Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, prohibits a person from selling or otherwise furnishing tobacco products, as defined, to a person under 21 years of age. Under existing law, violations of the act are punishable by civil penalties, as specified, and primary enforcement of the act is the responsibility of the State Department of Public Health.

Existing law prohibits a tobacco retailer, or any of the tobacco retailers 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 those terms are defined, except as specified. Under existing law, a violation of this prohibition is punishable as an infraction.

This bill would provide for the enforcement of these provisions in a manner similar to the STAKE Act, and, instead of an infraction, make the provisions of the flavored tobacco ban punishable by civil penalties in the same manner as the STAKE Act, as specified.

Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, prohibits a person from selling or otherwise furnishing tobacco products, as defined, to a person under 21 years of age. Under existing law, violations of the act are punishable by civil penalties, as specified, and primary enforcement of the act is the responsibility of the State Department of Public Health.

Existing law prohibits a tobacco retailer, or any of the tobacco retailers 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 those terms are defined, except as specified. Under existing law, a violation of this prohibition is punishable as an infraction.

This bill would provide for the enforcement of these provisions in a manner similar to the STAKE Act, and, instead of an infraction, make the provisions of the flavored tobacco ban punishable by civil penalties in the same manner as the STAKE Act, as specified.

Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, prohibits a person from selling or otherwise furnishing tobacco products, as defined, to a person under 21 years of age. Under existing law, violations of the act are punishable by civil penalties, as specified, and primary enforcement of the act is the responsibility of the State Department of Public Health.

Existing law prohibits a tobacco retailer, or any of the tobacco retailers 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 those terms are defined, except as specified. Under existing law, a violation of this prohibition is punishable as an infraction.

This bill would instead provide for the enforcement of these provisions in a manner similar to the STAKE Act, and, instead of an infraction, make the provisions of the flavored tobacco ban punishable by civil penalties in the same manner as the STAKE Act, as specified.

Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, prohibits a person from selling or otherwise furnishing tobacco products, as defined, to a person under 21 years of age. Under existing law, violations of the act are punishable by civil penalties, as specified, and primary enforcement of the act is the responsibility of the State Department of Public Health.

Existing law prohibits a tobacco retailer, or any of the tobacco retailers 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 those terms are defined, except as specified. Under existing law, a violation of this prohibition is punishable as an infraction.

This bill would instead make the provisions of the flavored tobacco ban punishable by civil penalties in the same manner as the STAKE Act, as specified.

Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, prohibits a person from selling or otherwise furnishing tobacco products, as defined, to a person under 21 years of age. Under existing law, violations of the act are punishable by civil penalties, as specified, and primary enforcement of the act is the responsibility of the State Department of Public Health.

Existing law prohibits a tobacco retailer, or any of the tobacco retailers 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 those terms are defined, except as specified. Under existing law, a violation of this prohibition is punishable as an infraction.

This bill would instead make the provisions of the flavored tobacco ban punishable by civil penalties in the same manner as the STAKE Act, as specified.

Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, prohibits a person from selling or otherwise furnishing tobacco products, as defined, to a person under 21 years of age. Under existing law, violations of the act are punishable by civil penalties, as specified, and primary enforcement of the act is the responsibility of the State Department of Public Health.

Existing law prohibits a tobacco retailer, or any of the tobacco retailers 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 those terms are defined, except as specified. Under existing law, a violation of this prohibition is punishable as an infraction.

This bill would instead make the provisions of the flavored tobacco ban punishable by civil penalties in the same manner as the STAKE Act, as specified.

Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, prohibits a person from selling or otherwise furnishing tobacco products, as defined, to a person under 21 years of age. Under existing law, violations of the act are punishable by civil penalties, as specified, and primary enforcement of the act is the responsibility of the State Department of Public Health.

Existing law prohibits a tobacco retailer, or any of the tobacco retailers 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 those terms are defined, except as specified. Under existing law, a violation of this prohibition is punishable as an infraction.

This bill would instead make the provisions of the flavored tobacco ban punishable by civil penalties in the same manner as the STAKE Act. Act, as specified.

Existing law licenses retailer sellers of cigarettes and tobacco products. Existing law prohibits a person from selling tobacco products to a person under 21 years of age. Existing law also prohibits a tobacco retailer from selling flavored tobacco products, as specified. Existing law prohibits smoking in various places, including government buildings, public transportation, schools, playgrounds, and workplaces.

This bill would implement a phased tobacco ban by prohibiting a tobacco retailer, as defined, from selling tobacco products, as defined, to any person born on or after January 1, 2007. The bill would clarify that it does not authorize the sale of tobacco products to any person born before January 1, 2007, that is otherwise prohibited. The bill would provide penalties for violations, including escalating civil fines and the suspension or revocation of the sellers license to sell tobacco products. The bill would require that enforcement of these provisions be the responsibility of the State Department of Public Health.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 935

Author:(Connolly)

As Amended Ver:September 8, 2023

Majority vote

SUMMARY

Makes provisions of current law prohibiting 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, punishable by civil penalties in the same manner as the Stop Tobacco Access to Kids Enforcement (STAKE) Act.

Senate Amendments

1. Clarify that the provisions of this bill are enforceable in a manner similar to the STAKE Act, and include enforcement by the Department of Public Health (DPH), the Attorney General, or a local law enforcement agency;
2. Include the sale of products sold in a vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public;
3. Require DPH, upon the assessment of a civil penalty for the third, fourth, or fifth violation, to notify the California Department of Tax and Fee Administration (CDTFA), who must then assess a civil penalty of two hundred fifty dollars and suspend or revoke the seller's license;
4. Require civil penalties to be deposited into the Cigarette and Tobacco Products Compliance Fund and be made available to CDTFA for purposes of enforcement;
5. Give DPH primary responsibility for enforcement of these provisions and authorizes DPH to conduct onsite sting inspections at tobacco retailers; and,
6. Authorize DPH to adopt regulations and emergency regulations to implement these provisions.

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.

1. Centers for Disease Control and Prevention (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.

1. California's flavored tobacco ban. In 2020 the Legislature passed, and Governor Newsom signed, SB 793 (Hill), Chapter 34, Statutes of 2020. The law 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. It exempts the sale of Hookah water pipes and flavored shisha tobacco products, pipe tobacco, and premium cigars from the prohibition. 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 and there are now 5.3 million young Americans who use e-cigarettes regularly. SB 793 also included menthol flavor, which was excluded from the original federal Food and Drug Administration ban, because, as the author of SB 793 noted during his bill presentation, 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.

Immediately after the passage of SB 793, the tobacco industry qualified a referendum for the ballot asking the voters to decide whether or not SB 793 should take effect, and enforcement of the ban was halted pending the November 8, 2022 election. The ballot measure, Proposition 31, was approved, thus upholding SB 793. The next day, R.J. Reynolds, the maker of Newport menthol cigarettes and top-selling vaping products filed a federal lawsuit challenging California's ban on flavored tobacco. However, in December of 2022 the Supreme Court refused to block the law, clearing the way for the ban to take effect the next week. The law states that a tobacco retailer, or agent or employee of a tobacco retailer, who violates this section is guilty of an infraction and will be punished by a fine of $250 for each violation of this section. This law does not specify where the enforcement authority of this statute resides, which implies local jurisdictions have authority to enforce this law.

According to the Author

Smoking tobacco is widely recognized as the leading preventable cause of death in the world. These products are lethal, known to cause cancer, and significantly decrease both the longevity and quality of life. Preventing the next generation of Californians from becoming addicted to smoking should be a priority for anyone who cares about the public health of our state and the well-being of our children. The author concludes this bill is a measured solution to address the widespread issue of youth tobacco addiction.

Arguments in Support

The American Academy of Pediatrics, California (AAP-CA) supports this bill and states that According to the CDC, preventing tobacco product use among youth is critical to ending the tobacco epidemic in the United States. Tobacco product use is started and established primarily during adolescence. Nearly nine out of 10 adults who smoke cigarettes daily first try smoking by age 18, and 99% first try smoking by age 26.2. Each day in the U.S., about 1,600 youth smoke their first cigarette and nearly 200 youth start smoking every day. In 2022, about 4 of every 100 middle school students (4.5%) and about one of every six high school students (16.5%) reported current use of a tobacco product. AAP-CA notes that while current use of tobacco products among middle and high school students decreased between 2019 and 2020, the CDC highlights the importance of continuing the work to prevent and reduce the use of all forms of tobacco product use among youth.

Arguments in Opposition

The California Fuels and Convenience Alliance (CFCA) is opposed to this bill and states that California's ban on flavored tobacco products has created a patchwork of different enforcement standards across the state. CFCA members who sell one product legally in one jurisdiction are simultaneously punished for selling the exact same product in a different jurisdiction. CFCA contends that when their members are penalized or have their licenses suspended, the notices do not even identify which product caused the penalty. CFCA states that compounding the issue is the lack of clear guidance from the State on what is (and is not) a flavored tobacco product, and the only guidance CFCA members have received is an FAQ released by DPH in March of 2023, which notes that products with a "distinguishable taste or aroma" may be prohibited. Charging store owners with the responsibility of determining what constitutes a "distinguishable" flavor is an impossible task. CFCA concludes that without clear guidance about which products are prohibited, retailers are left wondering how to comply.

FISCAL COMMENTS

According to the Senate Appropriations Committee, DPH estimates General Fund costs of $2.4 million in 2024-25 and $2 million in 2025-26 and ongoing thereafter for state operations. This includes costs for staffing to conduct investigations and inspections of tobacco retailers to ensure compliance.

CDTFA estimates costs ranging from $10,000 to $50,000 for computer programming related to issuing determinations for the civil penalty, suspending, or revoking a retailer's cigarette and tobacco products license, and developing notifications (Cigarette and Tobacco Products Compliance Fund). The CDTFA indicates unknown revenue estimates from civil penalties.

VOTES:

ASM HEALTH: 10-4-1

YES: Wood, Aguiar-Curry, Arambula, Boerner Horvath, Wendy Carrillo, Maienschein, McCarty, Rodriguez, Santiago, Weber

NO: Waldron, Flora, Vince Fong, Joe Patterson

ABS, ABST OR NV: Villapudua

ASM GOVERNMENTAL ORGANIZATION: 16-4-2

YES: Santiago, Aguiar-Curry, Berman, Bryan, Cervantes, Garcia, Gipson, Jones-Sawyer, Low, McCarty, McKinnor, Quirk-Silva, Ramos, Robert Rivas, Blanca Rubio, Villapudua

NO: Lackey, Megan Dahle, Mathis, Jim Patterson

ABS, ABST OR NV: Davies, Ta

ASM APPROPRIATIONS: 11-4-1

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Weber, Ortega

NO: Megan Dahle, Dixon, Mathis, Sanchez

ABS, ABST OR NV: Robert Rivas

ASSEMBLY FLOOR: 61-14-5

YES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NO: Alanis, Chen, Megan Dahle, Dixon, Essayli, Flora, Vince Fong, Gallagher, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta

ABS, ABST OR NV: Davies, Hoover, Quirk-Silva, Waldron, Wallis

UPDATED

VERSION: September 8, 2023

CONSULTANT: Lara Flynn / HEALTH / (916) 319-2097 FN: 0002196

 THIRD READING  

Bill No: AB 935

Author: Connolly (D), et al.

