ABX2 8: Tobacco products: minimum legal age.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2015-09-04
Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, establishes various requirements for distributors and retailers relating to tobacco sales to minors. Existing law prohibits the furnishing of tobacco products to, and the purchase of tobacco products by, a person under 18 years of age. Under existing law, a person is prohibited from making various promotional or advertising offers of smokeless tobacco products without taking actions to ensure that the product is not available to persons under 18 years of age. Existing law also requires the State Department of Public Health to conduct random, onsite sting inspections of tobacco product retailers with the assistance of persons under 18 years of age.
This bill would extend the applicability of those provisions to persons under 21 years of age. The bill would authorize the State Department of Public Health to conduct random, onsite sting inspections of tobacco product retailers with the assistance of persons under 21 years of age.
The bill would also provide that the STAKE Act does not invalidate existing local government ordinances or prohibit the adoption of local government ordinances requiring a more restrictive legal age to purchase or possess tobacco products.
Existing law makes it a crime, punishable by a fine of $75 or 30 hours of community service work, for a person under 18 years of age to purchase, receive, or possess certain tobacco products. Existing law requires 25% of certain fines to be paid to the city or county for the administration and cost of that community service work component. Existing law immunizes a person under 18 years of age from prosecution for those actions when they were taken while participating in specified enforcement activities.
This bill would delete those provisions.
By expanding the scope of existing crimes, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, establishes various requirements for distributors and retailers relating to tobacco sales to minors. Existing law prohibits the furnishing of tobacco products to, and the purchase of tobacco products by, a person under 18 years of age. Under existing law, a person is prohibited from making various promotional or advertising offers of smokeless tobacco products without taking actions to ensure that the product is not available to persons under 18 years of age. Existing law also requires the State Department of Public Health to conduct random, onsite sting inspections of tobacco product retailers with the assistance of persons under 18 years of age.
This bill would extend the applicability of those provisions to persons under 21 years of age. The bill would authorize the State Department of Public Health to conduct random, onsite sting inspections of tobacco product retailers with the assistance of persons under 21 years of age.
The bill would also provide that the STAKE Act does not invalidate existing local government ordinances or prohibit the adoption of local government ordinances requiring a more restrictive legal age to purchase or possess tobacco products.
By expanding the scope of existing crimes, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
The following acts are prohibited:
(a)For any person to offer as part of an advertising plan or program, promotional offers of smokeless tobacco products which require proof of purchase of a smokeless tobacco product unless it carries a designation that the offer is not available to persons under 21 years of age. Each promotional offer shall include in any mail-in coupon a statement requesting purchasers to verify that the purchaser is 21 years of age or older.
(b)For any person to honor mail-in and telephone requests for promotional offers of smokeless tobacco products unless appropriate efforts are made to ascertain that a purchaser is over 21 years of age. For purposes of this subdivision, appropriate efforts to ascertain the age of a purchaser includes, but is not limited to, requests for a purchasers birth date.
(c)For any person by any means, as part of an advertising plan or program, to distribute free samples of smokeless tobacco products within a two block radius of any premises or facilities whose primary purpose is directed toward persons under 21 years of age including, but not limited to, schools, clubhouses, and youth centers, when those premises are being used for their primary purposes.
(d)For any person to distribute, as part of any advertising plan or program, unsolicited samples of smokeless tobacco products through a mail campaign.
SEC. 2.Section 22951 of the Business and Professions Code is amended to read:22951.The Legislature finds and declares that reducing and eventually eliminating the illegal purchase and consumption of tobacco products by any person under 21 years of age is critical to ensuring the long-term health of our states citizens. Accordingly, California must fully comply with federal regulations, particularly the Synar Amendment, that restrict tobacco sales to minors and require states to vigorously enforce their laws prohibiting the sale and distribution of tobacco products to persons under 18 years of age. Full compliance and vigorous enforcement of the Synar Amendment requires the collaboration of multiple state and local agencies that license, inspect, or otherwise conduct business with retailers, distributors, or wholesalers that sell tobacco.
SEC. 3.Section 22952 of the Business and Professions Code is amended to read:22952.The State Department of Public Health shall do all of the following:
(a)Establish and develop a program to reduce the availability of tobacco products to persons under 21 years of age through the enforcement activities authorized by this division.
(b)Establish requirements that retailers of tobacco products post conspicuously, at each point of purchase, a notice stating that selling tobacco products to anyone under 21 years of age is illegal and subject to penalties. The notice shall also state that the law requires that all persons selling tobacco products check the identification of a purchaser of tobacco products who reasonably appears to be under 21 years of age. The warning signs shall include a toll-free telephone number to the department for persons to report unlawful sales of tobacco products to any person under 21 years of age.
(c)Provide that primary responsibility for enforcement of this division shall be with the department. In carrying out its enforcement responsibilities, the department shall conduct random, onsite sting inspections at retail sites and shall enlist the assistance of persons that are under 21 years of age in conducting these enforcement activities. The department may conduct onsite sting inspections in response to public complaints or at retail sites where violations have previously occurred, and investigate illegal sales of tobacco products to any person under 21 years of age by telephone, mail, or the Internet. Participation in these enforcement activities by a person under 21 years of age does not constitute a violation of subdivision (b) of Section 308 of the Penal Code for the person under 21 years of age, and the A person under 21 years of age who participates in these enforcement activities is immune from prosecution thereunder, or under any other provision of law prohibiting the purchase of these products by a person under 21 years of age.
(d)In accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department shall adopt and publish guidelines for the use of persons under 21 years of age in inspections conducted pursuant to subdivision (c) that shall include, but not be limited to, all of the following:
(1)An enforcing agency may use persons under 21 years of age in random inspections to determine if sales of cigarettes or other tobacco products are being made to persons under 21 years of age.
(2)A photograph or video recording of the person under 21 years of age shall be taken prior to each inspection or shift of inspections and retained by the enforcing agency for purposes of verifying appearances.
(3)An enforcing agency may use video recording equipment when conducting the inspections to record and document illegal sales or attempted sales.
(4)The person under 21 years of age, if questioned about his or her age, need not state his or her actual age but shall present a true and correct identification if verbally asked to present it. Any failure on the part of the person under 21 years of age to provide true and correct identification, if verbally asked for it, shall be a defense to an action pursuant to this section.
(5)The person under 21 years of age shall be under the supervision of a regularly employed peace officer during the inspection.
(6)All persons under 21 years of age used in this manner by an enforcing agency shall display the appearance of a person under 21 years of age. It shall be a defense to an action under this division that the persons appearance was not that which could be generally expected of a person under 21 years of age, under the actual circumstances presented to the seller of the cigarettes or other tobacco products at the time of the alleged offense.
(7)Following the completion of the sale, the peace officer accompanying the person under 21 years of age shall reenter the retail establishment and shall inform the seller of the random inspection. Following an attempted sale, the enforcing agency shall notify the retail establishment of the inspection.
(8)Failure to comply with the procedures set forth in this subdivision shall be a defense to an action brought pursuant to this section.
