UNFINISHED BUSINESS  

Bill No: SB 793

Author: Hill (D), Glazer (D), McCarty (D), McGuire (D), Pan (D), Skinner (D), Wiener (D) and Wood (D), et al.

Amended: 8/10/20

Vote: 21

SENATE HEALTH COMMITTEE: 8-1, 5/13/20

AYES: Pan, Nielsen, Lena Gonzalez, Hurtado, Leyva, Mitchell, Monning, Rubio

NOES: Grove

SENATE APPROPRIATIONS COMMITTEE: 5-1, 6/18/20

AYES: Portantino, Bradford, Hill, Leyva, Wieckowski

NOES: Jones

NO VOTE RECORDED: Bates

SENATE FLOOR: 33-4, 6/25/20

AYES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NOES: Grove, Jones, Melendez, Morrell

NO VOTE RECORDED: Bates, Borgeas, Moorlach

ASSEMBLY FLOOR: 58-1, 8/24/20 - See last page for vote

SUBJECT: Flavored tobacco products

SOURCE: Lieutenant Governor Eleni Kounalakis

State Superintendent of Public Instruction Tony Thurmond

American Cancer Society Cancer Action Network

American Heart Association

American Lung Association

Campaign for Tobacco Free Kids

Common Sense

DIGEST:

This bill prohibits a tobacco retailer, or any of the tobacco retailer’s agents or employees, from selling, offering for sale, or possessing with the intent to sell or offer for sale a flavored tobacco product or a tobacco product flavor enhancer, as specified.

Assembly Amendments

prohibit the application of the flavored tobacco prohibition to sales of premium cigars sold in cigar lounges where products are purchased and consumed only on the premises, or to loose leaf tobacco or premium cigars.

ANALYSIS:

Existing law:

1. Requires the Department of Public Health (DPH) to establish and develop a program to reduce the availability of “tobacco products,” as defined, to persons under 21 years of age through authorized enforcement activities, as specified, pursuant to the STAKE Act (Stop Tobacco Access to Kids Enforcement Act). [BPC §22952]
2. Requires all persons engaging in the retail sale of tobacco products to check the identification of tobacco purchasers, to establish the age of the purchaser, if the purchaser reasonably appears to be under 21. [BPC §22956]
3. Permits an enforcing agency, as specified, to assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21 any tobacco product, instrument, or paraphernalia that is designed for the smoking or ingestion of tobacco products, as specified, ranging from $400 to $6,000 for a first, second, third, fourth, or fifth violation within a five-year period. [BPC §22958]
4. Defines “tobacco product” as a product containing, made, or derived from tobacco or nicotine that is intended for human consumption, as specified, including an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, and any component, part, or accessory of a tobacco product, whether or not sold separately. Prohibits any product approved by the federal Food and Drug Administration (FDA) for sale as a tobacco cessation product or for other therapeutic purposes, as specified, from being deemed a tobacco product. [BPC §22950.5]

This bill:

1. Prohibits a tobacco retailer, or any of the tobacco retailer’s agents or employees, from selling, offering for sale, or possessing with the intent to sell or offer for sale a flavored tobacco product or a tobacco product flavor enhancer.
2. Prohibits the application of the prohibition in 1) above to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the following conditions are met:
   1. The retailer has a valid license to sell tobacco products, as specified;
   2. The retailer does not permit any person under 21 to be present or enter the premises at any time;
   3. The retailer operates in accordance with all relevant state and local laws relating to the sale of tobacco products; and,
   4. The retailer operates in accordance with all state and local laws relating to the consumption of tobacco products on the premises if consumption is allowed on the premises.
3. Deems a tobacco product as a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees, in the course of his or her agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
4. Deems it an infraction if a tobacco retailer, or agent or employee of a tobacco retailer, violates the provisions of this bill, and imposes a fine of $250 for each violation.
5. Specifies that the provisions in this bill do not preempt or prohibit the adoption of local standards that impose a greater restriction on the access of tobacco products than the provisions in this bill. Requires the greater restriction on the access of tobacco products to prevail in the case of inconsistency between the provisions of this bill and local standards.
6. Defines “characterizing flavor” as a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. Prohibits a tobacco product from being determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.
7. Defines a “tobacco product flavor enhancer” as a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
8. Defines “flavored shisha tobacco product” as any shisha tobacco product that contains a constituent that imparts a characterizing flavor. Defines “shisha tobacco product” as a tobacco product smoked or intended to be smoked in a hookah, including, and sometimes referred to as, hookah tobacco, waterpipe, tobacco, maassel, narghile, and argileh. Deems that “shisha tobacco product” does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.
9. Defines “hookah” as a type of waterpipe used to smoke shisha or other tobacco products with a long flexible tube for drawing aerosol through water. Permits components of hookah to include heads, stems, bowls, and hoses. Defines “hookah tobacco retailer” as a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.

Comments

1. Author’s statement. According to the author, youth usage of flavored tobacco products has exploded recently. Fueled by kid friendly flavors like cotton candy and bubblegum, 3.6 million more middle and high school students started using e-cigarettes in 2018. The disturbing rates of teen e-cigarette use continued to rise in 2019 with the overwhelming majority of youth citing use of popular fruit and menthol or mint flavors. In the last two years alone, e-cigarette use among young people surged by 135% and there are now 5.3 million young Americans who use e-cigarettes regularly. Eighty percent of young people who have ever used tobacco started with a flavored product. Menthol cigarettes, sweet cigars, candy vapes, and other flavored tobacco products serve one purpose: to mask the harshness of tobacco and get users hooked to a dangerous life-long addiction. California needs to take swift action to address this epidemic. While the FDA recently announced a partial ban on certain flavored electronic cigarette products, the policy does not go far enough to protect the health and safety of California children by making dangerous exemptions. It is time for California to lead the nation by ending the sale of all flavored tobacco products.
2. Coronavirus disease 2019 (COVID-19) and smoking. According to the CDC, a novel coronavirus is a new coronavirus that has not been previously identified. The virus causing COVID-19 is not the same as the coronaviruses that commonly circulate among humans and cause mild illness, like the common cold. The University of California, San Francisco, Center for Tobacco Control Research and Education (CTCRE) states that when someone’s lungs are exposed to flu or other infections, the adverse effects of smoking or vaping are much more serious than among people who do not smoke or vape. Smoking is associated with increased development of acute respiratory distress syndrome (ARDS) in people with a risk factor like severe infection, non-pulmonary sepsis (blood infection), or blunt trauma. People who have any cotinine (a metabolite of nicotine) in their bodies—even at the low levels associated with secondhand smoke—have substantially increased risk of acute respiratory failure from ARDS. The CTCRE states that as of April 16, 2020, there were 12 papers that had data on smoking and COVID disease progression: 10 from China, one from Korea, and one from the U.S, and the meta-analysis of the 12 papers found that smoking was associated with more than a doubling of odds of disease progression in people who had already developed COVID. Information from DPH’s California Tobacco Control Program (CTCP) cites a study where 391 healthy volunteers had one of five respiratory viruses, including coronavirus, dropped in a liquid into their noses. The volunteers who smoked were twice as likely as those who did not smoke to develop infection. The CTCP also cites five published studies determining that smoking is most likely associated with getting sicker with COVID-19. In the largest study of 1,099 people with COVID-19, people who smoke were 2.4 times more likely to get really sick (such as admitted to an intensive care unit, needing mechanical ventilation, or dying) compared to those who do not smoke because of chronic lung conditions, inflammation, immunosuppression, and other health risks already associated with smoking and vaping.

NOTE: For a more extensive analysis, including information on the electronic cigarette health outbreak, state and federal actions, and past tobacco control legislation, see the Senate Health Committee analysis for this bill dated May 11, 2020.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Assembly Appropriations Committee:

1. Significant annual revenue loss from reduction in excise taxes on cigarettes and other tobacco products, potentially in the high tens of millions of dollars to low hundreds of millions of dollars (mostly special funds). The Department of Tax and Fee Administration (CDTFA) estimated a prior version of this bill would have resulted in $218 million in revenue loss for 2021-22, the first full fiscal year in which a ban would be in place. A total of $5.7 million of this revenue loss is to the General Fund (GF), based on a $0.10 tax per pack of cigarettes only. DPH notes few data sources are available on consumer responses to banned flavored products, so consumer impacts are highly uncertain. In addition, some minor exemptions have been added since this time; thus the revenue loss is slightly overstated.
2. CDTFA estimated a prior version of this bill would have resulted in sales tax wounded of around $53 million statewide ($24.3 million GF) in 2021-22, the first full fiscal year in which a ban would be in place. As above, this estimate is uncertain and the revenue loss is slightly overstated due to narrow exemptions.
3. Potential minor cost pressure to DPH for additional investigations conducted as complaint-driven or as follow-ups to field observations during routine inspections (special fund).
4. Unknown but potentially significant long-term cost savings to state public health and health care systems from reductions in cardiovascular and respiratory health-related illnesses from reduced use of tobacco and vape products (various funds).

SUPPORT: (Verified 8/24/20)

Lieutenant Governor Eleni Kounalakis (co-source)

State Superintendent of Public Instruction Tony Thurmond (co-source)

American Cancer Society Cancer Action Network (co-source)

American Heart Association (co-source)

American Lung Association (co-source)

Campaign for Tobacco Free Kids (co-source)

Common Sense (co-source)

Adventist Health Glendale

African American Tobacco Control Leadership Council

African Communities Public Health Coalition

Alameda County Tobacco Education Coalition

American Academy of Pediatrics

Americans for Nonsmokers’ Rights

Anti-Vaping Alliance

Asian American Drug Abuse Program, INC.

Association of California Healthcare Districts

Association of California School Administrators

Association of Northern California Oncologists

Attorney General Becerra

Black Arts Los Angeles, Inc

Black Caucus of Health Workers

Blue Zones Project Monterey County

Breast Cancer Prevention Partners

Breath California of Los Angeles County

Breathe California, Sacramento Region

Cal Poly Center for Health Research

California Academy of Child and Adolescent Psychiatry

California Academy of Family Physicians

California Alliance of Boys & Girls Clubs Inc.

California Black Health Network

California Chapter of the American College of Cardiology

California Chapter of The American College of Emergency Physicians

California Children’s Hospital Association

California Dental Association

California Dental Hygienists Association

California Department of Justice

California Emergency Nurses Association

California Fights Flavors

California LGBTQ Health and Human Services Network

California Optometric Association

California Pan-Ethnic Health Network

California School- Based Health Alliance

California School Boards Association

California School Nurses Organization

California Society of Addiction Medicine

California State Alliance of YMCAs

California State PTA

CALPIRG

Campaign for Tobacco Free Kids

Change for Justice

Cities of Alameda, Belmont, Beverley Hills, Concord, Culver City, Encinitas, Laguna Niguel, Livermore, Menlo Park, Oakland, Oceanside, Orinda, Palo Alto, Pleasanton, Rancho Palos Verdes , Redwood , San Jose, San Leandro, San Pablo, and Watsonville

Coalition for a Tobacco-Free Imperial County

Coalition of Lavender-Americans on Smoking and Health

Coastal Communities Drug Free Coalition

Community Action Service Advocacy

Community Alliance for Fontana Students

Community Coalition

Community Health Councils

Community Health for Asian Americans

Contra Costa Tobacco Prevention Coalition

Corporate Accountability

Counties of Alameda, Contra Costa, Los Angeles, San Mateo, Santa Clara , Solano, San Bernardino, San Diego, San Joaquin, and San Pablo

County Health Executives Association of California

County of Lake Health Services Department

CVS Health

Cynthia Perry Ray Foundation

Emergency Nurses Association

Emphysema Foundation of America

Equality California

First 5 Association of California

Flavors Addict Kids- Livermore

Foundation for A Smoke Free America (dba Tobaccofree Earth)

Gardena Drug Alcohol & Abuse Prevention Program

Gardena High School Task Force

Green Technical Education & Employment

Greentech Education and Employment

Health Access California

Health Officers Association of California

Indio WIN Center

International Youth Tobacco Control

Kaiser Permanente

LA Metro Churches

Latino Coalition for A Health California

League of United Latin American Citizens of Riverside Council 3190

Lifelong Medical Tobacco Treatment Training Program

Los Angeles County Chief Executive Office

Los Angeles Families Fighting Flavored Tobacco

Los Angeles Trust for Children’s Health

Los Angeles Unified School District

Lucile Packard Children’s Hospital Stanford

Medical Oncology Association of Southern California

Mental Health Systems

National Asian Pacific American Families Against Substance Abuse

Out Against Big Tobacco

Parents Against Vaping E-cigarettes

Providence St. Joseph Health

Public Health Advocates

Public Health Institute

Riverside County Black Chamber of Commerce

San Bernardino County District Advocates for Better Schools

San Bernardino County Superintendent of Schools

San Mateo County Office of Education

San Diego Unified School District

San Francisco Bay Area Pediatric Nurse Practitioner Association

San Francisco Chief of Police, William Scott

San Francisco Tobacco Free Coalition

San Luis Obispo County Tobacco Control Coalition

San Marcos Prevention Coalition

San Mateo County Office of Education

San Mateo County Tobacco Education Coalition

Santa Clara County Office of Education

Santa Cruz County Tobacco Education Coalition

Save a Girl, Save the World

SEIU California

Sierra Club California

Siskiyou County Public Health Department

Students Against Destructive Decisions

The G.R.E.E.N Foundation

Thirdhand Smoke Resource Center

Tobacco and Vape Free Orange County

Tobacco Education & Research Oversight Committee

UCLA Center for Health Policy Research

United Food and Commercial Workers Western States Council

University of California

USC Health, Emotion, and Addiction Laboratory

Vista Community Clinic

Wellness & Prevention Center

Youth Leadership Institute

OPPOSITION: (Verified 8/24/20)

American Petroleum and Convenience Store Association

Anaheim Police Association

Arab American Grocers Association

California Association of Retail Tobacconists

California Black Chamber of Commerce

California Chamber of Commerce

California Distributors Association

California Fuels and Convenience Alliance

California Hispanic Chambers of Commerce

California Independent Oil Marketers Association

California Licensed Beverage Association

California Manufacturers & Technology Association

California Retailers Association

California Statewide Law Enforcement Association

California Taxpayers Association

Cigar Association of America

City of Refuge Los Angeles

Community Build, INC.

Core-Mark International

Huntington Beach Police Officers' Association

LA Metro Hispanic Chamber of Commerce

Law Enforcement Action Partnership

National Action Network

National Association of Tobacco Outlets

Neighborhood Business Alliance

Orange County Cops

Pastors of Compton

Premium Cigar Association

Retailers and Store Owners United to Rebuild California’s Economy

Swedish Match North America

Taxpayers Protection Alliance

The Baptist Ministers Conference of Los Angeles and Southern California

Vapor Technology Association

One individual

ARGUMENTS IN SUPPORT: The sponsors and other supporters of this bill, largely health advocates, health professionals, and local governments, argue that tobacco products remain the leading cause of preventable illness, disability, and death in the nation. Supporters argue that the effects of tobacco are even more concerning in youth, whose brains are still developing, and that products are increasingly marketed to youth with enticing flavors and product design. Supporters cite recent studies that found youth users of ENDS rose by 78% between 2017 and 2018, and that 440,000 youth in the state are expected to die prematurely as a result of tobacco use. Sales of flavored cigars, meanwhile, have increased by nearly 50% since 2008, and made up more than half (52.1%) of the U.S. cigar market in 2015. The sponsors argue that the number of unique cigar flavor names more than doubled from 2008 to 2015, from 108 to 250. The top five most popular cigar brands among 12 to 17 year olds who have used cigars—Black & Mild, Swisher Sweets, White Owl, Backwoods, and Dutch Masters—all come in flavor varieties. These products are often sold singly or can be priced as low as three or four for $0.99, making them even more appealing to price-sensitive youth. It is important to note that cigar smoke is composed of the same toxic and carcinogenic constituents found in cigarette smoke. Although tobacco companies claim to be responding to adult tobacco users’ demand for variety, it’s clear that flavored tobacco products play a key role in enticing new users, particularly kids, to a lifetime of addiction. This growing market of flavored tobacco products is undermining progress in reducing youth tobacco use in California. The sponsors and other supporters also note targeted marketing of certain tobacco products to communities of color, low-income individuals, and the LGBTQ community, citing that the tobacco industry aggressively markets menthol-flavored products to African Americans. Approximately 85% of African Americans who smoke use menthol cigarettes, and African-American men have the highest death rates from lung cancer when compared to other demographic groups. Further, supporters state that an alarming 80% of youths who have ever used tobacco started with a flavored product.

