BILL ANALYSIS �
SB 648
Page 1
Date of Hearing: June 25, 2014
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Isadore Hall, Chair
SB 648 (Corbett) - As Amended: June 18, 2014
SENATE VOTE : Vote not relevant
SUBJECT : Electronic cigarettes: restrictions of use and
advertising.
SUMMARY : Prohibits an electronic cigarette (e-cigarette) from
being sold, offered for sale, or distributed from a vending
machine or appliance, or any other coin or token operated
mechanical device, unless the machine or appliance is located at
least 15 feet way from the entrance of a premise that has been
issued an on-sale public premise license to sell alcoholic
beverages.
EXISTING LAW
1)Requires, under the Stop Tobacco Access to Kids Enforcement
Act (STAKE Act), the State Department of Public Health to
establish and develop a program to reduce the availability of
tobacco products to minors and to enforce those provisions.
2)Prohibits, under the STAKE Act, a cigarette or tobacco product
from being sold, offered for sale, or distributed from a
vending machine or appliance, or any other coin or token
operated mechanical device designed or used for vending
purposes, unless the machine or appliance is located at least
15 feet away from the entrance of a premise that has been
issued an on-sale public premise license to sell alcoholic
beverages, as specified. A violation results in a civil
penalty of $400 to $600 for the first violation, a civil
penalty of $900 to $1,000 for a second violation within a
five-year period, a civil penalty of $1,000 to $1,200 for a
third violation within a five year period, a civil penalty of
$3,000 to $4,000 for a fourth violation within a five-year
period, and a civil penalty of $5,000 to $6,000 for a fifth
violation within a five-year period.
3)Authorizes, under the Stake Act, the adoption of more
restrictive local standards that further restrict access to
and reduce the availability of cigarette or tobacco products
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from vending machines or devices or ban the sale entirely.
4)Defines an electronic cigarette as a device that can provide
an inhalable dose of nicotine by delivering an inhalable
solution.
5)Prohibits a person to sell or otherwise furnish an electronic
cigarette to a person under 18 years of age.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of the bill : According to the author, while sales of
electronic cigarettes to minors is illegal under state law,
unmanned vending machines that sell electronic cigarettes are
providing an avenue for minors to access and buy e-cigarettes,
because they do not have the safeguard of a face to face
transaction.
The author further contends that the use of e-cigarettes by
minors has risen rapidly in the last few years. According to
the National Youth Tobacco Survey, in 2012, 1.78 million middle
and high school students nationwide had tried e-cigarettes.
Clearly, based on these numbers, we need to do more to protect
our state's youth from having access to e-cigarettes. While the
FDA's proposed regulations of e-cigarettes include a ban of
vending machine sales, these regulations are still in their
public comment phase, and there is no guarantee the vending
machine ban will ultimately be a part of the regulations the FDA
adopts. It is unclear exactly how many e-cigarette vending
machines are currently in use in California. As this is a
growing market, it is better for businesses to provide clear
guidelines as to where they can and cannot sell e-cigarettes.
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
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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.
On April 24, 2014, the FDA released those proposed regulations.
As part of those proposed rules, the FDA would ban the sale of
e-cigarettes to minors. In addition, the proposed regulations
would prohibit companies from distributing free e-cigarette
samples and prohibit the sale of e-cigarettes through vending
machines, unless the vending machine is in a facility that never
admits anyone under the age of 18.
The proposed rules are subject to a public comment period of 75
days. After that 75 day comment period, the proposed rules could
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then be finalized.
Arguments in support : According to the County Health Executives
Association of California, each year, more than 35,000
Californians die due to tobacco-related illnesses. According to
the Centers for Disease Control and Prevention (CDC), nearly all
tobacco use begins during young and young adulthood. CDC
reported that the percentage of U.S. middle and high school
students who used e-cigarette more than doubled from 2011-2012.
This bill would help ensure youth do not have easy access to
e-cigarettes and help prevent and reduce the use of tobacco or
nicotine products and their accompanying health and economic
impacts on California and its young residents.
Policy consideration : The manner in which the bill is currently
drafted, it might be perceived that e-cigarettes fall under the
classification as tobacco cigarettes. The committee may
therefore wish to amend the bill in the following way:
1)On page 3, beginning on line 3: no cigarette, electronic
cigarette, as defined in Section 119405 of the Health and
Safety Code, or tobacco product shall be sold, offered for
sale, or distributed from a vending machine or appliance...
2)On page 3, beginning on line 9: Commencing January 1, 1996,
cigarette, electronic cigarette, as defined in Section 119405
of the Health and Safety Code, or tobacco product vending
machines or appliances may be located at least 15 feet away?
3)On page 3, beginning on line 18: This section and subdivision
(b) of Section 22958 set forth minimum state restrictions on
the sale of cigarettes, electronic cigarette, as defined in
Section 119405 of the Health and Safety Code, or tobacco
products?
4)On page 3, beginning on line 22: restricts access to and
reduces the availability of cigarettes, electronic cigarette,
as defined in Section 119405 of the Health and Safety Code, or
tobacco products from vending machines or devices or that
imposes a complete ban on the sale of cigarettes, electronic
cigarette, as defined in Section 119405 of the Health and
Safety Code, or tobacco products?
5)On page 3, beginning on line 25: A local standard that further
restricts or imposes a complete ban on the sale of cigarettes,
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electronic cigarette, as defined in Section 119405 of the
Health and Safety Code, or tobacco products?
6)On page 3, strike out lines 29-31.
Related Legislation : AB 1500 (Dickinson), 2013-2014 Legislative
session. The bill would have prohibited a delivery seller, as
defined, from selling or delivering and e-cigarette to a person
under 18 years of age. (Held in Assembly Appropriations
Committee)
Prior Legislation : 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. The bill
requires 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. The bill
prohibits the sales of tobacco products to minors through the
United States 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.
AB 686 (Tucker), Chapter 823, Statutes of 1995. The bill
prohibit a cigarette from being sold, offered for sale, or
distributed from a vending machine or appliance, or any other
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coin or token operated mechanical device, unless the machine or
appliance is located at least 15 feet way from the entrance of a
premise that has been issued an on-sale public premise license
to sell alcoholic beverages
SB 1927 (Hayden), Chapter 1009, Statutes of 1994. The bill
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
County Health Executives Association of California
Opposition
None on file
Analysis Prepared by : Felipe Lopez / G. O. / (916) 319-2531