(e)Be responsible for ensuring and reporting the states compliance with Section 1926 of Title XIX of the federal Public Health Service Act (42 U.S.C. Sec. 300x-26) and any implementing regulations adopted in relation thereto by the United States Department of Health and Human Services. A copy of this report shall be made available to the Governor and the Legislature.
(f)Provide that any civil penalties imposed pursuant to Section 22958 shall be enforced against the owner or owners of the retail business and not the employees of the business.
SEC. 4.Section 22956 of the Business and Professions Code is amended to read:22956.All persons engaging in the retail sale of tobacco products shall check the identification of tobacco purchasers, to establish the age of the purchaser, if the purchaser reasonably appears to be under 21 years of age.
SEC. 5.Section 22958 of the Business and Professions Code is amended to read:22958.(a)An enforcing agency may assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21 years of age, any tobacco, cigarette, cigarette papers, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, according to the following schedule: (1) a civil penalty of from four hundred dollars ($400) to six hundred dollars ($600) for the first violation, (2) a civil penalty of from nine hundred dollars ($900) to one thousand dollars ($1,000) for the second violation within a five-year period, (3) a civil penalty of from one thousand two hundred dollars ($1,200) to one thousand eight hundred dollars ($1,800) for a third violation within a five-year period, (4) a civil penalty of from three thousand dollars ($3,000) to four thousand dollars ($4,000) for a fourth violation within a five-year period, or (5) a civil penalty of from five thousand dollars ($5,000) to six thousand dollars ($6,000) for a fifth violation within a five-year period.
(b)(1)In addition to the civil penalties described in subdivision (a), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the State Board of Equalization of the violation. The State Board of Equalization shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22972) of Division 8.6 in accordance with the following schedule:
(A)A 45-day suspension of the license for a third violation at the same location within a five-year period.
(B)A 90-day suspension of the license for a fourth violation at the same location within a five-year period.
(C)Revocation of the license for a fifth violation at the same location within a five-year period.
(2)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the State Board of Equalization pursuant to paragraph (1).
(c)(1)For each suspension or revocation pursuant to subdivision (b), the civil penalty of two hundred fifty dollars ($250) assessed pursuant to that subdivision, notwithstanding Section 22953, shall be deposited into the Cigarette and Tobacco Products Compliance Fund established pursuant to Section 22990. Moneys from that civil penalty deposited into this fund shall be made available to the State Board of Equalization, upon appropriation by the Legislature, for the purposes of meeting its duties under subdivision (b).
(2)The department shall, upon request, provide to the State Board of Equalization information concerning any person, firm, or corporation that has been assessed a civil penalty for violation of the STAKE Act pursuant to this section when the department has notified the State Board of Equalization of the violation.
(d)The enforcing agency shall assess penalties pursuant to the schedule set forth in subdivision (a) against a person, firm, or corporation that sells, offers for sale, or distributes tobacco products from a cigarette or tobacco products vending machine, or a person, firm, or corporation that leases, furnishes, or services these machines in violation of Section 22960.
(e)An enforcing agency may assess civil penalties against a person, firm, or corporation that sells or deals in tobacco or any preparation thereof, and fails to post conspicuously and keep posted in the place of business at each point of purchase the notice required pursuant to subdivision (b) of Section 22952. The civil penalty shall be in the amount of two hundred dollars ($200) for the first offense and five hundred dollars ($500) for each additional violation.
(f)An enforcing agency shall assess penalties in accordance with the schedule set forth in subdivision (a) against a person, firm, or corporation that advertises or causes to be advertised a tobacco product on an outdoor billboard in violation of Section 22961.
(g)If a civil penalty has been assessed pursuant to this section against a person, firm, or corporation for a single, specific violation of this division, the person, firm, or corporation shall not be prosecuted under Section 308 of the Penal Code for a violation based on the same facts or specific incident for which the civil penalty was assessed. If a person, firm, or corporation has been prosecuted for a single, specific violation of Section 308 of the Penal Code, the person, firm, or corporation shall not be assessed a civil penalty under this section based on the same facts or specific incident upon which the prosecution under Section 308 of the Penal Code was based.
(h)(1)In the case of a corporation or business with more than one retail location, to determine the number of accumulated violations for purposes of the penalty schedule set forth in subdivision (a), violations of this division by one retail location shall not be accumulated against other retail locations of that same corporation or business.
(2)In the case of a retail location that operates pursuant to a franchise as defined in Section 20001, violations of this division accumulated and assessed against a prior owner of a single franchise location shall not be accumulated against a new owner of the same single franchise location for purposes of the penalty schedule set forth in subdivision (a).
(i)Proceedings under this section shall be conducted pursuant to Section 131071 of the Health and Safety Code, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071 of the Health and Safety Code.
SEC. 6.Section 22963 of the Business and Professions Code is amended to read:22963.(a)The sale, distribution, or nonsale distribution of tobacco products directly or indirectly to any person under 21 years of age through the United States Postal Service or through any other public or private postal or package delivery service at locations, including, but not limited to, public mailboxes and mailbox stores, is prohibited.
(b)Any person selling or distributing, or engaging in the nonsale distribution of, tobacco products directly to a consumer in the state through the United States Postal Service or by any other public or private postal or package delivery service, including orders placed by mail, telephone, facsimile transmission, or the Internet, shall comply with the following provisions:
(1)(A)Before enrolling a person as a customer, or distributing or selling, or engaging in the nonsale distribution of, the tobacco product through any of these means, the distributor or seller shall verify that the purchaser or recipient of the product is 21 years of age or older. The distributor or seller shall attempt to match the name, address, and date of birth provided by the customer to information contained in records in a database of individuals whose age has been verified to be 21 years or older by reference to an appropriate database of government records kept by the distributor, a direct marketing firm, or any other entity. In the case of a sale, the distributor or seller shall also verify that the billing address on the check or credit card offered for payment by the purchaser matches the address listed in the database.
(B)If the seller, distributor, or nonsale distributor, is unable to verify that the purchaser or recipient is 21 years of age or older pursuant to subparagraph (A), he or she shall require the customer or recipient to submit an age-verification kit consisting of an attestation signed by the customer or recipient that he or she is 21 years of age or older and a copy of a valid form of government identification. For the purposes of this section, a valid form of government identification includes a drivers license, state identification card, passport, an official naturalization or immigration document, such as an alien registration receipt card (commonly known as a green card) or an immigrant visa, or military identification. In the case of a sale, the distributor or seller shall also verify that the billing address on the check or credit card provided by the consumer matches the address listed in the form of government identification.
(2)In the case of a sale, the distributor or seller shall impose a two-carton minimum on each order of cigarettes, and shall require payment for the purchase of any tobacco product to be made by personal check of the purchaser or the purchasers credit card. No money order or cash payment shall be received or permitted. The distributor or seller shall submit to each credit card acquiring company with which it has credit card sales identification information in an appropriate form and format so that the words tobacco product may be printed in the purchasers credit card statement when a purchase of a tobacco product is made by credit card payment.