ARGUMENTS IN OPPOSITION: Taxpayers Protection Alliance (TPA) cites the “95% safer” study about vaping and states that vaping helps millions of adults successfully quit smoking traditional combustible cigarettes, and even a temporary ban would seriously harm public health by preventing millions of smokers from quitting dangerous combustible cigarettes. TPA argues that as a result of the introduction of vaping products, smoking rates in California have fallen significantly in recent years. As of 2017, only 11.4% of California adults, and 4.3% of high school students, currently smoke traditional combustible cigarettes. In addition, preliminary numbers from the FDA have indicated the number of teens smoking nationally has fallen by a staggering 20% on top of this over the past two years, the sharpest decrease in history. TPA states this is an outcome that should be embraced and celebrated by lawmakers. The California Fuels and Convenience Alliance expresses similar concerns on the effect to the state’s economy and to brick and mortar businesses.

Swedish Match North America and various other opponents cite California’s projected budget deficit due to the COVID-19 pandemic and the Legislative Analyst’s Office tax revenue loss projection on SB 38, an identical bill, if all flavors were banned, and argue that California can ill-afford to lose additional revenue at this time. Swedish Match further states that this bill will result in the removal of products off the shelves that help smokers stop using cigarettes, specifically smokeless tobacco products and flavored non-tobacco nicotine products or alternative nicotine products like its newest product ZYN. Swedish Match argues that smokeless tobacco products are not favored by youth, and requests an amendment to this bill that would exempt smokeless tobacco and their nicotine only/alternative nicotine ZYN product from the flavor ban.

ASSEMBLY FLOOR: 58-1, 8/24/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Megan Dahle, Eggman, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Levine, Limón, Low, Maienschein, Mayes, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Petrie-Norris, Quirk, Quirk-Silva, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Weber, Wood, Rendon

NOES: Brough

NO VOTE RECORDED: Bigelow, Chen, Choi, Cunningham, Daly, Diep, Flora, Fong, Frazier, Gallagher, Gray, Kiley, Lackey, Mathis, Obernolte, Patterson, Ramos, Voepel, Waldron, Wicks

Prepared by: Reyes Diaz / HEALTH / (916) 651-4111

8/25/20 15:58:00

**** END ****

(Without Reference to File)

SENATE THIRD READING

STR Bill Id:SB 793

Author:(Hill, et al.)

As Amended Ver:August 10, 2020

Majority vote

SUMMARY:

Prohibits a tobacco retailer, or any of its agents or employees from selling, offering for sale, or possessing with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer. Exempts from this prohibition the sale of Hookah water pipes and flavored shisha tobacco products, pipe tobacco, and premium cigars.

Major Provisions

1. Prohibits a tobacco retailer, or any of the tobacco retailer's agents or employees from selling, offering for sale, or possessing with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer.
2. Establishes a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer's agents or employees, in the course of their agency or employment, makes a claim directed to consumers or the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the product's labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
3. Makes a tobacco retailer, or agent or employee of a tobacco retailer, who violates these provisions guilty of an infraction punishable by a fine of $250 for each violation.
4. Specifies that nothing in this bill preempts or otherwise prohibits the adoption of a local standard that imposes greater restrictions on the access to tobacco products, and that to the extent that there is an inconsistency between the provisions of this bill and a local standard that imposes greater restrictions on the access to tobacco products, the greater restrictions in the local standard will prevail.

COMMENTS:

Cigarette smoking causes more than 480,000 deaths each year in the United States (U.S.), or nearly one in five deaths. Smoking causes more deaths each year than the following causes combined: Human immunodeficiency virus, illegal drug use, alcohol use, motor vehicle injuries, and firearm-related incidents. More than 10 times as many U.S. citizens have died prematurely from cigarette smoking than have died in all the wars fought by the U.S. Smoking causes about 90% (or nine out of 10) of all lung cancer deaths. More women die from lung cancer each year than from breast cancer. Smoking causes about 80% (or eight out of 10) of all deaths from chronic obstructive pulmonary disease. Cigarette smoking increases the risk for death from all causes in men and women. In California, smoking-related health care costs $13.29 billion per year and smoking-related losses in productivity totals $10.35 billion per year.

Youth tobacco use and electronic nicotine delivery systems. According to the federal Centers for Disease Control and Prevention (CDC), if cigarette smoking continues at the current rate among youth in this country, 5.6 million of today's Americans younger than 18 will die early from a smoking-related illness, or about one of every 13 Americans aged 17 years or younger who are alive today. Tobacco product use is started and established primarily during adolescence. Nearly nine out of 10 daily cigarette smokers first try cigarettes by age 18, and 99% first try smoking by age 26.2. According to CDC data, each day in the U.S. about 1,600 youth under 18 years of age smoke their first cigarette and nearly 200 youth under 18 years of age become daily cigarette smokers. Flavorings in tobacco products can make them more appealing to youth. In 2018, 67% of high school students and 49% of middle school students who used tobacco products in the past 30 days reported using a flavored tobacco product during that time.

Menthol. Cigarettes with specific characterizing flavors were prohibited in the U.S. on September 22, 2009, as part of the federal Family Smoking Prevention and Tobacco Control Act of 2009 (TCA), that gave the federal Food and Drug Administration (FDA) authority over tobacco products. The TCA provision excluded menthol cigarettes, which have subsequently increased their share of the cigarette market. Sales of menthol cigarettes increased from 2011 to 2015, at a time when overall cigarette sales have been gradually decreasing. Data from the Federal Trade Commission (FTC) show that in 2018, menthol cigarettes comprised 36% of the market, the highest proportion on record since FTC began collecting this data in 1963. A 2013 FDA report on the health impact of menthol cigarettes determined that menthol cigarettes lead to increased smoking initiation among youth and young adults, greater addiction and decreased success in quitting smoking. The FDA's Tobacco Products Scientific Advisory Committee's (TPSAC) concluded, "Removal of menthol cigarettes from the marketplace would benefit public health in the United States." TPSAC's report and FDA's analysis conclude that African Americans are disproportionately burdened by the health harms of menthol cigarettes. Specifically, TPSAC concluded that the marketing and availability of menthol cigarettes increases the overall prevalence of smoking and reduces cessation among African Americans. TPSAC estimated that by 2020, 4,700 excess deaths in the African-American community will be attributable to menthol cigarettes, and over 460,000 African Americans will have started smoking because of menthol cigarettes. Unless action is taken, an estimated 1.6 million African Americans alive today, who are now under the age of 18, will become regular smokers; and about 500,000 of those will die prematurely from a tobacco-related disease.

Effectiveness of flavor bans. According to a 2019 study published by the National Institutes of Health, "Influence of the Flavored Cigarette Ban on Adolescent Tobacco Use," the flavored products that remain legal present important concerns for adolescent tobacco use. Numerous studies have found that cigarette smokers who use primarily menthol cigarettes tend to be younger and newer smokers, progress to becoming established smokers faster, are more nicotine dependent, and have less successful quit attempts. The study notes that, by removing flavors from cigarettes, the ban intended to reduce adolescent cigarette use. However, some adolescents may have switched from non-menthol flavored cigarettes to menthol cigarettes or other flavored tobacco products. The ban could therefore have led to a reduction in the prevalence of non-menthol cigarette smoking while increasing cigar, smokeless tobacco, pipe, and menthol cigarette use. The study concludes that such switching behavior could provide support for broader regulations of menthol cigarettes and other flavored tobacco products.

A study published in the Journal of Adolescent Health in July of 2020, "Cigarette Use Before and After the 2009 Flavored Cigarette Ban," found that the flavored cigarette ban reduced smoking among youth (ages 12 to 17 years) by 43% and young adults (ages 18 to 25 years) by 27%. The study also noted an increase in smoking of menthol cigarettes among youth right after the ban took effect. The authors suggest, to maximize the effectiveness of flavor bans among young people, and to avoid increasing health disparities among African Americans, flavor bans should include all flavors and tobacco products.

According to the Author:

Youth usage of flavored tobacco products has exploded recently. Fueled by kid friendly flavors like cotton candy and bubblegum, 3.6 million more middle and high school students started using e-cigarettes in 2018. The disturbing rates of teen e-cigarette use continued to rise in 2019 with the overwhelming majority of youth citing use of popular fruit and menthol or mint flavors. In the last two years alone, e-cigarette use among young people surged by 135% and there are now 5.3 million young Americans who use e-cigarettes regularly. The author states that California needs to take swift action to address this epidemic. As the World Health Organization, CDC, DPH, and other public health experts warn smoking may increase risk of severe illness from COVID-19 the need to enact strong policies that promote tobacco cessation and prevent youth from initiating tobacco use has become more critical.

Arguments in Support:

This bill is sponsored by the Campaign for Tobacco-Free Kids, American Lung Association in California, American Heart Association, American Cancer Society Cancer Action Network, and Common Sense. The sponsors note that California has long been a national leader in its commitment to reducing the death and disease from tobacco use. While California has made great strides in reducing tobacco use, it remains the number one preventable cause of premature death and disease in our state and the nation, killing 480,000 Americans annually. The sponsors state that nationally, eight out of 10 of current youth tobacco users have used a flavored tobacco product in the past month and that prohibiting the sale of flavored tobacco products, including menthol cigarettes, in all tobacco retailers is a critical step that will help protect children living in California from the unrelenting efforts by the tobacco industry to hook them to a deadly addiction.

The African American Tobacco Control Leadership Council (AATCLC) supports this bill and notes that 85% of African American adults and 94% of Black youth who smoke are using menthol products. AATCLC states that these striking statistics arise from the predatory marketing of these products in the Black Community, where there are more advertisements, more lucrative promotions, and cheaper prices for menthol cigarettes compared to other communities. These predacious practices for the past 60 years have led to Black folks dying disproportionately from heart attacks, lung cancer, strokes, and other tobacco related diseases and if we are to have a healthier California, then it is imperative that the sale of menthol and all other flavored tobacco products be prevented and that the marketing of these products be stopped.

Arguments in Opposition:

The California Fuels and Convenience Alliance (CFCA) opposes this bill, stating it will have a significant impact on state tax revenues, while failing to truly address the issue of teen vaping. CFCA states this bill arbitrarily prohibits the sale of flavored tobacco products in brick and mortar retail stores and simply shifts the market to online vendors and unscrupulous out-of-state actors that will continue to provide unauthorized access to these products. The Vapor Technology Association opposes this bill, stating that any ban or limitation on access to vapor products directly impacts consumers who are reliant upon vapor products as an alternative to combustible cigarettes, not to mention, jeopardizes the businesses that Californians have built and are still building.

Pastors of Compton states that they are concerned that the proposed ban on menthol cigarettes will disproportionately impact people and communities of color, and that they don't believe a prohibition on menthol cigarettes will reduce smoking among Black people, young people, or others. Pastors of Compton note that they focus on changing family dynamics to protect young people against smoking and that they find they have the greatest results in engaging young people in messaging to other youth against smoking.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee:

1. Significant annual revenue loss from reduction in excise taxes on cigarettes and other tobacco products, potentially in the high tens of millions of dollars to low hundreds of millions of dollars (mostly special funds). The Department of Tax and Fee Administration (CDTFA) estimated a prior version of this bill would have resulted in $218 million in revenue loss for 2021-22, the first full fiscal year in which a ban would be in place. A total of $5.7 million of this revenue loss is to the General Fund (GF), based on a $0.10 tax per pack of cigarettes only. DPH notes few data sources are available on consumer responses to banned flavored products, so consumer impacts are highly uncertain. In addition, some minor exemptions have been added since this time; thus the revenue loss is slightly overstated.
2. CDTFA estimated a prior version of this bill would have resulted in sales tax losses of around $53 million statewide ($24.3 million GF) in 2021-22, the first full fiscal year in which a ban would be in place. As above, this estimate is uncertain and the revenue loss is slightly overstated due to narrow exemptions.
3. Potential minor cost pressure to DPH for additional investigations conducted as complaint-driven or as follow-ups to field observations during routine inspections (special fund).
4. Unknown but potentially significant long-term cost savings to state public health and health care systems from reductions in cardiovascular and respiratory health-related illnesses from reduced use of tobacco and vape products (various funds).

VOTES:

SENATE FLOOR: 33-4-3

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NO: Grove, Jones, Melendez, Morrell

ABS, ABST OR NV: Bates, Borgeas, Moorlach

ASM HEALTH: 10-2-3

YES: Wood, Aguiar-Curry, Bonta, Burke, Carrillo, Limón, McCarty, Nazarian, Rodriguez, Santiago

NO: Bigelow, Flora

ABS, ABST OR NV: Mayes, Ramos, Waldron

ASM APPROPRIATIONS: 13-3-2

YES: Gonzalez, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Petrie-Norris, Quirk, Robert Rivas

NO: Bigelow, Fong, Voepel

ABS, ABST OR NV: Megan Dahle, Diep

UPDATED:

VERSION: August 10, 2020

CONSULTANT: Lara Flynn / HEALTH / (916) 319-2097 FN: 0003247

Date of Hearing: August 18, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 793

Author:(Hill, et al.) – As Amended Ver:July 27, 2020

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill bans the sale or possession with the intent to sell flavored tobacco products or tobacco product flavor enhancer, including flavored “vaping” products and menthol cigarettes, with exemptions for the sales of flavored shisha tobacco product for use in a hookah (a type of water pipe), loose leaf tobacco and premium cigars.

FISCAL EFFECT:

1. Significant annual revenue loss from reduction in excise taxes on cigarettes and other tobacco products, potentially in the high tens of millions of dollars to low hundreds of millions of dollars (mostly special funds). The Department of Tax and Fee Administration (CDTFA) estimated a prior version of this bill would have resulted in $218 million in revenue loss for 2021-22, the first full fiscal year in which a ban would be in place. $5.7 million of this revenue loss is to the GF, based on a $0.10 tax per pack of cigarettes only. The department notes few data sources are available on consumer responses to banned flavored products, so consumer impacts are highly uncertain. In addition, some minor exemptions have been added since this time; thus the revenue loss is slightly overstated.
2. CDTFA estimated a prior version of this bill would have resulted in sales tax losses of around $53 million statewide ($24.3 million GF) in 2021-22, the first full fiscal year in which a ban would be in place. As above, this estimate is uncertain and the revenue loss is slightly overstated due to narrow exemptions.
3. Potential minor cost pressure to the California Department of Public Health (CDPH) for additional investigations conducted as complaint-driven or as follow-ups to field observations during routine inspections (special fund).
4. Unknown but potentially significant long-term cost savings to state public health and health care systems from reductions in cardiovascular and respiratory health-related illnesses from reduced use of tobacco and vape products (various funds).

COMMENTS:

1. Purpose. This bill is intended to ban flavored tobacco products to prevent children and adults from being harmed by tobacco and vape products and becoming addicted to nicotine. According to the author, rates of teen e-cigarette use continued to rise in 2019 with the overwhelming majority of youth citing use of popular fruit and menthol or mint flavors. In the last two years alone, e-cigarette use among young people surged by 135% and there are now 5.3 million young Americans who use e-cigarettes regularly. The author notes this ban can protect a generation of youth from addiction and harm.
2. Background. In recent decades, California has enacted excise taxes and gradually restricted advertising and availability of many types of tobacco products. Most recently, a 2016 legislative package made a number of changes, including raising the minimum legal age to purchase or consume tobacco, from 18 to 21, broadening the definition of tobacco product to include electronic smoking devices and extending a workplace smoking ban. Proposition 56 of 2016 increased the excise tax rate on cigarettes and electronic cigarettes, effective April 1, 2017, by $2 per pack of cigarettes with an equivalent excise tax rate increase on other tobacco products. Tobacco control efforts are widely lauded for reducing the health care cost and burden of tobacco-related diseases. California is known as a pioneer in reducing addiction and use of tobacco through consistent and effective anti-smoking campaigns.

Over the last several years, electronic nicotine delivery devices, also known as vape pens or electronic or e-cigarettes, have exploded in popularity. These products use an “e-liquid” that may contain nicotine, flavors and other ingredients. Recent increases in the use of e-cigarettes is driving increases in tobacco product use among youth. Research shows flavored tobacco products play an important role in youth vaping and that many youth may be attracted to the flavoring and unaware they are vaping nicotine.