Amended: 9/8/23 in Senate

Vote: 21

SENATE HEALTH COMMITTEE: 10-0, 6/21/23

AYES: Eggman, Glazer, Gonzalez, Hurtado, Limón, Menjivar, Roth, Rubio, Wahab, Wiener

NO VOTE RECORDED: Nguyen, Grove

SENATE GOVERNANCE & FIN. COMMITTEE: 6-2, 7/5/23

AYES: Caballero, Blakespear, Durazo, Glazer, Skinner, Wiener

NOES: Seyarto, Dahle

SENATE APPROPRIATIONS COMMITTEE: 5-2, 9/1/23

AYES: Portantino, Ashby, Bradford, Wahab, Wiener

NOES: Jones, Seyarto

ASSEMBLY FLOOR: 61-14, 5/30/23 - See last page for vote

SUBJECT: Tobacco sales: flavored tobacco ban

SOURCE: Union of American Physicians and Dentists/AFSCME – Local 206

DIGEST:

This bill aligns violations of the prohibition on sales of flavored tobacco and civil penalties with penalties for the Stop Tobacco Access to Kids Enforcement Act. This bill requires civil penalties to be deposited in the Cigarette and Tobacco Products Compliance Fund for specified enforcement activities.

Senate Floor Amendments of 9/8/23 help to clarify that any entity with the authority to enforce the prohibition on the sale of flavored tobacco can assess a civil penalty and take other action for any instance in which a person sells flavored tobacco, and not just in the case where a person sells flavored tobacco to an individual under the age of 21.

ANALYSIS:

Existing law:

1. Requires the California Department of Public Health (CDPH) 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 (STAKE Act). [BCP §22950, et seq.]
2. Permits an enforcing agency 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, except for military personnel 18 years of age or older, any tobacco product, instrument, or paraphernalia that is designed for the smoking or ingestion of tobacco products ranging from $400 to $6,000 for a first, second, third, fourth, or fifth violation within a five-year period. [BPC §22958]
3. Requires the State Board of Equalization (BOE) to provide tobacco product licensee with at least ten days’ written notice of a pending suspension or revocation and an opportunity to appeal, as specified. Prohibits BOE from accepting or considering an appeal of suspension or revocation if the appeal is founded upon the grounds of whether the retailer, or any agent or employee, violated the STAKE Act. [BPC §22974.8]
4. 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,” as defined, or a “tobacco product flavor enhancer,” as defined. [HSC §104559.5]
5. Deems a tobacco retailer, or agent or employee of a tobacco retailer, who violates the prohibition on flavored tobacco guilty of an infraction punished by a fine of $250 for each violation. [HSC §104559.5]
6. Defines “flavored tobacco product” as any tobacco product that contains a constituent that imparts a characterizing flavor. Defines “tobacco product flavor enhancer” as a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product. [HSC §104559.5]

This bill:

1. Aligns the civil penalties for violations of the sale prohibition on flavored tobacco with violations of the STAKE Act, rather than the existing infraction and fine of $250 for each violation, pursuant to 5) in existing law above.
2. Codifies existing regulations that outline various points of sale against which an enforcing entity can take action, including vending machines, vehicles, booths, stands, and concessions.
3. Requires the civil penalty assessed by the California Department of Tax and Fee Administration (CDTFA) for violations of the prohibition of flavored tobacco as they relate to the STAKE Act to be deposited into the Cigarette and Tobacco Products Compliance Fund to be made available to CDTFA, upon appropriation by the Legislature, for specified enforcement activities.
4. Adds the violation of the sale prohibition of flavored tobacco to existing law for which BOE is prohibited from accepting or considering an appeal of suspension or revocation of a license, pursuant 3) above of existing law.

Comments

1. Author’s statement. According to the author, preventing the next generation of Californians from becoming addicted to smoking should be a priority for anyone who cares about the public health of our state and the well-being of our children. The existing ban on flavored tobacco can help to achieve this goal, but only if the law is properly enforced. This bill will make explicit enforcement by CDPH and the Attorney General in addition to local agencies, to ensure compliance and protection of public health.
2. Background. Cigarette smoking causes more than 480,000 deaths each year in the U.S., or nearly one-in-five deaths. Smoking causes more deaths each year than the following causes combined: HIV, illegal drug use, alcohol use, motor vehicle injuries, and firearm-related incidents. More than ten 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% of all lung cancer deaths. More women die from lung cancer each year than from breast cancer. Smoking causes about 80% 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.
3. California’s flavored tobacco ban. In 2020, the Legislature passed, and Governor Newsom signed, SB 793 (Hill et al, Chapter 34, Statutes of 2020). The law 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. It exempts the sale of hookah water pipes and flavored shisha tobacco products, pipe tobacco, and premium cigars from the prohibition. 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 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, and there are now 5.3 million young Americans who use e-cigarettes regularly. SB 793 also included menthol flavor, which was excluded from the original U.S Food and Drug Administration (FDA) ban. Advocates for the inclusion of menthol cigarettes in the flavored tobacco ban regularly cited that unless action was taken an estimated 1.6 million African Americans alive today, who are now under the age of 18, would become regular smokers, and about 500,000 of those would die prematurely from a tobacco-related disease. Immediately after the passage of SB 793, the tobacco industry qualified a referendum for the ballot asking the voters to decide whether or not SB 793 should take effect, and enforcement of the ban was halted pending the November 8, 2022, election. The ballot measure, Proposition 31, was approved, thus upholding SB 793. The next day, R.J. Reynolds, the maker of Newport menthol cigarettes and top-selling vaping products filed a federal lawsuit challenging California’s ban on flavored tobacco. However, in December 2022, the Supreme Court refused to block the law, clearing the way for the ban to take effect the following week. SB 793 states that a tobacco retailer, or agent or employee of a tobacco retailer, who violates the flavored tobacco ban is guilty of an infraction to be punished by a fine of $250 for each violation. However, this law does not specify where the enforcement authority of this statute lies, implying that local jurisdictions have authority to enforce this law.
4. Centers for Disease Control and Prevention (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/Latinx 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 adults. More than twice as many LGBTQ+ students report having smoked a cigarette before the age of 13 compared to heterosexual students.

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

According to the Senate Appropriations Committee:

• CDPH estimates General Fund costs of $2.4 million in 2024-25 and $2 million in 2025-26 and ongoing thereafter for state operations. This includes costs for staffing to conduct investigations and inspections of tobacco retailers to ensure compliance.
• CDTFA estimates costs ranging from $10,000 to $50,000 for computer programming related to issuing determinations for the civil penalty, suspending, or revoking a retailer’s cigarette and tobacco products license, and developing notifications (Cigarette and Tobacco Products Compliance Fund). The CDTFA indicates unknown revenue estimates from civil penalties.

SUPPORT: (Verified 9/1/23)

Union of American Physicians and Dentists/AFSCME – Local 206 (source)

Action on Smoking and Health

African American Tobacco Control Leadership Council

American Academy of Pediatrics, California

American Cancer Society Cancer Action Network

American Federation of State, County, & Municipal Employees

American Heart Association

American Lung Association

Breathe California

California Academy of Family Physicians

California Dental Association

CaliforniaHealth+ Advocates

California Medical Association

Campaign for Tobacco Free Kids

CleanEarth4Kids.org

County of Marin, Board of Supervisors

Equity and Wellness Institute

Health Officers Association of California

International Youth Tobacco Control

National Stewardship Action Council

North East Medical Services

Parents Against E-Cigarettes

Public Health Advocates

San Francisco Marin Medical Society

Tobacco Education and Research Oversight Committee

Tobacco-Free Kids Action Fund

Tobacco-Free Sonoma County Community Coalition

OPPOSITION: (Verified 9/1/23)

California Fuels and Convenience Alliance

ARGUMENTS IN SUPPORT: The sponsor of this bill and other supporters argue that while current use of tobacco products among middle and high school students decreased between 2019 and 2020, the CDC highlights the importance of continuing the work to prevent and reduce the use of all forms of tobacco product use among youth. According to a study by Tobacco Free Kids, 441,000 kids now under 18 in California will ultimately die prematurely from smoking. Smoking kills more people than alcohol, AIDS, car crashes, illegal drugs, murders, and suicides combined. Supporters state that while current law prohibits tobacco retailers from selling most flavored tobacco products, including flavored e-cigarettes, menthol cigarettes, and tobacco-product flavor enhancers, flavored tobacco products continue to be sold in many stores across the state allowing underage users to access these dangerous products. Supporters argue this bill closes the enforcement loophole to protect the next generation of Californians from becoming addicted to smoking.

ARGUMENTS IN OPPOSITION: The California Fuels and Convenience Alliance (CFCA) argues that this bill adds another level of penalties on their members with no clarity or disclosure of what products are considered banned. CFCA states that California’s ban on flavored tobacco products has created a patchwork of different enforcement standards across the state and its members who sell one product legally in one jurisdiction are simultaneously punished for selling the exact same product in a different jurisdiction. When their members are penalized or have their licenses suspended, the notices do not even identify which product caused the penalty. CFCA argues that compounding the issue is the lack of clear guidance from the state on what is (and is not) a flavored tobacco product. Charging store owners with the responsibility of determining what constitutes a “distinguishable” flavor is an impossible task. Without clear guidance about which products are prohibited, their retailers are left wondering how to comply.

ASSEMBLY FLOOR: 61-14, 5/30/23

AYES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NOES: Alanis, Chen, Megan Dahle, Dixon, Essayli, Flora, Vince Fong, Gallagher, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta

NO VOTE RECORDED: Davies, Hoover, Quirk-Silva, Waldron, Wallis

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

9/11/23 12:01:53

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 935 (Connolly) - Tobacco sales: flavored tobacco ban

Bill Summary:

AB 935 would align the enforcement and punishment for violations of the prohibition on flavored tobacco with violations of the Stop Tobacco Access to Kids Enforcement Act (STAKE Act).

Fiscal Impact:

• The California Department of Public Health (CDPH) estimates General Fund costs of $2.4 million in 2024-25 and $2 million in 2025-26 and ongoing thereafter for state operations. This includes costs for staffing to conduct investigations and inspections of tobacco retailers to ensure compliance.
• The California Department of Tax and Fee Administration (CDTFA) estimates costs ranging from $10,000 to $50,000 for computer programming related to issuing determinations for the civil penalty, suspending, or revoking a retailer’s cigarette and tobacco products license, and developing notifications (Cigarette and Tobacco Products Compliance Fund). The CDTFA indicates unknown revenue estimates from civil penalties.

