SB 1230: Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act.
- Session Year: 2023-2024
- House: Senate
- Latest Version Date: 2024-09-22
Current Status:
Passed
(2024-09-22: Chaptered by Secretary of State. Chapter 462, Statutes of 2024.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
What does this bill do?
The bill lets the California Department of Tax and Fee Administration seize flavored tobacco products and “flavor enhancers” from retailers or other locations when they are sold, offered, or possessed in violation of the state’s flavored‑tobacco ban, treats seized items as forfeited (turned over to the state), and requires they be destroyed. It also raises civil fines for selling tobacco or smoking paraphernalia to anyone under 21 (first offense $1,000–$1,500; penalties escalate to at least $20,000 for five or more violations) and removes the exception that allowed active‑duty military ages 18–20 to buy tobacco.
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Existing law, except as specified, 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 defined.
Under the Cigarette and Tobacco Products Licensing Act of 2003, the California Department of Tax and Fee Administration administers the statewide program to license manufacturers, importers, distributors, wholesalers, and retailers of cigarettes and tobacco products.
This bill, the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act, would amend the Cigarette and Tobacco Products Licensing Act of 2003 to authorize the department, if it discovers that a retailer, or any of the tobacco retailers agents or employees, sell, offer for sale, or possess with the intent to sell or offer for sale a flavored tobacco product or tobacco product flavor enhancer, in violation of existing law, to seize those products at the retail location or any other persons location. The bill would deem any seized products to be forfeited and would require the department to comply with specified procedures relating to the seizure and forfeiture of cigarette and tobacco products.
Existing law requires certain items forfeited to the state, including any cigarettes or tobacco products forfeited to the state pursuant to the Cigarette and Tobacco Products Licensing Act of 2003, to be destroyed.
This bill would additionally require flavored tobacco products and tobacco product flavor enhancers forfeited to the state pursuant to the Cigarette and Tobacco Products Licensing Act of 2003 to be destroyed.
The Stop Tobacco Access to Kids Enforcement (STAKE) Act regulates the use of tobacco and tobacco products by, among other things, prohibiting a person from selling or otherwise furnishing tobacco, cigarettes, or any other paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance to a person under 21 years of age, and establishes an exception for active duty military personnel who are at least 18 years of age. Existing law authorizes civil penalties for a first and subsequent violations of the act.
This bill would increase the penalties for providing a person who is under 21 years of age any of those substances or paraphernalia.
Existing federal law prohibits the sale of tobacco products to any person younger than 21 years of age.
This bill, in conformity with federal law, would repeal the provision authorizing the sale of tobacco products to active duty military personnel who are at least 18 years of age. The bill would also make a nonsubstantive conforming change.
This bill would also make findings and declarations related to the STOP and Seize Illegal Tobacco Products Act.
This bill would incorporate additional changes to Section 104559.5 of the Health and Safety Code proposed by AB 3218 to be operative only if this bill and AB 3218 are enacted and this bill is enacted last.
Existing law, except as specified, 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 defined.
Under the Cigarette and Tobacco Products Licensing Act of 2003, the California Department of Tax and Fee Administration administers the statewide program to license manufacturers, importers, distributors, wholesalers, and retailers of cigarettes and tobacco products.
This bill, the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act, would amend the Cigarette and Tobacco Products Licensing Act of 2003 to authorize the department, if it discovers that a retailer, or any of the tobacco retailers agents or employees, sell, offer for sale, or possess with the intent to sell or offer for sale a flavored tobacco product or tobacco product flavor enhancer, in violation of existing law, to seize those products at the retail location or any other persons location. The bill would deem any seized products to be forfeited and would require the department to comply with specified procedures relating to the seizure and forfeiture of cigarette and tobacco products.
Existing law requires certain items forfeited to the state, including any cigarettes or tobacco products forfeited to the state pursuant to the Cigarette and Tobacco Products Licensing Act of 2003, to be destroyed.