A federal Food and Drug Administration (FDA) enforcement policy change announced on January 2, 2020, states companies that do not cease the manufacture, distribution and sale of unauthorized flavored cartridge-based e-cigarettes (other than tobacco or menthol flavor) within 30 days of the finalized policy risk enforcement actions. The FDA allowed manufacturers the opportunity to go through an authorization process to prove their products are safe, but no products on the market are yet authorized; thus, e-cigarettes currently on the market are considered illegally marketed and subject to enforcement. The federal policy exempted tobacco flavor and menthol from the enforcement policy, citing higher youth interest in fruit and mint flavors.

In addition to addressing flavors in e-cigarettes, this bill bans menthol as a flavor in all tobacco products. A 2009 federal law banned the sale of cigarettes with “characterizing” flavors other than menthol or tobacco. Prevalence of menthol use is highest among Black people, who are disproportionately burdened by the health harms of menthol cigarettes. The policy rationale for banning menthol is to maximize the effectiveness of flavor bans among young people and to avoid increasing health disparities.

1. Support. This bill is co-sponsored by the Campaign for Tobacco-Free Kids, American Lung Association in California, American Heart Association, American Cancer Society Cancer Action Network, Common Sense and the Office of Lieutenant Governor Eleni Kounalakis. It is supported by a large coalition of public health, health care, education and youth advocacy organizations as well as numerous local governments because it addresses the epidemic of youth vaping and protects young people from tobacco addiction, and the cancer, cardiovascular disease and other chronic conditions it causes.
2. Opposition. Organizations representing businesses, convenience stores, vaping manufacturers, law enforcement and taxpayer advocacy organizations oppose this bill, citing a variety of reasons including reduced tax revenues, reduced business and a shift to online sales and harm to people trying to quit smoking by making flavored e-cigarettes inaccessible. Organizations representing cigar and smokeless tobacco manufacturers oppose the bill, seeking exemptions for their industries or companies.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: August 4, 2020

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

SBPCA Bill Id:SB 793

Author:(Hill) – As Amended Ver:July 27, 2020

SENATE VOTE: 33-4

SUBJECT: Flavored tobacco products.

SUMMARY: Prohibits a tobacco retailer, or any of its agents or employees from selling, offering for sale, or possessing with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer. Exempts from this prohibition the sale of Hookah water pipes and flavored shisha tobacco products. Specifically, this bill:

1. Prohibits a tobacco retailer, or any of the tobacco retailer’s agents or employees from selling, offering for sale, or possessing with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer.
2. Establishes a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees, in the course of their agency or employment, makes a claim directed to consumers or the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
3. Specifies that the provisions of 1) above do not apply to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the following conditions are met:
   1. The hookah tobacco retailer has a valid license to sell tobacco products;
   2. The hookah tobacco retailer does not permit any person under 21 years of age to be present or enter the premises at any time;
   3. The hookah tobacco retailer operates in accordance with all relevant state and local laws relating to the sale of tobacco products; and,
   4. If consumption of tobacco products is allowed on the premises of the hookah tobacco retailer, the hookah tobacco retailer operates in accordance with all state and local laws relating to the consumption of tobacco products on the premises of a tobacco retailer.
4. Makes a tobacco retailer, or agent or employee of a tobacco retailer, who violates these provisions guilty of an infraction punishable by a fine of $250 for each violation.
5. Specifies that nothing in this bill preempts or otherwise prohibits the adoption of a local standard that imposes greater restrictions on the access to tobacco products, and that to the extent that there is an inconsistency between the provisions of this bill and a local standard that imposes greater restrictions on the access to tobacco products, the greater restrictions in the local standard will prevail.
6. Defines the following for the purposes of this bill:
   1. “Characterizing flavor” means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Specifies that characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. States that a tobacco product will not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information, and clarifies that it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a characterizing flavor.
      
   2. “Constituent” means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.
      
   3. “Flavored shisha tobacco product” means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.
      
   4. “Flavored tobacco product” means any tobacco product that contains a constituent that imparts a characterizing flavor.
      
   5. “Hookah” means a type of waterpipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Specifies that the components of a hookah may include heads, stems, bowls, and hoses.
      
   6. “Hookah tobacco retailer” means a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.
      
   7. “Labeling” means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.
      
   8. “Packaging” means a pack, box, carton, or container of any kind, or, if no other container, any wrapping, including cellophane, in which a tobacco product is sold or offered for sale to a consumer.
      
   9. “Retail location” means both of the following:
      1. A building from which tobacco products are sold at retail; and,
      2. A vending machine.
         
   10. “Sale” or “sold” includes any transfer of title or possession for a consideration, exchange or barter, in any manner or by any means whatever.
       
   11. “Shisha tobacco product” means a tobacco product smoked or intended to be smoked in a hookah, and includes, and may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. Exempts any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product from this definition.
       
   12. “Tobacco product flavor enhancer” means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
       
   13. “Tobacco retailer” means a person who engages in this state in the sale of tobacco products directly to the public from a retail location. “Tobacco retailer” includes a person who operates vending machines from which tobacco products are sold in this state.

EXISTING LAW:

1. Establishes the Department of Public Health (DPH) to protect the public's health and help shape positive health outcomes for individuals, families and communities. Establishes the California Tobacco Control Branch within DPH, which leads statewide and local health programs, services and activities that promote a tobacco free environment. Requires DPH to establish and develop a program to reduce the availability of “tobacco products,” to persons under 21 years of age through authorized enforcement activities pursuant to the Stop Tobacco Access to Kids Enforcement Act.
2. Requires all persons engaging in the retail sale of tobacco products to check the identification of tobacco purchasers, to establish the age of the purchaser, if the purchaser reasonably appears to be under 21.
3. Permits an enforcing agency, as specified, to assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21 any tobacco product, instrument, or paraphernalia that is designed for the smoking or ingestion of tobacco products, as specified, ranging from $400 to $6,000 for a first, second, third, fourth, or fifth violation within a five-year period.
4. Defines “smoking” as inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, whether natural or synthetic, in any manner or in any form. Includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking.
5. Defines “tobacco product” as a product containing, made, or derived from tobacco or nicotine that is intended for human consumption, as specified, including an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, and any component, part, or accessory of a tobacco product, whether or not sold separately. Prohibits any product approved by the federal Food and Drug Administration (FDA) for sale as a tobacco cessation product or for other therapeutic purposes, from being deemed a tobacco product.
6. Requires the California Department of Tax and Fee Administration (CDTFA), under the Cigarette and Tobacco Products Licensing Act, to administer a statewide program to license cigarette and tobacco products manufacturers, importers, distributors, wholesalers, and retailers. Prohibits selling tobacco products without a valid license, and makes violations punishable as a misdemeanor. Requires retailers to obtain a separate license for each retail location that sells cigarettes and tobacco products and to pay an annual license fee of $265.
7. Bans, under the federal Family Smoking Prevention and Tobacco Control Act of 2009, (TCA) flavored cigarettes, except for menthol.

FISCAL EFFECT: According to the Senate Appropriations Committee, unknown, significant, and ongoing revenue loss, potentially in the high tens of millions to low hundreds of millions. CDTFA previously estimated excise tax revenue loss of $110 million in fiscal year (FY) 2020-21 ($85 million from cigarettes, $2 million from tobacco products) and $218 million for FY 2021-22, the first entire fiscal year the ban would be in effect. In addition, associated sales tax losses of $26.6 million ($12 million General Fund) in FY 2020-21 and $53 million ($24.3 million General Fund) in FY 2021-22. CDTFA notes few data sources are available on consumer responses to banned flavored products, so consumer impacts are highly uncertain. The original revenue loss estimate would need to be revised to reflect a narrower scope of products affected by the ban.

Unknown and significant ongoing costs (hundreds of thousands to low millions) for DPH to investigate and take enforcement action. The range reflects multiple enforcing agencies’ actions, and the bill’s proposed enforcement requirement would be broader than DPH’s current responsibility.

Unknown but potentially significant cost-avoidance and long-term savings to state public health systems and public health (cardiovascular and respiratory health-related illnesses), to the extent tobacco use is reduced and prevented in youths, and smoking cessation attempts are successful for some.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, youth usage of flavored tobacco products has exploded recently. Fueled by kid friendly flavors like cotton candy and bubblegum, 3.6 million more middle and high school students started using e-cigarettes in 2018. The disturbing rates of teen e-cigarette use continued to rise in 2019 with the overwhelming majority of youth citing use of popular fruit and menthol or mint flavors. In the last two years alone, e-cigarette use among young people surged by 135% and there are now 5.3 million young Americans who use e-cigarettes regularly. The author states that California needs to take swift action to address this epidemic. As the World Health Organization, federal Centers for Disease Control and Prevention (CDC), DPH, and other public health experts warn smoking may increase risk of severe illness from COVID-19 the need to enact strong policies that promote tobacco cessation and prevent youth from initiating tobacco use has become more critical.
   
   The author notes that 80% of young people who have ever used tobacco started with a flavored product. Menthol cigarettes, sweet cigars, candy e-cigarettes, and other flavored tobacco products serve one purpose – to mask the harshness of tobacco and get users hooked. For generations, big tobacco has weaponized flavored tobacco products to lure our youth into a dangerous life-long addiction. The author concludes that it is time for California to break this cycle and lead the nation by ending the sale of flavored tobacco products.
   
2. BACKGROUND. Cigarette smoking causes more than 480,000 deaths each year in the United States (U.S.), or nearly one in five deaths. Smoking causes more deaths each year than the following causes combined: Human immunodeficiency virus, illegal drug use, alcohol use, motor vehicle injuries, and firearm-related incidents. More than 10 times as many U.S. citizens have died prematurely from cigarette smoking than have died in all the wars fought by the U.S. Smoking causes about 90% (or nine out of 10) of all lung cancer deaths. More women die from lung cancer each year than from breast cancer. Smoking causes about 80% (or eight out of 10) of all deaths from chronic obstructive pulmonary disease (COPD). Cigarette smoking increases the risk for death from all causes in men and women.
   
   The CDC, DPH, and other public health experts warn that smoking may increase risk of severe illness from COVID-19 and are encouraging smokers to quit and urging the public to not smoke. To date, at least 80 local government in California have enacted restrictions on the sale of flavored tobacco products.
   
   In California, smoking-related health care costs $13.29 billion per year and smoking-related losses in productivity totals $10.35 billion per year.
   
   1. CDC data on tobacco use. African American youth and young adults have significantly lower prevalence of cigarette smoking than Hispanics and Whites, and although the prevalence of cigarette smoking among African American and White adults is the same, African Americans smoke fewer cigarettes per day. On average, African Americans initiate smoking at a later age compared to Whites, however, they are more likely to die from smoking-related diseases than Whites.
      
      American Indian/Alaska Native youth and adults have the highest prevalence of cigarette smoking among all racial/ethnic groups in the U.S, however, it is important to note that some American Indians use tobacco for ceremonial, religious, or medicinal purposes. Regional variations in cigarette smoking exist among American Indians/Alaska Natives, with lower prevalence in the Southwest and higher prevalence in the Northern Plains and Alaska.
      
      Hispanic/Latin adults generally have lower prevalence of cigarette smoking and other tobacco use than other racial/ethnic groups, with the exception of Asian Americans. However, prevalence varies among sub-groups within the Hispanic population, for example, 50% of Cuban men and more than 35% of Cuban women report smoking 20 or more cigarettes per day, and Mexican men and women are less likely than other Hispanic/Latinx groups to report that they smoke 20 or more cigarettes per day.
      
      Although Asian Americans, Native Hawaiians, and Pacific Islanders are often combined together as one group in survey data due to smaller numbers of the individual groups surveyed, they are actually three distinct groups. Cigarette smoking among Asian American/Pacific Islander adults is lower than other racial ethnic groups, however, prevalence among Asian sub-groups varies and can be higher than that of the general population.
      
      Like many other minority groups, the LGBTQ community has been the target of tobacco industry marketing for several decades. As a result, smoking rates are disproportionately higher among LGBTQ individuals than the general population. About one in four LGBTQ adults smoke cigarettes compared with about one in six heterosexual/straight adults. More than twice as many LGBTQ students report having smoked a cigarette before the age of 13 compared to heterosexual students.
      
   2. Youth tobacco use and electronic nicotine delivery systems (ENDS). According to the CDC, if cigarette smoking continues at the current rate among youth in this country, 5.6 million of today’s Americans younger than 18 will die early from a smoking-related illness, or about one of every 13 Americans aged 17 years or younger who are alive today.
      
      Tobacco product use is started and established primarily during adolescence. Nearly nine out of 10 daily cigarette smokers first try cigarettes by age 18, and 99% first try smoking by age 26.2. According to CDC data, each day in the U.S. about 1,600 youth under 18 years of age smoke their first cigarette and nearly 200 youth under 18 years of age become daily cigarette smokers. Flavorings in tobacco products can make them more appealing to youth. In 2018, 67% of high school students and 49% of middle school students who used tobacco products in the past 30 days reported using a flavored tobacco product during that time.
      
      Vapes, vaporizers, vape pens, hookah pens, electronic cigarettes (e-cigarettes or e-cigs), and e-pipes are some of the many terms used to describe ENDS. ENDS are noncombustible tobacco products. These products use an “e-liquid” that may contain nicotine, as well as varying compositions of flavorings, propylene glycol, vegetable glycerin, and other ingredients. The liquid is heated to create an aerosol that the user inhales. ENDS may be manufactured to look like conventional cigarettes, cigars, or pipes. Some resemble pens or USB flash drives. Larger devices, such as tank systems or mods, bear little or no resemblance to cigarettes.
      
      
      
      Recent increases in the use of e-cigarettes is driving increases in tobacco product use among youth. The number of middle and high school students using e-cigarettes rose from 3.6 million in 2018 to 5.4 million in 2019. More than half of high schoolers (51.2%) use menthol- or mint-flavored e-cigarettes. Flavored tobacco products play an important role in youth vaping. Almost a third of the middle and high school students who used e-cigarettes in 2016 said the availability of flavors is a main reason they used the products. A study that included both middle and high school students found that 43% of youth who ever used e-cigarettes tried them because of appealing flavors. The majority of youth e-cigarette users think they vaped only flavoring, not nicotine, the last time they used a product, according to an annual national survey of more than 40,000 students from the University of Michigan 2016, “Monitoring the Future” study, even though 99% of e-cigarettes sold in most brick-and-mortar stores contain nicotine.
      
   3. Federal vaping and tobacco policy. The FDA announced its finalized enforcement policy against certain unauthorized flavored ENDS products that appeal to kids, including fruit and mint flavors on January 2, 2020. Under the policy, companies that do not cease the manufacture, distribution, and sale of unauthorized flavored cartridge-based ENDS (other than tobacco or menthol flavor) within 30 days of the finalized policy risk enforcement actions. The FDA notes that “cartridge-based” ENDS products are a type of product that consists of, includes, or involves a cartridge or pod that holds liquid that is to be aerosolized when the product is used. A cartridge or pod is any small, enclosed unit (sealed or unsealed) designed to fit within or operate as part of an ENDS product. Any flavored tobacco products that do not use cartridges or pods are not subject to the FDA policy. The FDA statement points to data from other federal surveys showing that youth are attracted to fruit and mint flavors more so than tobacco and menthol flavors as justification for the two exceptions, though many anti-tobacco advocates and public health officials have argued that youth and various underrepresented communities are also attracted to menthol flavored tobacco products. The FDA does caution that if either of the flavors not subject to its enforcement policy become favored by youth, the policy will be reevaluated and the FDA will take any additional steps to address youth use of those products. The FDA notes that the enforcement priority policy announced on January 2, 2020 is not a “ban” on flavored or cartridge-based ENDS, as the FDA has already accepted and begun review of several premarket applications for ENDS products through the pathway that Congress established in the TCA, under which ENDS manufacturers have until September 9, 2020, to provide scientific data to the FDA that their products are safe.
      
      To date, no ENDS products have been authorized by the FDA, meaning that all ENDS currently on the market are considered illegally marketed and are subject to enforcement, at any time, at the FDA’s discretion.
      