(3)In the case of a sale, the distributor or seller shall make a telephone call after 5 p.m. to the purchaser confirming the order prior to shipping the tobacco products. The telephone call may be a person-to-person call or a recorded message. The distributor or seller is not required to speak directly with a person and may leave a message on an answering machine or by voice mail.
(4)The nonsale distributor shall deliver the tobacco product to the recipients verified mailing address, or in the case of a sale, the seller or distributor shall deliver the tobacco product to the purchasers verified billing address on the check or credit card used for payment. No delivery described under this section shall be permitted to any post office box.
(c)Notwithstanding subdivisions (a) and (b), if a seller, distributor, or nonsale distributor, complies with all of the requirements of this section and a person under 21 years of age obtains a tobacco product by any of the means described in subdivision (b), the seller, distributor, or nonsale distributor is not in violation of this section.
(d)For the purposes of the enforcement of this section pursuant to Section 22958, the acts of the United States Postal Service or other common carrier when engaged in the business of transporting and delivering packages for others, and the acts of a person, whether compensated or not, who transports or delivers a package for another person without any reason to know of the packages contents, are not unlawful and are not subject to civil penalties.
(e)(1)(A)For the purposes of this section, a distributor is any person or entity, within or outside the state, who agrees to distribute tobacco products to a customer or recipient within the state. The United States Postal Service or any other public or private postal or package delivery service are not distributors within the meaning of this section.
(B)A nonsale distributor is any person inside or outside of this state who, directly or indirectly, knowingly provides tobacco products to any person in this state as part of a nonsale transaction. Nonsale distributor includes the person or entity who provides the tobacco product for delivery and the person or entity who delivers the product to the recipient as part of a nonsale transaction.
(C)Nonsale distribution means to give smokeless tobacco or cigarettes to the general public at no cost, or at nominal cost, or to give coupons, coupon offers, gift certificates, gift cards, or other similar offers, or rebate offers for smokeless tobacco or cigarettes to the general public at no cost or at nominal cost. Distribution of tobacco products, coupons, coupon offers, gift certificates, gift cards, or other similar offers, or rebate offers in connection with the sale of another item, including tobacco products, cigarette lighters, magazines, or newspapers shall not constitute nonsale distribution.
(2)For the purpose of this section, a seller is any person or entity, within or outside the state, who agrees to sell tobacco products to a customer within the state. The United States Postal Service or any other public or private postal or package delivery service are not sellers within the meaning of this section.
(3)For the purpose of this section, a carton is a package or container that contains 200 cigarettes.
(f)A district attorney, city attorney, or the Attorney General may assess civil penalties against any person, firm, corporation, or other entity that violates this section, according to the following schedule:
(1)A civil penalty of not less than one thousand dollars ($1,000) and not more than two thousand dollars ($2,000) for the first violation.
(2)A civil penalty of not less than two thousand five hundred dollars ($2,500) and not more than three thousand five hundred dollars ($3,500) for the second violation.
(3)A civil penalty of not less than four thousand dollars ($4,000) and not more than five thousand dollars ($5,000) for the third violation within a five-year period.
(4)A civil penalty of not less than five thousand five hundred dollars ($5,500) and not more than six thousand five hundred dollars ($6,500) for the fourth violation within a five-year period.
(5)A civil penalty of ten thousand dollars ($10,000) for a fifth or subsequent violation within a five-year period.
SEC. 7.Section 22964 is added to the Business and Professions Code, to read:22964.This division sets forth minimum state restrictions with respect to the legal age to purchase or possess tobacco products and does not preempt or otherwise prohibit the adoption of a local standard that imposes a more restrictive legal age to purchase or possess tobacco products. A local standard that imposes a more restrictive legal age to purchase or possess tobacco products shall control in the event of any inconsistency between this division and a local standard.
SEC. 8.Section 308 of the Penal Code is amended to read:308.(a)(1)(A)Every person, firm, or corporation that knowingly or under circumstances in which it has knowledge, or should otherwise have grounds for knowledge, sells, gives, or in any way furnishes to another person who is under 21 years of age any tobacco, cigarette, or cigarette papers, or blunt wraps, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, is subject to either a criminal action for a misdemeanor or to a civil action brought by a city attorney, a county counsel, or a district attorney, punishable by a fine of two hundred dollars ($200) for the first offense, five hundred dollars ($500) for the second offense, and one thousand dollars ($1,000) for the third offense.
Notwithstanding
(B)Notwithstanding Section 1464 or any other law, 25 percent of each civil and criminal penalty collected pursuant to this subdivision shall be paid to the office of the city attorney, county counsel, or district attorney, whoever is responsible for bringing the successful action, and 25 percent of each civil and criminal penalty collected pursuant to this subdivision shall be paid to the city or county for the administration and cost of the community service work component provided in subdivision (b). action.
Proof
(C)Proof that a defendant, or his or her employee or agent, demanded, was shown, and reasonably relied upon evidence of majority shall be defense to any action brought pursuant to this subdivision. Evidence of majority of a person is a facsimile of or a reasonable likeness of a document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, a motor vehicle operators license, a registration certificate issued under the federal Selective Service Act, or an identification card issued to a member of the Armed Forces.
For
(D)For purposes of this section, the person liable for selling or furnishing tobacco products to persons under 21 years of age by a tobacco vending machine shall be the person authorizing the installation or placement of the tobacco vending machine upon premises he or she manages or otherwise controls and under circumstances in which he or she has knowledge, or should otherwise have grounds for knowledge, that the tobacco vending machine will be utilized by persons under 21 years of age.
(2)For purposes of this section, blunt wraps means cigar papers or cigar wrappers of all types that are designed for smoking or ingestion of tobacco products and contain less than 50 percent tobacco.
(b)Every person under 21 years of age who purchases, receives, or possesses any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking of tobacco, products prepared from tobacco, or any controlled substance shall, upon conviction, be punished by a fine of seventy-five dollars ($75) or 30 hours of community service work.
(c)
(b)Every person, firm, or corporation that sells, or deals in tobacco or any preparation thereof, shall post conspicuously and keep so posted in his, her, or their place of business at each point of purchase the notice required pursuant to subdivision (b) of Section 22952 of the Business and Professions Code, and any person failing to do so shall, upon conviction, be punished by a fine of fifty dollars ($50) for the first offense, one hundred dollars ($100) for the second offense, two hundred fifty dollars ($250) for the third offense, and five hundred dollars ($500) for the fourth offense and each subsequent violation of this provision, or by imprisonment in a county jail not exceeding 30 days.
(d)
(c)For purposes of determining the liability of persons, firms, or corporations controlling franchises or business operations in multiple locations for the second and subsequent violations of this section, each individual franchise or business location shall be deemed a separate entity.
(e)Notwithstanding subdivision (b), any person under 21 years of age who purchases, receives, or possesses any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, any other instrument or paraphernalia that is designed for the smoking of tobacco, or products prepared from tobacco is immune from prosecution for that purchase, receipt, or possession while participating in either of the following:
(1)An enforcement activity that complies with the guidelines adopted pursuant to subdivisions (c) and (d) of Section 22952 of the Business and Professions Code.
