BILL ANALYSIS �
AB 1500
Page 1
Date of Hearing: April 30, 2014
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Isadore Hall, Chair
AB 1500 (Dickinson) - As Amended: April 21, 2014
SUBJECT : electronic cigarettes.
SUMMARY : Prohibits a delivery seller, as defined, from selling
or delivering an electronic cigarette (e-cigarette) to a person
under 18 years of age. Specifically, this bill :
1)Requires the delivery seller to use a method of mailing or
shipping that requires all of the following:
a) The consumer placing the delivery sale order, or an
adult who is at least 18 years of age at the place of
delivery, shall sign to accept delivery of the e-cigarette
at the delivery address.
b) The person who signs to accept delivery of the
e-cigarette shall provide proof, in the form of a valid,
government-issued identification bearing a photograph of
the person, that the person is 18 years of age or older.
c) The person delivering the e-cigarette shall not deliver
the e-cigarette without first obtaining the full name,
birth date, and residential address of that person and
verifying that information through the use of a
commercially available database, consisting primarily of
data from government sources, that are regularly used by
government and businesses for the purposes of age and
identity verification and authentication, to ensure that
the purchaser is at least the minimum age required for the
legal sale or purchase of e-cigarettes.
2) Specifies that a database being used for age and identity
verification shall not be in the possession or under the
control of the delivery seller, or be subject to any changes
or supplementation by the delivery seller.
3)Specifies that a violation shall be an infraction punishable
by a fine not exceeding $200 for the first violation, by a
fine not exceeding $500 dollars for the second violation, or
by a fine not exceeding $1,000 for a third or subsequent
AB 1500
Page 2
violation.
4)Specifies that this bill shall not invalidate an existing
ordinance of, or prohibit the adoption of an ordinance by, a
city or county that regulates the distribution of e-cigarettes
in a manner that is more restrictive than this bill, to the
extent that the ordinance is not otherwise prohibited by
federal law.
5)Defines a "consumer" as person who purchases an e-cigarette.
"Consumer" does not include any person lawfully operating as a
manufacturer, distributor, wholesaler, or retailer of
electronic cigarettes.
6)Defines a "delivery sale" as a sale of e-cigarettes into and
in this state in either of the following cases:
a) The consumer submits the order for the sale by means of
telephone or other method of voice transmission, the mail,
or the Internet or other online service, or the seller is
otherwise not in the physical presence of the consumer when
the request for purchase or order is made.
b) The e-cigarette is delivered to the consumer by common
carrier, private delivery service, or other method of
remote delivery, or the seller is not in the physical
presence of the consumer when the consumer obtains
possession of the electronic cigarette.
7)Defines "delivery seller" as a person who makes a delivery
sale.
EXISTING LAW
1)Prohibits, under the Stop Tobacco Access to Kids Enforcement
Act (STAKE Act), any person from distributing or selling
tobacco products via the United States Postal Service (USPS),
or any other public or private postal or package delivery
service, to any purchaser who is a minor.
2)Requires, under the STAKE Act, a specified distributor or
seller, among other things, to verify that a purchaser of
tobacco products is 18 years of age or older, and to telephone
the purchaser after 5 p.m. to confirm the order prior to
shipping the tobacco products.
AB 1500
Page 3
3)Makes it unlawful for a person to sell or otherwise furnish an
e-cigarette, as defined, to a person under 18 years of age and
makes a violation punishable as an infraction, as specified.
4)Defines an "electronic cigarette" as a device that can provide
an inhalable dose of nicotine by delivering a vaporized
solution.
5)Bans, under the Prevent All Cigarette Trafficking Act (PACT
Act), the shipment of tobacco products through the USPS.