   4. Menthol. Cigarettes with specific characterizing flavors were prohibited in the U.S. on September 22, 2009, as part of the TCA that gave the FDA authority over tobacco products. The TCA provision excluded menthol cigarettes, which have subsequently increased their share of the cigarette market. Sales of menthol cigarettes increased from 2011 to 2015, at a time when overall cigarette sales have been gradually decreasing. Data from the Federal Trade Commission (FTC) show that in 2018, menthol cigarettes comprised 36% of the market, the highest proportion on record since FTC began collecting this data in 1963. A 2013 FDA report on the health impact of menthol cigarettes determined that menthol cigarettes lead to increased smoking initiation among youth and young adults, greater addiction and decreased success in quitting smoking. The FDA’s Tobacco Products Scientific Advisory Committee’s (TPSAC) concluded, “Removal of menthol cigarettes from the marketplace would benefit public health in the United States.”
      
      Prevalence of menthol use is highest among African Americans: 85% of all African-American smokers smoke menthol cigarettes, compared to 29% of Whites. TPSAC’s report and FDA’s analysis conclude that African Americans are disproportionately burdened by the health harms of menthol cigarettes. Specifically, TPSAC concluded that the marketing and availability of menthol cigarettes increases the overall prevalence of smoking and reduces cessation among African Americans. TPSAC estimated that by 2020, 4,700 excess deaths in the African-American community will be attributable to menthol cigarettes, and over 460,000 African Americans will have started smoking because of menthol cigarettes.
      
      African Americans suffer the greatest burden of tobacco-related mortality of any racial or ethnic group in the United States. Each year, approximately 45,000 African Americans die from a smoking-caused illness. Unless action is taken, an estimated 1.6 million African Americans alive today, who are now under the age of 18, will become regular smokers; and about 500,000 of those will die prematurely from a tobacco-related disease.
      
   5. Tobacco industry marketing in minority communities. Historically, the tobacco industry’s attempts to maintain a positive image among African Americans have included such efforts as supporting cultural events and making contributions to minority higher education institutions, elected officials, civic and community organizations, and scholarship programs. Tobacco companies have historically placed larger amounts of advertising in African American publications, exposing African Americans to more cigarette ads than Whites.
      
      1. Menthol Cigarette Advertising. The marketing and promotion of menthol cigarettes have been targeted heavily toward African Americans through culturally tailored advertising images and messages. More than seven out of 10 African American youth ages 12-17 years who smoke use menthol cigarettes. African American adults have the highest percentage of menthol cigarette use compared to other racial and ethnic groups. Menthol in cigarettes is thought to make harmful chemicals more easily absorbed in the body, likely because menthol makes it easier to inhale cigarette smoke.
         
      2. Price Promotions, Retail, and Point-of-Sale Advertising. Tobacco companies use price promotions such as discounts and multi-pack coupons, which are most often used by African Americans and other minority groups, women, and young people, to increase sales. Areas with large racial/ethnic minority populations tend to have more tobacco retailers located within them, which contributes to greater tobacco advertising exposure. Menthol products are given more shelf space in retail outlets within African American and other minority neighborhoods.
         
   6. Cigars. According to the CDC, 7.6% of high school students report having used a cigar in the past 30 days, making cigars the second most-often used tobacco product by high school students. Additionally, 71.7% of youth tobacco users that report using cigars report using flavored products. Among middle and high school students who currently used two or more tobacco products, the most common combination reported was e-cigarettes and cigars. Following the enactment of sales restrictions on flavored cigarettes in 2008 at the federal level, the number of unique flavor names for cigars more than doubled. The cigar industry utilizes sales tactics prohibited for cigarettes, like small pack sizes, and often sells products for prices as low as 99 cents. Cigars (including “Swisher Sweets,” which are the #1 and #2 best-selling large cigar in the U.S.) are now marketed in a wide variety of flavors that appeal to youth like twisted berry, chocolate, watermelon, and fruit punch. An analysis of tobacco industry documents and marketing material found that tobacco companies add menthol and candy flavor to cigars to increase the appeal to new smokers.
      
   7. Effectiveness of flavor bans. According to a 2019 study published by the National Institutes of Health, “Influence of the Flavored Cigarette Ban on Adolescent Tobacco Use,” the flavored products that remain legal present important concerns for adolescent tobacco use. Numerous studies have found that cigarette smokers who use primarily menthol cigarettes tend to be younger and newer smokers, progress to becoming established smokers faster, are more nicotine dependent, and have less successful quit attempts. Cigars, which are still permitted to be flavored and are also taxed at lower rates than cigarettes, are potential substitutes for flavored cigarettes. This is particularly true of little cigars, which are often mistaken as cigarettes because they are nearly identical in terms of size, packaging, and the use of filters but differ legally because they are wrapped in tobacco leaves or paper containing tobacco. Internal tobacco industry documents indicate that during the 1970s some little cigars were intentionally designed to resemble cigarettes as much as legally possible while getting around cigarette restrictions such as the advertising ban. The study notes that, by removing flavors from cigarettes, the ban intended to reduce adolescent cigarette use. However, some adolescents may have switched from non-menthol flavored cigarettes to menthol cigarettes or other flavored tobacco products. The ban could therefore have led to a reduction in the prevalence of non-menthol cigarette smoking while increasing cigar, smokeless tobacco, pipe, and menthol cigarette use. The study concludes that such switching behavior could provide support for broader regulations of menthol cigarettes and other flavored tobacco products.
      
      A study published in the Journal of Adolescent Health in July of 2020, “Cigarette Use Before and After the 2009 Flavored Cigarette Ban,” found that the flavored cigarette ban reduced smoking among youth (ages 12 to 17 years) by 43% and young adults (ages 18 to 25 years) by 27%. The study also noted an increase in smoking of menthol cigarettes among youth right after the ban took effect. The authors suggest, to maximize the effectiveness of flavor bans among young people, and to avoid increasing health disparities among African Americans, flavor bans should include all flavors and tobacco products.
      
3. SUPPORT. This bill is sponsored by the Campaign for Tobacco-Free Kids, American Lung Association in California, American Heart Association, American Cancer Society Cancer Action Network, and Common Sense. The sponsors note that California has long been a national leader in its commitment to reducing the death and disease from tobacco use. While California has made great strides in reducing tobacco use, it remains the number one preventable cause of premature death and disease in our state and the nation, killing 480,000 Americans annually. The sponsors state that nationally, eight out of 10 of current youth tobacco users have used a flavored tobacco product in the past month and that prohibiting the sale of flavored tobacco products, including menthol cigarettes, in all tobacco retailers is a critical step that will help protect children living in California from the unrelenting efforts by the tobacco industry to hook them to a deadly addiction. Flavored tobacco products are designed to alter the taste and reduce the harshness of tobacco products so they are more appealing to new smokers, who are almost always kids. These products are pervasive and are marketed and sold in a variety of kid-friendly flavors. With their colorful packaging and sweet flavors, flavored tobacco products are often hard to distinguish from the candy displays near which they are frequently placed in retail outlets. As the only flavored cigarette left on the market, it’s also no surprise that menthol cigarettes are popular among youth. Menthol cools and numbs the throat, reducing the harshness of cigarette smoke, thereby making menthol cigarettes more appealing to youth who are initiating smoking. More than half of youth smokers use menthol cigarettes, including seven out of 10 African American youth smokers. The sponsors conclude that prohibiting the sale of menthol cigarettes and other flavored tobacco products is an important step toward protecting our children from the tobacco industry’s aggressive efforts to hook children to a deadly, addictive product.
   
   The African American Tobacco Control Leadership Council (AATCLC) supports this bill and notes that 85% of African American adults and 94% of Black youth who smoke are using menthol products. AATCLC states that these striking statistics arise from the predatory marketing of these products in the Black Community, where there are more advertisements, more lucrative promotions, and cheaper prices for menthol cigarettes compared to other communities. These predacious practices for the past 60 years have led to Black folks dying disproportionately from heart attacks, lung cancer, strokes, and other tobacco related diseases AATCLC notes that smoking also increases the risk for respiratory infections, weakens the immune system and is a major cause of a number of chronic health conditions, including COPD, heart disease, and diabetes, and that there is growing evidence that smokers are at a greater risk of hospitalization and severe illness due to COVID-19, placing smokers in the high-risk category. AATCLC concludes that current events have highlighted these dangers and further exposed the disparities affecting vulnerable populations, and if we are to have a healthier California, then it is imperative that the sale of menthol and all other flavored tobacco products be prevented and that the marketing of these products be stopped.
   
   Numerous supporters of the bill, including the California Dental Association, Health Access, California, the California Academy of Family Physicians, and Latino Coalition for a Healthy California note that a variety of flavors like cotton candy, bubble gum, and mango are widely available on retail shelves. Supporters state that California should be doing everything it can to protect young people from ever establishing this deadly addiction, and the cancer, cardiovascular disease and other chronic conditions it causes.
4. OPPOSITION. The California Fuels and Convenience Alliance (CFCA) opposes this bill, stating it will have a significant impact on state tax revenues, while failing to truly address the issue of teen vaping. CFCA states this bill arbitrarily prohibits the sale of flavored tobacco products in brick and mortar retail stores and simply shifts the market to online vendors and unscrupulous out-of-state actors that will continue to provide unauthorized access to these products. Last year, CDTFA asserted in its fiscal analysis that this proposal is cost neutral because the money spent on vaping would go to the purchase of other retail products. CFCA strongly disagrees with this analysis; stating, based on the data they have seen with local flavor bans, consumers simply find another avenue to purchase the product like online or outside the boundaries of the ban. CFCA concludes that this bill could result in tens of billions in lost sales for their 12,000 convenience stores.
   
   The Vapor Technology Association (VTA) opposes this bill, stating that any ban or limitation on access to vapor products directly impacts consumers who are reliant upon vapor products as an alternative to combustible cigarettes, not to mention, jeopardizes the businesses that Californians have built and are still building. VTA contends that, everyday millions of people are using vapor products and either reducing their smoking or quitting altogether, and points to a recent New York Times article regarding a study published in the New England Journal of Medicine concluding that vapor products are two times more effective for quitting smoking than other nicotine replacement therapies. VTA concludes, for this reason alone, limiting access to flavored vapor products is bad public health policy.
   
5. OPPOSE UNLESS AMENDED. The Cigar Association of America (CAA) is opposed to this bill unless it is amended to exclude cigar and pipe tobacco products from its provisions. CAA states the use of flavorings in the manufacture of cigars and pipe tobacco has been a continuous practice for centuries, dating back to the early 1500’s, and they are used to compensate for the lack of uniformity in the raw tobacco and create smooth, pleasant flavors and aromas that are sufficiently distinctive to create a loyal customer base, not to market cigars to youth. CAA states, in short, the reason for adding flavors is product identification and differentiation, a key determinant of competitive performance for cigar and pipe tobacco products and a host of other consumer products including wine, beer and spirits that are not intended for underage customers. CAA concludes that prohibiting the use of flavorings in cigars and other tobacco products is tantamount to prohibiting the sale of those products, and surrendering the revenues produced by sales and excise taxes on these products.
   
   Swedish Match (SM) USA, Inc. is opposed to this bill unless it is amended to exempt smokeless tobacco and their nicotine only/alternative nicotine ZYN product from the flavor ban. SM notes that on October 22, 2019, the FDA granted the first-ever modified risk orders to SM for eight snus smokeless tobacco products. This means the eight products may be advertised with specific information about the lower risks of certain health effects using the products compared to smoking cigarettes. To market a product as a modified risk tobacco product (MRTP), tobacco companies must now first demonstrate to FDA that a proposed MRTP will, or is expected to, benefit the health of the U.S. population as a whole – including adults and children, tobacco users and nonusers. To fulfill the requirements of the MRTP and address concerns about youth usage, SM submitted scientific evidence showing that non-users of tobacco, including young adults, did not intend to buy any of the eight products. The modified risk claim did not make them more likely to buy the products. Please note, four of the eight approved products are mint flavored. SM notes that their newest product, ZYN, is a nicotine only product. ZYN is made with pharmaceutical-grade nicotine salt, along with other natural and artificial ingredients for a nicotine experience without tobacco. According to SM, this alternative nicotine product contains the same ingredients as Nicorette and is offered in many of the same flavors. However, under the bill, ZYN would be banned while Nicorette would not. SM states they understand the mounting concerns for the health and safety of young people, especially relative to the epidemic relative to the usage of electronic cigarettes by teenagers. SM contends they takes the safety of youth very seriously and are very proud of their efforts to keep tobacco and nicotine products out of the hands of children.
   
6. RELATED LEGISLATION.
   1. AB 739 (McCarty and Wood) prohibits a tobacco retailer from selling, offering for sale, or possessing with the intent to sell or offer for sale, a flavored tobacco product, as defined. AB 739 makes a violation of this prohibition an infraction punishable by a fine of $250 for each violation, and states the intent of the Legislature that these provisions not be construed to preempt or prohibit the adoption and implementation of local ordinances related to the prohibition on the sale of flavored tobacco products. AB 739 was held without a hearing in the Assembly Committee on Governmental Organization.
      
   2. AB 1639 (Gray) requires a person engaged in the retail sale of tobacco to use age verification software, decreases the period for calculating civil penalties and license suspensions and increases the penalty amounts, prohibits retailers from selling non-tobacco-flavored vapor products, as defined, and from selling any non-cannabis-flavored vapor product, as defined. AB 1639 also imposes an additional tax on electronic cigarettes at a rate of $2.40 per every 40 milligrams of base product nicotine contained in the electronic cigarette.
      
      
      
7. PREVIOUS LEGISLATION.
   1. SB 835 (Glazer) of 2018 would have implemented a ban on smoking and disposing of tobacco products at state parks and established an infraction punishable by a fine of up to $25 for a violation. SB 835 was vetoed by the Governor who stated, in part: “I have vetoed similar measures in each of the last two years. Third time is not always a charm. My opinion on the matter has not changed. We have many rules telling us what we can't do and these are wide open spaces.”
   2. SCR 143 (Pan) of 2018, would have encouraged major motion picture studios to give a Restricted (R) rating to any new film designed for viewing by children and adolescents that shows or implies smoking or tobacco use. SCR 143 failed passage in the Assembly Health Committee.
   3. AB 1097 (Levine) of 2018, was substantially similar to SB 835. AB 1097 was vetoed by the Governor, who issued the same veto message as SB 835.
   4. SB 386 (Glazer) of 2017, would have prohibited the smoking of cigarettes, cigars, pipes, and other tobacco products at state parks and state coastal beaches, as specified, and established that a violation is an infraction with a fine of up to $100. SB 386 was vetoed by Governor Brown who stated, in part: “Such a far-reaching prohibition in every state park and on every state beach is too broad. In addition, the fine prescribed in SB 386 for lighting one cigarette is excessive. If people can't smoke even on a deserted beach, where can they? There must be some limit to the coercive power of government.”
   5. AB 725 (Levine) of 2017 would have prohibited smoking of tobacco products on state coastal beaches and at state parks, as specified, and established that a violation is an infraction with a fine of up to $50. AB 725 was vetoed by Governor Brown who issued the same veto message as for SB 386.
   6. SB 1333 (Block) of 2016, would have prohibited the smoking of tobacco products on state coastal beaches and at state parks, as specified, and established that a violation is an infraction with a fine of up to $250. SB 1333 was vetoed by Governor Brown who stated the complete prohibition in all parks and beaches is too broad, and a more measured and less punitive approach might be warranted.
   7. SBX2 5 (Leno), Chapter 7, Statutes of 2016, recasts and broadens the definition of “tobacco product” to include Electronic Smoking Devices (ESDs), and extends current restrictions and prohibitions against the use of tobacco products to ESDs.
   8. SBX2 7 (Hernandez), Chapter 8, Statutes of 2016, increases the minimum legal age to purchase or consume tobacco from 18 to 21. Removes penalty provisions for those under 21 in possession of tobacco and exempts military personnel from the age increase.
   9. ABX2 7 (Stone), Chapter 4, Statutes of 2016, extends the workplace-smoking ban and closes loopholes, among other things, to address secondhand smoke.
   10. SB 977 (Pan), Chapter 537, Statutes of 2016, prohibits a person from smoking a tobacco product, as defined, within 250 feet of a youth sports event, as defined. Broadens the definition of “smoke or smoking” in existing law.
   11. SB 591 (Pan) of 2015, would have imposed an additional cigarette tax at a rate of $2.00 per package of 20 cigarettes, and a corresponding rate for a cigarette tax stamp. SB 591 was placed on the Inactive File on the Senate Floor and no further action was taken.
   12. AB 768 (Thurmond), Chapter 779, Statutes of 2015, prohibits, commencing December 1, 2016, the use or possession of smokeless tobacco products, as defined, on the playing field of a baseball stadium during a professional baseball game or practice.