This bill would additionally require flavored tobacco products and tobacco product flavor enhancers forfeited to the state pursuant to the Cigarette and Tobacco Products Licensing Act of 2003 to be destroyed.
The Stop Tobacco Access to Kids Enforcement (STAKE) Act regulates the use of tobacco and tobacco products by, among other things, prohibiting a person from selling or otherwise furnishing tobacco, cigarettes, or any other paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance to a person under 21 years of age, and establishes an exception for active duty military personnel who are at least 18 years of age. Existing law authorizes civil penalties for a first and subsequent violations of the act.
This bill would increase the penalties for providing a person who is under 21 years of age any of those substances or paraphernalia.
Existing federal law prohibits the sale of tobacco products to any person younger than 21 years of age.
This bill, in conformity with federal law, would repeal the provision authorizing the sale of tobacco products to active duty military personnel who are at least 18 years of age. The bill would also make a nonsubstantive conforming change.
This bill would also make findings and declarations related to the STOP and Seize Illegal Tobacco Products Act.
This bill would incorporate additional changes to Section 104559.5 of the Health and Safety Code proposed by AB 3218 to be operative only if this bill and AB 3218 are enacted and this bill is enacted last.
Existing law, except as specified, 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 defined.
Under the Cigarette and Tobacco Products Licensing Act of 2003, the California Department of Tax and Fee Administration administers the statewide program to license manufacturers, importers, distributors, wholesalers, and retailers of cigarettes and tobacco products.
This bill, the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act, would amend the Cigarette and Tobacco Products Licensing Act of 2003 to authorize the department, if it discovers that a retailer, or any of the tobacco retailers agents or employees, sell, offer for sale, or possess with the intent to sell or offer for sale a flavored tobacco product or tobacco product flavor enhancer, in violation of existing law, to seize those products at the retail location or any other persons location. The bill would deem any seized products to be forfeited and would require the department to comply with specified procedures relating to the seizure and forfeiture of cigarette and tobacco products.
Existing law requires certain items forfeited to the state, including any cigarettes or tobacco products forfeited to the state pursuant to the Cigarette and Tobacco Products Licensing Act of 2003, to be destroyed.
This bill would additionally require flavored tobacco products and tobacco product flavor enhancers forfeited to the state pursuant to the Cigarette and Tobacco Products Licensing Act of 2003 to be destroyed.
The Stop Tobacco Access to Kids Enforcement (STAKE) Act regulates the use of tobacco and tobacco products by, among other things, prohibiting a person from selling or otherwise furnishing tobacco, cigarettes, or any other paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance to a person under 21 years of age, and establishes an exception for active duty military personnel who are at least 18 years of age. Existing law authorizes civil penalties for a first and subsequent violations of the act.
This bill would increase the penalties for providing a person who is under 21 years of age any of those substances or paraphernalia.
Existing federal law prohibits the sale of tobacco products to any person younger than 21 years of age.
This bill, in conformity with federal law, would repeal the provision authorizing the sale of tobacco products to active duty military personnel who are at least 18 years of age. The bill would also make a nonsubstantive conforming change.
This bill would also make findings and declarations related to the STOP and Seize Illegal Tobacco Products Act.
This bill would incorporate additional changes to Section 104559.5 of the Health and Safety Code proposed by AB 3218 to be operative only if this bill and AB 3218 are enacted and this bill is enacted last.
Existing law, except as specified, 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 defined.
Under the Cigarette and Tobacco Products Licensing Act of 2003, the California Department of Tax and Fee Administration administers the statewide program to license manufacturers, importers, distributors, wholesalers, and retailers of cigarettes and tobacco products.