Background:

The CDPH operates a program to reduce the availability of tobacco products to persons under 21 years of age through authorized enforcement activities pursuant to the STAKE Act. Civil penalties may be assessed against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21, except for military personnel 18 years of age or older, any tobacco product, instrument, or paraphernalia that is designed for the smoking or ingestion of tobacco products ranging from $400 to $6,000 for a first, second, third, fourth, or fifth violation within a five-year period.

The CDTFA licenses retailers who sell cigarettes or tobacco products. CDTFA must provide tobacco product licensees with at least ten days’ written notice of a pending suspension or revocation and an opportunity to appeal, as specified. The law prohibits CDTFA from accepting or considering an appeal of suspension or revocation if the appeal is founded upon the grounds of whether the retailer, or any agent or employee, violated the STAKE Act. Current law requires CDTFA to also impose a $250 civil penalty for STAKE Act violations, as specified, and deposits penalty proceeds into the Cigarette and Tobacco Products Compliance Fund which funds compliance costs.

Current law 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,” as defined, or a “tobacco product flavor enhancer,” as defined. A tobacco retailer, or agent or employee of a tobacco retailer, who violates the prohibition on flavored tobacco is deemed guilty of an infraction punished by a fine of $250 for each violation. Under current state law, enforcement for these provisions is not governed by the STAKE Act.

Proposed Law:

Specific provisions of the bill would:

• Align the enforcement and punishment for violations of the prohibition on flavored tobacco with violations of the STAKE Act, rather than the existing infraction and fine of $250 for each violation.
• Require the civil penalty assessed by the CDTFA for violations of the prohibition of flavored tobacco as they relate to the STAKE Act to be deposited into the Cigarette and Tobacco Products Compliance Fund to be made available to CDTFA, upon appropriation by the Legislature, for compliance activities.
• Add the violation of the prohibition of flavored tobacco to existing law for which CDTFA is prohibited from accepting or considering an appeal of suspension or revocation of a license.

-- END --

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 935 (Connolly) - Tobacco sales: flavored tobacco ban

Bill Summary:

AB 935 would align the enforcement and punishment for violations of the prohibition on flavored tobacco with violations of the Stop Tobacco Access to Kids Enforcement Act (STAKE Act).

Fiscal Impact:

• The California Department of Public Health (CDPH) estimates General Fund costs of $2.4 million in 2024-25 and $2 million in 2025-26 and ongoing thereafter for state operations. This includes costs for staffing to conduct investigations and inspections of tobacco retailers to ensure compliance.
• The California Department of Tax and Fee Administration (CDTFA) estimates costs ranging from $10,000 to $50,000 for computer programming related to issuing determinations for the civil penalty, suspending, or revoking a retailer’s cigarette and tobacco products license, and developing notifications (Cigarette and Tobacco Products Compliance Fund). The CDTFA indicates unknown revenue estimates from civil penalties.

Background:

The CDPH operates a program to reduce the availability of tobacco products to persons under 21 years of age through authorized enforcement activities pursuant to the STAKE Act. Civil penalties may be assessed against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21, except for military personnel 18 years of age or older, any tobacco product, instrument, or paraphernalia that is designed for the smoking or ingestion of tobacco products ranging from $400 to $6,000 for a first, second, third, fourth, or fifth violation within a five-year period.

The CDTFA licenses retailers who sell cigarettes or tobacco products. CDTFA must provide tobacco product licensees with at least ten days’ written notice of a pending suspension or revocation and an opportunity to appeal, as specified. The law prohibits CDTFA from accepting or considering an appeal of suspension or revocation if the appeal is founded upon the grounds of whether the retailer, or any agent or employee, violated the STAKE Act. Current law requires CDTFA to also impose a $250 civil penalty for STAKE Act violations, as specified, and deposits penalty proceeds into the Cigarette and Tobacco Products Compliance Fund which funds compliance costs.

Current law 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,” as defined, or a “tobacco product flavor enhancer,” as defined. A tobacco retailer, or agent or employee of a tobacco retailer, who violates the prohibition on flavored tobacco is deemed guilty of an infraction punished by a fine of $250 for each violation. Under current state law, enforcement for these provisions is not governed by the STAKE Act.

Proposed Law:

Specific provisions of the bill would:

• Align the enforcement and punishment for violations of the prohibition on flavored tobacco with violations of the STAKE Act, rather than the existing infraction and fine of $250 for each violation.
• Require the civil penalty assessed by the CDTFA for violations of the prohibition of flavored tobacco as they relate to the STAKE Act to be deposited into the Cigarette and Tobacco Products Compliance Fund to be made available to CDTFA, upon appropriation by the Legislature, for compliance activities.
• Add the violation of the prohibition of flavored tobacco to existing law for which CDTFA is prohibited from accepting or considering an appeal of suspension or revocation of a license.

-- END --

SENATE COMMITTEE ON GOVERNANCE AND FINANCE

Senator Anna M. Caballero, Chair

2023 - 2024 Regular

Tobacco sales: flavored tobacco ban

Provides that violations of the flavored tobacco ban are subject to enforcement and punishment under the Stop Tobacco Access to Kids Enforcement (STAKE) Act.

Background

STAKE Act. The California Department of Public Health (CDPH) administers the Stop Tobacco Access to Kids Enforcement Act (STAKE Act) to reduce the availability of tobacco to those under the age of 21. Under the STAKE Act, an enforcing agency, which includes CDPH, the Attorney General, and local law enforcement agencies, can assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes a tobacco product to another person who is under 21, except for military personnel 18 years of age or older. Fines range from between $400 to $6,000 for a first, second, third, fourth, or fifth violation within a five-year period.

Tobacco Products Licensing. In 2003, the Cigarette and Tobacco Products Licensing Act (AB 71, Horton, 2003) required the Board of Equalization (BOE) to license manufacturers, distributors, wholesalers, importers, and retailers of cigarette or tobacco products who are engaged in business in California. In 2017, the Legislature enacted AB 102 (Committee on Budget), which transferred duties, powers, and responsibilities related to the administration of taxes and fees from BOE to the California Department of Tax and Fee Administration (CDTFA).

Under the Act, retailers must have and maintain a license to sell cigarettes or tobacco products to purchasers. A retailer that owns or controls more than one retail location where cigarette and tobacco products are sold must obtain a separate license for each retail location. Each retailer must submit a one-time license fee of $100 with each application, and may submit a single application for those licenses with a license fee of $100 per location.

CDTFA may suspend a retailer’s license under the Licensing Act or the Cigarette and Tobacco Products Tax Law, for a first or subsequent license violation. CDTFA must provide a tobacco product licensee with at least ten days’ written notice of a pending suspension or revocation and an opportunity to appeal.

However, CDTFA must either suspend or revoke a tobacco license upon a third, fourth, or fifth violation of the STAKE Act within 60 days of notification by the enforcing agency’s final adjudication. Suspension periods are:

• 45 days for a third violation at the same location within a five-year period.
• A 90-day suspension of the license for a fourth violation at the same location within a five-year period.
• Revocation of the license for a fifth violation at the same location within a five-year period.

CDTFA also imposes a $250 civil penalty when notified of a violation that triggers license suspension or revocation, and deposits penalty proceeds into the Cigarette and Tobacco Products Compliance Fund, which funds compliance costs. Additionally, CDTFA cannot consider an appeal of a suspension or revocation if the appeal is founded upon the grounds of whether the retailer, or any agent or employee, violated the STAKE Act.

Flavored Tobacco Ban. In 2020, the Legislature prohibited the sale of most flavored tobacco products, including flavored e-cigarettes and menthol cigarettes, as well as tobacco product flavor enhancers, in retail locations, including stores and vending machines (SB 793, Hill). Voters upheld the ban in a referendum measure (Proposition 31, 2022). Violations of the ban are currently punishable as infractions, with a fine of $250 per violation.

Seeking better enforcement of the flavored tobacco ban, the author wants to make the flavored tobacco bans subject to enforcement under the STAKE Act.

Proposed Law

Assembly Bill 935 provides violations of SB 793’s flavored tobacco ban are subject to enforcement and punishment under the STAKE Act, instead of punishable by a $250 per violation fine. The measure requires CDTFA to deposit proceeds from civil penalties it imposes in the Cigarette and Tobacco Products Compliance Fund. The measure also provides CDTFA cannot consider an appeal for a tobacco products licensed, suspended, or revoked due to a violation of the flavored tobacco products ban, similar to violations of the STAKE Act.

State Revenue Impact

No estimate.

Comments

1. Purpose of the bill. According to the author, “Preventing the next generation of Californians from becoming addicted to smoking should be a priority for anyone who cares about the public health of our state and the well-being of our children. SB 793 can help to achieve this goal, but only if the law is properly enforced. AB 935 will make explicit enforcement by CDPH and the AG in addition to local agencies, to ensure compliance and protection of public health.”

2. STAKE Act enforcement. SB 793 specified violations of the flavored tobacco ban were infractions, and punishable by a $250 fine, but it wasn’t clear who was responsible for enforcement. By placing the ban under STAKE Act, AB 935 ensures any of CDPH, the Attorney General, or local law enforcement agencies can enforce the ban by issuing civil penalties instead. Additionally, CDTFA could impose additional civil penalties and suspend or revoke tobacco licenses for repeat violators under the bill. As a result, AB 935 should increase compliance with the ban, and enhance enforcement generally by directing civil penalty revenue to compliance efforts.

3. Incoming! The Senate Rules Committee ordered a double referral for AB 935: first, to the Committee on Health, and second to the Committee on Governance and Finance. On June 21, 2023, the Committee on Health approved the measure on a 10-0 vote.

Assembly Actions

Assembly Health Committee 10-4

Assembly Governmental Organization Committee: 16-4
Assembly Appropriations Committee: 11-4
Assembly Floor: 61-14

Support and Opposition

(6/30/23)

Support: Union of American Physicians and Dentists (Sponsor)
American Academy of Pediatrics, California
American Cancer Society Cancer Action Network
American Federation of State, County and Municipal Employees (AFSCME)
American Heart Association
American Lung Association of California
California Academy of Family Physicians
California Dental Association
California Medical Association
Campaign for Tobacco-Free Kids
County of Marin
Equity and Wellness Institute
Health Officers Association of California
International Youth Tobacco Control
North East Medical Services
Public Health Advocates
San Francisco Marin Medical Society

Opposition: Bizfed Central Valley

-- END --

SENATE COMMITTEE ON HEALTH

Senator Dr. Susan Talamantes Eggman, Chair

BILL NO: AB 935

SUBJECT: Tobacco sales: flavored tobacco ban

SUMMARY:

Aligns the enforcement and punishment for violations of the prohibition on flavored tobacco with violations of the Stop Tobacco Access to Kids Enforcement Act. Requires civil penalties to be deposited in the Cigarette and Tobacco Products Compliance Fund for specified enforcement activities.

