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:

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.
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.
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.
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.
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.
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:

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.
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.
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.
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.
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.
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.
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:

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.
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 cigarettesbecause 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.
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.
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.
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.
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.
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

SB 793: Flavored tobacco products.

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