This bill, the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act, would amend the Cigarette and Tobacco Products Licensing Act of 2003 to authorize the department, if it discovers that a retailer, or any of the tobacco retailers agents or employees, sell, offer for sale, or possess with the intent to sell or offer for sale a flavored tobacco product or tobacco product flavor enhancer, in violation of existing law, to seize those products at the retail location or any other persons location. The bill would deem any seized products to be forfeited and would require the department to comply with specified procedures relating to the seizure and forfeiture of cigarette and tobacco products.
Existing law requires certain items forfeited to the state, including any cigarettes or tobacco products forfeited to the state pursuant to the Cigarette and Tobacco Products Licensing Act of 2003, to be destroyed.
This bill would additionally require flavored tobacco products and tobacco product flavor enhancers forfeited to the state pursuant to the Cigarette and Tobacco Products Licensing Act of 2003 to be destroyed.
The Stop Tobacco Access to Kids Enforcement (STAKE) Act regulates the use of tobacco and tobacco products by, among other things, prohibiting a person from selling or otherwise furnishing tobacco, cigarettes, or any other paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance to a person under 21 years of age. age, and establishes an exception for active duty military personnel who are at least 18 years of age. Existing law authorizes civil penalties for a first and subsequent violations of the act.
This bill would increase the penalties for providing a person who is under 21 years of age any of those substances or paraphernalia.
Existing federal law prohibits the sale of tobacco products to any person younger than 21 years of age.
This bill, in conformity with federal law, would repeal the provision authorizing the sale of tobacco products to active duty military personnel who are at least 18 years of age. The bill would also make a nonsubstantive conforming change.
This bill would also make findings and declarations related to the STOP and Seize Illegal Tobacco Products Act.
Existing law, except as specified, 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 defined.
Under the Cigarette and Tobacco Products Licensing Act of 2003, the California Department of Tax and Fee Administration administers the statewide program to license manufacturers, importers, distributors, wholesalers, and retailers of cigarettes and tobacco products.
This bill, the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act, would amend the Cigarette and Tobacco Products Licensing Act of 2003 to authorize the department, if it discovers that a retailer, or any of the tobacco retailers agents or employees, sell, offer for sale, or possess with the intent to sell or offer for sale a flavored tobacco product or tobacco product flavor enhancer, in violation of existing law, to seize those products at the retail location or any other persons location. The bill would deem any seized products to be forfeited and would require the department to comply with specified procedures relating to the seizure and forfeiture of cigarette and tobacco products.
Existing law requires certain items forfeited to the state, including any cigarettes or tobacco products forfeited to the state pursuant to the Cigarette and Tobacco Products Licensing Act of 2003, to be destroyed.
This bill would additionally require flavored tobacco products and tobacco product flavor enhancers forfeited to the state pursuant to the Cigarette and Tobacco Products Licensing Act of 2003 to be destroyed.
The Stop Tobacco Access to Kids Enforcement (STAKE) Act regulates the use of tobacco and tobacco products by, among other things, prohibiting a person from selling or otherwise furnishing tobacco, cigarettes, or any other paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance to a person under 21 years of age. Existing law authorizes civil penalties for a first and subsequent violations of the act.
This bill would increase the penalties for providing a person who is under 21 years of age any of those substances or paraphernalia.
This bill would also make findings and declarations related to the STOP and Seize Illegal Tobacco Products Act.
This act shall be known, and may be cited, as the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)According to the federal Centers for Disease Control and Prevention, nicotine is highly addictive and can harm brain development, which continues until about 25 years of age. The use of any tobacco product, including flavored tobacco products, is unsafe for young people.
(b)According to the 2023 National Youth Tobacco Survey conducted by the federal Centers for Disease Control and Prevention and the United States Food and Drug Administration, approximately 2,800,000 high school students and middle school students reported using a tobacco product in the past year, and nearly 90 percent of youth electronic cigarette users used flavored products.
(c)The Legislature passed Senate Bill 793 of the 201920 Regular Session to protect the health and safety of all Californians, including California children, by prohibiting the sale of flavored tobacco products in California.