REGISTERED SUPPORT / OPPOSITION:

Support

Office of Lieutenant Governor Eleni Kounalakis (cosponsor)

Campaign for Tobacco-Free Kids (cosponsor)

American Lung Association in California (cosponsor)

American Heart Association, American Cancer Society Cancer Action Network (cosponsor)

Common Sense (cosponsor)

Attorney General Xavier Becerra

Tony Thurmond, State Superintendent of Public Instruction
Adventist Health Glendale
African American Tobacco Leadership Control Council
African Communities Public Health Coalition
Alameda County Board of Supervisors
Alameda County Tobacco Education Coalition
American Academy of Pediatrics, California
Americans for Nonsmokers' Rights
Anti-Vaping Alliance
Asian American Drug Abuse Program
Association of California School Administrators
Association of California Healthcare Districts
Association of California School Administrators
Association of Northern California Oncologists
Black Arts Los Angeles
Black Caucus of Health Workers
Breast Cancer Prevention Partners
Breathe California of Los Angeles County
Breathe California Sacramento Region
Cal Poly Center for Health Research
California Academy of Child and Adolescent Psychiatry
California Academy of Family Physicians
California Alliance of Boys & Girls Clubs
California Black Health Network
California Chapter American College of Cardiology
California Children's Hospital Association
California Dental Association

California Dental Hygienists’ Association
California Fights Flavors
California LGBTQ Health and Human Services Network
California Optometric Association
California Pan-Ethnic Health Network
California School Boards Association
California School Nurses Organization
California School-Based Health Alliance
California Society of Addiction Medicine

California Society of Pediatric Dentistry
California State Alliance of YMCAs
California State PTA
CALPIRG, California Public Interest Research Group
Change for Justice
City of Alameda

City of Belmont
City of Berkeley
City of Beverly Hills

City of Concord
City of Culver
City of Laguna Niguel
City of Oakland
City of Oceanside
City of Orinda
City of Palo Alto
City of Redwood
City of San Jose
City of San Leandro
City of San Pablo
Coalition for a Tobacco-free Imperial County
Coalition of Lavender-Americans on Smoking and Health
Coastal Communities Drug Free Coalition
Common Sense Kids Action
Community Action Service Advocacy
Community Coalition
Community Health Councils
Contra Costa County
County Health Executives Association of California
County of Los Angeles Board of Supervisors
County of San Bernardino
County of San Diego
County of Santa Clara
County of Solano
CVS Health
Cynthia Perry Ray Foundation
Emergency Nurses Association, California State Council
Emphysema Foundation of America
Equality California
First 5 Association of California
Flavors Addict Kids – Livermore
Gardena Drug Alcohol & Abuse Prevention Program
Gardena High School Task Force
G.R.E.E.N Foundation
Green Technical Education & Employment
Greentech Education and Employment
Health Access California
Health Officers Association of California
Kaiser Permanente
L.A. Families Fighting Flavored Tobacco
L.A. Metro Churches
Latino Coalition for a Healthy California
Los Angeles County Board of Supervisors
Los Angeles Families Fighting Flavored Tobacco

Los Angeles Trust for Children’s Health
Los Angeles Unified School District
Lucile Packard Children's Hospital Stanford
National Asian Pacific American Families Against Substance Abuse
OUT Against Big Tobacco
Parents Against Vaping E-Cigarettes
Providence St. Joseph Health
Public Health Advocates
Public Health Institute
Riverside County Black Chamber of Commerce
San Bernardino County District Advocates for Better Schools
San Diego Unified School District
San Francisco Bay Area Pediatric Nurse Practitioner Association
San Francisco Tobacco Free Coalition
San Luis Obispo County Tobacco Control Coalition
San Marcos Prevention Coalition
San Mateo County Board of Supervisors
San Mateo County Tobacco Education Coalition
Santa Clara County Office of Education
Santa Cruz County Tobacco Education Coalition
Sierra Club California
Thirdhand Smoke Resource Center
Tobacco Free Kids Action Fund
Tobacco and Vape Free OC Coalition
Tobacco Education and Research Oversight Committee
USC Health, Emotion and Addiction Laboratory
Vista Community Clinic
Wellness & Prevention Center

Opposition

Alimentation Couche-Tard
American Petroleum and Convenience Store Association
Anaheim Police Association
Arab American Grocers Association
Bishop R. Terrell Douglas, Sr., President, Inglewood Ministerial Alliance
California Black Chamber of Commerce
California Chamber of Commerce
California Distributors Association
California Fuels and Convenience Alliance
California Hispanic Chambers of Commerce
California Independent Oil Marketers Association
California Licensed Beverage Association
California Manufacturers & Technology Association
California Retailers Association
California Statewide Law Enforcement Association
California Taxpayers Association
City of Refuge Los Angeles
Community Build
Huntington Beach Police Officers' Association
LA Metro Hispanic Chamber of Commerce
Law Enforcement Action Partnership
National Action Network
Neighborhood Business Alliance
Orange County Cops
Pastors of Compton
Retailers and Store Owners United to Rebuild California’s Economy
The Baptist Ministers Conference of Los Angeles and Southern California
Vapor Technology Association

Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097

 THIRD READING  

Bill No: SB 793

Author: Hill (D), Glazer (D), McGuire (D), Pan (D), Skinner (D) and Wiener (D), et al.

Amended: 6/18/20

Vote: 21

SENATE HEALTH COMMITTEE: 8-1, 5/13/20

AYES: Pan, Nielsen, Lena Gonzalez, Hurtado, Leyva, Mitchell, Monning, Rubio

NOES: Grove

SENATE APPROPRIATIONS COMMITTEE: 5-1, 6/18/20

AYES: Portantino, Bradford, Hill, Leyva, Wieckowski

NOES: Jones

NO VOTE RECORDED: Bates

SUBJECT: Flavored tobacco products

SOURCE: Lieutenant Governor Eleni Kounalakis

American Cancer Society Cancer Action Network

American Heart Association

American Lung Association

Campaign for Tobacco Free Kids

Common Sense

DIGEST:

This bill prohibits a tobacco retailer, or any of the tobacco retailer’s agents or employees, from selling, offering for sale, or possessing with the intent to sell or offer for sale a flavored tobacco product or a tobacco product flavor enhancer, as specified.

ANALYSIS:

Existing law:

1. Requires the Department of Public Health (DPH) to establish and develop a program to reduce the availability of “tobacco products,” as defined, to persons under 21 years of age through authorized enforcement activities, as specified, pursuant to the STAKE Act (Stop Tobacco Access to Kids Enforcement Act). [BPC §22952]
2. Requires all persons engaging in the retail sale of tobacco products to check the identification of tobacco purchasers, to establish the age of the purchaser, if the purchaser reasonably appears to be under 21. [BPC §22956]
3. Permits an enforcing agency, as specified, to assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21 any tobacco product, instrument, or paraphernalia that is designed for the smoking or ingestion of tobacco products, as specified, ranging from $400 to $6,000 for a first, second, third, fourth, or fifth violation within a five-year period. [BPC §22958]
4. Defines “tobacco product” as a product containing, made, or derived from tobacco or nicotine that is intended for human consumption, as specified, including an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, and any component, part, or accessory of a tobacco product, whether or not sold separately. Prohibits any product approved by the federal Food and Drug Administration (FDA) for sale as a tobacco cessation product or for other therapeutic purposes, as specified, from being deemed a tobacco product. [BPC §22950.5]

This bill:

1. Prohibits a tobacco retailer, or any of the tobacco retailer’s agents or employees, from selling, offering for sale, or possessing with the intent to sell or offer for sale a flavored tobacco product or a tobacco product flavor enhancer.
2. Prohibits the application of the prohibition in 1) above to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the following conditions are met:
   1. The retailer has a valid license to sell tobacco products, as specified;
   2. The retailer does not permit any person under 21 to be present or enter the premises at any time;
   3. The retailer operates in accordance with all relevant state and local laws relating to the sale of tobacco products; and,
   4. The retailer operates in accordance with all state and local laws relating to the consumption of tobacco products on the premises if consumption is allowed on the premises.
3. Deems a tobacco product as a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees, in the course of his or her agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
4. Deems it an infraction if a tobacco retailer, or agent or employee of a tobacco retailer, violates the provisions of this bill, and imposes a fine of $250 for each violation.
5. Specifies that the provisions in this bill do not preempt or prohibit the adoption of local standards that impose a greater restriction on the access of tobacco products than the provisions in this bill. Requires the greater restriction on the access of tobacco products to prevail in the case of inconsistency between the provisions of this bill and local standards.
6. Defines “characterizing flavor” as a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. Prohibits a tobacco product from being determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.
7. Defines a “tobacco product flavor enhancer” as a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
8. Defines “flavored shisha tobacco product” as any shisha tobacco product that contains a constituent that imparts a characterizing flavor. Defines “shisha tobacco product” as a tobacco product smoked or intended to be smoked in a hookah, including, and sometimes referred to as, hookah tobacco, waterpipe, tobacco, maassel, narghile, and argileh. Deems that “shisha tobacco product” does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.
9. Defines “hookah” as a type of waterpipe used to smoke shisha or other tobacco products with a long flexible tube for drawing aerosol through water. Permits components of hookah to include heads, stems, bowls, and hoses. Defines “hookah tobacco retailer” as a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.

Comments

1. Author’s statement. According to the author, youth usage of flavored tobacco products has exploded recently. Fueled by kid friendly flavors like cotton candy and bubblegum, 3.6 million more middle and high school students started using e-cigarettes in 2018. The disturbing rates of teen e-cigarette use continued to rise in 2019 with the overwhelming majority of youth citing use of popular fruit and menthol or mint flavors. In the last two years alone, e-cigarette use among young people surged by 135% and there are now 5.3 million young Americans who use e-cigarettes regularly. Eighty percent of young people who have ever used tobacco started with a flavored product. Menthol cigarettes, sweet cigars, candy vapes, and other flavored tobacco products serve one purpose: to mask the harshness of tobacco and get users hooked to a dangerous life-long addiction. California needs to take swift action to address this epidemic. While the FDA recently announced a partial ban on certain flavored electronic cigarette products, the policy does not go far enough to protect the health and safety of California children by making dangerous exemptions. It is time for California to lead the nation by ending the sale of all flavored tobacco products.
2. Coronavirus disease 2019 (COVID-19) and smoking. According to the CDC, a novel coronavirus is a new coronavirus that has not been previously identified. The virus causing COVID-19 is not the same as the coronaviruses that commonly circulate among humans and cause mild illness, like the common cold. The University of California, San Francisco, Center for Tobacco Control Research and Education (CTCRE) states that when someone’s lungs are exposed to flu or other infections, the adverse effects of smoking or vaping are much more serious than among people who do not smoke or vape. Smoking is associated with increased development of acute respiratory distress syndrome (ARDS) in people with a risk factor like severe infection, non-pulmonary sepsis (blood infection), or blunt trauma. People who have any cotinine (a metabolite of nicotine) in their bodies—even at the low levels associated with secondhand smoke—have substantially increased risk of acute respiratory failure from ARDS. The CTCRE states that as of April 16, 2020, there were 12 papers that had data on smoking and COVID disease progression: 10 from China, one from Korea, and one from the U.S, and the meta-analysis of the 12 papers found that smoking was associated with more than a doubling of odds of disease progression in people who had already developed COVID. Information from DPH’s California Tobacco Control Program (CTCP) cites a study where 391 healthy volunteers had one of five respiratory viruses, including coronavirus, dropped in a liquid into their noses. The volunteers who smoked were twice as likely as those who did not smoke to develop infection. The CTCP also cites five published studies determining that smoking is most likely associated with getting sicker with COVID-19. In the largest study of 1,099 people with COVID-19, people who smoke were 2.4 times more likely to get really sick (such as admitted to an intensive care unit, needing mechanical ventilation, or dying) compared to those who do not smoke because of chronic lung conditions, inflammation, immunosuppression, and other health risks already associated with smoking and vaping.

NOTE: For a more extensive analysis, including information on the electronic cigarette health outbreak, state and federal actions, and past tobacco control legislation, see the Senate Health Committee analysis for this bill dated May 11, 2020.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• Unknown, significant, and ongoing revenue loss, potentially in the high tens of millions to low hundreds of millions. The Department of Tax and Fee Administration (CDTFA) previously estimated excise tax revenue loss of $110 million in FY 2020-21 ($85 million from cigarettes, $2 million from tobacco products) and $218 million for FY 2021-22, the first entire fiscal year the ban would be in effect). In addition, associated sales tax losses of $26.6 million ($12 million General Fund) in FY 2020-21 and $53 million ($24.3 million General Fund) in FY 2021-22. CDTFA notes few data sources are available on consumer responses to banned flavored products, so consumer impacts are highly uncertain. The original revenue loss estimate would need to be revised to reflect a narrower scope of products affected by the ban.
• Unknown and significant ongoing costs (hundreds of thousands to low millions) for the DPH to investigate and take enforcement action. The range reflects multiple enforcing agencies’ actions, and the bill’s proposed enforcement requirement would be broader than DPH’s current responsibility.
• Unknown but potentially significant cost-avoidance and long-term savings to state public health systems and public health (cardiovascular and respiratory health-related illnesses), to the extent tobacco use is reduced and prevented in youths, and smoking cessation attempts are successful for some.

SUPPORT: (Verified 6/22/20)

Lieutenant Governor Eleni Kounalakis (co-source)

American Cancer Society Cancer Action Network (co-source)

American Heart Association (co-source)

American Lung Association (co-source)

Campaign for Tobacco Free Kids (co-source)

Common Sense (co-source)

African American Tobacco Control Leadership Council

African Communities Public Health Coalition

Alameda County Board of Supervisors

American Academy of Pediatrics, California Chapter

Americans for Nonsmokers’ Rights

Anti-Vaping Alliance

Association of California Healthcare Districts

Association of Northern California Oncologists

Breast Cancer Prevention Partners

Breathe California, Sacramento Region

California Academy of Family Physicians

California Chapter of the American College of Cardiology

California Children’s Hospital Association

California Dental Association

California Emergency Nurses Association

California Optometric Association

California Public Interest Research Group

California School Boards Association

California Society of Addiction Medicine

California State PTA

Change for Justice

Cities of Alameda, Berkeley, Beverly Hills, Encinitas, Oakland, Orinda, Palo Alto, Redwood City, San Jose, San Leandro, and San Pablo

Coastal Communities Drug Free Coalition

Community Action Service Advocacy

County Health Executives Association of California

Counties of Alameda, Contra Costa, Los Angeles, San Bernardino, San Mateo, Santa Clara, and Solano

County of Lake Health Services Department

CVS Health

Equality California

First 5 Association of California

Flavors Addict Kids – Livermore

Green Technical Education and Employment

Health Access California

Health Officers Association of California

Kaiser Permanente

L.A. Families Fighting Flavored Tobacco

Latino Coalition for a Health California

Los Angeles Unified School District

Lucile Packard Children’s Hospital Stanford

Leadership Council

Medical Oncology Association of Southern California

Parents Against Vaping E-cigarettes

Providence St. Joseph Health

Public Health Advocates

Public Health Institute

San Bernardino County District Advocates for Better Schools

San Diego Unified School District

San Francisco Bay Area Pediatric Nurse Practitioner Association

San Marcos Prevention Coalition

San Mateo County Office of Education

Sierra Club California

Siskiyou County Public Health Department

The G.R.E.E.N. Foundation

Thirdhand Smoke Research Center

Tobacco Education & Research Oversight Committee

USC Health, Emotion, and Addiction Laboratory

Vista Community Clinic

Weidman Group

10 Individuals

OPPOSITION: (Verified 6/22/20)

American Petroleum and Convenience Store Association

California Fuels and Convenience Alliance

California Independent Oil Marketers Association

Cigar Association of America

National Association of Tobacco Outlets

Swedish Match North America

Taxpayers Protection Alliance

Vapor Technology Association

500+ Individuals

ARGUMENTS IN SUPPORT: The sponsors and other supporters of this bill, largely health advocates, health professionals, and local governments, argue that tobacco products remain the leading cause of preventable illness, disability, and death in the nation. Supporters argue that the effects of tobacco are even more concerning in youth, whose brains are still developing, and that products are increasingly marketed to youth with enticing flavors and product design. Supporters cite recent studies that found youth users of ENDS rose by 78% between 2017 and 2018, and that 440,000 youth in the state are expected to die prematurely as a result of tobacco use. Sales of flavored cigars, meanwhile, have increased by nearly 50% since 2008, and made up more than half (52.1%) of the U.S. cigar market in 2015. The sponsors argue that the number of unique cigar flavor names more than doubled from 2008 to 2015, from 108 to 250. The top five most popular cigar brands among 12 to 17 year olds who have used cigars—Black & Mild, Swisher Sweets, White Owl, Backwoods, and Dutch Masters—all come in flavor varieties. These products are often sold singly or can be priced as low as three or four for $0.99, making them even more appealing to price-sensitive youth. It is important to note that cigar smoke is composed of the same toxic and carcinogenic constituents found in cigarette smoke. Although tobacco companies claim to be responding to adult tobacco users’ demand for variety, it’s clear that flavored tobacco products play a key role in enticing new users, particularly kids, to a lifetime of addiction. This growing market of flavored tobacco products is undermining progress in reducing youth tobacco use in California. The sponsors and other supporters also note targeted marketing of certain tobacco products to communities of color, low-income individuals, and the LGBTQ community, citing that the tobacco industry aggressively markets menthol-flavored products to African Americans. Approximately 85% of African Americans who smoke use menthol cigarettes, and African-American men have the highest death rates from lung cancer when compared to other demographic groups. Further, supporters state that an alarming 80% of youths who have ever used tobacco started with a flavored product.

