BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
                              Senator Jerry Hill, Chair
                                2015 - 2016  Regular 

          Bill No:            SB 1400         Hearing Date:    April 11,  
          2016
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          |Author:   |Wieckowski                                            |
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          |Version:  |February 19, 2016                                     |
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          |Urgency:  |No                     |Fiscal:    |Yes              |
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          |Consultant|Mark Mendoza                                          |
          |:         |                                                      |
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                          Subject:  Retail tobacco licenses


          SUMMARY:  Revises the definition of "retail location" under the  
          Cigarette and Tobacco Products Licensing Act to mirror the  
          definition of "tobacco store" under the Stop Tobacco Access to  
          Kids Enforcement Act.

          Existing law:

          1) Defines a "tobacco store", under the Stop Tobacco Access to  
             Kids Enforcement Act, as a retail business that meets the  
             following requirements:  (Business and Professions Code (BPC)  
             § 22962(4)(A))

             a)   Primarily sells tobacco products.

             b)   Generates more than 60 percent of its gross revenues  
               annually from the sale of tobacco products and tobacco  
               paraphernalia.

             c)   Does not permit any person under 18 years of age to be  
               present or enter the premises at any time, unless  
               accompanied by the person's parent or legal guardian, as  
               defined in Family Code § 6903.

             d)   Does not sell alcoholic beverages or food for  
               consumption on the premises. 








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          2) Establishes the Cigarette and Tobacco Products Licensing Act,  
             which outlines the licensing requirements on all retailers,  
             wholesalers, and distributors of cigarettes and tobacco  
             products, and all manufacturers and importers of cigarettes. 
          (BPC § 22970 et seq.)

          3) Requires the State 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.  (BPC § 22970.2)

          4) Defines "retail location" as both any building from which  
             cigarettes or tobacco products are sold at retail and a  
             vending machine.  (BPC § 22971(q))

          5) 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.  (BPC § 22973(7)(d))

          6) Prohibits selling tobacco products without a valid license  
             and makes violations punishable as a misdemeanor.  (BPC §  
             22980.2; 22981)

          This bill:  Recasts the definition of "retail location" as a  
          tobacco store that is a retail business that, among other  
          things, generates more than 60% of its gross revenues annually  
          from the sale of tobacco products and tobacco paraphernalia.  

          
          FISCAL  
          EFFECT:  Unknown.  This bill is keyed "fiscal" by Legislative  
          Counsel. 

          
          COMMENTS:
          
          1. Purpose.  The  Author  is the sponsor of the bill.  According  
             to the Author, "Current law requires a retailer to obtain a  
             license from the BOE to sell cigarette and tobacco products  
             in California.  A 'retailer' is currently defined as a person  
             who engages in this state in the sale of cigarettes or  
             tobacco products directly to the public from a retail  








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             location.  The act defines a 'retail location' as both any  
             building from which cigarettes or tobacco products are sold  
             at retail and a vending machine.  SB 1400 narrows the  
             definition of 'retailers' permitted to sell tobacco products  
             to only tobacco stores, thus significantly restricting where  
             tobacco products can be purchased."

          2. Background.  While California boasts the second-lowest  
             smoking rate in the nation, tobacco-related diseases still  
             claim the lives of 40,000 Californians every year.  The state  
             has worked successfully to discourage people from smoking;  
             however, tobacco products are easily available in a gas  
             station or grocery store. Unlike tobacco shops, there are no  
             age restrictions on entering a gas station or grocery store.   
             Consequently, tobacco products sold in these stores are  
             visible and easily available to minors to purchase.  Tobacco  
             advertising is also commonplace at many retail locations. 

             A 2004 Stanford University study found that cigarettes are  
             marketed more heavily in stores where adolescents shop -  
             particularly the cigarette brands most popular with  
             adolescent smokers.  The report underscores that, "Compared  
             to other stores in the same community, stores popular among  
             adolescents displayed more than three times as many cigarette  
             marketing materials outside, and contained almost three times  
             more marketing materials and twice as much shelf space for  
             Marlboro, Camel, and Newport.  These three brands account for  
             more than 80% of the cigarettes bought by US adolescents."