(d)Despite the overwhelming passage of Senate Bill 793, tobacco manufacturers delayed implementation of the law by taking the issue to the ballot for a referendum vote as Proposition 31 at the November 8, 2022, statewide general election, and voters overwhelmingly supported the policy of a flavored tobacco ban.
(e)Despite the overwhelming support of both the Legislature and the public, tobacco manufacturers sought to delay implementation of the law by challenging the constitutionality of Senate Bill 793. The tobacco manufacturers legal challenge was ultimately unsuccessful when the United States Supreme Court declined to hear their challenge in January 2024.
(f)Even after Californias ban on the sale of flavored tobacco products took effect, researchers at the University of California, San Diego found that online shopping for flavored tobacco products increased significantly in the weeks after the implementation of Senate Bill 793.
(g)Additionally, sales data has shown a surge in illegal, unregulated flavored tobacco products, such as flavored disposable electronic cigarettes, being imported into the United States from foreign countries in recent years. In December 2023, the United States Food and Drug Administration and the United States Customs and Border Protection announced the seizure of approximately 1,400,000 units of unauthorized electronic cigarette products worth over $18,000,000 at Los Angeles International Airport.
(h)Strengthening tobacco oversight programs and expanding the seizure of illegal tobacco products is essential to achieving the states public health goal of lowering youth tobacco use.
SEC. 3.Section 22958 of the Business and Professions Code is amended to read:22958.(a)An enforcing agency may assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21 years of age any tobacco, cigarette, cigarette papers, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance, according to the following schedule:
(1)A civil penalty of one thousand dollars ($1,000) to one thousand five hundred dollars ($1,500) for the first violation.
(2)A civil penalty of two thousand dollars ($2,000) to three thousand dollars ($3,000) for the second violation at the same location within a five-year period.
(3)A civil penalty of five thousand dollars ($5,000) to ten thousand dollars ($10,000) for the third violation at the same location within a five-year period.
(4)A civil penalty of ten thousand dollars ($10,000) to twenty thousand dollars ($20,000) for a fourth violation within a five-year period.
(5)A civil penalty of at least twenty thousand dollars ($20,000) for five or more violations within a five-year period.
(b)(1)In addition to the civil penalties described in subdivision (a), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the State Board of Equalization of the violation. The State Board of Equalization shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 in accordance with the following schedule:
(A)A 45-day suspension of the license for a third violation at the same location within a five-year period.
(B)A 90-day suspension of the license for a fourth violation at the same location within a five-year period.
(C)Revocation of the license for a fifth violation at the same location within a five-year period.
(2)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the State Board of Equalization pursuant to paragraph (1).
(c)(1)For each suspension or revocation pursuant to subdivision (b), the civil penalty of two hundred fifty dollars ($250) assessed pursuant to that subdivision, notwithstanding Section 22953, shall be deposited into the Cigarette and Tobacco Products Compliance Fund established pursuant to Section 22990. Moneys from that civil penalty deposited into this fund shall be made available to the State Board of Equalization, upon appropriation by the Legislature, for the purposes of meeting its duties under subdivision (b).
(2)The department shall, upon request, provide to the State Board of Equalization information concerning any person, firm, or corporation that has been assessed a civil penalty for violation of the STAKE Act pursuant to this section when the department has notified the State Board of Equalization of the violation.
(d)The enforcing agency shall assess penalties pursuant to the schedule set forth in subdivision (a) against a person, firm, or corporation that sells, offers for sale, or distributes tobacco products from a cigarette or tobacco products vending machine, or a person, firm, or corporation that leases, furnishes, or services these machines in violation of Section 22960.
(e)An enforcing agency may assess civil penalties against a person, firm, or corporation that sells or deals in tobacco or any preparation thereof, and fails to post conspicuously and keep posted in the place of business at each point of purchase the notice required pursuant to subdivision (b) of Section 22952. The civil penalty shall be in the amount of two hundred dollars ($200) for the first offense and five hundred dollars ($500) for each additional violation.
