BILL ANALYSIS Ó SB 151 Page 1 Date of Hearing: July 8, 2015 ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION Adam Gray, Chair SB 151 (Hernandez) - As Introduced January 29, 2015 SENATE VOTE: 29-9 SUBJECT: Tobacco products: minimum legal age. SUMMARY: This bill increases the minimum legal age (MLA) to purchase or consume tobacco from 18 to 21 and makes additional conforming changes to restrictions and enforcement mechanisms in current law. Specifically, this bill: 1)Raises the minimum legal age (MLA) to purchase and consume tobacco products to 21 and makes all conforming changes in current law. 2)Establishes minimum state restrictions regarding tobacco purchase and possession and does not preempt local ordinances that impose a more restrictive legal age. 3)Extends the applicability of the 21 years of age restriction to provisions of the Stop Tobacco Access to Kids Enforcement Act (STAKE Act). SB 151 Page 2 EXISTING LAW: 1) Requires states to enact and enforce laws that prohibit the sale of cigarettes and tobacco products to minors under the age of 18. 2) Makes it a misdemeanor, subject to civil action and fines, any individual who knowingly or under circumstances furnishes, gives, or sells cigarettes or tobacco products to minors under the age of 18. 3) The California Cigarette and Tobacco Licensing Act of 2003, requires a retailer to obtain a license from BOE to engage in the sale of cigarette and tobacco products in California. 4) The STAKE Act establishes various requirements for retailers relating to tobacco sales to minors. Specifically: a) Prevents retailers from selling cigarettes and tobacco products to minors under the age of 18 and requires that retailers check identification of individuals trying to buy cigarettes and tobacco products who appear under the age of 18. b) Increases civil penalties and expands the number of agencies that are permitted to carry out investigations of illegal tobacco sales to minors from the State Department of Public Health (DPH) to include the Attorney General and other state and local agencies. c) Makes certain violations of the STAKE Act a criminal offense. d). Requires DPH to take primary responsibility for enforcement of the STAKE Act and requires DPH to conduct random, onsite inspections of retail sites. e) Requires DPH to enlist the assistance of persons who SB 151 Page 3 are 15 or 16 years of age for this purpose and requires the DPH to adopt and publish guidelines for the use of minors in inspections, as specified. g) Permits DPH to enter into an agreement with a local law enforcement agency for delegation of enforcement of the STAKE Act. 5) Makes it a misdemeanor (Penal Code Section 308) for a retailer to knowingly or under circumstances in which it has knowledge, or should otherwise have grounds for knowledge, sell, give, or in any way furnish a minor with tobacco products or paraphernalia. 6) Violations of the STAKE Act or Penal Code Section 308 result in BOE action, on a set schedule, relating to the licensure of the retailer when the youth purchase survey finds that 13% or more of youth are able to purchase cigarettes, and makes the board's authority inoperative when a youth purchase survey shows less than 13% of youth were able to purchase cigarettes. 7) Provides that a violation of the STAKE Act or Penal Code Section 308 is punishable by a fine of two hundred dollars ($200) for the first conviction, five hundred dollars ($500) for the second offense, and one thousand dollars ($1,000) for the third offense. For the 4th to 7th conviction of a violation, inclusive, in 12 months, the retailer's license to sell cigarettes and tobacco products is suspended for 90 days. For the 8th conviction of a violation in 24 months, the retailer's license is revoked. 8) Provides for a 30-day appeal of BOE's decision. 9) Establishes an adult is an individual who is 18 years of age or older (FAM Sec. 6501) FISCAL EFFECT: Unknown SB 151 Page 4 COMMENTS: Purpose of the bill : According to the author, an estimated 90 percent of tobacco users start prior to age 21, and 80 percent of lifetime users start before the age of 18. By increasing the MLA to 21, this bill intends to prevent or severely restrict youth access to these highly addictive and deadly products. The consumption of tobacco products leads to a lifetime of adverse health effects and remains the leading cause of preventable death in the nation and California. This bill aims to achieve better health outcomes for Californians, while lowering the immense cost on the health care system of tobacco-related disease. UC San Francisco (UCSF) reported tobacco use cost a staggering $18.1 billion in California alone, with $9.8 billion in direct health care expenditures. In 2013, to address the burden of tobacco, the federal Food and Drug Administration (FDA) commissioned the Institute of Medicine (IOM) to study the effectiveness of raising the MLA. The IOM concluded that raising the MLA to 21 would cause the smoking prevalence to decline by 12 percent more than existing control policies. California already has a 21 year age