Physicians
California College and University Police Chiefs
Association
California Medical Association
California Narcotic Officers Association
California Pan-Ethnic Health Network
California Pharmacists Association
California Police Chiefs Association
California School Employees Association, AFL-CIO
Campaign for Tobacco-free Kids
Coalition for a Tobacco-free Sonoma County
Health Officers Association of California
Kaiser Permanente
March of Dimes California Chapter
Medical Oncology Association of Southern California
San Luis Obispo County Tobacco Control Coalition
San Mateo County Tobacco Education Coalition
SEIU-UHW
Solano County Tobacco Education Coalition
Yolo County Tobacco Prevention Coalition
Yuba County Tobacco Coalition
Oppose: California Chapter National Organization for the
Reform of Marijuana Laws*
Fresno Cannabis Association*
*Oppose unless amended.
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