(f)An enforcing agency shall assess penalties in accordance with the schedule set forth in subdivision (a) against a person, firm, or corporation that advertises or causes to be advertised a tobacco product on an outdoor billboard in violation of Section 22961.
(g)If a civil penalty has been assessed pursuant to this section against a person, firm, or corporation for a single, specific violation of this division, the person, firm, or corporation shall not be prosecuted under Section 308 of the Penal Code for a violation based on the same facts or specific incident for which the civil penalty was assessed. If a person, firm, or corporation has been prosecuted for a single, specific violation of Section 308 of the Penal Code, the person, firm, or corporation shall not be assessed a civil penalty under this section based on the same facts or specific incident upon which the prosecution under Section 308 of the Penal Code was based.
(h)(1)In the case of a corporation or business with more than one retail location, to determine the number of accumulated violations for purposes of the penalty schedule set forth in subdivision (a), violations of this division by one retail location shall not be accumulated against other retail locations of that same corporation or business.
(2)In the case of a retail location that operates pursuant to a franchise as defined in Section 20001, violations of this division accumulated and assessed against a prior owner of a single franchise location shall not be accumulated against a new owner of the same single franchise location for purposes of the penalty schedule set forth in subdivision (a).
(i)Proceedings under this section shall be conducted pursuant to Section 131071 of the Health and Safety Code, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071 of the Health and Safety Code.
SEC. 4.Section 22974.1 is added to the Business and Professions Code, to read:22974.1.(a)Notwithstanding any other law, if the department discovers that a retailer, or any of the tobacco retailers agents or employees, sell, offer for sale or possess with the intent to sell or offer for sale, a flavored tobacco product or tobacco product flavor enhancer, in violation of Section 104559.5 of the Health and Safety Code, the department may seize those flavored tobacco products or tobacco product flavor enhancers at the retail location or any other persons location. Any flavored tobacco products or tobacco product flavor enhancers seized by the department shall be deemed forfeited and the department shall comply with the procedures set forth in Chapter 7.5 (commencing with Section 30435) of Part 13 of Division 2 of the Revenue and Taxation Code.
(b)For purposes of this section, flavored tobacco product and tobacco product flavor enhancer shall have the same meaning as the terms are defined in Section 104559.5 of the Health and Safety Code.
SEC. 5.Section 104559.5 of the Health and Safety Code is amended to read:104559.5.(a)For purposes of this section, the following definitions apply:
(1)Characterizing flavor means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, vanilla, chocolate, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a characterizing flavor.
(2)Constituent means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.
(3)Department means the State Department of Public Health.
(4)Enforcing agency means the State Department of Public Health, another state agency, including, but not limited to, the office of the Attorney General, or a local law enforcement agency, including, but not limited to, a city attorney, district attorney, or county counsel.
(5)Flavored shisha tobacco product means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.
(6)Flavored tobacco product means any tobacco product that contains a constituent that imparts a characterizing flavor.
(7)Hookah means a type of waterpipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.
(8)Hookah tobacco retailer means a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.
(9)Labeling means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.
(10)Loose leaf tobacco consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.
(11)Packaging means a pack, box, carton, or container of any kind, or, if no other container, any wrapping, including cellophane, in which a tobacco product is sold or offered for sale to a consumer.
(12)Premium cigar means any cigar that is handmade, is not mass produced by use of mechanization, has a wrapper that is made entirely from whole tobacco leaf, and has a wholesale price of no less than twelve dollars ($12). A premium cigar does not have a filter, tip, or nontobacco mouthpiece and is capped by hand.
(13)Retail location means both of the following:
(A)A building from which tobacco products are sold at retail.
(B)Any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public.
(14)Sale or sold means a sale as that term is defined in Section 30006 of the Revenue and Taxation Code.