restriction for other dangerous activities; it is time for tobacco to be added to that list. This bill will help California be a leader in tobacco control and take steps towards eliminating the addictive, costly, and deadly habit of tobacco use. Background : According to the Center for Disease Control and Prevention (CDC), tobacco use causes cancer, heart disease, stroke, lung diseases, and diabetes and remains the leading cause of preventable death in the United States, resulting in over 480,000 deaths annually. A study conducted by UCSF estimated that, in 2009, 34,000 deaths in California were attributable to smoking. Furthermore, according to the United States Department of Health and Human Services (DHS), approximately 80 percent of adult smokers began smoking before SB 151 Page 5 the age of 18. Youth smoking is associated with greater likelihood of adult smoking, heavier use of cigarettes, and more difficulty in quitting. Research shows a sharp decline in smoking according to the DHS. With the passage of Proposition 99 in 1988 and the enactment of subsequent legislation throughout the 1990s, California has mounted the largest and most comprehensive anti-smoking campaign in the United States. DHS states that California's campaign sets the standard for the rest of the nation and the world, setting a goal of changing public perception of tobacco use and emphasizing local interventions, regional coalitions, media, research, and evaluation. The campaign has focused on four key areas: countering pro-tobacco influences; protecting youth and adults from secondhand smoke; reducing the availability of tobacco products to youth; and, providing support for quitting tobacco use. Since the passage of Proposition 99, adult smoking prevalence dropped by more than 30 percent and per-capita cigarette consumption in California fell by more than 50 percent. Youth : The CDC states that nearly all tobacco users begin during their youth, with 3,200 adolescents trying their first cigarette each day. DPH estimates that 64 percent of smokers in California start before age 18. According to DPH, California has one of the lowest teenage smoking rates in the nation. However, the prevalence of smokeless tobacco use among youth has greatly increased, and there has been a slowing decline in rates of cigarette smoking among youth. Through implementation of the STAKE Act, California also has seen a steady decline in illegal sales to minors, although there has been a slight increase in recent years. Other States : In 1992, Congress passed the Synar Amendment, which requires states to pass and enforce laws that prohibit the sale of tobacco to minors. It also requires that federal SB 151 Page 6 alcohol and substance abuse block grant funding be applied to enforcing state law in a manner that can reasonably be expected to reduce the illegal sales rate of tobacco products to minors. Up to 40 percent of the block grant funding can be withheld from states for not complying with the Synar Amendment. All states are currently in compliance; 45 States have a MLA of 18 to purchase or consume tobacco; while Alabama, Alaska, New Jersey and Utah are 19. On Friday, June 19, 2015, Hawaii Governor, David Ige, signed SB 1030 (Baker) into law, making Hawaii the first state to raise the MLA to 21. Colorado and Utah have pending legislation to increase the MLA to 21 as well. Support : The American Cancer Society Cancer Action Network (ACS CAN) argues SB 151, a bill that would raise the minimum age to purchase cigarettes to 21 years old. This bill is important because nationally 95% of adult smokers start before they turn 21. Half of adult daily smokers become addicted before the age of 18 and 80% of adult smokers become addicted before they turn 21. It is estimated that 34,000 Californians will die from smoking every year. There are 441,000 children who are alive now that will die prematurely due to smoking-related disease. It is the single largest preventable cause of death. Smoking kills more people than alcohol, AIDS, car crashes, illegal drugs, murders and suicides combined. The annual health care costs in California directly caused by smoking are $13.29 billion. Medi-Cal covers $3.5 billion of those costs each year. They contend the tobacco companies know that increasing the minimum age of purchase to 21 would result in fewer people smoking. In fact, a report by Philip Morris in 1986 stated "Raising the legal minimum age for cigarette purchaser to 21 could gut our key young adult market (17-20) where we sell about 25 billion cigarettes and enjoy a 70 percent market share." SB 151 is an important component in a comprehensive strategy to reduce youth consumption of tobacco and prevent a lifelong addiction. SB 151 Page 7 Opposition : The California Retailers Association argues the FDA is required to study the public health implications of increasing the minimum legal age to purchase or consume tobacco and report its findings to congress this year. Congress has established a thoughtful process for understanding this issue and states should allow this process to