(2)An activity conducted by the State Department of Public Health, a local health department, or a law enforcement agency for the purpose of determining or evaluating youth tobacco purchase rates.
(f)
(d)It is the Legislatures intent to regulate the subject matter of this section. As a result, a city, county, or city and county shall not adopt any ordinance or regulation inconsistent with this section.
SEC. 9.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
The following acts are prohibited:
(a)For any person to offer as part of an advertising plan or program, promotional offers of smokeless tobacco products which require proof of purchase of a smokeless tobacco product unless it carries a designation that the offer is not available to minors persons under 21 years of age. Each promotional offer shall include in any mail-in coupon a statement requesting purchasers to verify that the purchaser is 18 21 years of age or older.
(b)For any person to honor mail-in and telephone requests for promotional offers of smokeless tobacco products unless appropriate efforts are made to ascertain that a purchaser is over 18 21 years of age. For purposes of this subdivision, appropriate efforts to ascertain the age of a purchaser includes, but is not limited to, requests for a purchasers birth date.
(c)For any person by any means, as part of an advertising plan or program, to distribute free samples of smokeless tobacco products within a two block radius of any premises or facilities whose primary purpose is directed toward persons under the age of 18 years 21 years of age including, but not limited to, schools, clubhouses, and youth centers, when those premises are being used for their primary purposes.
(d)For any person to distribute, as part of any advertising plan or program, unsolicited samples of smokeless tobacco products through a mail campaign.
SEC. 2.Section 22951 of the Business and Professions Code is amended to read:22951.The Legislature finds and declares that reducing and eventually eliminating the illegal purchase and consumption of tobacco products by minors any person under 21 years of age is critical to ensuring the long-term health of our states citizens. Accordingly, California must fully comply with federal regulations, particularly the Synar Amendment, that restrict tobacco sales to minors and require states to vigorously enforce their laws prohibiting the sale and distribution of tobacco products to persons under 18 years of age. Full compliance and vigorous enforcement of the Synar Amendment requires the collaboration of multiple state and local agencies that license, inspect, or otherwise conduct business with retailers, distributors, or wholesalers that sell tobacco.
SEC. 3.Section 22952 of the Business and Professions Code is amended to read:22952.On or before July 1, 1995, the The State Department of Public Health shall do all of the following:
(a)Establish and develop a program to reduce the availability of tobacco products to persons under 18 21 years of age through the enforcement activities authorized by this division.
(b)Establish requirements that retailers of tobacco products post conspicuously, at each point of purchase, a notice stating that selling tobacco products to anyone under 18 21 years of age is illegal and subject to penalties. The notice shall also state that the law requires that all persons selling tobacco products check the identification of a purchaser of tobacco products who reasonably appears to be under 18 21 years of age. The warning signs shall include a toll-free telephone number to the department for persons to report unlawful sales of tobacco products to minors any person under 21 years of age.
(c)Provide that primary responsibility for enforcement of this division shall be with the department. In carrying out its enforcement responsibilities, the department shall conduct random, onsite sting inspections at retail sites and shall enlist the assistance of persons that are 15 and 16 under 21 years of age in conducting these enforcement activities. The department may conduct onsite sting inspections in response to public complaints or at retail sites where violations have previously occurred, and investigate illegal sales of tobacco products to minors any person under 21 years of age by telephone, mail, or the Internet. Participation in these enforcement activities by a person under 18 21 years of age does not constitute a violation of subdivision (b) of Section 308 of the Penal Code for the person under 18 21 years of age, and the person under 18 21 years of age is immune from prosecution thereunder, or under any other provision of law prohibiting the purchase of these products by a person under 18 21 years of age.
(d)In accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department shall adopt and publish guidelines for the use of persons under 18 21 years of age in inspections conducted pursuant to subdivision (c) that shall include, but not be limited to, all of the following:
(1)An enforcing agency may use persons under 18 years of age who are 15 or 16 21 years of age in random inspections to determine if sales of cigarettes or other tobacco products are being made to persons under 18 21 years of age.
(2)A photograph or video recording of the person under 18 21 years of age shall be taken prior to each inspection or shift of inspections and retained by the enforcing agency for purposes of verifying appearances.
(3)An enforcing agency may use video recording equipment when conducting the inspections to record and document illegal sales or attempted sales.
(4)The person under 18 21 years of age, if questioned about his or her age, need not state his or her actual age but shall present a true and correct identification if verbally asked to present it. Any failure on the part of the person under 18 21 years of age to provide true and correct identification, if verbally asked for it, shall be a defense to an action pursuant to this section.
(5)The person under 18 21 years of age shall be under the supervision of a regularly employed peace officer during the inspection.
(6)All persons under 18 21 years of age used in this manner by an enforcing agency shall display the appearance of a person under 18 21 years of age. It shall be a defense to an action under this division that the persons appearance was not that which could be generally expected of a person under 18 21 years of age, under the actual circumstances presented to the seller of the cigarettes or other tobacco products at the time of the alleged offense.
(7)Following the completion of the sale, the peace officer accompanying the person under 18 21 years of age shall reenter the retail establishment and shall inform the seller of the random inspection. Following an attempted sale, the enforcing agency shall notify the retail establishment of the inspection.
(8)Failure to comply with the procedures set forth in this subdivision shall be a defense to an action brought pursuant to this section.
(e)Be responsible for ensuring and reporting the states compliance with Section 1926 of Title XIX of the federal Public Health Service Act (42 U.S.C. Sec. 300x-26) and any implementing regulations adopted in relation thereto by the United States Department of Health and Human Services. A copy of this report shall be made available to the Governor and the Legislature.
(f)Provide that any civil penalties imposed pursuant to Section 22958 shall be enforced against the owner or owners of the retail business and not the employees of the business.
SEC. 4.Section 22956 of the Business and Professions Code is amended to read:22956.All persons engaging in the retail sale of tobacco products shall check the identification of tobacco purchasers, to establish the age of the purchaser, if the purchaser reasonably appears to be under 18 21 years of age.
SEC. 5.Section 22958 of the Business and Professions Code is amended to read:22958.(a)An enforcing agency may assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under the age of 18 years, 21 years of age, any tobacco, cigarette, cigarette papers, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, according to the following schedule: (1) a civil penalty of from four hundred dollars ($400) to six hundred dollars ($600) for the first violation, (2) a civil penalty of from nine hundred dollars ($900) to one thousand dollars ($1,000) for the second violation within a five-year period, (3) a civil penalty of from one thousand two hundred dollars ($1,200) to one thousand eight hundred dollars ($1,800) for a third violation within a five-year period, (4) a civil penalty of from three thousand dollars ($3,000) to four thousand dollars ($4,000) for a fourth violation within a five-year period, or (5) a civil penalty of from five thousand dollars ($5,000) to six thousand dollars ($6,000) for a fifth violation within a five-year period.