(15)Shisha tobacco product means a tobacco product smoked or intended to be smoked in a hookah. Shisha tobacco product includes, and may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. Shisha tobacco product does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.
(16)Tobacco product means a tobacco product as defined in paragraph (8) of subdivision (a) of Section 104495, as that provision may be amended from time to time.
(17)Tobacco product flavor enhancer means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
(18)Tobacco retailer means a person who engages in this state in the sale of tobacco products directly to the public from a retail location. Tobacco retailer includes a person who operates vending machines from which tobacco products are sold in this state.
(b)(1)A tobacco retailer, or any of the tobacco retailers agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer.
(2)There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturers agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the products labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
(c)Subdivision (b) does not apply to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the following conditions are met:
(1)The hookah tobacco retailer has a valid license to sell tobacco products issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 of the Business and Professions Code.
(2)The hookah tobacco retailer does not permit any person under 21 years of age to be present or enter the premises at any time.
(3)The hookah tobacco retailer shall operate in accordance with all relevant state and local laws relating to the sale of tobacco products.
(4)If consumption of tobacco products is allowed on the premises of the hookah tobacco retailer, the hookah tobacco retailer shall operate in accordance with all state and local laws relating to the consumption of tobacco products on the premises of a tobacco retailer, including, but not limited to, Section 6404.5 of the Labor Code.
(d)Subdivision (b) does not apply to sales of premium cigars sold in cigar lounges where products are purchased and consumed only on the premises.
(e)Subdivision (b) does not apply to loose leaf tobacco or premium cigars.
(f)(1)An enforcing agency may assess civil penalties against any person or entity that violates subdivision (b) according to the schedule of civil penalties prescribed in subdivision (a) of Section 22958 of the Business and Professions Code. In the case of a corporation or business with more than one retail location, the number of accumulated violations for purposes of the penalty schedule shall be determined in accordance with subdivision (h) of that section.
(2)In addition to the civil penalties described in paragraph (1), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the California Department of Tax and Fee Administration of the violation who shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22972) of Division 8.6 of the Business and Professions Code, in accordance with the schedule listed in paragraph (1) of subdivision (b) of Section 22958 of the Business and Professions Code.
(3)Notwithstanding paragraph (7), the civil penalty assessed pursuant to paragraph (2) shall be deposited into the Cigarette and Tobacco Products Compliance Fund and shall be made available to the California Department of Tax and Fee Administration, upon appropriation by the Legislature, for the purposes of meeting its duties prescribed in paragraph (2).
(4)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the California Department of Tax and Fee Administration pursuant to paragraph (2).
(5)The department shall, upon request, provide information concerning any person or entity that has been assessed a civil penalty for violation of this section to the California Department of Tax and Fee Administration when the department has notified the California Department of Tax and Fee Administration of the violation.
(6)Proceedings under this section shall be conducted pursuant to Section 131071, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071.
(7)Except as otherwise provided in paragraph (3), all moneys collected as civil penalties by the department or by any other state agency or department pursuant to this section shall be deposited in the State Treasury to the credit of the Sale of Tobacco to Minors Control Account.
(g)(1)Primary responsibility for enforcement of this section shall be with the department. In carrying out its enforcement responsibilities, the department may conduct onsite sting inspections at tobacco retailers randomly, in response to public complaints, or at retailers where violations have previously occurred. Agents of the department, while conducting enforcement activities pursuant to this section, are peace officers and are subject to all of the powers and immunities granted to Food and Drug Section inspectors pursuant to Section 106500 in the same manner as are any Food and Drug Section inspectors of the department.
(2)In addition to the primary enforcement responsibility assumed by the department, another enforcing agency may conduct inspections and assess penalties for violations of this section if that enforcing agency complies with the applicable provisions of this section and with all other applicable provisions of law.
(3)State and local enforcing agencies are encouraged, in order to avoid duplication, to share the results of inspections and coordinate with the department when enforcing this section.