occur. States and localities should defer to this federal process and allow Congress to consider the FDA report before enacting any changes in minimum laws. The Cigar Association of California argues if an individual at age 18 can be eligible to vote, serve in the military, enter into legally binding contracts, and be held accountable for adult crimes they ought to be entrusted to make their own decisions about whether to purchase tobacco products. A law such as this would put an employee of a tobacco retail establishment in the unfortunate position of having to deny the sale of tobacco products to a young man or woman in uniform who is under the age of 21. Policy Concerns : 1. California and Federal law define an adult as an individual 18 years of age or older. Upon entering the age of majority, a person is granted a variety of choices that the government deems are fit for only adults, some of which include: The right to enlist in the military; the right to vote; the right to purchase and own a long gun and be held subject to adult sentencing laws. State and Federal government has entrusted individuals 18 years and older to make these decisions as an adult, all of which have consequences. The committee may wish to consider that the current age of majority is sufficient for an individual to decide to use tobacco or e-cigarettes. SB 151 Page 8 2. If signed, this bill would go into effect on January 1, 2016, which would make it illegal overnight for 18 to 20 year olds to purchase tobacco. Individuals, who are already legally addicted to tobacco, will be forced to quit. In all likelihood, the majority of this population would attempt to purchase tobacco products illegally through retailer or black market channels. Related legislation : SB 151 (Hernández) of 2015. Increases the minimum legal age to purchase or consume tobacco from 18 to 21 and makes additional conforming changes to restrictions and enforcement mechanisms in current law. (Pending in Assembly G.O. Committee) AB 216 (Garcia) of 2015. Prohibits the sale of any device intended to deliver a non-nicotine product in a vapor state, to be directly inhaled by the user, to a person under 18 years of age. (Pending in Senate Appropriations) SB 24 (Hill) of 2015. Extends STAKE Act requirements to the sale of electronic cigarettes (e-cigs), distinct from the definition of tobacco products, and requires enforcement, as specified, to begin July 1, 2016; extends current smoke-free laws and penalties to e-cigs; requires e-cig cartridges to be in childproof packaging, as defined; broadens the current definition of e-cigs, as specified; and requires all retailers of e-cigs to apply for licensure to sell e-cigs, as specified. (Failed passage on the Senate Floor and is pending reconsideration) SB 151 Page 9 SB 438 (Hill) of 2015. Requires all cartridges for electronic cigarettes and solutions for filling and refilling an electronic cigarette to be in child-resistant packaging. (Pending in Assembly G.O. Committee) SB 591 (Pan) of 2015. Imposes an additional excise tax of $2.00 per package of 20 cigarettes. This bill also (1) imposes an equivalent one-time "floor stock tax" on the cigarettes held or stored by dealers and wholesalers, and (2) indirectly increases the tobacco products tax. (Ordered to inactive file on Senate Floor) REGISTERED SUPPORT / OPPOSITION: Support American Academy of Pediatrics American Cancer Society Cancer Action Network American Federation of State, County and Municipal Employees, AFL-CIO American Heart Association/American Stroke Association SB 151 Page 10 American Lung Association in California 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 Center for Public Health Advocacy California Chapter of the American College of Cardiology California Chapter of the American College of Emergency Physicians California Dental Association California Medical Association California Optometric Association SB 151 Page 11 California Pharmacists Association California Police Chiefs Association California Primary Care Association California Society of Addiction Medicine California State Association of Counties (CSAC) Campaign for Tobacco-Free Kids City Attorney of Los Angeles, Mike Feuer City of Encinitas County Behavioral Health Directors Association El Monte/South El Monte Chamber of Commerce First 5 California First 5 Association of California First 5 Riverside Commission SB 151 Page 12 Health Officers Association of California Kaiser Permanente March of Dimes California Chapter Massachusetts General Hospital Center for Child and Adolescent Health Research and Policy Medical Oncology Association of Southern California, Inc. Preventing Tobacco Addiction Foundation San Marcos Prevention Coalition Santa Clara County Board of Supervisors Service Employees International Union California Solano County Board of Supervisors Tobacco Education and Research Oversight Committee Opposition Cigar Association of America, Inc. SB 151 Page 13 California Retailers Association Legal Services for Prisoners with Children Analysis Prepared by:Kenton Stanhope / G.O. / (916) 319-2531