(b)(1)In addition to the civil penalties described in subdivision (a), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the State Board of Equalization of the violation. The State Board of Equalization shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22972) of Division 8.6 in accordance with the following schedule:
(A)A 45-day suspension of the license for a third violation at the same location within a five-year period.
(B)A 90-day suspension of the license for a fourth violation at the same location within a five-year period.
(C)Revocation of the license for a fifth violation at the same location within a five-year period.
(2)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the State Board of Equalization pursuant to paragraph (1).
(c)(1)For each suspension or revocation pursuant to subdivision (b), the civil penalty of two hundred fifty dollars ($250) assessed pursuant to that subdivision, notwithstanding Section 22953, shall be deposited into the Cigarette and Tobacco Products Compliance Fund established pursuant to Section 22990. Moneys from that civil penalty deposited into this fund shall be made available to the State Board of Equalization, upon appropriation by the Legislature, for the purposes of meeting its duties under subdivision (b).
(2)The department shall, upon request, provide to the State Board of Equalization information concerning any person, firm, or corporation that has been assessed a civil penalty for violation of the STAKE Act pursuant to this section when the department has notified the State Board of Equalization of the violation.
(d)The enforcing agency shall assess penalties pursuant to the schedule set forth in subdivision (a) against a person, firm, or corporation that sells, offers for sale, or distributes tobacco products from a cigarette or tobacco products vending machine, or a person, firm, or corporation that leases, furnishes, or services these machines in violation of Section 22960.
(e)An enforcing agency may assess civil penalties against a person, firm, or corporation that sells or deals in tobacco or any preparation thereof, and fails to post conspicuously and keep posted in the place of business at each point of purchase the notice required pursuant to subdivision (b) of Section 22952. The civil penalty shall be in the amount of two hundred dollars ($200) for the first offense and five hundred dollars ($500) for each additional violation.
(f)An enforcing agency shall assess penalties in accordance with the schedule set forth in subdivision (a) against a person, firm, or corporation that advertises or causes to be advertised a tobacco product on an outdoor billboard in violation of Section 22961.
(g)If a civil penalty has been assessed pursuant to this section against a person, firm, or corporation for a single, specific violation of this division, the person, firm, or corporation shall not be prosecuted under Section 308 of the Penal Code for a violation based on the same facts or specific incident for which the civil penalty was assessed. If a person, firm, or corporation has been prosecuted for a single, specific violation of Section 308 of the Penal Code, the person, firm, or corporation shall not be assessed a civil penalty under this section based on the same facts or specific incident upon which the prosecution under Section 308 of the Penal Code was based.
(h)(1)In the case of a corporation or business with more than one retail location, to determine the number of accumulated violations for purposes of the penalty schedule set forth in subdivision (a), violations of this division by one retail location shall not be accumulated against other retail locations of that same corporation or business.
(2)In the case of a retail location that operates pursuant to a franchise as defined in Section 20001, violations of this division accumulated and assessed against a prior owner of a single franchise location shall not be accumulated against a new owner of the same single franchise location for purposes of the penalty schedule set forth in subdivision (a).
(i)Proceedings under this section shall be conducted pursuant to Section 131071 of the Health and Safety Code, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071 of the Health and Safety Code.
SEC. 6.Section 22963 of the Business and Professions Code is amended to read:22963.(a)The sale, distribution, or nonsale distribution of tobacco products directly or indirectly to any person under the age of 18 years 21 years of age through the United States Postal Service or through any other public or private postal or package delivery service at locations, including, but not limited to, public mailboxes and mailbox stores, is prohibited.
(b)Any person selling or distributing, or engaging in the nonsale distribution of, tobacco products directly to a consumer in the state through the United States Postal Service or by any other public or private postal or package delivery service, including orders placed by mail, telephone, facsimile transmission, or the Internet, shall comply with the following provisions:
(1)(A)Before enrolling a person as a customer, or distributing or selling, or engaging in the nonsale distribution of, the tobacco product through any of these means, the distributor or seller shall verify that the purchaser or recipient of the product is 18 21 years of age or older. The distributor or seller shall attempt to match the name, address, and date of birth provided by the customer to information contained in records in a database of individuals whose age has been verified to be 18 21 years or older by reference to an appropriate database of government records kept by the distributor, a direct marketing firm, or any other entity. In the case of a sale, the distributor or seller shall also verify that the billing address on the check or credit card offered for payment by the purchaser matches the address listed in the database.
(B)If the seller, distributor, or nonsale distributor, is unable to verify that the purchaser or recipient is 18 21 years of age or older pursuant to subparagraph (A), he or she shall require the customer or recipient to submit an age-verification kit consisting of an attestation signed by the customer or recipient that he or she is 18 21 years of age or older and a copy of a valid form of government identification. For the purposes of this section, a valid form of government identification includes a drivers license, state identification card, passport, an official naturalization or immigration document, such as an alien registration receipt card (commonly known as a green card) or an immigrant visa, or military identification. In the case of a sale, the distributor or seller shall also verify that the billing address on the check or credit card provided by the consumer matches the address listed in the form of government identification.
(2)In the case of a sale, the distributor or seller shall impose a two-carton minimum on each order of cigarettes, and shall require payment for the purchase of any tobacco product to be made by personal check of the purchaser or the purchasers credit card. No money order or cash payment shall be received or permitted. The distributor or seller shall submit to each credit card acquiring company with which it has credit card sales identification information in an appropriate form and format so that the words tobacco product may be printed in the purchasers credit card statement when a purchase of a tobacco product is made by credit card payment.
(3)In the case of a sale, the distributor or seller shall make a telephone call after 5 p.m. to the purchaser confirming the order prior to shipping the tobacco products. The telephone call may be a person-to-person call or a recorded message. The distributor or seller is not required to speak directly with a person and may leave a message on an answering machine or by voice mail.
(4)The nonsale distributor shall deliver the tobacco product to the recipients verified mailing address, or in the case of a sale, the seller or distributor shall deliver the tobacco product to the purchasers verified billing address on the check or credit card used for payment. No delivery described under this section shall be permitted to any post office box.
(c)Notwithstanding subdivisions (a) and (b), if a seller, distributor, or nonsale distributor, complies with all of the requirements of this section and a minor person under 21 years of age obtains a tobacco product by any of the means described in subdivision (b), the seller, distributor, or nonsale distributor is not in violation of this section.
(d)For the purposes of the enforcement of this section pursuant to Section 22958, the acts of the United States Postal Service or other common carrier when engaged in the business of transporting and delivering packages for others, and the acts of a person, whether compensated or not, who transports or delivers a package for another person without any reason to know of the packages contents, are not unlawful and are not subject to civil penalties.
(e)(1)(A)For the purposes of this section, a distributor is any person or entity, within or outside the state, who agrees to distribute tobacco products to a customer or recipient within the state. The United States Postal Service or any other public or private postal or package delivery service are not distributors within the meaning of this section.
(B)A nonsale distributor is any person inside or outside of this state who, directly or indirectly, knowingly provides tobacco products to any person in this state as part of a nonsale transaction. Nonsale distributor includes the person or entity who provides the tobacco product for delivery and the person or entity who delivers the product to the recipient as part of a nonsale transaction.