Existing law:

1. Requires the California Department of Public Health (CDPH) 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 (STAKE Act). [BCP §22950, et seq.]
2. Permits an enforcing agency 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, except for military personnel 18 years of age or older, any tobacco product, instrument, or paraphernalia that is designed for the smoking or ingestion of tobacco products ranging from $400 to $6,000 for a first, second, third, fourth, or fifth violation within a five-year period. [BPC §22958]
3. Requires the State Board of Equalization (BOE) to provide tobacco product licensee with at least ten days’ written notice of a pending suspension or revocation and an opportunity to appeal, as specified. Prohibits BOE from accepting or considering an appeal of suspension or revocation if the appeal is founded upon the grounds of whether the retailer, or any agent or employee, violated the STAKE Act. [BPC §22974.8]
4. 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,” as defined, or a “tobacco product flavor enhancer,” as defined. [HSC §104559.5]
5. Deems a tobacco retailer, or agent or employee of a tobacco retailer, who violates the prohibition on flavored tobacco guilty of an infraction punished by a fine of $250 for each violation. [HSC §104559.5]
6. Defines “flavored tobacco product” as any tobacco product that contains a constituent that imparts a characterizing flavor. Defines “tobacco product flavor enhancer” as a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product. [HSC §104559.5]

This bill:

1. Aligns the enforcement and punishment for violations of the prohibition on flavored tobacco with violations of the STAKE Act, rather than the existing infraction and fine of $250 for each violation, pursuant to 5) in existing law above.
2. Requires the civil penalty assessed by the California Department of Tax and Fee Administration (CDTFA) for violations of the prohibition of flavored tobacco as they relate to the STAKE Act to be deposited into the Cigarette and Tobacco Products Compliance Fund to be made available to CDTFA, upon appropriation by the Legislature, for specified enforcement activities.
3. Adds the violation of the prohibition of flavored tobacco to existing law for which BOE is prohibited from accepting or considering an appeal of suspension or revocation of a license, pursuant 3) above of existing law.

FISCAL EFFECT:

According to the Assembly Appropriations Committee:

CDPH estimates General Fund costs of $2.4 million in fiscal year 2024-25 and $2 million annually thereafter to cover nine positions. These staff will investigate and inspect tobacco retailers to ensure flavored tobacco products are not being held or sold. California currently has approximately 30,000 licensed tobacco retailers. With these proposed resources, CDPH will be able to conduct approximately 2,000 investigations annually throughout California, which would represent 7% of licensed retailers. CDPH anticipates approximately 320 violations to occur from these investigations with an estimate of 64 violations advancing to court proceedings.

CDTFA reports it would incur minor costs ($10,000 to $50,000) for computer programming related to issuing determinations for the civil penalty, suspending or revoking a retailer's cigarette and tobacco products license, and developing notifications. Because the number of third, fourth, and fifth flavored tobacco ban violations cannot be predicted, CDTFA is unable to provide a revenue estimate related to these violations.

Costs of an unknown amount to the Department of Justice.

Additional lost tax revenue of an unknown amount, to the extent the enforcement required by this bill reduces tobacco sales.

PRIOR VOTES:

COMMENTS:

1. Author’s statement. According to the author, preventing the next generation of Californians from becoming addicted to smoking should be a priority for anyone who cares about the public health of our state and the well-being of our children. The existing ban on flavored tobacco can help to achieve this goal, but only if the law is properly enforced. This bill will make explicit enforcement by CDPH and the Attorney General in addition to local agencies, to ensure compliance and protection of public health.
2. Background. Cigarette smoking causes more than 480,000 deaths each year in the U.S., or nearly one-in-five deaths. Smoking causes more deaths each year than the following causes combined: HIV, illegal drug use, alcohol use, motor vehicle injuries, and firearm-related incidents. More than ten 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% of all lung cancer deaths. More women die from lung cancer each year than from breast cancer. Smoking causes about 80% 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.
3. California’s flavored tobacco ban. In 2020, the Legislature passed, and Governor Newsom signed, SB 793 (Hill et al, Chapter 34, Statutes of 2020). The law 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. It exempts the sale of hookah water pipes and flavored shisha tobacco products, pipe tobacco, and premium cigars from the prohibition. 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 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, and there are now 5.3 million young Americans who use e-cigarettes regularly. SB 793 also included menthol flavor, which was excluded from the original U.S Food and Drug Administration (FDA) ban. Advocates for the inclusion of menthol cigarettes in the flavored tobacco ban regularly cited that unless action was taken an estimated 1.6 million African Americans alive today, who are now under the age of 18, would become regular smokers, and about 500,000 of those would die prematurely from a tobacco-related disease. Immediately after the passage of SB 793, the tobacco industry qualified a referendum for the ballot asking the voters to decide whether or not SB 793 should take effect, and enforcement of the ban was halted pending the November 8, 2022, election. The ballot measure, Proposition 31, was approved, thus upholding SB 793. The next day, R.J. Reynolds, the maker of Newport menthol cigarettes and top-selling vaping products filed a federal lawsuit challenging California’s ban on flavored tobacco. However, in December 2022, the Supreme Court refused to block the law, clearing the way for the ban to take effect the following week. SB 793 states that a tobacco retailer, or agent or employee of a tobacco retailer, who violates the flavored tobacco ban is guilty of an infraction to be punished by a fine of $250 for each violation. However, this law does not specify where the enforcement authority of this statute lies, implying that local jurisdictions have authority to enforce this law.
4. Centers for Disease Control and Prevention (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/Latinx 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 adults. More than twice as many LGBTQ+ students report having smoked a cigarette before the age of 13 compared to heterosexual students.
5. Related legislation. SB 626 (Rubio) eliminates the exemption in existing law allowing smoking in 20% of the guestroom accommodations in a hotel, motel, or similar transient lodging establishment, thereby making all such establishments 100% smoke free. SB 626 is pending in the Assembly Appropriations Committee.
6. Prior legislation. SB 793 (Hill et al, Chapter 34, Statutes of 2020) prohibits flavored tobacco products to be sold in the state. SB 793 exempts from this prohibition the sale of hookah water pipes and flavored shisha tobacco products, pipe tobacco, and premium cigars.
7. Support. The sponsor of this bill and other supporters argue that while current use of tobacco products among middle and high school students decreased between 2019 and 2020, the CDC highlights the importance of continuing the work to prevent and reduce the use of all forms of tobacco product use among youth. According to a study by Tobacco Free Kids, 441,000 kids now under 18 in California will ultimately die prematurely from smoking. Smoking kills more people than alcohol, AIDS, car crashes, illegal drugs, murders, and suicides combined. Supporters state that while current law prohibits tobacco retailers from selling most flavored tobacco products, including flavored e-cigarettes, menthol cigarettes, and tobacco-product flavor enhancers, flavored tobacco products continue to be sold in many stores across the state allowing underage users to access these dangerous products. Supporters argue this bill closes the enforcement loophole to protect the next generation of Californians from becoming addicted to smoking.

SUPPORT AND OPPOSITION:

Support: Union of American Physicians and Dentists/AFSCME – Local 206 (sponsor)

Action on Smoking and Health

African American Tobacco Control Leadership Council

American Federation of State, County, & Municipal Employees

American Academy of Pediatrics, California

American Cancer Society Cancer Action Network

American Heart Association

American Lung Association

Breathe California

California Academy of Family Physicians

California Dental Association

California Medical Association

Campaign for Tobacco Free Kids

CleanEarth4Kids.org

Equity and Wellness Institute

Health Officers Association of California

International Youth Tobacco Control

North East Medical Services

Parents Against E-Cigarettes

Public Health Advocates

San Francisco Marin Medical Society

Tobacco-Free Sonoma County Community Coalition

Oppose: None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 935

Author:(Connolly)

As Amended Ver:May 18, 2023

Majority vote

SUMMARY

Makes provisions of current law prohibiting 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, punishable by civil penalties in the same manner as the Stop Tobacco Access to Kids Enforcement (STAKE) Act.

Major Provisions

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.

1. Centers for Disease Control and Prevention (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.

1. Recent federal actions. According to the American Lung Associations' "State of Tobacco Control" 2023, several significant steps were taken by the federal government in 2022 to prevent and reduce tobacco use. Of key importance, was the Food and Drug Administration's (FDA's) proposed rules released in April 2022 to eliminate menthol cigarettes and end the sale of flavored cigars. Menthol cigarettes and flavors in cigars make it easier for kids to start smoking and harder for them to quit. These rules, when finalized, will benefit many people who use menthol cigarettes or flavored cigars at disproportionately higher rates, especially Black Americans. Congress also took important action in March 2022 to extend FDA authority over tobacco products to include e-cigarettes and other products containing synthetic, or non-tobacco, nicotine. This legislation was intended to close the so-called "PuffBar loophole" that allowed e-cigarette products claiming to contain synthetic nicotine, such as PuffBar - one of the brands of e-cigarettes most used by kids - to evade FDA's authority. The legislation set out clear deadlines for FDA to take action and remove illegally sold synthetic nicotine products from the market. However, the timelines laid out in the law for enforcement action were missed, allowing an untold number of e-cigarettes containing synthetic nicotine, many in kid-friendly flavors, to remain on the market. It will take significantly more federal enforcement action aimed at manufacturers, distributors, wholesalers and importers to end the youth vaping epidemic.
2. California's flavored tobacco ban. In 2020 the Legislature passed, and Governor Newsom signed, SB 793 (Hill), Chapter 34, Statutes of 2020. The law 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. It exempts the sale of Hookah water pipes and flavored shisha tobacco products, pipe tobacco, and premium cigars from the prohibition. 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 and there are now 5.3 million young Americans who use e-cigarettes regularly. SB 793 also included menthol flavor, which was excluded from the original FDA ban, because, as the author of SB 793 noted during his bill presentation, 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.

Immediately after the passage of SB 793, the tobacco industry qualified a referendum for the ballot asking the voters to decide whether or not SB 793 should take effect, and enforcement of the ban was halted pending the November 8, 2022 election. The ballot measure, Proposition 31, was approved, thus upholding SB 793. The next day, R.J. Reynolds, the maker of Newport menthol cigarettes and top-selling vaping products filed a federal lawsuit challenging California's ban on flavored tobacco. However, in December of 2022 the Supreme Court refused to block the law, clearing the way for the ban to take effect the next week.

The law states that a tobacco retailer, or agent or employee of a tobacco retailer, who violates this section is guilty of an infraction and will be punished by a fine of $250 for each violation of this section. This law does not specify where the enforcement authority of this statute resides, which implies local jurisdictions have authority to enforce this law.

According to the Author

Smoking tobacco is widely recognized as the leading preventable cause of death in the world. These products are lethal, known to cause cancer, and significantly decrease both the longevity and quality of life. Preventing the next generation of Californians from becoming addicted to smoking should be a priority for anyone who cares about the public health of our state and the well-being of our children. The author concludes this bill is a measured solution to address the widespread issue of youth tobacco addiction.