          3. License for Retailers.  Through  AB 71  (Jerome Horton, Chapter  
             890, Statutes of 2003), the State of California enacted the  
             Cigarette and Tobacco Products Licensing Act, which  
             established a statewide licensing program under the Business  
             and Professions Code (BPC § 22970 et seq.).  The Act imposed  
             licensing requirements on all retailers, wholesalers, and  
             distributors of cigarettes and tobacco products, and all  
             manufacturers and importers of cigarettes.  These licensing  
             requirements are in addition to the permits and licenses that  
             may be required depending on the individual's business  
             operations.  The Act, intended to decrease tax evasion on the  
             sales of cigarettes and tobacco products in California, also  
             included provisions for new recordkeeping requirements,  
             inspection and seizure of any untaxed cigarettes or tobacco  
             products, and imposed civil and criminal penalties for  








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             violations.

             Every retailer who sells or will sell cigarettes or tobacco  
             products in California is required to obtain a retailer's  
             license from the BOE.  An individual must obtain a license  
             for each retail location they own or operate.  For example,  
             if a person operates several different stores, which each  
             sell cigarettes or tobacco products, they must obtain a  
             separate license for each store location.  However, a person  
             may submit a single application for multiple licenses, and  
             include $100 for each location's license (BPC § 22972 (a)).   
             The license is valid for one year and must be renewed  
             annually.  There is no additional charge to renew a license. 

             There are severe penalties of up to $5,000, or up to one year  
             imprisonment in the county jail, or both the fine and  
             imprisonment if an individual is caught selling cigarettes or  
             tobacco products without a license (BPC § 22972(a);  
             22980.1(h); 22981).

          4. Tobacco Products Banned from Pharmacies. In 2008, San  
             Francisco became the first city in the United States to ban  
             the sale of tobacco products from retail pharmacies.  The  
             Author reports that San Francisco has "since expanded the law  
             to apply to all stores containing pharmacies, such as Costco.  
              One hundred six cities have since joined San Francisco in  
             passing tobacco-free pharmacy laws."

          Additionally, CVS has announced that it will ban tobacco  
             products from all of its stores.

          5. This Measure Would Significantly Limit the Number of Retail  
             Locations Permitted to Sell Tobacco Products.  By revising  
             the definition of "retail location", under the Cigarette and  
             Tobacco Products Licensing Act, only a specific amount of  
             stores will be able to sell cigarettes and tobacco products.   
             Consequently, this change in definition will dramatically  
             curtail who can apply and qualify for a BOE license.  For  
             example, if this bill is enacted into law, supermarket  
             chains, small business grocery stores, and local convenient  
             stores would be prohibited to sell cigarette and tobacco  
             products, given the clear reason that they do not produce 60%  
             of their annual revenue from the sale of tobacco products and  
             tobacco paraphernalia.   








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             In the BOE's analysis for SB 1400 (Wieckowski), the analyst  
             writes, "BOE data indicates that 33,381 retailers had  
             licenses that allowed them to sell cigarette and tobacco  
             products in February 2016. The North American Industry  
             Classification 
             System (NAICS) shows that the largest numbers of licensees  
             were grocery stores, gas stations, convenience stores, liquor  
             stores, and tobacco stores. Of the total licenses, 2,276 were  
             tobacco stores. These tobacco stores are unlikely to be  
             affected by this bill, but all the others will likely no  
             longer meet the requirements to be licensed?The proposed  
             definition change reduces the number of businesses that may  
             hold a retailer license from 33,000 to 10,000, as of January  
             1, 2017."


             Coupled with SB 1470 (Wieckowski) of 2016, supermarket chains  
             and small business grocery stores would be prohibited from  
             additionally selling tobacco paraphernalia.

          6. Related and Prior Legislation.   SB 1470  (Wieckowski) of 2016  
             revises a definitional requirement of "tobacco store" to  
             indicate that a retail business primarily sells tobacco  
             products and tobacco paraphernalia.  (  Status:   This bill is  
             currently set to be heard in this committee on April 11,  
             2016.)
           
             SBX2 - 5  (Leno) of 2015 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; extends current licensing requirements  
             for manufacturers, importers, distributors, wholesalers, and  
             retailers of tobacco products to electronic cigarettes; and  
             requires electronic cigarette cartridges to be  
             child-resistant.  (  Status:   This bill is currently in  
             engrossing and enrolling, pending the Governor's signature.)