(C)Nonsale distribution means to give smokeless tobacco or cigarettes to the general public at no cost, or at nominal cost, or to give coupons, coupon offers, gift certificates, gift cards, or other similar offers, or rebate offers for smokeless tobacco or cigarettes to the general public at no cost or at nominal cost. Distribution of tobacco products, coupons, coupon offers, gift certificates, gift cards, or other similar offers, or rebate offers in connection with the sale of another item, including tobacco products, cigarette lighters, magazines, or newspapers shall not constitute nonsale distribution.
(2)For the purpose of this section, a seller is any person or entity, within or outside the state, who agrees to sell tobacco products to a customer within the state. The United States Postal Service or any other public or private postal or package delivery service are not sellers within the meaning of this section.
(3)For the purpose of this section, a carton is a package or container that contains 200 cigarettes.
(f)A district attorney, city attorney, or the Attorney General may assess civil penalties against any person, firm, corporation, or other entity that violates this section, according to the following schedule:
(1)A civil penalty of not less than one thousand dollars ($1,000) and not more than two thousand dollars ($2,000) for the first violation.
(2)A civil penalty of not less than two thousand five hundred dollars ($2,500) and not more than three thousand five hundred dollars ($3,500) for the second violation.
(3)A civil penalty of not less than four thousand dollars ($4,000) and not more than five thousand dollars ($5,000) for the third violation within a five-year period.
(4)A civil penalty of not less than five thousand five hundred dollars ($5,500) and not more than six thousand five hundred dollars ($6,500) for the fourth violation within a five-year period.
(5)A civil penalty of ten thousand dollars ($10,000) for a fifth or subsequent violation within a five-year period.
SEC. 7.Section 22964 is added to the Business and Professions Code, to read:22964.This division sets forth minimum state restrictions with respect to the legal age to purchase or possess tobacco products and does not preempt or otherwise prohibit the adoption of a local standard that imposes a more restrictive legal age to purchase or possess tobacco products. A local standard that imposes a more restrictive legal age to purchase or possess tobacco products shall control in the event of any inconsistency between this division and a local standard.
SEC. 8.Section 308 of the Penal Code is amended to read:308.(a)(1)Every person, firm, or corporation that knowingly or under circumstances in which it has knowledge, or should otherwise have grounds for knowledge, sells, gives, or in any way furnishes to another person who is under the age of 18 years 21 years of age any tobacco, cigarette, or cigarette papers, or blunts blunt wraps, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, is subject to either a criminal action for a misdemeanor or to a civil action brought by a city attorney, a county counsel, or a district attorney, punishable by a fine of two hundred dollars ($200) for the first offense, five hundred dollars ($500) for the second offense, and one thousand dollars ($1,000) for the third offense.
Notwithstanding Section 1464 or any other law, 25 percent of each civil and criminal penalty collected pursuant to this subdivision shall be paid to the office of the city attorney, county counsel, or district attorney, whoever is responsible for bringing the successful action, and 25 percent of each civil and criminal penalty collected pursuant to this subdivision shall be paid to the city or county for the administration and cost of the community service work component provided in subdivision (b).
Proof that a defendant, or his or her employee or agent, demanded, was shown, and reasonably relied upon evidence of majority shall be defense to any action brought pursuant to this subdivision. Evidence of majority of a person is a facsimile of or a reasonable likeness of a document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, a motor vehicle operators license, a registration certificate issued under the federal Selective Service Act, or an identification card issued to a member of the Armed Forces.
For purposes of this section, the person liable for selling or furnishing tobacco products to minors persons under 21 years of age by a tobacco vending machine shall be the person authorizing the installation or placement of the tobacco vending machine upon premises he or she manages or otherwise controls and under circumstances in which he or she has knowledge, or should otherwise have grounds for knowledge, that the tobacco vending machine will be utilized by minors persons under 21 years of age.
(2)For purposes of this section, blunt wraps means cigar papers or cigar wrappers of all types that are designed for smoking or ingestion of tobacco products and contain less than 50 percent tobacco.
(b)Every person under the age of 18 years 21 years of age who purchases, receives, or possesses any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking of tobacco, products prepared from tobacco, or any controlled substance shall, upon conviction, be punished by a fine of seventy-five dollars ($75) or 30 hours of community service work.
(c)Every person, firm, or corporation that sells, or deals in tobacco or any preparation thereof, shall post conspicuously and keep so posted in his, her, or their place of business at each point of purchase the notice required pursuant to subdivision (b) of Section 22952 of the Business and Professions Code, and any person failing to do so shall, upon conviction, be punished by a fine of fifty dollars ($50) for the first offense, one hundred dollars ($100) for the second offense, two hundred fifty dollars ($250) for the third offense, and five hundred dollars ($500) for the fourth offense and each subsequent violation of this provision, or by imprisonment in a county jail not exceeding 30 days.
(d)For purposes of determining the liability of persons, firms, or corporations controlling franchises or business operations in multiple locations for the second and subsequent violations of this section, each individual franchise or business location shall be deemed a separate entity.
(e)Notwithstanding subdivision (b), any person under 18 21 years of age who purchases, receives, or possesses any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, any other instrument or paraphernalia that is designed for the smoking of tobacco, or products prepared from tobacco is immune from prosecution for that purchase, receipt, or possession while participating in either of the following:
(1)An enforcement activity that complies with the guidelines adopted pursuant to subdivisions (c) and (d) of Section 22952 of the Business and Professions Code.
(2)An activity conducted by the State Department of Public Health, a local health department, or a law enforcement agency for the purpose of determining or evaluating youth tobacco purchase rates.
(f)It is the Legislatures intent to regulate the subject matter of this section. As a result, a city, county, or city and county shall not adopt any ordinance or regulation inconsistent with this section.