Arguments in Support

The American Academy of Pediatrics, California (AAP-CA) supports this bill and states that According to the CDC, preventing tobacco product use among youth is critical to ending the tobacco epidemic in the United States. Tobacco product use is started and established primarily during adolescence. Nearly nine out of 10 adults who smoke cigarettes daily first try smoking by age 18, and 99% first try smoking by age 26.2. Each day in the U.S., about 1,600 youth smoke their first cigarette and nearly 200 youth start smoking every day. In 2022, about 4 of every 100 middle school students (4.5%) and about one of every six high school students (16.5%) reported current use of a tobacco product. There are many factors associated with youth tobacco product use, including social and physical environments, biological and genetic factors, mental health, and personal views.

AAP-CA notes that while current use of tobacco products among middle and high school students decreased between 2019 and 2020, the CDC highlights the importance of continuing the work to prevent and reduce the use of all forms of tobacco product use among youth. According to a study by Tobacco Free Kids, 441,000 kids now under 18 in California will ultimately die prematurely from smoking. Smoking kills more people than alcohol, AIDS, car crashes, illegal drugs, murders, and suicides combined — and thousands more die from other tobacco-related causes — such as fires caused by smoking (more than 1,000 deaths/year nationwide) and smokeless tobacco use.

Arguments in Opposition

The opposition of this bill is to the previous version which would have implemented a phased tobacco ban by prohibiting a tobacco retailer from selling tobacco products, as defined, to any person born on or after January 1, 2007.

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. The Department of Public Health (DPH) estimates General Fund costs of $2.4 million in fiscal year 2024-25 and $2 million annually thereafter to cover nine positions. These staff will investigate and inspect tobacco retailers to ensure flavored tobacco products are not being held or sold. California currently has approximately 30,000 licensed tobacco retailers. With these proposed resources, DPH will be able to conduct approximately 2,000 investigations annually throughout California, which would represent 7% of licensed retailers. DPH anticipates approximately 320 violations to occur from these investigations with an estimate of 64 violations advancing to court proceedings.
2. The California Department of Tax and Fee Administration (CDTFA) reports it would incur minor costs ($10,000 to $50,000) for computer programming related to issuing determinations for the civil penalty, suspending or revoking a retailer's cigarette and tobacco products license, and developing notifications. Because the number of third, fourth, and fifth flavored tobacco ban violations cannot be predicted, CDTFA is unable to provide a revenue estimate related to these violations.
3. Costs of an unknown amount to the Department of Justice.
4. Additional lost tax revenue of an unknown amount, to the extent the enforcement required by this bill reduces tobacco sales.

VOTES

ASM HEALTH: 10-4-1

YES: Wood, Aguiar-Curry, Arambula, Boerner Horvath, Wendy Carrillo, Maienschein, McCarty, Rodriguez, Santiago, Weber

NO: Waldron, Flora, Vince Fong, Joe Patterson

ABS, ABST OR NV: Villapudua

ASM GOVERNMENTAL ORGANIZATION: 16-4-2

YES: Santiago, Aguiar-Curry, Berman, Bryan, Cervantes, Garcia, Gipson, Jones-Sawyer, Low, McCarty, McKinnor, Quirk-Silva, Ramos, Robert Rivas, Blanca Rubio, Villapudua

NO: Lackey, Megan Dahle, Mathis, Jim Patterson

ABS, ABST OR NV: Davies, Ta

ASM APPROPRIATIONS: 11-4-1

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Weber, Ortega

NO: Megan Dahle, Dixon, Mathis, Sanchez

ABS, ABST OR NV: Robert Rivas

UPDATED

VERSION: May 18, 2023

CONSULTANT: Lara Flynn / HEALTH / (916) 319-2097 FN: 0000874

Date of Hearing: May 17, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 935

Author:(Connolly) – As Amended Ver:April 13, 2023

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

SUMMARY:

Existing law prohibits a retailer 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. This bill makes the provisions of the flavored tobacco ban punishable by civil penalties in the same manner as the Stop Tobacco Access to Kids Enforcement (STAKE) Act, with the California Department of Public Health (CDPH) and the Attorney General (AG) responsible for primary enforcement.

FISCAL EFFECT:

1. CDPH estimates General Fund costs of $2.4 million in fiscal year (FY) 2024-25 and $2 million annually thereafter to cover nine positions. These staff will investigate and inspect tobacco retailers to ensure flavored tobacco products are not being held or sold. California currently has approximately 30,000 licensed tobacco retailers. With these proposed resources, CDPH will be able to conduct approximately 2,000 investigations annually throughout California, which would represent 7% of licensed retailers. CDPH anticipates approximately 320 violations to occur from these investigations with an estimate of 64 violations advancing to court proceedings.
   
2. The California Department of Tax and Fee Administrative reports it would incur minor costs ($10,000 to $50,000) for computer programming related to issuing determinations for the civil penalty, suspending or revoking a retailer’s cigarette and tobacco products license, and developing notifications. Because the number of third, fourth, and fifth flavored tobacco ban violations cannot be predicted, CDTFA is unable to provide a revenue estimate related to these violations.
3. Costs of an unknown amount to the Department of Justice (DOJ).
4. Additional lost tax revenue of an unknown amount, to the extent the enforcement required by this bill reduces tobacco sales.

COMMENTS:

1. Purpose. This bill is sponsored by the Union of American Physicians and Dentists/AFSCME - Local 206 and co-sponsored by Public Health Advocates. According to the author:

Preventing the next generation of Californians from becoming addicted to smoking should be a priority for anyone who cares about the public health of our state and the well-being of our children. SB 793 can help to achieve this goal, but only if the law is properly enforced. AB 935 will make explicit enforcement by CDPH and the AG in addition to local agencies, to ensure compliance and protection of public health.

1. Background. In 2020, the Legislature passed, and Governor Newsom signed, SB 793 (Hill), Chapter 34, Statutes of 2020. SB 793 prohibits the sale of most flavored tobacco products, including flavored e-cigarettes and menthol cigarettes, as well as tobacco product flavor enhancers, in retail locations, including stores and vending machines. The ban included menthol flavor because, as the author of SB 793 noted, unless action is taken, an estimated 1.6 million African Americans who are now under the age of 18 will become regular smokers, and about 500,000 of them will die prematurely from a tobacco-related disease.
   
   This bill requires CDPH to enforce SB 793 in the manner it enforces the prohibition on selling tobacco to people under the age of 21 years, an enforcement model known as the STAKE Act. Under the STAKE Act, the California Food and Drug Branch within CDPH is required to conduct random, onsite inspections at tobacco retail locations with the assistance of persons under the age of 21 to ensure that retailers and their associates comply with California law. Retailers convicted of a STAKE Act violation are subject to license-related penalties. CDTFA administers the penalty provision of the STAKE Act. State and local enforcement agencies are also authorized to enforce SB 793, with some local law enforcement agencies having received enforcement grants from DOJ as a result of Proposition 56, the California Healthcare, Research and Prevention Tobacco Tax Act of 2016.
2. Related Legislation. AB 1207 (Irwin) prohibits the sale or manufacture of cannabis or cannabis products that are attractive to children, and the advertisement and marketing of cannabis or cannabis products in a way that is attractive to children. The bill also prohibits cannabis or cannabis products intended for use by inhalation or combustion from containing added flavors. AB 1207 is pending in this committee.
3. Prior Legislation.
   
   1. SB 793 (Hill), Chapter 34, Statutes of 2020, prohibited the sale of most flavored tobacco products, including flavored e-cigarettes and menthol cigarettes, as well as tobacco product flavor enhancers in retail locations, including stores and vending machines, in California.
      
   2. SBX2 7 (Hernandez), Chapter 8, Statutes of 2016, increased the minimum legal age to purchase or consume tobacco from 18 to 21, removed penalty provisions for those under 21 in possession of tobacco, and exempted military personnel from the age increase.

Analysis Prepared by: Allegra Kim / APPR. / (916) 319-2081

Date of Hearing: April 26, 2023

ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION

Miguel Santiago, Chair

ABPCA Bill Id:AB 935 (

Author:Connolly) – As Amended Ver:April 13, 2023

SUBJECT: Tobacco sales: flavored tobacco ban

SUMMARY: Existing law 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 those terms are defined, except as specified. Under existing law, a violation of this prohibition is punishable as an infraction ($250 for each violation of the state law).

This bill would instead make the provisions of the flavored tobacco ban punishable by civil penalties in the same manner as the Stop Tobacco Access to Kids Enforcement (STAKE) Act with primary enforcement of the Act as the responsibility of the State of California Department of Public Health (CDPH). See Existing Law for specifics of STAKE Act. (California Business and Professions Code § 22950 – 22964)

EXISTING LAW:

1) 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. Retailers are required to obtain a separate license for each retail location that sells cigarettes and tobacco products and pay to an annual license fee.

2) Defines “Tobacco retailer” to mean 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. (California Business and Professions Code § 104559.5)

3) 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. (California Business and Professions Code § 22950.5)

4) States that it is illegal for retailers and clerks to sell tobacco products to anyone under the age of 21. This law applies to the sale of traditional tobacco products like cigarettes as well as to the sale of electronic smoking devices like e-cigarettes and tobacco product paraphernalia. The federal minimum age of sale for tobacco products is now 21 with no exemption for military personnel. If an employee sells tobacco to an underage individual, the business owner can be penalized under the STAKE Act and the employee can be penalized under Penal Code Section 308.

5) Provides under California law, it is not illegal for individuals of any age to purchase, receive, or possess any tobacco products or paraphernalia.

6) Requires the CDPH 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. The STAKE Act is primarily enforced by the CDPH, Food and Drug Branch, among other state and local law enforcement agencies, to restrict tobacco product sales to persons under 21 years of age. This law may be enforced only against a business owner and not against an employee who sold the tobacco product or paraphernalia. (California Business and Professions Code § 22950 – 22964)

7) Provides the STAKE Act may be enforced by any defined enforcing agency (not limited to, a city attorney, district attorney, or county counsel) and also includes the CDPH, office of the Attorney General, and local law enforcement agencies. The law instructs enforcing agencies to use youth decoys in on-site inspections to determine whether retailers are making illegal sales of tobacco products. The law authorizes enforcing agencies to use youth decoys to investigate illegal sales to underage individuals by telephone, mail, or the internet. (California Business and Professions Code § 22952 and Penal Code § 308(a)(1)(A)(i))

8) Permits an enforcing agency, under the STAKE Act, 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. (California Business and Professions Code § 22958)

In addition, the STAKE Act requires suspension or revocation of a retailer’s license upon a civil penalty assessment for a third, fourth, or fifth violation of sales to minors, in accordance with the following schedule:

a) A 45-day suspension for a third violation at the same location within five years,

b) A 90-day suspension for a fourth violation at the same location within five years, and,

c) Revocation of the license for a fifth violation at the same location within five years.

Additional civil penalties in the amount of $250 each for the third, fourth, and fifth violations are assessed by CDTFA and deposited, as defined.