ARGUMENTS IN OPPOSITION: Taxpayers Protection Alliance (TPA) cites the “95% safer” study about vaping and states that vaping helps millions of adults successfully quit smoking traditional combustible cigarettes, and even a temporary ban would seriously harm public health by preventing millions of smokers from quitting dangerous combustible cigarettes. TPA argues that as a result of the introduction of vaping products, smoking rates in California have fallen significantly in recent years. As of 2017, only 11.4% of California adults, and 4.3% of high school students, currently smoke traditional combustible cigarettes. In addition, preliminary numbers from the FDA have indicated the number of teens smoking nationally has fallen by a staggering 20% on top of this over the past two years, the sharpest decrease in history. TPA states this is an outcome that should be embraced and celebrated by lawmakers. The California Fuels and Convenience Alliance expresses similar concerns on the effect to the state’s economy and to brick and mortar businesses.

Swedish Match North America, who oppose the bill unless amended, cites California’s projected budget deficit due to the COVID-19 pandemic and the Legislative Analyst’s Office tax revenue loss projection on SB 38, an identical bill, if all flavors were banned, and argues that California can ill-afford to lose additional revenue at this time. Swedish Match further states that this bill would result in the removal of products off the shelves that help smokers stop using cigarettes, specifically smokeless tobacco products and flavored non-tobacco nicotine products or alternative nicotine products like its newest product ZYN. Swedish Match argues that smokeless tobacco products are not favored by youth, and requests an amendment to this bill that would exempt smokeless tobacco and our nicotine only/alternative nicotine ZYN product from the flavor ban.

The Cigar Association of America, who also oppose the bill unless amended, states that youth usage of cigars and pipe tobacco is at an all-time low and has continued to decline over time and requests that cigars and pipe tobacco be removed from this bill.

Prepared by: Reyes Diaz / HEALTH / (916) 651-4111

6/23/20 17:13:30

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SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 793 (Hill) - Flavored tobacco products

Bill Summary:

SB 793 would prohibit a tobacco retailer, or any of the retailer’s agents or employees, from selling, offering for sale, or possessing with intent to sell or offer for sale, a flavored tobacco product, as defined. Would deem it an infraction if a tobacco retailer, or agent or employee of a tobacco retailer, violates the bill’s provisions, and imposes a $250 fine for each violation. Would provide the bill does not preempt or prohibit adoption of a local standard that imposes greater restrictions on the access to tobacco products.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on June 18, 2020

Fiscal Impact:

• Unknown, significant, and ongoing revenue loss, potentially in the high tens of millions to low hundreds of millions. The Department of Tax and Fee Administration (CDTFA) previously estimated excise tax revenue loss of $110 million in FY 2020-21 ($85 million from cigarettes, $2 million from tobacco products) and $218 million for FY 2021-22, the first entire fiscal year the ban would be in effect). In addition, associated sales tax losses of $26.6 million ($12 million General Fund) in FY 2020-21 and $53 million ($24.3 million General Fund) in FY 2021-22. CDTFA notes few data sources are available on consumer responses to banned flavored products, so consumer impacts are highly uncertain. The original revenue loss estimate would need to be revised to reflect a narrower scope of products affected by the ban.
• Unknown and significant ongoing costs (hundreds of thousands to low millions) for the Department of Public Health (CDPH) to investigate and take enforcement action. The range reflects multiple enforcing agencies’ actions, and the bill’s proposed enforcement requirement would be broader than CDPH’s current responsibility.
• Unknown but potentially significant cost-avoidance and long-term savings to state public health systems and public health (cardiovascular and respiratory health-related illnesses), to the extent tobacco use is reduced and prevented in youths, and smoking cessation attempts are successful for some.

Author Amendments:

The author’s amendments would:

• Exempt from the bill’s provisions, the sale of flavored shisha tobacco products by a hookah tobacco retailer if all the following conditions are met:
  • The hookah tobacco retailer has a valid license, as specified;
  • The hookah tobacco retailer does not permit anyone under the age of 21 years to be present or to enter the premises at any time;
  • The hookah retailer must operate in accordance with all relevant state and local laws, related to the sale of tobacco products; and,
  • The hookah tobacco retailer must operate in accordance with all relevant state and local laws, related to the consumption of tobacco products, as specified, if consumption is allowed at the hookah tobacco retailer’s premises.
• Define the following terms:
  • “Flavored shisha tobacco product” means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.
  • “Hookah” means a type of waterpipe used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of hookah may include heads, stems, bowls, and hoses.
  • “Hookah tobacco retailer” means a tobacco retailer engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.
  • “Shisha tobacco product” means a tobacco product smoked or intended to be smoked in a hookah, and would not include any electronic devices, such as electronic hookah, e-cigarette, or e-tobacco product. The term may also include, or be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh.
• Add co-authors.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 793 (Hill) - Flavored tobacco products

Bill Summary:

1. SB 793 would prohibit a tobacco retailer, or any of the retailer’s agents or employees, from selling, offering for sale, or possessing with intent to sell or offer for sale, a flavored tobacco product, as defined. Would deem it an infraction if a tobacco retailer, or agent or employee of a tobacco retailer, violates the bill’s provisions, and imposes a $250 fine for each violation. Would provide the bill does not preempt or prohibit adoption of a local standard that imposes greater restrictions on the access to tobacco products.

Fiscal Impact:

• The Department of Tax and Fee Administration (CDTFA) estimates excise tax revenue loss of $110 million in FY 2020-21 ($85 million from cigarettes, $2 million from tobacco products) and $218 million for FY 2021-22, the first entire fiscal year the ban would be in effect). In addition, associated sales tax losses of $26.6 million ($12 million General Fund) in FY 2020-21 and $53 million ($24.3 million General Fund) in FY 2021-22. CDTFA notes few data sources are available on consumer responses to banned flavored products, so consumer impacts are highly uncertain. Please see Staff Comments for additional detail.
• Staff anticipates unknown and significant ongoing costs (hundreds of thousands to low millions) for the Department of Public Health to investigate and take enforcement action. The fiscal range reflects the amount of investigations and associated cost of enforcement activities could be coordinated through regular Stop Tobacco Access to Kids Enforcement (STAKE) activities and in response to complaints, as opposed to a review of every retailer (higher cost estimate).
• Staff notes unknown but potentially significant cost-avoidance and long-term savings to state public health systems and public health (cardiovascular and respiratory health-related illnesses), to the extent tobacco use is reduced and prevented in youths, and smoking cessation attempts are successful for some.
• The DOJ reports no fiscal impact.

Background:

SBX2 5 (Leno, Chapter 7, Statutes of 2016) recasts and broadens the definition of “tobacco product” to include electronic smoking devices (ESDs), and extends current restrictions and prohibitions against the use of tobacco products to ESDs. SBX2 7 (Chapter 8, Statutes of 2016) increases the minimum legal age to purchase or consume tobacco from 18 to 21. Current law defines “tobacco product” as any of the following:

• A product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff.
• An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah.
• Any component, part, or accessory of a tobacco product, whether or not sold separately.

A tobacco product does not include a nicotine replacement product approved by the United States Food and Drug Administration. The CDPH enforces the STAKE Act, which prohibits sales of tobacco products to individuals under 21 years of age.

The Governor’s 2020 January Budget summary outlines how revenues from the tax on cigarettes and other products are distributed:

• 10 cents of per pack tax to the General Fund.
• 50 cents of the per pack tax, and an equivalent rate levied on non-cigarette tobacco products, goes to the Children and Families First Trust Fund, as specified by Proposition 10.
• 25 cents of the per pack tax, and rate equivalent to 87 cents on non-cigarette tobacco products and e-cigarettes, to the Cigarette and Tobacco Products Surtax Fund, as specified by Proposition 99.
• 2 cents of the per-pack tax to the Breast Cancer Fund.
• $2 of the per-pack tax, and an equivalent rate on non-cigarette tobacco products and e-cigarettes, to the California Healthcare, Research and Prevention Tobacco Tax Act of 2016 for Proposition 56 distributions.

Proposed Law:

This bill includes the following provisions:

Prohibits sale of flavored tobacco. The bill prohibits a tobacco retailer, or any of the tobacco retailer’s agents or employees, from selling, offering for sale, or possessing with the intent to sell or offer for sale, a flavored tobacco product or tobacco product flavor enhancer, as defined.

The bill requires a rebuttal presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees, in the course of his or her agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.

Fine. The bill requires a tobacco retailer, or agent or employee of a tobacco retailer, who violates the bill’s provisions to be found guilty of an infraction and punished by a $250 fine for each violation.

Local standards. The bill does not preempt or otherwise prohibit the adoption of a local standard that imposes greater restrictions on the access to tobacco products than the restrictions imposed by this section. To the extent that there is an inconsistency between the bill and a local standard that imposes greater restrictions on the access to tobacco products, the greater restriction on the access to tobacco products in the local standard must prevail.

Definitions. The bill defines terms, including but not limited to:

• “Characterizing flavor” means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product must not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, the presence of a distinguishable taste or aroma, or both, as described, constitutes a characterizing flavor.
• “Flavored tobacco product” means any tobacco product that contains a constituent that imparts a characterizing flavor.
• “Tobacco product flavor enhancer” means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product
• “Tobacco product” means a tobacco product as defined in existing law.
• “Tobacco retailer” means a person who engages in this state in the sale of tobacco products directly to the public from a retail location, and includes a person who operates vending machines from which tobacco products are sold in this state.
• “Retail location” means a building from which tobacco products are sold at retail and a retail vending machine.

Severability. The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

Related Legislation:

• SB 38 (Hill, 2019), as introduced, was substantively similar to this bill. It was amended to include provisions pertaining to specified exemptions, and again, amended to contain unrelated provisions. The bill is at the Assembly Desk.
• AB 1639 (Gray, 2019) revises CDPH’s enforcement activities against tobacco retailers, increases specified penalties, and restricts e-cigarette marketing. Specifically, the bill would require the CDPH to conduct random, onsite sting operations of at least 20 percent of the total number of licensed tobacco retailers and, in the event of a violation, and a second sting inspection within six months of that violation and a third within 12 months of that first violation. The bill is in the Senate Rules Committee.
• AB 1625 (Robert Rivas, 2019) would have required the Attorney General to establish and maintain his list of tobacco product brand styles that lack a characterizing flavor, as defined. The bill was not heard in the Assembly Governmental Organization Committee.

Staff Comments:

Budget. Governor’s January budget and May Revision includes a budget change proposal and trailer bill language to implement a new vaping tax of $1 for every 20 milligrams of nicotine content (an amount equivalent to the tax on a pack of cigarettes), on distributors of e-cigarettes, through the use of stamps or meter impressions, beginning on January 1, 2021. The new tax would be in addition to all existing taxes on e-cigarettes, which are presently taxed as tobacco products under state law. Specifically:

• The proposed trailer bill specifies how the CDTFA would operationalize collection, and directs revenue generated from the tax, less refunds and administrative and collection costs, to be deposited into the new Electronic Cigarette Products Tax Fund, for enforcement and to offset Medi-Cal costs.
• The budget change proposal (BCP) includes $13.9 million and 10.5 positions for the CDTFA to administer the proposed tax and $7 million for the California Highway Patrol to establish a task force in collaboration with the Department of Justice dedicated to combatting the underground market for vaping products.

The May Revision also assumes a decrease of $10 million General Fund in 2020-21, and $33 million General Fund beginning in 2021-22, and ongoing, associated with shifting unallocated revenues from this proposed e-cigarette tax increase to support growth in Medi-Cal costs. On May 28, 2020, the Senate Budget Committee deferred trailer bill and the BCP without prejudice.

Fiscal methodology and assumptions. The CDTFA outlined several factors in their estimate development, and notes the estimate does not break out tobacco products by type. The estimate was calculated by converting estimated sales of tobacco product revenue, as specified, and California sales of e-cigarettes, which converted to FY 2018-19 wholesale sales by applying an average retailer margin using data from the U.S. Census Bureau. Cigarette sales and tobacco products, other than e-cigarettes, were expected to decline about three percent per year, starting in FY 2019-20, following a long-term trend. Tobacco products, other than electronic cigarettes, are expected to increase 5.6 percent per year, the average for the past three years. Based on an industry study, electronic cigarettes are assumed to grow 15 percent per year. Cigarette and tobacco product prices were projected to change based on three-year averages of wholesale prices by the U.S. Bureau of Labor Statistics.

-- END --

SENATE COMMITTEE ON HEALTH

Senator Dr. Richard Pan, Chair

BILL NO: SB 793

SUBJECT: Flavored tobacco products

SUMMARY:

Prohibits a tobacco retailer, or any of the tobacco retailer’s agents or employees, from selling, offering for sale, or possessing with the intent to sell or offer for sale a flavored tobacco product or a tobacco product flavor enhancer, as specified.

Existing law:

1. Requires the Department of Public Health (DPH) to establish and develop a program to reduce the availability of “tobacco products,” as defined, to persons under 21 years of age through authorized enforcement activities, as specified, pursuant to the Stop Tobacco Access to Kids Enforcement Act (STAKE Act). [BPC §22952]
2. Requires all persons engaging in the retail sale of tobacco products to check the identification of tobacco purchasers, to establish the age of the purchaser, if the purchaser reasonably appears to be under 21. [BPC §22956]
3. Permits an enforcing agency, as specified, to assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21 any tobacco product, instrument, or paraphernalia that is designed for the smoking or ingestion of tobacco products, as specified, ranging from $400 to $6,000 for a first, second, third, fourth, or fifth violation within a five-year period. [BPC §22958]
4. Defines “tobacco product” as a product containing, made, or derived from tobacco or nicotine that is intended for human consumption, as specified, including an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, and any component, part, or accessory of a tobacco product, whether or not sold separately. Prohibits any product approved by the federal Food and Drug Administration (FDA) for sale as a tobacco cessation product or for other therapeutic purposes, as specified, from being deemed a tobacco product. [BPC §22950.5]

This bill:

1. Prohibits a tobacco retailer, or any of the tobacco retailer’s agents or employees, from selling, offering for sale, or possessing with the intent to sell or offer for sale a flavored tobacco product or a tobacco product flavor ehnahcer.
2. Deems a tobacco product as a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees, in the course of his or her agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a “characterizing flavor,” as defined, including, but not limited to, text, color, images, or all, on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
3. Deems it an infraction if a tobacco retailer, or agent or employee of a tobacco retailer, violates the provisions of this bill, and imposes a fine of $250 for each violation.
4. Specifies that the provisions in this bill do not preempt or prohibit the adoption of local standards that impose a greater restriction on the access of tobacco products than the provisions in this bill. Requires the greater restriction on the access of tobacco products to prevail in the case of inconsistency between the provisions of this bill and local standards.
5. Defines “characterizing flavor” as a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. Prohibits a tobacco product from being determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.
6. Defines a “tobacco product flavor enhancer” as a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.