6)Requires, under the PACT Act, age verification upon the
purchasing and delivery of tobacco products online.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of the bill : According to the author, e-cigarettes are
an increasingly common source of nicotine for teenagers. The
Centers for Disease Control published a report on data from the
2011 and 2012 National Youth Tobacco Survey indicating that the
use of e-cigarettes has doubled among middle and high school
students between 2011 and 2012, and that an estimated 1.78
million students have used e-cigarettes. While California
barred the sale of e-cigarettes to minors, 17 and under, in
2010, more than half of the states still allow sales to minors.
The author further contends that tobacco products pose a serious
threat to the health and safety of our children. Because it is
difficult to verify the age of the purchaser in a
non-face-to-face sale, Internet tobacco sellers cannot ensure
that their products will not fall into the hands of children.
Consequently, in 2010, the federal government passed a law
requiring age verification for the delivery of tobacco products
through the use of a commercially available database that is
regularly used to verify an individual's age.
AB 1500 would extend these age verification procedures to
e-cigarettes. The bill would require an adult to sign for the
delivery of any e-cigarettes in California when the purchase of
e-cigarettes occurred online. This will help safeguard against
minors having access to e-cigarettes.
AB 1500
Page 4
What are E-Cigarettes ?: E-cigarettes are devices that emit
doses of vaporized nicotine that are inhaled by the user. Most
resemble long-shaped tubes, and many look like the product the
user used to smoke, such as a cigarette, cigar, or pipe, while
others look like ballpoint pens. The majority are reusable with
replaceable and refillable cartridges.
Most of the current e-cigarettes on the market today are
automatic, meaning that the user sucks on it and a sensor
activates a heating element that vaporizes a liquid solution
held in the mouthpiece. The basic design is generally similar.
E-cigarettes consist of a plastic tube, an electronic heating
element, a liquid nicotine cartridge, and a lithium battery and
atomization chamber with a membrane to suspend ingredients.
Some contain a light emitting diode in the tip which illuminates
when the user inhales, or "vapes", giving the appearance of the
burning end of conventional cigarettes.
E-cigarettes were first developed in China in 2004 with the goal
of imitating the efficient nicotine delivery system of a
conventional cigarette without the significant harmful effects
of tobacco smoke. Chemicals introduced into a liquid vehicle
produce aromas and flavors of tobacco, chocolate, mint, and
various other flavors. The concentration of nicotine varies
both across different manufacturers and sometimes within the
same brand.
U.S. Food and Drug Administration (FDA) : In 2008 the FDA
sought to regulate e-cigarettes as drug delivery devices by
blocking new e-cigarette shipments into the United States. In
response, an e-cigarette manufacturer sued the FDA in federal
court, claiming that the agency did not have the authority over
e-cigarettes as drug delivery devices and therefore could not
stop the shipments.
In 2010, the federal court ruled in favor of the manufacturer
stating that the FDA may not regulate e-cigarettes as drug
delivery devices if they are not marketed as tobacco cessation
products. However, the court also found that the FDA does have
the authority to regulate e-cigarettes as tobacco products. As
a result, the FDA issued a warning letter to various e-cigarette
distributors informing them that the FDA intends to regulate
e-cigarettes in a manner consistent with its mission of
protecting the public health.
AB 1500
Page 5
On April 24, 2014, the FDA finally released those proposed
regulations. As part of those proposed rules, the FDA would ban
the sale of e-cigarettes to minors, but did not ban their online
sale. In addition, the FDA did not ban the sale of flavored
e-cigarettes. However, the proposed regulations would prohibit
companies from distributing free e-cigarette samples and require
e-cigarette companies to warn consumers that nicotine is
addictive, but no other health warnings would be required. The
addiction warning would have to be added no later than two years
after the rule is finalized. The new rules would also require
companies to submit new and existing products to the FDA for
approvals.
In terms of Internet sales for e-cigarettes, FDA spokesman Jeff
Ventura stated that Internet sales won't be altered by the
current package of rules. Online sellers would not be required
to take additional age-verifying steps, as brick-and-mortar
retailers would have to do with photo ID checks. But such
changes may be in the not-too-distant future. Such restrictions
could not occur because FDA must bring the products under FDA
authority first and such changes would require separate
rule-making comments.