              SB X2 - 7  (Hernandez) 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.  (  Status:   This bill is currently  
             in engrossing and enrolling, pending the Governor's  








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             signature.)

              SB X2 - 10  (Beall) of 2015 revised the Cigarette and Tobacco  
             Products Licensing Act of 2003 to change the retailer license  
             fee from a $100 one-time fee to a $265 annual fee, and  
             increased the distributor and wholesaler license fee from  
             $1,000 to $1,200.  (  Status:   This bill was held at the  
             Assembly desk.)

              SB 24  (Hill) of 2015 would have classified electronic  
             cigarettes separately from tobacco products, added electronic  
             cigarettes to the Stop Tobacco Access to Kids Enforcement Act  
             and smoking location prohibitions, and mandated childproof  
             packaging for e-liquid used in electronic cigarettes.   
             (  Status:   This bill was ultimately amended to deal with the  
             California Public Employees' Pension Reform Act of 2013.)  

              ABX2 - 6  (Cooper) of 2015 defined the term smoking for  
             purposes of the Stop Tobacco Access to Kids Enforcement Act,  
             expanded the definition of a tobacco product to include  
             electronic cigarettes (e-cigarettes), and extended current  
             restrictions and prohibitions against the use of tobacco  
             products to electronic cigarettes.  The bill further extended  
             current licensing requirements for manufacturers, importers,  
             distributors, wholesalers, and retailers of tobacco products  
             to electronic cigarettes.  (  Status:   This bill was never  
             heard on the Assembly Floor.)
              
             AB 1500  (Dickinson) of 2014 would have prohibited a delivery  
             seller, as defined, from selling or delivering an electronic  
             cigarette to a person under 18 years of age.  (  Status:   AB  
             1500 failed passage in the Assembly Appropriations  
             Committee.)
              
             SB 568  (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) of 2013 would have restricted electronic  
             cigarettes from being sold in vending machines.   (  Status:    
             SB 648 failed passage in the Assembly Appropriations  
             Committee.)
              








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             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) of 2009 would have requested that the FDA  
             prohibit sale of electronic cigarettes until they are deemed  
             safe.  (  Status:  SJR8 failed passage in the Assembly.)

          7. Arguments in Support.   The American Lung Association in  
             California  asserts that, "By limiting the sale of tobacco  
             products to tobacco only stores, this bill limits the ability  
             of the tobacco industry to market tobacco to our kids.   
             Studies have shown that frequent exposure to tobacco retail  
             displays has been associated with increased smoking  
             initiation among youth and can create a negative impact on  
             tobacco quit attempts."

              First 5 Association of California  highlights that, "By  
             restricting the sales of tobacco products to only tobacco  
             stores, this bill would both drastically reduce tobacco  
             exposure to minors and streamline tax collection and  
             enforcement for the BOE."

           8. Policy Issue:  Does this measure somewhat accomplish what it  
             is attempting to prevent?   AB 71  (Jerome Horton, Chapter 890,  
             Statutes of 2003) redefined "retail location" to restrict a  
             mobile vendor from engaging in the sale of cigarettes and  
             tobacco products.  Specifically, the definition was narrowed  
             to allow only a location that is a "building" to be licensed.  
              The BOE reports that, "The amendment was intended to prevent  
             cigarette and tobacco products access to minors and to make  
             tax enforcement, including retail inspections, feasible, and  
             more effective."

             In its current form, SB 1400 appears to allow a mobile vendor  
             to qualify for a license to engage in the sale of cigarettes  
             and tobacco products.  Thus, catering trucks, lunch wagons,  
             and other mobile facilities may be licensed if they meet the  
             "tobacco store" requirements.  The BOE further underscored  
             that, "This appears to undermine the bill's intent to prevent  
             access to minors and complicates retail license enforcement."

             To protect minors from exposure to cigarette and tobacco  








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             products, the Author may wish to clarify how mobile venders  
             would be excluded from BOE's license.  


          SUPPORT AND OPPOSITION:
          
           Support:  

          American Lung Association in California
          First 5 Association of California
          The American Academy of Pediatrics, California (AAP-CA)
          The County Health Executives Association of California (CHEAC)
          Regional Asthma Management and Prevention (RAMP) 

           Opposition:  

          None on file as of April 5, 2016.


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