SEC. 9.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
|
Date
|
Status
|
|---|---|
| Jul 16, 2015 | Read first time. To print. |
| Jul 17, 2015 | From printer. |
| Aug 20, 2015 | Referred to Com. on P.H. & D.S. |
| Aug 26, 2015 | From committee: Do pass and re-refer to Com. on FINANCE. (Ayes 9. Noes 4.) (August 25). Re-referred to Com. on FINANCE. |
| Sep 4, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on FINANCE. Read second time and amended. |
| Sep 8, 2015 | Re-referred to Com. on FINANCE. |
| Sep 9, 2015 | From committee: Do pass. (Ayes 5. Noes 3.) (September 8). |
| Sep 10, 2015 | Read second time. Ordered to third reading. |
| Mar 15, 2016 | Died on third reading file. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 8, 2015 | Do pass. | Assembly 1st Extraordinary Session on Finance |
Passed |
|
| Aug 25, 2015 | Do pass and be re-referred to the Committee on [Finance] | Assembly 2nd Extraordinary Session on Public Health and Developmental Services |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| American Academy of Pediatrics | * Support | Aug 25, 2015 |
| American Cancer Society Cancer Action Network Inc. | ** Support | Aug 25, 2015 |
| American Heart Association | * Support | Aug 25, 2015 |
| American Legion, Department Of California | * Against | Aug 25, 2015 |
| American Legion-Department of California | * Against | Aug 25, 2015 |
| American Lung Association in California | * Support | Aug 25, 2015 |
| American Stroke Association | ** Support | Aug 25, 2015 |
| American Vaping Association | * Against | Aug 25, 2015 |
| AMVETS-Department of California | ** Against | Aug 25, 2015 |
| Association Of Northern California Oncologists | ** Support | Aug 25, 2015 |
| California Academy of Preventive Medicine | * Support | Aug 25, 2015 |
| California Black Health Network | * Support | Aug 25, 2015 |
| California Chapter American College Of Emergency Physicians | * Support | Aug 25, 2015 |
| California Chronic Care Coalition | * Support | Aug 25, 2015 |
| California Dental Association | * Support | Aug 25, 2015 |
| California Medical Association, Inc. | ** Support | Aug 25, 2015 |
| California Optometric Association | ** Support | Aug 25, 2015 |
| California Pan-Ethnic Health Network | * Support | Aug 25, 2015 |
| California Primary Care Association | * Support | Aug 25, 2015 |
| California Society Of Addiction Medicine | ** Support | Aug 25, 2015 |
| California State Association Of Counties | ** Support | Aug 25, 2015 |
| ECC VPX | * Against | Aug 25, 2015 |
| First 5 Association Of California | * Support | Aug 25, 2015 |
| First Five California | * Support | Aug 25, 2015 |
| Flavor Tasty Vapors | * Against | Aug 25, 2015 |
| Flawless Manufacturing Distribution | * Against | Aug 25, 2015 |
| Fleet Reserve Association | ** Against | Aug 25, 2015 |
| Fulton, California | * Against | Aug 25, 2015 |
| HEALTH | ** Against | Aug 25, 2015 |
| Health Access California | * Support | Aug 25, 2015 |
| Health Officers Association Of California | ** Support | Aug 25, 2015 |
| Herald Times Valley | * Against | Aug 25, 2015 |
| Jewish War Veterans, Department of California | ** Against | Aug 25, 2015 |
| Los Angeles, California | * Against | Aug 25, 2015 |
| Medical Oncology Association Of Southern California | * Support | Aug 25, 2015 |
| Military Officers Association Of America, California Council Of Chapters | ** Against | Aug 25, 2015 |
| Oral and Facial Surgeons of California | * Support | Aug 25, 2015 |
| Planned Parenthood Action Fund of the Pacific Southwest | * Support | Aug 25, 2015 |
| Planned Parenthood Advocacy Project Los Angeles | * Support | Aug 25, 2015 |
| Planned Parenthood Affiliates Of California | * Support | Aug 25, 2015 |
| Planned Parenthood Mar Monte | * Support | Aug 25, 2015 |
| Planned Parenthood Northern California Action Fund | * Support | Aug 25, 2015 |
| Resident of Los Angeles | * Against | Aug 25, 2015 |
| San Jose, California | * Against | Aug 25, 2015 |
| Santa Clara County Board of Supervisors | * Support | Aug 25, 2015 |
| Santa Clara County, Board of Supervisors | * Support | Aug 25, 2015 |
| SCIU California | * Support | Aug 25, 2015 |
| Service Employees International Union, California | * Support | Aug 25, 2015 |
| Tobacco Free Kids | * Support | Aug 25, 2015 |
| Vape Verde | * Against | Aug 25, 2015 |
| Vaping Industries | * Against | Aug 25, 2015 |
| Vietnam Veterans of America - California State Council | ** Against | Aug 25, 2015 |
| Villain Vapors | * Against | Aug 25, 2015 |
AB 8 X2
Page 4
ASSEMBLY THIRD READING
AB 8 X2
(Wood)
As Amended September 4, 2015
Majority vote
Committee |
Votes |
Ayes |
Noes |
Public Health |
9-4 |
Bonta, Bonilla, Campos, Eduardo Garcia, Levine, Santiago, Mark Stone, Thurmond, Wood |
Maienschein, Baker, Mayes, Steinorth |
Finance |
5-3 |
Weber, Bloom, Jones-Sawyer, McCarty, Ting |
Melendez, Bigelow, Obernolte |
SUMMARY: Raises the minimum legal smoking age from 18 to 21; conforms existing law regarding the purchasing, selling, and enforcement of tobacco and tobacco products to reflect the new age limit; and, clarifies that these provisions are not intended to prohibit a local standard from imposing a more restrictive legal age to purchase or possess tobacco products. Deletes existing penalties applicable when a person under 18 years of age purchases, receives, or possesses certain tobacco products.
EXISTING FEDERAL LAW restricts tobacco sales to minors and requires states to vigorously enforce their laws prohibiting the sale and distribution of tobacco products to persons under 18 years of age.
EXISTING STATE LAW:
Establishes the Stop Tobacco Access to Kids Enforcement (STAKE) Act, which charges the Department of Public Health (DPH) with developing a program to reduce the availability of tobacco products to persons under 18 years of age and specifies that various agencies, including, but not limited to, DPH, the Attorney General, or local law enforcement agencies may enforce the STAKE Act.
Provides that primary enforcement responsibilities lie with DPH, and requires DPH to conduct random, onsite sting inspections with the assistance of 15- and 16-year-olds; allows DPH to conduct inspections in response to public complaints; and to investigate illegal sales of tobacco products to minors by telephone, mail or the Internet.
Requires DPH to establish requirements that tobacco retailers conspicuously post notices at each point of purchase stating that selling tobacco products to anyone under 18 years of age is illegal and subject to penalties and that all persons selling tobacco products must check the identification of a purchaser who appears to be under 18.
Allows an enforcing agency to assess civil penalties, ranging from $400 for a first offense to as much as $6,000, against any person, firm, or corporation that sells, gives, or in any way furnishes any tobacco, cigarette, cigarette papers, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, based on the number of repeat offenses within a given period.
Requires DPH, after a third, fourth, and fifth violation, to notify the State Board of Equalization (BOE) of the violation and for the BOE to then assess an additional civil penalty and to suspend or revoke the sellers' license for a specific amount of time, based on the number of violations in a given period.
Prohibits selling, distributing, or giving away tobacco products through the United States Postal Service or any other public or private postal or package delivery service, to any person under the age of 18. Requires a distributor or seller, before providing any tobacco product through any of these means, to verify that the purchaser is 18 years or older.
Makes selling, giving, or in any way furnishing any tobacco, cigarette, cigarette paper, or blunts, any other preparation of tobacco, or paraphernalia designed for smoking tobacco to anyone under the age of 18 subject to either a criminal action for a misdemeanor or to a civil action brought by a city attorney, a county counsel, or a district attorney.
Makes it a crime, punishable by a fine of $75 or 30 hours of community service work, for a person under 18 years of age to purchase, receive, or possess certain tobacco products.