FISCAL EFFECT:

This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. Author’s statement. According to the author, youth usage of flavored tobacco products has exploded recently. Fueled by kid friendly flavors like cotton candy and bubblegum, 3.6 million more middle and high school students started using e-cigarettes in 2018. The disturbing rates of teen e-cigarette use continued to rise in 2019 with the overwhelming majority of youth citing use of popular fruit and menthol or mint flavors. In the last two years alone, e-cigarette use among young people surged by 135% and there are now 5.3 million young Americans who use e-cigarettes regularly. Eighty percent of young people who have ever used tobacco started with a flavored product. Menthol cigarettes, sweet cigars, candy vapes, and other flavored tobacco products serve one purpose: to mask the harshness of tobacco and get users hooked to a dangerous life-long addiction. California needs to take swift action to address this epidemic. While the FDA recently announced a partial ban on certain flavored electronic cigarette products, the policy does not go far enough to protect the health and safety of California children by making dangerous exemptions. It is time for California to lead the nation by ending the sale of all flavored tobacco products.
2. Background. On July 1992, Congress enacted the Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act, which includes an amendment (section 1926), known as the Synar Amendment, aimed at decreasing youth access to tobacco. It requires U.S. territories (all states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, and six Pacific jurisdictions) to enact and enforce laws prohibiting the sale or distribution of tobacco products to individuals under the age of 18. (On December 20, 2019, the President signed legislation amending the federal Food, Drug, and Cosmetic Act, which raised the federal minimum age of sale of tobacco products from 18 to 21 years.) States must comply with the Synar Amendment in order to receive their full Substance Abuse Prevention and Treatment Block Grant (SABG) awards. Up to 40% of SABG funding can be withheld from states for not complying with the Synar Amendment. In September 1994, the STAKE Act was signed into law in California to address the increase in tobacco sales to minors and fulfill the federal mandate. The STAKE Act created a new statewide enforcement program authorizing regulatory actions against businesses that illegally sell tobacco products to minors.
3. Smoking prevalence. According to the federal Centers for Disease Control and Prevention (CDC), nearly 90% of smokers in the U.S. start smoking by the age of 18, and 98% start by age 26. The CDC reports that if smoking continues at the current rate in the U.S., 5.6 million of today’s youth under the age of 18 (about one of every 13) will die early from a tobacco-related disease. Each day in the U.S., more than 3,200 youth aged 18 years or younger smoke their first cigarette, and an additional 2,100 youth and young adults become daily cigarette smokers. Flavorings in tobacco products can make them more appealing to youth. In 2014, 73% of high school students and 56% of middle school students who used tobacco products in the past 30 days reported using a flavored tobacco product. From 2011 to 2016, combustible cigarette smoking declined among middle and high school students. However, the use of electronic nicotine delivery systems (ENDS) use, or “vaping,” increased among the same population during the same time: 4.3 % of middle school students reported in 2016 that they used ENDS, which was an increase from 0.6% in 2011, and 8% of high school students reported having used ENDS, which was an increase from 1.5%. Most recently, the 2019 National Youth Tobacco Survey conducted by the CDC and the federal Food and Drug Administration (FDA) shows even greater increases in ENDS use, particularly among high school students: 27.5% of high school students and 10.5% of middle school students now report using ENDS while 5.8% of high school students and 2.3% of middle school students report using combustible cigarettes. More than five million youth now report current use of ENDS (up from 3.6 million in 2018), with nearly one million youth reporting daily use and 1.6 million reporting frequent use (20 or more days per month). The majority of current product users reported JUUL as their usual brand.
4. Tobacco-related diseases. Every year, combustible cigarette smoking causes more than 480,000 deaths in the U.S. The CDC reports that smoking causes more deaths each year than the following causes combined: HIV, illegal drug and alcohol use, motor vehicle crashes, and firearm-related incidents. Smoking also causes about 90% of all lung cancer deaths and about 80% of all deaths from Chronic Obstructive Pulmonary Disease. Estimates also show that smoking increases the risk of coronary heart disease and stroke by two to four times, as well as the risk of men and women developing lung cancer by 25 times. Smoking causes diminished overall health, increased absenteeism from work, and increased health care utilization and cost. The CDC reports that just one year after quitting smoking, the risk for heart attack drops sharply, and within two to five years, the risk for stroke may reduce to about that of a nonsmoker. Within five years of quitting smoking, risks for cancers of the mouth, throat, esophagus, and bladder drop by about half. The risk for lung cancer also drops by about half after 10 years of having quit smoking.
5. ENDS and health effects. According to the FDA, vapes, vaporizers, vape pens, hookah pens, e-cigarettes, and e-pipes are some of the many terms used to describe ENDS, which are noncombustible tobacco products. These products use an e-liquid, or juice, that may contain nicotine, as well as varying compositions of flavorings, propylene glycol, vegetable glycerin, and other ingredients. The liquid is heated to create an aerosol that the user inhales. ENDS may be manufactured to look like conventional cigarettes, cigars, or pipes. Some resemble pens or USB flash drives. Larger devices, such as tank systems or mods, bear little or no resemblance to cigarettes. In July 2013, a group of 12 experts in decision science, medicine, pharmacology, psychology, public health policy, and toxicology rated the relative harm of 12 nicotine-containing products by using 14 criteria addressing harms to self and others, concluding that combustible cigarettes were the most harmful and that ENDS were substantially less harmful than combustible cigarettes. The group of experts noted, however, that a limitation of the study was the lack of evidence for the harms of most products on most of the criteria.

An article in the American Journal of Public Health (AJPH) published in February 2020, “Invalidity of an Oft-Cited Estimate of the Relative Harms of E-Cigarettes,” notes that the 2013 study and its lack of evidence did not stop Public Health England and the Royal College of Physicians from endorsing and publicizing in 2013 that ENDS were 95% less risky and 95% less harmful than combustible cigarettes, which later was characterized and repeated in popular media.

The AJPH article now refutes and seeks to invalidate the “95% less” assertion by reiterating that the 2013 study lacked evidence and by noting that, in the years since, mounting evidence shows the negative health effects of the ENDS available in today’s market, which are vastly different than what was on the market in 2013. Today, in addition to using different materials and more numerous heating coils, many ENDS can attain power output that exceeds that of most over-the-counter 2013 models by 10 to 20 times. Greater power increases the potential harms to ENDS users because more aerosol is produced that exposes users to increased levels of nicotine and other toxicants. ENDS liquids have also changed considerably over the years, particularly the marketing of liquids with protonated nicotine (“nicotine salt”), which is made by adding an acid to free-base nicotine. Aerosolized nicotine salt is less aversive to inhale, allowing ENDS users to increase the nicotine concentration of the liquid and likely increase their own nicotine dependence, according to the article. ENDS aerosol also contains propylene glycol (PG), which is generally recognized as safe when eaten but when injected intravenously over a period of days is toxic. ENDS containing PG and vegetable glycerin cause inflammation in human lungs, suggesting different safety profiles for inhaled versus ingested constituents. The same effects were seen and noted by the CDC with the e-cigarette or vaping product use-associated lung injury (EVALI) outbreak in which black-market cannabis products containing vitamin E acetate (generally safe when eaten) caused a host of health issues when it was inhaled.

1. EVALI. Beginning late June 2019, various states, including Wisconsin, Illinois, California, Indiana, and Minnesota, reported to the CDC dozens of possible cases of severe lung illnesses associated with vaping. On August 30, 2019, the CDC issued a statement declaring it had been working with the FDA and the various states involved to investigate the incidents. One adult in Illinois who had been hospitalized after use of an ENDS product died in late August, and on September 3, 2019, the Oregon Health Authority announced it was investigating the death of an individual who had severe respiratory illness following use of an ENDS. The CDC stated at the time that while cases in each state were similar and appeared to be linked to ENDS, more information was needed to determine the cause of the illnesses, which included patients’ reports of gradual symptoms, such as breathing difficulty, shortness of breath, chest pain, mild to moderate gastrointestinal illnesses like vomiting and diarrhea, fever, and fatigue. In many of the cases, patients reported using tetrahydrocannabinol (THC)-containing ENDS products, and various states had begun to report that most of the products tested used by patients had a similar ingredient, vitamin E acetate, though the CDC at the time cautioned it was still investigating whether the illnesses were linked to specific devices, ingredients, or contaminants in the devices, or substances associated with ENDS, with the help from the FDA. In the meantime, the CDC provided states with a standardized case definition, a medical chart abstraction form, and a case review questionnaire with input from states who were conducting investigations to assist in tracking cases and information sharing between states with possible cases. The CDC had warned the public against buying products off the street and against modifying ENDS products, or adding any substances that are not intended by the manufacturer.

On February 18, 2020, the CDC reported a total of 2,807 hospitalized EVALI cases or deaths have been reported from all 50 states, the District of Columbia, and two U.S. territories (Puerto Rico and the U.S. Virgin Islands). Sixty-eight deaths have been confirmed in 29 states and the District of Columbia. Due to continued declines in new EVALI cases since September 2019, and the identification of vitamin E acetate as a primary cause of EVALI, the CDC’s release on February 18, 2020, was the final update on the number of hospitalized EVALI cases and deaths nationally, but the CDC stated it would continue to provide assistance to states, as needed, related to EVALI and will provide any updates. The CDC had recommended that people not use THC-containing ENDS, particularly from informal sources, like friends, family, or in-person or online dealers. The CDC also recommended that vitamin E acetate not be added to any ENDS products, or any other substances not intended by the manufacturer. The CDC continues to recommend that ENDS products never be used by youth, young adults, or women who are pregnant, and that adults who do not currently use tobacco products should not start using ENDS products. Further, adults who choose to use ENDS as an alternative to combustible cigarettes should not go back to traditional smoking.

1. Coronavirus disease 2019 (COVID-19) and smoking. According to the CDC, a novel coronavirus is a new coronavirus that has not been previously identified. The virus causing COVID-19 is not the same as the coronaviruses that commonly circulate among humans and cause mild illness, like the common cold. The University of California, San Francisco, Center for Tobacco Control Research and Education (CTCRE) states that when someone’s lungs are exposed to flu or other infections, the adverse effects of smoking or vaping are much more serious than among people who do not smoke or vape. Smoking is associated with increased development of acute respiratory distress syndrome (ARDS) in people with a risk factor like severe infection, non-pulmonary sepsis (blood infection), or blunt trauma. People who have any cotinine (a metabolite of nicotine) in their bodies—even at the low levels associated with secondhand smoke—have substantially increased risk of acute respiratory failure from ARDS. The CTCRE states that as of April 16, 2020, there were 12 papers that had data on smoking and COVID disease progression: ten from China, one from Korea, and one from the U.S, and the meta-analysis of the 12 papers found that smoking was associated with more than a doubling of odds of disease progression in people who had already developed COVID. Information from DPH’s California Tobacco Control Program (CTCP) cites a study where 391 healthy volunteers had one of five respiratory viruses, including coronavirus, dropped in a liquid into their noses. The volunteers who smoked were twice as likely as those who did not smoke to develop infection. The CTCP also cites five published studies determining that smoking is most likely associated with getting sicker with COVID-19. In the largest study of 1,099 people with COVID-19, people who smoke were 2.4 times more likely to get really sick (such as admitted to an intensive care unit, needing mechanical ventilation, or dying) compared to those who do not smoke because of chronic lung conditions, inflammation, immunosuppression, and other health risks already associated with smoking and vaping.
2. DPH report and enforcement. A 2018 report by DPH, California Tobacco Facts and Figures, states that the smoking rate declined by 51.9% between 1988 and 2016, from 23.7% to 11.4%. California has the second lowest adult smoking rate among the 50 states plus the District of Columbia, second only to Utah. Almost 9% of adults use other tobacco products, such as cigars, little cigars, pipe, hookah, and ENDS. In California, 64% of smokers start by the age of 18, and 96% start by age 26. According to DPH, in 2010, 36.8% of high school students had smoked a whole cigarette by age 13 or 14, and in 2012, illegal tobacco sales to minors rose to 8.7% from 5.6% in 2011. Among adult users of other tobacco products (such as ENDS) in California, 70.3% reported using flavored products in the past six months, and eight out of 10 young adults 18 to 24 that currently use ENDS reported flavor usage. The report states that one of the reasons for the high rate of flavor use among young adults may be due to the popularity of ENDS. DPH states that flavored tobacco products are driving youth experimentation, as more than 80% of youth who ever used a tobacco product reported that their first product was flavored. While teen cigarette smoking in 2016 was low (4.3%), overall tobacco use among teens is stagnant: 13.6% compared to a smoking rate of 13.8% in 2010. However, the proliferation of tobacco product categories (cigarettes; chew and snus tobacco; cigarillos and little cigars; hookah; and a variety of ENDS), flavored products, and the evolution of tobacco marketing appear to be fueling teens switching from traditional cigarettes to a new generation of products. The DPH report further noted that in 1997, 21.7% of retailers sold tobacco products to minors, just above the federally mandated target of 20%. The rate in 2017 was 5.7%, a significant decrease from 10.3% in 2016. However, tobacco-only stores continue to have the highest retailer violation rate (12%) when compared to other retailers (4.9%).

DPH conducted 4,675 compliance inspections and collected $265,100 in civil penalties in fiscal year (FY) 2018-19. DPH is required to notify the California Department of Tax and Fee Administration (CDTFA) within 60 days of the final adjudication of a retailer’s third, fourth, or fifth violation within a five-year time frame; however, DPH states there were no retailers that fit these criteria in FY 2018-19. DPH received an additional $1.9 million in local assistance funding in FY 2019-20 to allocate grants to local entities for enforcement activities. According to CDTFA, as of August 1, 2019, there are 30,685 registered cigarette and tobacco retail locations.

1. Federal actions. Pre-EVALI outbreak, the FDA had issued several statements over the past couple of years focusing on youth access to tobacco products. Specifically, the FDA has been concerned about youth access to ENDS, as the youth use rate has reached epidemic status, as noted in the 2019 National Youth Tobacco Survey. In various statements, the FDA commissioner signaled that most flavored tobacco products would be banned from retail locations. However, in March 2019, the FDA commissioner issued a statement announcing that manufacturers and retailers were being put on notice that they could be subject to FDA enforcement for selling certain flavored ENDS products without authorization. The FDA announced it would prioritize enforcement to focus on protecting youth from becoming addicted to nicotine, which includes the retail sale of ENDS that are offered in ways that pose a greater risk for minors’ access to the products, such as retail and online sales without heightened age verification, and products that appeal to kids or that resemble non-ENDS products like USB devices. In September 2018, the FDA commissioner issued a statement stating that the FDA would not tolerate a whole generation of young people becoming addicted to nicotine as a tradeoff for enabling adults to have unfettered access to the same products. As a result, the FDA initiated a Youth Tobacco Prevention Plan that focused on preventing youth access to tobacco products, curbing the marketing of tobacco products aimed at youth, and educating teens about the dangers of using any tobacco products. In the September 2018 statement, the FDA announced issuing 12 warning letters to companies that continued to advertise and sell products to youth. Earlier the same year the FDA had also issued 56 warning letters and six civil monetary penalties to retailers as part of its enforcement action to limit access of tobacco products to youth. The FDA also sent letters to five ENDS manufacturers whose products were sold to kids during the FDA’s ramped up enforcement period. The five ENDS manufacturers collectively represent more than 97% of the current market for ENDS—JUUL, Vuse, MarkTen, blu e-cigs, and Logic. The FDA requested that these companies provide robust plans on how they will address the widespread use of their products by minors or face increased enforcement. According to one report, amid pressure from the FDA, JUUL announced in November 2018 that it was taking action to curb youth access, such as selling flavored JUUL pods on its website only, using an enhanced online age verification system, shutting down its Facebook and Instagram accounts, using its Twitter account for non-promotional communication only, and developing a next-generation device with access restrictions at the user level.