9) The STAKE Act further provides: (California Business and Professions Code § 22956)

a) Requires all persons engaging in the retail sale of tobacco products to check the identification of tobacco purchasers if the purchaser reasonably appears to be under 21 years of age.

b) Prohibits the selling, offering for sale, or distributing tobacco products from a cigarette or tobacco products vending machine unless such vending machines or appliances are located at least 15 feet away from the entrance of a premises issued an on-sale public premises license, as defined.

c) Prohibits advertising of any tobacco product on any outdoor billboard, as specified.

d) Prohibits a person engaged in the retail sale of tobacco products from selling, offering for sale, or displaying for sale any tobacco product or tobacco paraphernalia by self-service display, except as permitted. Retailers of blunt wraps cannot place or maintain, or cause to be placed or maintained, any blunt wraps advertising display within two feet of candy, snack, or nonalcoholic beverage displayed inside any store or business or that is less than four feet above the floor.

e) Sales of tobacco products made over the phone, via mail or via the Internet to persons under 21 are also investigated and prosecuted.

10) States that it is unlawful for any person, firm, or corporation to sell, give, or in any way furnish to a minor any tobacco product or paraphernalia if that person, firm, or corporation knows or should otherwise have grounds to know that the recipient is a minor. This law may be enforced against a business owner or an employee. A city attorney, county counsel, or district attorney may bring a civil action to enforce the law. Local law enforcement agencies have the general authority to enforce this law. Misdemeanor or a civil action punishable by a fine of $200 for 1st offense, $500 for 2nd offense, and $1,000 for 3rd offense. (California Penal Code § 308)

11) 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 those terms are defined, except as specified. Under existing law, a violation of this prohibition is punishable as an infraction ($250 for each violation of the state law).

FISCAL EFFECT: This bill is keyed fiscal by Legislative Counsel

COMMENTS:

Purpose of the bill. According to the author’s office, “Preventing the next generation of Californians from becoming addicted to smoking should be a priority for anyone who cares about the public health of our state and the well-being of our children. This bill can help to achieve this goal, but only if the law is properly enforced. AB 935 will make explicit enforcement by CDPH and the AG in addition to local agencies, to ensure compliance and protection of public health.”

Under existing law, any retailer, their agents or employees, who sells or possesses with the intent to sell any of the flavored tobacco products covered by the state law is guilty of an infraction and fined $250 for each violation of the state law. Instead, AB 935 would make the provisions of the flavored tobacco ban subject to civil penalties in the same manner as the STAKE Act.

Background.

According to the United States Department of Health and Human Services, about 80% of adult smokers began smoking before the age of 18. Youth smoking is associated with greater likelihood of adult smoking, heavier use of cigarettes, and more difficulty in quitting. According to survey data, around 10 percent of adults and youth in California use tobacco products. Surveys suggest that adults are much more likely than youth to smoke cigarettes regularly, while youth are more likely than adults to use electronic nicotine delivery systems (ENDS), also called electronic cigarettes, e-cigarettes, e-cigs, or vape pens. Tobacco use and secondhand smoke increase the risk of many health problems, such as cancer, heart disease, stroke, respiratory diseases, and complications during pregnancy.

A "Tobacco product" is defined by California law 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, as specified.

The federal, state, and local governments have implemented various laws and regulations aimed at protecting the public from the harmful health effects of tobacco. According to the U.S. Food and Drug Administration (FDA), every day, nearly 1,500 kids smoke their first cigarette and about 200 kids become daily cigarette smokers. Additionally, the CDC and FDA found that in 2020, 19.6 percent of high school students currently used e-cigarettes. Many of these children will become addicted before they are old enough to understand the risks.

As of June 9, 2016, under California law it is no longer illegal for individuals of any age to purchase, receive, or possess any tobacco products or paraphernalia. However, California law prohibits selling, giving, or in any way furnishing tobacco products or paraphernalia, including electronic smoking devices, to any individual under the age of 21. The sale of tobacco products to people under 21 years old is also banned by federal law. Effective December 21, 2022, retailers, their agents or employees can no longer sell, offer for sale, or possess with the intent to sell most flavored tobacco products (includes mint and menthol) and tobacco product flavor enhancers, as specified.

The California Department of Public Health, Food and Drug Branch, STAKE Program has the primary responsibility to enforce California’s minimum age of tobacco sales law. In addition, another enforcing agency, such as a local enforcement agency including city attorney, district attorney, or county counsel, may conduct inspections and assess penalties for violations. Additionally, any local law enforcement agencies have received enforcement grants from the California Department of Justice as a result of Proposition 56, the California Healthcare, Research and Prevention Tobacco Tax Act of 2016. The STAKE Act also sets requirements pertaining to minimum sales age, signage, and self-service displays.

The law instructs enforcing agencies to use youth decoys in on-site inspections to determine whether retailers are making illegal sales of tobacco products. The law also authorizes enforcing agencies to use youth decoys to investigate illegal sales to underage individuals by telephone, mail, or the internet. An enforcing agency may conduct such inspections or investigations at random, in response to public complaints, or at retail sites where violations have previously occurred. The law contains a detailed protocol for an enforcing agency to follow in its undercover operations.

If an employee sells tobacco to an underage individual, the business owner can be penalized under the STAKE Act and the employee can be penalized under Penal Code Section 308. This is because the owner and employee are not legally the same violator.

Retailers convicted of illegal sales to underage individuals, a STAKE Act violation, are subject to license-related penalties. The CDTFA is charged with administering this provision of the law.

The following penalties apply:

• Upon a first conviction, the retailer shall be fined $400 to $600.

• Upon a second conviction within a five-year period, the retailer shall be fined $900 to $1,000.

• Upon a third conviction within a five-year period, the retailer shall be fined $1,200 to $1,800 and the California Department of Public Health is required to notify the CDTFA. The retailer shall be assessed an additional $250 penalty by the CDTFA, and the CDTFA shall suspend the retailer’s license for 45 days.

• Upon a fourth conviction within a five-year period, the retailer shall be fined $3,000 to $4,000 and the California Department of Public Health is required to notify the CDTFA. The retailer shall be assessed an additional $250 penalty by the CDTFA, and the CDTFA shall suspend the retailer’s license for 90 days.

• Upon a fifth conviction within a five-year period, the retailer shall be fined $5,000 to $6,000 and the CDPH is required to notify the CDTFA. The retailer shall be assessed an additional $250 penalty by the CDTFA, and the CDTFA shall revoke the retailer’s license.

Convictions by a retailer at one retail location are not accumulated against other locations owned by that retailer. Convictions accumulated against a prior retail owner of a franchise location are not accumulated against a new retail owner of the same franchise location.

Additionally, local law enforcement agencies have received enforcement grants from the DOJ, as a result of Proposition 56, the California Healthcare, Research and Prevention Tobacco Tax Act of 2016. The California Food and Drug Branch within the CDPH is required to conduct random, onsite inspections at tobacco retail locations with the assistance of persons under the age of 21 to ensure that retailers and their associates comply with California law. State and local enforcement agencies are also authorized to conduct enforcement activities.

The federal Food and Drug Agency (FDA) is also authorized to enforce the federal minimum tobacco age of sale law in California. The FDA conducts inspections of tobacco product retailers to determine a compliance with federal laws and regulations. Fines and penalties for violations of the federal age of sale law may range from $297 to $11,904 and may include a tobacco license suspension or revocation (Family Smoking Prevention and Tobacco Control Act Section 103(q)(2)(A).

CA Prohibits Retailers from Selling Flavored Tobacco Products. In 2020, the Legislature passed, and Governor Newsom signed, SB 793 (Hill), Chapter 34, Statutes of 2020. The law prohibits the sale of most flavored tobacco products, including flavored e-cigarettes and menthol cigarettes, as well as tobacco product flavor enhancers in retail locations, including stores and vending machines, in California. (Health and Safety Code Section 104559.5). The bill included menthol flavor, which was excluded from the original FDA ban, because, as the author of SB 793 noted during his bill presentation, 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.

The provisions of the SB 793 do not apply to flavored premium cigars with a wholesale price of $12 or more and flavored loose-leaf pipe tobacco. Flavored shisha/hookah tobacco may only be sold in licensed stores that only allow people 21 or older on the premises at any time. Licensed stores must also operate in accordance with all state or local laws relating to the sale of tobacco and consumption of tobacco on the premises (for hookah retailers that permit consumption of tobacco on the premises).

Supporters of the ban pointed to kid-friendly flavors such as cotton candy and bubble gum that spurred more than 3.6 million middle and high school students to use e-cigarettes in 2018. Supporters also noted that the 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 and there are now 5.3 million young Americans who use e-cigarettes regularly.

A tobacco retailer, their agents, or their employees who sell, offer for sale, or possess with intent to sell or offer for sale most flavored tobacco products, including e-cigarettes that deliver nicotine or other vaporized liquids and menthol cigarettes, as well as tobacco product flavor enhancers, will be found guilty of an infraction and fined $250 for each violation of the law.

This law does not punish or criminalize anyone for purchasing, using, or possessing with the intent to use a flavored tobacco product or tobacco product flavor enhancer. Current law does not specify where the enforcement authority of this statute resides, which implies local jurisdictions have authority to enforce this law.

For instance, prior to the passing of SB 793, roughly one-third of Californians resided in areas where the sale of specific flavored tobacco products was restricted. Some of these local regulations prohibited the sale of menthol cigarettes.

After SB 793 was signed into law on August 28, 2020, the tobacco industry qualified a veto referendum for the ballot (Proposition 31) asking voters whether or not the law should go into effect. As a result, enforcement of the ban was suspended until the November 8, 2022 election. Proposition 31 was approved (63.42% to 36.58%) on the ballot, upholding SB 793. The next day, R.J. Reynolds, the maker of Newport menthol cigarettes and top-selling vaping products filed a federal lawsuit challenging California’s ban on flavored tobacco. However, in December of 2022 the Supreme Court refused to block the law, clearing the way for the ban to take effect the following week.

Regarding the sale and distribution of tobacco products in California, it is the retailer's responsibility to be aware of and compliant with all applicable federal, state, and local laws.

Local ordinances. Many local cities and counties in California have adopted local tobacco retailer licensing laws, which require a retailer to pay an annual licensing fee and be subject to suspension or revocation of that license if they are found selling tobacco to minors. Therefore, a California retailer who sells cigarettes or tobacco products and is located in a city or county that adopts local tobacco retailer licensing laws has two licenses (state and city/county). Existing local ordinances in some jurisdictions require cigarette and tobacco product retailers to comply with specific provisions of the jurisdiction's land use and zoning ordinances, including provisions that regulate the location of these retailers.

The California Healthcare, Research and Prevention Tax Act of 2016 (Proposition 56). Prop 56 provides local public agencies with funding to promote a healthier California by reducing illegal sales and marketing of cigarettes and tobacco products to minors. The Office of the Attorney General makes these annual funds available to local law enforcement agencies through the California Department of Justice Tobacco Grant Program. Approved by voters in 2016, Prop 56 increased taxes on cigarettes and other tobacco products by $2.00 starting in April 2017. The Proposition specifically allocates $30 million of annual revenue to the California Department of Justice. These funds support local agencies to enforce tobacco-related statutes and ordinances, including to reduce the illegal sale of tobacco products to minors. Grantees may use grant funds to enforce state and local laws related to the illegal sale and marketing of tobacco products to minors and youth including: Retailer compliance checks, retailer training programs, installation of signage, youth outreach, tobacco retail license inspections, and/or preventing and deterring use of tobacco products on school premises.

