BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 140|
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THIRD READING
Bill No: SB 140
Author: Leno (D), et al.
Amended: 6/1/15
Vote: 21
SENATE HEALTH COMMITTEE: 6-1, 4/8/15
AYES: Hernandez, Mitchell, Monning, Pan, Roth, Wolk
NOES: Nielsen
NO VOTE RECORDED: Nguyen, Hall
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/28/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
SUBJECT: Electronic cigarettes
SOURCE: American Cancer Society-Cancer Action Network
American Heart Association
American Lung Association
California Society of Addiction Medicine
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; and, extends current licensing requirements for
manufacturers, importers, distributors, wholesalers, and
retailers of tobacco products to electronic cigarettes.
ANALYSIS:
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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
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:
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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 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 e-cigarettes, which are not subject to a
tobacco tax, to apply for a license and pay a license fee, in
an amount to be determined by BOE, beginning October 1, 2016.
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.
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 nitrosamines (a carcinogen) comi2)ng from the
secondhand emissions of ecigarettes.
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Despite these potentially serious risks to public health,
electronic cigarette use is growing nationwide. The Centers
for Disease Control and Prevention (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 heating a
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
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."
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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
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
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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.
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
pending action on the Senate Floor.
SB 151 (Hernandez) raises the legal age to purchase tobacco
products to 21. SB 151 is pending action on the Senate Floor.
AB 216 (Garcia) raises the allowable fine for selling electronic
cigarettes to a minor. AB 216 is pending hearing in the Senate
Health Committee.
AB 768 (Thurmond) prohibits the use of electronic cigarettes in
any baseball stadium, including the dugout and locker rooms. AB
768 is being held in the Assembly Appropriations Committee.
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Prior Legislation
SB 568 (Steinberg, Chapter 336, Statues of 2013) prohibited 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, 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.
SJR 8 (Corbett, 2009) would have requested that the FDA prohibit
the sale of electronic cigarettes until they are deemed safe.
SJR8 failed passage in the Assembly.
AB 1500 (Dickinson, 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
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 DPH (General Fund or tobacco
tax funds).
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).
Current federal law requires the state to determine the rate
at which minors can illegally purchase tobacco products. The
Department of Public Health conducts random inspections at
about 750 retail locations annually to determine a statewide
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average rate at which retailers are not in compliance with
state and federal law. The total annual cost to conduct the
current survey is $400,000.
There are many retail locations that sell both traditional
tobacco products as well as electronic cigarettes. There are
also a significant number of retail locations that only sell
electronic cigarettes and related products. Because this bill
expands the universe of retail locations subject to the
inspection requirement, DPH will need to conduct additional
visits to newly regulated retail locations which only sell
electronic cigarettes. There are about 1,000 retailers in the
state that sell electronic cigarettes but not tobacco
products. DPH is likely to incur additional costs to survey a
sample of those retail locations to accurately determine the
rate at which minors can purchase electronic cigarettes.
Because retailers that sell both tobacco products and
electronic cigarettes are not likely (in the long-term) to
sell those products to minors at different rates, the
Department will likely be able to combine survey efforts at
retailers that sell both types of products.
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).
Under current law, DPH enforces the law prohibiting the sale
of tobacco products to minors by conducting compliance
inspections using youth decoy purchasers and following up on
complaints from the public. The total annual cost for DPH's
enforcement program is $1.6 million per year. By adding
additional retailers to the current prohibition on sales to
minors, this bill will increase DPH's enforcement efforts,
particularly for retailers who do not already sell traditional
tobacco products. The amount of that increased enforcement
activity will depend both on the number of additional
retailers covered by the law and the compliance rate of those
retailers (or if retailers of traditional tobacco products are
found to be selling electronic cigarettes to minors at higher
rates than traditional tobacco products). The total
enforcement cost is unknown at this time, but is likely to be
in the hundreds of thousands per year, based on existing
enforcement costs. Because the state has fully allocated the
existing federal funding for this program, any additional
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costs will be borne by the General Fund, tobacco tax funds, or
other fund sources.
Ongoing licensing costs of about $300,000 for BOE to license
retailers who sell electronic cigarettes but are not currently
licensed because they do not sell tobacco products (Compliance
Fund). Under current law, BOE licenses wholesalers and
retailers of tobacco products, to facilitate the collection of
tobacco taxes. This bill requires BOE to also license
electronic cigarette retailers. Currently, BOE expends about
$280 per licensee to operate the licensing program. Licensees
pay a one-time licensing fee of $100. The remaining program
costs are offset with tobacco tax revenues. According to the
Stanford Prevention Center, there are about 1,000 retailers in
the state that specialize in electronic cigarettes and do not
sell other tobacco products. BOE would incur additional
licensing costs to license those retailers, which would be
offset by the initial licensing fee. The author's amendments
authorize BOE to impose an additional one-time fee in an
amount set by BOE.
No anticipated change in tobacco tax revenue (General Fund and
special fund). The 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: (Verified5/28/15)
American Cancer Society-Cancer Action Network (co-source)
American Heart Association (co-source)
American Lung Association (co-source)
California Society of Addiction Medicine (co-source)
Alameda County Tobacco Control Coalition
Association of Northern California Oncologists
Breathe California
California Academy of Family Physicians
California Academy of Preventive Medicine
California Alliance for Retired Americans
California Chapter of the American College of Cardiology
California Chapter of the American College of Emergency
Physicians
California Chronic Care Coalition
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California College and University Police Chiefs Association
California Medical Association
California Narcotic Officers Association
California Peace Officers' Association
California Pharmacists Association
California Police Chiefs Association
California School Employees Association
California State PTA
Campaign for Tobacco-Free Kids
City and County of San Francisco
City of Camarillo
City of Los Angeles
City of Oakland
City of Oceanside
City of Walnut Creek
Coalition Engaged in A Smoke-free Effort
Coalition for a Tobacco-Free Sonoma County
Community Action Partnership of Madera County
Community Health Involvement Partners
County Health Executives Association of California
County of Alameda
County of San Benito
County of San Diego
County of Santa Clara
First 5 Association of California
Fresno County Tobacco-Free Coalition
Health Access California
Health Officers Association of California
Kaiser Permanente
Los Angeles City Attorney Mike Feuer
March of Dimes
Medical Oncology Association of Southern California
Monterey County Collaborates
Orange County Tobacco Education Coalition
San Francisco Medical Society
San Luis Obispo County Tobacco Control Coalition
San Mateo County Tobacco Education Coalition
SEIU California
SEIU-UHW
Solano County Tobacco Education Coalition
Yolo County Tobacco Prevention Coalition
Yuba County Tobacco Coalition
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OPPOSITION: (Verified5/28/15)
California Chapter of the National Organization for the Reform
of Marijuana Laws
Fresno Cannabis Association
NJOY
Smoke Free Alternatives Trade Association
ARGUMENTS IN 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 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 Association 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 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
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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.
ARGUMENTS IN OPPOSITION: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."
Prepared by:Shannon Muir / HEALTH /
6/1/15 13:12:27
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