FISCAL EFFECT: According to the Assembly Finance Committee, this bill would likely result in an ongoing, annual, cost increase of several hundred thousand dollars to support the DPH's expected workload increase associated with enforcement, inspections and surveying of retailers participating in the sale of tobacco products (General fund or the Cigarette and Tobacco Tax Surcharge Fund).
Local governments may incur new costs associated with this bill related to crimes and infractions. Under the California Constitution, such costs are not reimbursable by the state.
According to the BOE, assuming Fiscal Year (FY) 2016-17 will be the first complete year of the measure's impact, total excise tax and sales tax revenues would decline by $68.4 million for FY 2016-17. Specifically, for FY 2016-17, cigarette excise tax revenue losses are forecast to be $37.6 million, tobacco products excise tax losses would be $5.5 million, and related sales and use tax losses would be $25.3 million.
The BOE notes that this revenue estimate does not account for any further changes in economic activity that may or may not result from enactment of the bill.
COMMENTS: According to the author, the health care impacts and cost to society of tobacco products has been widely documented and is no longer disputed. The author notes that adolescent brains are more vulnerable to nicotine addiction, and people who reach the age of 21 as non-smokers have a minimal chance of becoming a smoker. The author states that tobacco use results in increased health care costs and changing the legal age will positively influence the adoption rate of tobacco use. The author contends the legal age for tobacco is no more carved in stone than that of alcohol consumption or voting, both of which changed when society determined there was compelling evidence or need to re-examine those public policies. The author concludes the evidence and need are clear on the legal age for tobacco and now is time for us to make this change.
Health effects of smoking. Smoking is a major cause of many deadly health problems − heart disease, aneurysms, bronchitis, emphysema, and stroke. Using tobacco can damage a woman's reproductive health and hurt babies. Tobacco use is linked with reduced fertility and a higher risk of miscarriage, early delivery (premature birth), and stillbirth. It is also a cause of low birth-weight in infants and has been linked to a higher risk of birth defects and sudden infant death syndrome.
Smoking causes 80% of all deaths from chronic obstructive pulmonary disease, and causes stroke and coronary heart disease, the leading causes of death in the United States. Smokers are 30% to 40% more likely to develop type 2 diabetes than nonsmokers, and people with diabetes who smoke are more likely than nonsmokers to have trouble with insulin dosing and with controlling their disease.
Smoking causes more than 480,000 deaths each year in the Unites States, or about one in five deaths. The average annual smoking-attributable mortality rate in California for the years 2000-04 was 235 per 100,000. The range across states is 138.3 per 100,000 to 370.6 per 100,000. California ranks 6th lowest per capita among all 50 states in deaths attributed to smoking. If nobody smoked, one of every three cancer deaths in the United States would not happen.
Smoking and youth. California monitors smoking rates among high school students using the California Student Tobacco Survey. The 2012 survey showed the percentage of California high school students who reported smoking a cigarette within the previous 30 days was 10.5%, or 297,000 students. Smoking among high school students in California is declining consistently and is lower than for the rest of the United States. Student smoking rates declined 51% from 2000 to 2012; however, there are substantial differences in student smoking prevalence when examined by race or ethnicity. While rates declined for non-Hispanic Whites, Hispanics, and Asian/Pacific Islanders, the rate for African-Americans increased by 15.9% over this same time period.
Youth use of electronic cigarettes (e-cigarettes). According to the January 2015 State Health Officer's report on e-cigarettes, A Community Health Threat, e-cigarette use is rising rapidly. In California, use among young adults ages 18 to 29 tripled in one year. The report notes that while the long-term health impact resulting from use of this product is presently unknown, it is known that e-cigarettes emit at least 10 chemicals that are found on California's Proposition 65 (1986) list of chemicals known to cause cancer, birth defects, or other reproductive harm. A study published July 27, 2015, in the Journal of Pediatrics surveyed almost 2,100 California high school students, and found that one-quarter had tried e-cigarettes. Ten percent were currently using e-cigarettes, and those current users where much more likely than their peers to also smoke cigarettes. E-cigarettes are currently defined in California law as products designed to deliver nicotine or other substances to a user in the form of a vapor. State law also prohibits anyone from selling or furnishing an electronic cigarette to anyone under the age of 18.
Effect of raising the minimum legal smoking age. A March 2015 Institute of Medicine Report (IOM), Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products, examined the impacts of raising the legal minimum smoking age to 19, 21, and 25. The IOM determined that relative to status quo projected decreases, raising the age to 19 would result in a 3% additional decrease; raising the age to 21, a 12% additional decrease; and raising the age to 25, a 15% additional decrease. The IOM concluded that the age group most impacted by raising the minimum legal age would be 15 to 17 year olds for any of the three ages studied. The IOM argued that increasing the age for tobacco purchase will result in delayed use of such products, which in turn will decrease the prevalence of users. The IOM report stated that raising the smoking age to 21 would result in 200,000 fewer premature deaths and potentially millions of years of life gained for those born between 2000 and 2019. On June 9, 2015, the Santa Clara County Board of Supervisors adopted an ordinance to raise the purchase age for tobacco and electronic smoking products from 18 to 21, effective January 1, 2016. Santa Clara County is the first California county to pass such an ordinance.
Supporters of this bill, including the American Heart Association/American Stroke Association, American Cancer Society Cancer Action Network, the California Academy of Preventive Medicine, and the California Optometric Association state tobacco use remains the leading cause of preventable death in the United States, killing more than 400,000 people each year. Supporters note 2,800 youth try cigarettes daily, and many use multiple tobacco products. Supporters point out 90% of tobacco users take up this dangerous habit before the age of 18, but almost no one starts after the age of 25. Supporters conclude raising the legal age for consumption of tobacco products to 21 is predicted to reduce smoking prevalence by 12% and smoking-related deaths by nearly 10% for future generations.
The Health Officers Association of California states despite its diminishing prevalence over the last decade, the use of tobacco continues to threaten public health and drain our state's health care resources. Considered to be the leading cause of preventable deaths in the United States, smoking places a heavy economic burden on California, costing our state billions in direct and indirect health expenses from smoking-related illnesses, premature deaths and lost productivity.
The California State Association of Counties (CSAC) notes that many 18-year-olds have social networks that include younger peers since this age group often still attends high school, and older peers are able to buy and supply tobacco products to their minor friends. CSAC concludes, by raising the minimum age to 21, the likelihood of mixed-age minors being in the same social networks decreases, which would likely decrease the chances of the initiation age occurring before 18.
Several military and veterans' organizations oppose this bill, including the American Legion-Department of California, the Military Officers Association of America, California Council of Chapters, and the Vietnam Veterans of America-California State Council. The opposition states this bill would be very unfair to our currently serving men and women stationed in California. The opposition notes men and women can serve in our military, putting their lives on the line for the rest of us at age 18, and they should certainly be allowed to buy a legal product. The opposition concludes this is not about tobacco, whether smoking is right or wrong, this is about protecting the rights of our currently serving military and their dependents from over-reaching nanny-state laws.
Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097 FN: 0002333
Discussed in Hearing
23MIN
Public Health and Developmental Services
Bill Author