States & localities that have restricted the sale of flavored tobacco products. Currently, two states (California and Massachusetts) have banned the sale of flavored tobacco products, including flavored e-cigarettes and menthol cigarettes. New Jersey, New York and Rhode Island have banned the sale of flavored e-cigarettes, but not menthol cigarettes. Over 360 localities have passed restrictions on the sale of flavored tobacco products, although laws differ in their application to specific products and store types. At least 170 of these communities—restrict the sale of menthol cigarettes, in addition to other flavored tobacco products.

Types of tobacco products. People use different types of tobacco products, including:

• Cigarettes. Smoking cigarettes is a common way to use tobacco.

• Electronic Nicotine Delivery Systems (ENDS). These battery-operated devices (such as e-cigarettes, e-cigars, vapes, vape pens, cartridges, tanks, and mods) turn special liquid, which contains nicotine, into an aerosol. The user inhales the aerosol.

• Other Tobacco Products. Other tobacco products can be used by smoking, inhaling, chewing, or other ways. These products include cigars, chewing tobacco, loose leaf tobacco, shisha tobacco (typically used in hookahs, a type of waterpipe), smokeless tobacco, heated tobacco, and nicotine pouches. Similar to ENDS, these products might have nontobacco flavors.

The Federal government also regulates tobacco products. Federal law approved in 2009 gives the federal FDA authority to regulate the manufacture, marketing, sale, and distribution of tobacco products. Federal law also requires the FDA to review and authorize new tobacco products, such as ENDS, before they can be sold legally. Federal regulations specifically affecting flavored tobacco products include:

• Federal Law Banned Cigarettes with Flavors, Except Menthol. Federal law banned cigarettes with nontobacco flavors, except menthol, beginning in 2009.

• FDA Recently Proposed Rules Banning Menthol From Cigarettes. In April 2022, the FDA proposed (1) banning menthol-flavored cigarettes and (2) banning all nontobacco flavored cigars. The FDA now is deciding whether to finalize these bans.

• FDA Continues to Review Applications to Sell New Tobacco Products Legally. As of June 2022, the FDA had authorized 42 new tobacco products—23 ENDS products (tobacco flavored or unflavored) and 19 other tobacco products (menthol, mint, or wintergreen flavored or unflavored). It has denied more than 1 million nontobacco-flavored ENDS products.

• FDA Has Taken Some Steps to Limit Access to ENDS Products. In 2020, the FDA began stepping up enforcement against certain unauthorized ENDS products, including ENDS products targeted toward youth.

In support. The African American Tobacco Control Leadership Council writes, “This bill takes important steps in this direction by providing the AG and the CDPH with the necessary tools to educate retailers and bring an end to illicit flavored tobacco product sales in California, per the will of voters through the passage of SB 793. It is significant that there will be no criminal penalties for the possession and use of cigarettes. The CDPH has championed the goal of reaching the Tobacco Endgame by 2035, ending the sales of all combustible cigarettes in California by then. AB 935 will accelerate progress towards that important goal by strengthening SB 793, ultimately protecting children and youth. We still have much work to do to achieve our endgame goals, but this is a monumental step in the right direction.”

The Action on Smoking and Health writes, “Despite the overwhelming support from voters to pass SB 793, flavored tobacco products continue to be sold in many stores across the state, which allows many teenagers to continue accessing these dangerous products. SB 793 can prevent the next generation of Californians from becoming addicted to smoking, but only if the law is properly enforced. AB 935 will make explicit enforcement by CDPH and the AG in addition to local agencies, to ensure compliance and protection of public health.”

Prior legislation. AB 1742 (R. Rivas), Chapter 454, Statutes of 2022. This bill revised the Cigarette and Tobacco Products Tax Law to provide the AG and the Department of Justice enhanced ability to enforce the Tobacco Master Settlement Agreement. The bill also stated that the California Cigarette Fire Safety and Firefighter Protection Act is to be administered by the AG instead of the State Fire Marshal, and that proposed markings of cigarette manufacturers are deemed approved if the AG fails to act within 30 days instead of the existing requirement of 10 days.

SB 793 (Hill), Chapter 34, Statutes of 2020. 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.

SB 8 (Glazer), Chapter 761, Statutes of 2019). Made 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 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. This bill 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. (Never heard by the Assembly Committee on Governmental Organization)

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. (Never heard by the Senate Committee on Health)

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 (Hernandez), Chapter 8, Statutes of 2016. Increased 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.

ABX2 7 (Stone), Chapter 4, Statutes of 2016. Extended 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. 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.

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. (Failed passage in the Assembly Appropriations Committee)

AB 1301 (Hill), Chapter 335, Statutes of 2012. Repeals and recasts the Board of Equalization’s existing penalty structure for violations of the STAKE Act, a statewide enforcement program related to the illegal sales of tobacco products to persons under the age of 18.

REGISTERED SUPPORT / OPPOSITION:

Support

Action on Smoking and Health
African American Tobacco Control Leadership Council
American Academy of Pediatrics, California
California Dental Association
Equity and Wellness Institute
International Youth Tobacco Control
North East Medical Services
Osborn Strategies, LLC
Public Health Advocates
San Francisco Marin Medical Society
Union of American Physicians and Dentists

Oppose

None on file

Analysis Prepared by: Eric Johnson / G.O. / (916) 319-2531

Date of Hearing: April 11, 2023

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

ABPCA Bill Id:AB 935

Author:((Connolly) – As Introduced Ver:February 14, 2023

SUBJECT: Tobacco sales: phased tobacco ban.

SUMMARY: Implements a phased tobacco ban by prohibiting a tobacco retailer from selling tobacco products, as defined, to any person born on or after January 1, 2007. Clarifies that this bill does not authorize the sale of tobacco products to any person born before January 1, 2007, that is otherwise prohibited. Specifically, this bill:

1. Prohibits a tobacco retailer from selling any tobacco product to any person born on or after January 1, 2007.
   
2. Requires all persons engaging in the retail sale of tobacco products to check the identification of tobacco purchasers, to establish the date of birth of the purchaser, if the purchaser reasonably appears to have been born on or after January 1, 2007. Makes a good faith effort to comply with this provision an affirmative defense to a violation of 1) above.
   
3. Requires Department of Public Health (DPH) to enforce the provisions of this bill.
   
4. Authorizes DPH to assess civil penalties against any person, firm, or corporation that violates 1) above, according to the following schedule:
   1. A civil penalty of four hundred dollars ($400) to six hundred dollars ($600) for the first violation;
   2. A civil penalty of nine hundred dollars ($900) to one thousand dollars ($1,000) for the second violation within a five-year period;
   3. A civil penalty of one thousand two hundred dollars ($1,200) to one thousand eight hundred dollars ($1,800) for a third violation within a five-year period;
   4. A civil penalty of three thousand dollars ($3,000) to four thousand dollars ($4,000) for a fourth violation within a five-year period; and,
   5. A civil penalty of five thousand dollars ($5,000) to six thousand dollars ($6,000) for a fifth violation within a five-year period.
      
5. Requires DPH, in addition to the civil penalties described in 4) above, upon the assessment of a civil penalty for the third, fourth, or fifth violation, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, to notify the State Board of Equalization (BoE) of the violation. Requires the BoE to then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke the license in accordance with the following schedule:
   1. A 45-day suspension of the license for a third violation at the same location within a five-year period;
   2. A 90-day suspension of the license for a fourth violation at the same location within a five-year period; and,
   3. Revocation of the license for a fifth violation at the same location within a five-year period.
      
6. Prohibits, in the case of a corporation or business with more than one retail location, to determine the number of accumulated violations for purposes of the penalty schedules set forth in 4) and 5) above, the violations by one retail location from being accumulated against other retail locations of that same corporation or business.
   
7. Prohibits, in the case of a retail location that operates pursuant to a franchise, violations accumulated and assessed against a prior owner of a single franchise location from being accumulated against a new owner of the same single franchise location for purposes of the penalty schedules set forth in 4) and 5) above.
   
8. States that this bill does not authorize the sale of any tobacco products to any person born before January 1, 2007, that is otherwise prohibited by law.
   
9. Defines the following terms for purposes of this bill:
   1. “Tobacco product” means 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, vaping liquid, or snuff. “Tobacco product” does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose; and,
   2. “Tobacco retailer” means a person who engages in this state in the sale of tobacco products directly to the public from a retail location.
      

EXISTING LAW:

1. Requires 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). [Business and Professions Code (BCP) §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]

FISCAL EFFECT: Unknown. This bill has not yet been analyzed by a fiscal committee.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, smoking tobacco is widely recognized as the leading preventable cause of death in the world. These products are lethal, known to cause cancer, and significantly decrease both the longevity and quality of life. Preventing the next generation of Californians from becoming addicted to smoking should be a priority for anyone who cares about the public health of our state and the well-being of our children. The author concludes this bill is a measured solution to address the widespread issue of youth tobacco addiction.
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. 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.
   1. Centers for Disease Control and Prevention (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. Effectiveness of tobacco control policies. According to a 2017 Journal of Public Health Management & Practice report (the report), “The Impact of Implementing Tobacco Control Policies,” raising cigarette taxes; implementing comprehensive smoke free air laws; banning all tobacco advertising, promotions, and sponsorships; and, funding comprehensive tobacco control programs, particularly those that include media campaigns, are highly effective strategies for reducing smoking prevalence. Cessation treatment policies and prominent graphic health warnings are likely to be especially effective in increasing quit success when combined with other policies that increase quit attempts. According to the report, while research has focused on the effects of implementing individual policies, the impact of a new intervention depends on the existing tobacco control environment and on whether any other policies are simultaneously implemented. Interventions implemented in settings with strong existing tobacco control legislation and strong anti-tobacco social norms may yield smaller gains than those implemented in settings that have limited or no existing tobacco policies. For this reason, simultaneously implemented policies may have overlapping effects. To estimate the combined effect of implementing more than policy intervention, the report recommends applying effect sizes as constant relative reductions, that is, for policy and with effect sizes and would be applied to the current smoking prevalence. This formulation confines the resulting smoking prevalence to positive levels and implies slightly smaller absolute reductions for each policy when implemented in combination with other policies than if implemented alone.
   3. Recent federal actions. According to the American Lung Associations’ “State of Tobacco Control” 2023, several significant steps were taken by the federal government in 2022 to prevent and reduce tobacco use. Of key importance, was the FDA’s proposed rules released in April 2022 to eliminate menthol cigarettes and end the sale of flavored cigars. Menthol cigarettes and flavors in cigars make it easier for kids to start smoking and harder for them to quit. These rules, when finalized, will benefit many people who use menthol cigarettes or flavored cigars at disproportionately higher rates, especially Black Americans. Congress also took important action in March 2022 to extend FDA authority over tobacco products to include e-cigarettes and other products containing synthetic, or non-tobacco, nicotine. This legislation was intended to close the so-called “PuffBar loophole” that allowed e-cigarette products claiming to contain synthetic nicotine, such as PuffBar - one of the brands of e-cigarettes most used by kids, to evade FDA’s authority. The legislation set out clear deadlines for FDA to take action and remove illegally sold synthetic nicotine products from the market. However, the timelines laid out in the law for enforcement action were missed, allowing an untold number of e-cigarettes containing synthetic nicotine, many in kid-friendly flavors, to remain on the market. It will take significantly more federal enforcement action aimed at manufacturers, distributors, wholesalers and importers to end the youth vaping epidemic.
      Actions recommended by the American Lung Association include legal remedies by the U.S. Department of Justice on behalf of FDA against manufacturers selling illegal products and stopping the importation of illegal products from other countries by U.S. Customs and Border Protection to ensure that no unauthorized and illegal products remain on the marketplace.
      
