BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: SB 140 --------------------------------------------------------------- |AUTHOR: |Leno | |---------------+-----------------------------------------------| |VERSION: |March 10, 2015 | --------------------------------------------------------------- --------------------------------------------------------------- |HEARING DATE: |April 8, 2015 | | | --------------------------------------------------------------- --------------------------------------------------------------- |CONSULTANT: |Shannon Muir | --------------------------------------------------------------- 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 SB 140 (Leno) Page 2 of ? 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. SB 140 (Leno) Page 3 of ? 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 SB 140 (Leno) Page 4 of ? 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 SB 140 (Leno) Page 5 of ? 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. SB 140 (Leno) Page 6 of ? 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 SB 140 (Leno) Page 7 of ? 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." SB 140 (Leno) Page 8 of ? 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 SB 140 (Leno) Page 9 of ? othersubstancesvaporized 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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