The proposed rules are subject to a public comment period of 75
days. The proposed rules could then be finalized, but
proponents on both sides of the issue believe that certain rules
could take years to become final.
Prevent All Cigarette Trafficking Act (PACT) : In March 2010,
President Obama signed the PACT which aimed to regulate the sale
of tobacco products over the Internet and through the mail. The
PACT makes it harder for vendors to avoid paying federal, state,
and local taxes and forces internet retailers to comply with
other regulations of tobacco products, including the sale of
minors. In addition, the PACT bans the delivery of tobacco
products through the U.S. Postal Service, requires age
verification upon the purchasing and delivery of tobacco
products, and authorizes greater penalties and provides better
enforcement tools for state law enforcement.
Arguments in support : According to the County Health Executives
Association of California, verification of age is hard to obtain
for internet sales of tobacco products since the buyer is not in
the physical presence of the seller. A study by the Journal of
the American Medical Association found that more than 96% of
AB 1500
Page 6
minors aged 15 to 16 were able to find an Internet cigarette
vendor and place an order in less than 25 minutes, with most
completing the order in seven minutes. As of 2012, more than
23% of all high school students had used some kind of tobacco
product in the past month and the use of e-cigarettes has more
than doubled among high school students. Early smoking as young
teens are more likely to become lifetime smokers and die from
diseases caused by tobacco use. This bill would help prevent
and reduce the use of tobacco and its accompanying health and
economic impacts on California's young residents.
Prior Legislation : SB 648 (Corbett), 2013-2014 Legislative
Session. The bill would have extended the restrictions and
prohibitions against the smoking of tobacco products to include
restrictions or prohibitions against e-cigarette in various
places, including, but not limited to, places of employment,
school campuses, public buildings, day care facilities, retail
food facilities, and health facilities. (Failed passage in the
Assembly Governmental Organization Committee)
SB 882 (Corbett), Chapter 310, Statutes of 2010. The bill made
it unlawful, to the extent not preempted by federal law, for a
person to sell or otherwise furnish an e-cigarette to a person
under 18 years of age.
SB 400 (Corbett), 2009-2010 Legislative Session. The bill would
have defined e-cigarettes as drugs under state law, making them
subject to the Sherman Food, Drug, and Cosmetic Law, and would
have allowed the Department of Public Health (DPH) to halt the
sale, distribution, or offering of e-cigarettes as part of its
enforcement of the STAKE Act. (The bill was vetoed by the
Governor)
SB 1766 (Ortiz), Chapter 686, Statutes of 2002. Required that
all sales of cigarettes in the State be vendor-assisted,
face-to-face sales unless the seller receives valid
identification, that the purchaser is over 18, the product is
shipped to the address provided on the identification, the sales
is at least for two cartons, and the seller either provides the
State Board of Equalization with all taxes due on the sale or
includes with the shipment a notice that the purchaser is
responsible for state taxes.
AB 1830 (Frommer), Chapter 685, Statutes of 2002. Prohibits the
sales of tobacco products to minors through the United States
AB 1500
Page 7
Postal Service or through any other public or private postal or
package delivery service, and imposes specified
age-verification requirements on tobacco product sellers or
distributors.
SB 1927 (Hayden), Chapter 1009, Statutes of 1994. Enacted the
STAKE Act to address the increase in tobacco sales to minors in
California and fulfill the federal mandate that prohibited the
sale of cigarettes and tobacco products to minors.
REGISTERED SUPPORT / OPPOSITION :
Support
Breathe California
California Children's Hospital Association
California Primary Care Association
Christ our Redeemer AME Church of Irvine
County Health Executives Association of California
Jesse Miranda Center for Hispanic Leadership
Los Angeles Latino Chamber of Commerce
National Asian American Coalition
National Hispanic Christian Leadership Conference
Opposition
None on file
Analysis Prepared by : Felipe Lopez / G. O. / (916) 319-2531