   4. California’s flavored tobacco ban. In 2020 the Legislature passed, and Governor Newsom signed, SB 793 (Hill), Chapter 34, Statutes of 2020. The law 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. It exempts the sale of Hookah water pipes and flavored shisha tobacco products, pipe tobacco, and premium cigars from the prohibition. 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 and there are now 5.3 million young Americans who use e-cigarettes regularly. SB 793 also included menthol flavor, which was excluded from the original FDA ban, because, as the author of SB 793 noted during his bill presentation, 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.
      
      Immediately after the passage of SB 793, the tobacco industry qualified a referendum for the ballot asking the voters to decide whether or not SB 793 should take effect, and enforcement of the ban was halted pending the November 8, 2022 election. The ballot measure, Proposition 31, was approved, thus upholding SB 793. The next day, R.J. Reynolds, the maker of Newport menthol cigarettes and top-selling vaping products filed a federal lawsuit challenging California’s ban on flavored tobacco. However, in December of 2022 the Supreme Court refused to block the law, clearing the way for the ban to take effect the next week. The law states that a tobacco retailer, or agent or employee of a tobacco retailer, who violates this section is guilty of an infraction and will be punished by a fine of two hundred fifty dollars ($250) for each violation of this section. This law does not specify where the enforcement authority of this statute resides, which implies local jurisdictions have authority to enforce this law.
      
   5. Tribal Governments. There are currently 109 federally recognized Indian tribes in California and more than 70 entities petitioning for recognition. Tribes in California currently have nearly 100 separate reservations or Rancherias. In general, under federal law, states are limited in their ability to regulate certain activities that occur within the borders of federally recognized tribal lands, including taxation of tobacco sales. Sales made by anyone (including tribal members) off reservation land are subject to state taxes, as are those made on-reservation to customers who are not tribal members. While federal law requires remittance of state taxes to the state for sales to non-members, a state cannot force a tribe to do so.
      
   6. Tobacco taxes. The California Cigarette and Tobacco Products Tax Law imposes a tax of $2.87 per package of 20 cigarettes. Distributors pay the tax by purchasing tax stamps from the California Department of Tax and Fee Administration, which are then affixed to a cigarette package. While a base tax rate of $0.10 per pack of 20 cigarettes has been in place since 1967, with revenue flowing to the General Fund, the Legislature and voters have adopted four tobacco tax measures directing revenue for specific programs:
      
      1. In 1988, voters approved Proposition 99, which imposed a surtax of $0.25 cents per package, and created an equivalent tax on tobacco products. Proceeds from the tax fund health education, disease research, hospital care, fire prevention, and environmental conservation;
      2. AB 478 (Friedman), Chapter 660, Statutes of 1993, added an excise tax of $0.02 per packet of 20 cigarettes for breast cancer research and early detection services;
      3. In 1998, California voters approved Proposition 10, which imposed an additional surtax of $0.50 per pack, and created a proportionately larger increase in the tax on tobacco products. The revenues are used to fund early childhood development programs, called First 5 programs;
      4. In 2016, voters approved Proposition 56, which imposed an additional surtax of $2 per pack and expanded the definition of "tobacco products" to include e-cigarettes when sold in combination with nicotine for a single price, and liquids containing nicotine used in those products. The additional tax revenues are deposited into the California Healthcare, Research and Prevention Tobacco Tax Act of 2016 Fund, which is used to backfill revenue losses for the above programs that result from reduced consumption due to the increased tax rate; and,
      5. SB 395 (Caballero), Chapter 489, Statutes of 2021, enacts the Healthy Outcomes and Prevention Education Act, which imposes the California Electronic Cigarette Excise Tax on the sale of electronic cigarettes, and creates the Health Careers Opportunity Grant Program in the Department of Health Care Access and Information, and directs proceeds of the tax to various purposes.
         
         California collected approximately $1.8 billion in tobacco tax revenue in fiscal year 2021-22, down from $2.1 billion in 2018-2019.
         
   7. Tax Evasion. The Prevent All Cigarette Trafficking (PACT) Act is a federal law that governs tax collection and cigarettes and smokeless tobacco products trafficking by requiring Internet and other remote sellers of these products to comply with the same laws that apply to in-state cigarette and tobacco products sellers. These provisions apply to California's tribal reservations, as well as to both in-state and out-of-state distributors shipping cigarettes and smokeless tobacco into California. On December 27, 2020, federal legislation (Consolidated Appropriations Act, 2021) enacted the Preventing Online Sales of E-Cigarettes to Children Act, which extends the PACT Act to cover all Electronic Nicotine Delivery System products, including related electronic cigarette components, liquids, parts, and accessories regardless if it contains nicotine. Due to the PACT Act requirements, out-of-state sellers making sales of electronic cigarettes directly to consumers in California will be required to register with the California Department of Tax and Fee Administration as a distributor, post a minimum $1,000 security, pay the required annual licensing fee, and the existing tobacco products tax.

According to a 2017 California Tax Association report, California ranks second in the nation for purchases of smuggled cigarettes, with approximately 44% of cigarettes consumed being smuggled cigarettes.

1. SUPPORT. The American Academy of Pediatrics, California (AAP-CA) supports this bill and states that According to the CDC, preventing tobacco product use among youth is critical to ending the tobacco epidemic in the United States. Tobacco product use is started and established primarily during adolescence. Nearly nine out of 10 adults who smoke cigarettes daily first try smoking by age 18, and 99% first try smoking by age 26.2 Each day in the U.S., about 1,600 youth smoke their first cigarette and nearly 200 youth start smoking every day. In 2022, about 4 of every 100 middle school students (4.5%) and about one of every six high school students (16.5%) reported current use of a tobacco product. There are many factors associated with youth tobacco product use, including social and physical environments, biological and genetic factors, mental health, and personal views.
   

AAP-CA notes that while current use of tobacco products among middle and high school students decreased between 2019 and 2020, the CDC highlights the importance of continuing the work to prevent and reduce the use of all forms of tobacco product use among youth. According to a study by Tobacco Free Kids, 441,000 kids now under 18 in California will ultimately die prematurely from smoking. Smoking kills more people than alcohol, AIDS, car crashes, illegal drugs, murders, and suicides combined — and thousands more die from other tobacco-related causes — such as fires caused by smoking (more than 1,000 deaths/year nationwide) and smokeless tobacco use.

1. OPPOSITION. The California Statewide Law Enforcement Association (CSLEA) is opposed to this bill and notes that every time there is a restriction on access to products that millions of adult consumers want and use, we create increased demand for contraband product. That unmet demand leads to larger illegal markets, which in turn result in greater burdens on law enforcement. CSLEA states that dedicated peace officers should focus on reigning in the surge of serious crimes like murders, violence with weapons, domestic terrorism, human tracking, theft, rape, assaults and drugs. California has the second highest tobacco smuggling rate in the country. Existing taxes are so high that smuggling from lower-tax areas, including foreign countries, accounts for a staggering 43% of cigarettes smoked in California, according to a November 2020 report from the Washington, D.C.-based Tax Foundation. Nevada is already a net exporter of cigarettes with nearly 12% of the state’s cigarette volume being consumed and discarded, outside of Nevada. Research also indicates a net inbound smuggling rate of 18% from Mexico to California. CSLEA concludes that this bill would move California from a 43% smuggling rate to 100%.
   
   The Neighborhood Market Association (NMA) is opposed to this bill and states that throughout history, bans on legal products have created unforeseen, more grave consequences. This bill would create a phased-in prohibition which does not actually change consumer behavior, only leading to increases of the likelihood of black market and other unregulated sources to endanger consumers. Nearly half of cigarettes consumed in California come from smuggled sources, which may contain unsafe chemicals and dangerous chemicals that will further harm consumers. With the passage of this bill, all tobacco products consumed by individuals born after 2006 will be from black market industries that will be completely unregulated and dangerous.
   

NMA also notes that the phased-in prohibition of tobacco sales is a violation of personal rights, and the law will unfairly treat different sets of consumers throughout the years. Every individual should be able to decide what to do with their bodies and what they would like to consume. Additionally, it will create a long-lasting and difficult environment for both retailers and enforcement officers to abide and regulate this law as the law imposes an arbitrary age restriction. NMA concludes, with the passage of this bill, the government will drastically overstep their jurisdiction of tobacco usage and personal rights.

1. PREVIOUS LEGISLATION. SB 793 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.
2. DOUBLE REFERRAL. This bill is double-referred, upon passage of this committee, it will be referred to the Assembly Committee on Governmental Organization.
3. POLICY COMMENT. In 2020, 8.9% of adults in California smoked. Nationally, the rate was 15.5 percent. In 2019, 18.2% of high school students in California used electronic vapor products on at least one day in the past 30 days. Nationally, the rate was 32.7%. With California adult smoking rates on the lower end of the spectrum; the Legislature may want to consider whether it would be more effective to focus on enforcing the flavored tobacco ban rather than engaging on a new front, and attempting to prevent a product that is legal in 49 other states, as well as on sovereign Tribal lands, from entering the state.

REGISTERED SUPPORT / OPPOSITION:

Support

Action on Smoking and Health

AFSCME

American Academy of Pediatrics, California

California Health+Advocates, Subsidiary of The California Primary Care Association

Equity and Wellness Institute

International Youth Tobacco Control

North East Medical Services

Public Health Advocates

San Francisco Marin Medical Society

Union of American Physicians and Dentists

Opposition

American Petroleum and Convenience Store Association

California Chamber of Commerce

California Distributors Association

California Hispanic Chambers of Commerce

California Manufacturers and Technology Association

California Retailers Association

California Statewide Law Enforcement Association

California Taxpayers Association

Central Valley Taxpayers Association

Cigar Association of America

Kern County Taxpayers Association

Los Angeles County Taxpayers Association

Neighborhood Market Association

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