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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