The FDA announced on January 2, 2020, its finalized enforcement policy against certain unauthorized flavored ENDS products that appeal to kids, including fruit and mint flavors. Under the policy, companies that do not cease manufacture, distribution, and sale of unauthorized flavored cartridge-based ENDS (other than tobacco or menthol flavor) within 30 days of the FDA finalized policy risk enforcement actions. (The FDA notes that “cartridge-based” ENDS products are a type of product that consists of, includes, or involves a cartridge or pod that holds liquid that is to be aerosolized when the product is used. A cartridge or pod is any small, enclosed unit (sealed or unsealed) designed to fit within or operate as part of an ENDS product. Therefore, any flavored tobacco products that do not use cartridges or pods are not subject to the FDA policy.) The FDA statement points to data from other federal surveys showing that youth are attracted to fruit and mint flavors more so than tobacco and menthol flavors as justification for the two exceptions, though many anti-tobacco advocates and public health officials have argued that youth and various underrepresented communities are also attracted to menthol flavored tobacco products. The FDA does caution that if either of the flavors not subject to its enforcement policy become favored by youth, the policy will be reevaluated and the FDA will take any additional steps to address youth use of those products. The FDA notes that the enforcement priority policy announced on January 2 is not a “ban” on flavored or cartridge-based ENDS, as the FDA has already accepted and begun review of several premarket applications for ENDS products through the pathway that Congress established in the Tobacco Control Act, under which ENDS manufacturers have until September 9, 2020, to provide scientific data to the FDA that their products are safe. To date, no ENDS products have been authorized by the FDA—meaning that all ENDS currently on the market are considered illegally marketed and are subject to enforcement, at any time, in the FDA’s discretion, according to the agency.

After 19 states (including California) and the District of Columbia had taken action to raise the smoking age, on December 20, 2019, President Trump signed legislation amending the federal Food, Drug, and Cosmetic Act to raise the federal minimum age of sale of tobacco products from 18 to 21 years, effective immediately. The President announced this change in law coupled with the temporary flavored ENDS policy as a method to address youth access to ENDS products while maintaining ENDS as a potential off-ramp for adults who use combustible tobacco, even though no current ENDS to date have been approved by the FDA as smoking cessation devices.

1. State and local government actions. Even before the EVALI outbreak, many local governments in California and across the nation, as well as some states, were enacting flavored ENDS bans or complete ENDS bans as response to perceived inaction on the federal and state level. To date, more than 250 local governments across the U.S. have banned the sale of flavored or any ENDS products, including more than 70 across California (including San Francisco, Los Angeles County, Sacramento, Contra Costa County, Culver City, Long Beach, Richmond, Livermore, Beverly Hills, and San Mateo County). Additionally, Massachusetts became the first state in November 2019 to enact a permanent ban on all flavored tobacco products, including ENDS and menthol cigarettes. New Jersey passed a similar ban but did not include cigarettes. Lawmakers in California, Florida, Georgia, Hawaii, Nebraska, New Hampshire, New Mexico, New York, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, and West Virginia have either considered or are currently considering flavored tobacco products legislation.

Governor Newsom signed Executive Order (EO) N-18-19 on September 17, 2019, to confront the growing youth epidemic and health risks linked to ENDS. The EO directed DPH to launch a $20 million statewide digital and social media public awareness campaign to educate youth, young adults, and parents about the health risks of vaping nicotine and cannabis products. DPH was also directed to develop recommendations to reduce the availability of vaping devices to persons under 21 years of age, which includes the establishment of warning signs about the health risks of vaping at retailers where any vaping products are sold and in any vaping advertisements. This includes increased enforcement regarding sales of vaping products and specifically e-liquid flavors, to youth. DPH was tasked with making recommendations regarding the establishment of standards for nicotine content and uniform packaging for purposes of including nicotine content in the calculation of the existing tax on ENDS.

On September 24, 2019, DPH issued a health warning urging everyone to quit vaping altogether, no matter the substance or source, until the EVALI investigations are complete. For those who continue, DPH urged to avoid buying any vaping products on the street and never to modify a store-bought ENDS. DPH warned that if anyone or their child had vaped at all in the past few months and were having new problems with breathing or other symptoms to seek medical care immediately and tell a health care provider about the person’s history of ENDS use. DPH further stated that if one decided to stop vaping not to replace vaping with smoking combustible cigarettes and to ask a doctor for FDA-approved quitting treatments.

1. Vaping informational hearing. On February 12, 2020, this Committee held an informational hearing to explore the rise in ENDS use, or “vaping,” related health impacts, and policies that have been implemented to reduce the use of vaping products, particularly among adolescents and teens in which the steepest increase in use has occurred over the past several years. During the hearing, a UCLA researcher discussed the impact that flavored tobacco products have had in the sharp rise in vaping products use and attracting youth through the marketing of multiple flavors and product design. The DPH Director provided updates on the EVALI outbreak, and the efforts in conjunction with federal partners to address the related health impacts. And representatives from Contra Costa County provided their perspectives on the impacts of vaping products use in their jurisdiction, as well as policies they have implemented to limit access and decrease use.
2. Prior legislation. AB 1625 (Robert Rivas of 2019) would have required the Attorney General to establish and maintain a list of tobacco product brand styles that lack a characterizing flavor, as defined. AB 1625 died in the Assembly Governmental Organization Committee.

SB 8 (Glazer, Chapter 761, Statutes of 2019) makes it an infraction punishable by a fine of up to $25 for a person to smoke, as defined, on a state coastal beach or in a unit of the state park system, as defined, or to dispose of used cigar or cigarette waste on a state coastal beach or in a unit of the state park system unless the disposal is made in an appropriate waste receptacle. AB 1718 (Levine of 2019) was an identical measure, which was vetoed by Governor Newsom who stated SB 8 was already enacted and AB 1718 would be duplicative.

SB 38 (Hill, Glazer, McGuire, and Portantino of 2019) and AB 739 (McCarty and Wood of 2019) were substantially similar to this bill. SB 38 was amended to a new purpose. AB 739 died in the Assembly Governmental Organization Committee.

SB 39 (Hill, Glazer, and Portantino, Chapter 295, Statutes of 2019) requires sellers, distributors, and nonsale distributors to deliver tobacco products only in conspicuously marked containers, as specified, and to obtain the signature of a person 21 years of age or older before delivering a tobacco product.

SB 424 (Jackson) prohibits a person or entity from selling, giving, or in any way furnishing to another person of any age in the state any single-use filters, plastic devices, and ENDS, as specified. Requires the manufacturer of these components to use materials eligible for recycling under state or local recycling programs to make multiuse, reusable components, and to offer methods for recycling those components, as specified. SB 424 is pending in the Assembly Governmental Organization Committee.

SB 538 (Rubio of 2019) would have required a manufacturer of ENDS to submit specified information to DPH about ENDS sold in the state; required DPH to post the information on its website and to conduct a public outreach campaign to notify specified entities about the information on ENDS to address the increase in youth usage; and contained an urgency clause that would have made this bill effective upon enactment. SB 538 was vetoed by Governor Newsom who stated, in part, that his administration is confronting the public health crisis from the increasing use and dangers associated with ENDS, including how best to increase enforcement, and launching a digital and social media campaign aimed at educating youth, young adults, and parents about the health risks of vaping nicotine and cannabis products.

AB 2308 (Stone of 2018), AB 48 (Stone of 2015), and AB 1504 (Stone of 2014) would have prohibited the sale of cigarettes utilizing single-use filters. AB 2308 failed passage in the Assembly Governmental Organization Committee. AB 48 was never heard in the Assembly Governmental Organization Committee. AB 1504 failed passage in the Assembly Governmental Organization Committee.

SB 835 (Glazer of 2018) and AB 1097 (Levine of 2018) would have implemented a ban on smoking and disposing of tobacco products, as defined, at state parks and establishes an infraction punishable by a fine of up to $25 for a violation. SB 835 and AB 1097 were vetoed by Governor Brown who stated that he had vetoed similar measures in each of the last two years, and the third time is not always a charm. Governor Brown stated his opinion on the matter had not changed, and we have many rules telling us what we can't do and these are wide open spaces.

SB 836 (Glazer of 2018) would have prohibited smoking of cigarettes, cigars, pipes, and other tobacco-products in state coastal beaches, as specified, and established that a violation is an infraction with a fine of up to $25. SB 836 was vetoed by Governor Brown, who issued the same veto message as for SB 835.

SCR 143 (Pan of 2018) would have encouraged major motion picture studios to give a Restricted (R) rating to any new film designed for viewing by children and adolescents that shows or implies smoking or tobacco use. SCR 143 failed passage in the Assembly Health Committee.

SB 386 (Glazer of 2017) would have prohibited the smoking of cigarettes, cigars, pipes, and other tobacco products at state parks and state coastal beaches, as specified, and established that a violation is an infraction with a fine of up to $100. SB 386 was vetoed by Governor Brown who stated that such a far-reaching prohibition in every state park and on every state beach is too broad. In addition, the fine prescribed in SB 386 for lighting one cigarette is excessive. If people can't smoke even on a deserted beach, where can they? There must be some limit to the coercive power of government.

AB 725 (Levine of 2017) would have prohibited smoking of tobacco products on state coastal beaches and at state parks, as specified, and established that a violation is an infraction with a fine of up to $50. AB 725 was vetoed by Governor Brown, who issued the same veto message as SB 386.

SB 1333 (Block of 2016) and AB 1142 (Bloom of 2013) would have prohibited the smoking of tobacco products on state coastal beaches and at state parks, as specified, and established that a violation is an infraction with a fine of up to $250. SB 1333 was vetoed by Governor Brown who stated the complete prohibition in all parks and beaches is too broad, and a more measured and less punitive approach might be warranted. AB 1142 failed passage in the Assembly Governmental Organization Committee.

SBX2 5 (Leno, Chapter 7, Statutes of 2016) recasts and broadens the definition of “tobacco product” to include ENDS, and extends current restrictions and prohibitions against the use of tobacco products to ENDS.

SBX2 7 (Hernandez, Chapter 8, Statutes of 2016) increases the minimum legal age to purchase or consume tobacco products from 18 to 21. Removes penalty provisions for those under 21 in possession of tobacco products, and exempts military personnel from the age increase.

ABX2 7 (Stone, Chapter 4, Statutes of 2016) extends the workplace smoking ban and closes loopholes, among other things, to address secondhand smoke. SB 977 (Pan, Chapter 537, Statutes of 2016) prohibits a person from smoking a tobacco product, as defined, within 250 feet of a youth sports event, as defined. Broadens the definition of “smoke or smoking” in existing law.

SB 591 (Pan of 2015) and SB 768 (De León of 2013) would have imposed an additional cigarette tax at a rate of $2.00 per package of 20 cigarettes, and a corresponding rate for a cigarette tax stamp. SB 591 was placed on the Senate Floor inactive file, and no further action was taken. SB 768 was held on the Senate Appropriations suspense file.

AB 768 (Thurmond, Chapter 779, Statutes of 2015) prohibits the use or possession of smokeless tobacco products, as defined, on the playing field of a baseball stadium during a professional baseball game or practice. SB 648 (Corbett of 2013) would have extended the restrictions and prohibitions against the smoking of tobacco products to include restrictions or prohibitions against ENDS in various places, including, but not limited to, places of employment, school campuses, public buildings, day care facilities, retail food facilities, and health facilities. SB 648 failed passage in the Assembly Appropriations Committee.

SB 648 (Corbett of 2013) would have extended the restrictions and prohibitions against the smoking of tobacco products to include restrictions or prohibitions against ESDs in various places, including, but not limited to, places of employment, school campuses, public buildings, day care facilities, retail food facilities, and health facilities. SB 648 failed passage in the Assembly Appropriations Committee.

1. Support. The sponsors and other supporters of this bill, largely health advocates, health professionals, and local governments, argue that tobacco products remain the leading cause of preventable illness, disability, and death in the nation. Supporters argue that the effects of tobacco are even more concerning in youth, whose brains are still developing, and that products are increasingly marketed to youth with enticing flavors and product design. Supporters cite recent studies that found youth users of ENDS rose by 78% between 2017 and 2018, and that 440,000 youth in the state are expected to die prematurely as a result of tobacco use. Sales of flavored cigars, meanwhile, have increased by nearly 50% since 2008, and made up more than half (52.1%) of the U.S. cigar market in 2015. The sponsors argue that the number of unique cigar flavor names more than doubled from 2008 to 2015, from 108 to 250. The top five most popular cigar brands among 12 to 17 year olds who have used cigars—Black & Mild, Swisher Sweets, White Owl, Backwoods, and Dutch Masters—all come in flavor varieties. These products are often sold singly or can be priced as low as three or four for $0.99, making them even more appealing to price-sensitive youth. It is important to note that cigar smoke is composed of the same toxic and carcinogenic constituents found in cigarette smoke. Although tobacco companies claim to be responding to adult tobacco users’ demand for variety, it’s clear that flavored tobacco products play a key role in enticing new users, particularly kids, to a lifetime of addiction. This growing market of flavored tobacco products is undermining progress in reducing youth tobacco use in California. The sponsors and other supporters also note targeted marketing of certain tobacco products to communities of color, low-income individuals, and the LGBTQ community, citing that the tobacco industry aggressively markets menthol-flavored products to African Americans. Approximately 85% of African Americans who smoke use menthol cigarettes, and African-American men have the highest death rates from lung cancer when compared to other demographic groups. Further, supporters state that an alarming 80% of youths who have ever used tobacco started with a flavored product.
2. Support if amended. The County of San Diego states that on January 28, 2020, its Board of Supervisors passed an ordinance prohibiting the sale and distribution of all flavored products for smoking, with an exemption of shisha for use in a hookah. While this bill seeks to ban the sale of flavored tobacco products, it does not exempt shisha, and therefore is counter to the County’s ordinance. The County has adopted a support if amended position on the bill.
3. Opposition. Taxpayers Protection Alliance (TPA) cites the “95% safer” study about vaping and states that vaping helps millions of adults successfully quit smoking traditional combustible cigarettes, and even a temporary ban would seriously harm public health by preventing millions of smokers from quitting dangerous combustible cigarettes. TPA argues that as a result of the introduction of vaping products, smoking rates in California have fallen significantly in recent years. As of 2017, only 11.4% of California adults, and 4.3% of high school students, currently smoke traditional combustible cigarettes. In addition, preliminary numbers from the FDA have indicated the number of teens smoking nationally has fallen by a staggering 20% on top of this over the past two years, the sharpest decrease in history. TPA states this is an outcome that should be embraced and celebrated by lawmakers. The California Fuels and Convenience Alliance expresses similar concerns on the effect to the state’s economy and to brick and mortar businesses.
4. Oppose unless amended. Swedish Match North American cites California’s projected budget deficit due to the COVID-19 pandemic and the Legislative Analyst’s Office tax revenue loss projection on SB 38, an identical bill, if all flavors were banned, and argues that California can ill-afford to lose additional revenue at this time. Swedish Match further states that this bill would result in the removal of products off the shelves that help smokers stop using cigarettes, specifically smokeless tobacco products and flavored non-tobacco nicotine products or alternative nicotine products like its newest product ZYN. Swedish Match argues that smokeless tobacco products are not favored by youth, and requests an amendment to this bill that would exempt smokeless tobacco and our nicotine only/alternative nicotine ZYN product from the flavor ban. The Cigar Association of American states that youth usage of cigars and pipe tobacco is at an all-time low and has continued to decline over time and requests that cigars and pipe tobacco be removed from this bill.

SUPPORT AND OPPOSITION:

Support: American Cancer Society Cancer Action Network (co-sponsor)

American Heart Association (co-sponsor)

American Lung Association (co-sponsor)

Campaign for Tobacco Free Kids (co-sponsor)

Common Sense (co-sponsor)

Lieutenant Governor Eleni Kounalakis (co-sponsor)

Alameda County Board of Supervisors

Americans for Nonsmokers’ Rights

Anti-Vaping Alliance

Association of California Healthcare Districts

Association of Northern California Oncologists

Breast Cancer Prevention Partners

Breathe California, Sacramento Region

California Academy of Family Physicians

California Chapter of the American College of Cardiology

California Dental Association

California Emergency Nurses Association

California Optometric Association

California School Boards Association

California Society of Addiction Medicine

California State PTA

Change for Justice

City of Beverley Hills

City of San Jose

City of San Pablo

Community Action Service Advocacy

County Health Executives Association of California

County of Alameda

County of Contra Costa

County of Los Angeles

County of San Mateo

County of Santa Clara

County of Solano

CVS Health

Health Access California

Health Officers Association of California

Kaiser Permanente

Los Angeles Unified School District

Medical Oncology Association of Southern California

Parents Against Vaping E-cigarettes

Providence St. Joseph Health

Public Health Advocates

San Mateo County Office of Education

Sierra Club California

Siskiyou County Public Health Department

Tobacco Education & Research Oversight Committee

USC Health, Emotion, and Addiction Laboratory

Oppose: California Fuels and Convenience Alliance

Cigar Association of America (unless amended)

Swedish Match North America (unless amended)

Taxpayers Protection Alliance

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