(4)An enforcing agency may use audio or video recording equipment when conducting inspections, to record and document illegal sales or attempted sales.
(h)(1)The department may adopt any regulations that it determines are necessary for the enforcement of this section. The regulations shall be adopted by the department in the manner prescribed by Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2)The department may adopt emergency regulations to implement this section. Any emergency regulation shall be adopted in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Emergency regulations adopted shall remain in effect until regulations have been adopted pursuant to paragraph (1).
(i)This section does not preempt or otherwise prohibit the adoption of a local standard that imposes greater restrictions on the access to tobacco products than the restrictions imposed by this section. To the extent that there is an inconsistency between this section and a local standard that imposes greater restrictions on the access to tobacco products, the greater restriction on the access to tobacco products in the local standard shall prevail.
SEC. 5.5.Section 104559.5 of the Health and Safety Code is amended to read:104559.5.(a)For purposes of this section, the following definitions apply:
(1)Characterizing flavor means a taste or odor, distinguishable by an ordinary consumer either prior to or during the consumption of a tobacco product, other than the taste or odor of tobacco, including, but not limited to, tastes or odors relating to any fruit, vanilla, chocolate, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice, or a cooling sensation distinguishable by an ordinary consumer during the consumption of a tobacco product.
(2)Constituent means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.
(3)Department means the State Department of Public Health.
(4)Enforcing agency means the State Department of Public Health, another state agency, including, but not limited to, the office of the Attorney General, or a local law enforcement agency, including, but not limited to, a city attorney, district attorney, or county counsel.
(5)Flavored shisha tobacco product means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.
(6)Flavored tobacco product means any tobacco product that contains a constituent that imparts a characterizing flavor. Flavored tobacco product includes any tobacco product, other than looseleaf tobacco, a premium cigar, or a shisha tobacco product, that is not listed on the Unflavored Tobacco List established and maintained by the Attorney General pursuant to Section 104559.1.
(7)Hookah means a type of waterpipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.
(8)Hookah tobacco retailer means a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.
(9)Labeling means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.
(10)Looseleaf tobacco consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.
(11)Nicotine means any form of the chemical nicotine, including any salt or complex, regardless of whether the chemical is naturally or synthetically derived, and includes nicotinic alkaloids and nicotine analogs.
(12)Packaging means a pack, box, carton, or container of any kind, or, if no other container, any wrapping, including cellophane, in which a tobacco product is sold or offered for sale to a consumer.
(13)Premium cigar means any cigar that is handmade, is not mass produced by use of mechanization, has a wrapper that is made entirely from whole tobacco leaf, and has a wholesale price of no less than twelve dollars ($12). A premium cigar does not have a filter, tip, or nontobacco mouthpiece and is capped by hand.
(14)Retail location means both of the following:
(A)A building from which tobacco products are sold at retail.
(B)Any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public.
(15)Sale or sold means a sale as that term is defined in Section 30006 of the Revenue and Taxation Code.
(16)Shisha tobacco product means a tobacco product smoked or intended to be smoked in a hookah. Shisha tobacco product includes, and may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. Shisha tobacco product does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.
(17)(A)Tobacco product means any of the following:
(i)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 cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff.
(ii)An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including an electronic cigarette, cigar, pipe, or hookah.
(iii)Any component, part, or accessory of a tobacco product, whether or not sold separately.
(B)Notwithstanding subparagraph (A), tobacco product does not include: (i) a nicotine replacement product approved by the United States Food and Drug Administration, or (ii) cannabis or a cannabis product, as those terms are defined in Section 26001 of the Business and Professions Code. Cannabis or a cannabis product that includes an ingredient, substance, chemical, or compound that contains or is made or derived from tobacco or nicotine is a tobacco product under this section.
(18)Tobacco product flavor enhancer means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
(19)Tobacco retailer means a person who engages in this state in the sale of tobacco products directly to the public from a retail location. Tobacco retailer includes a person who operates vending machines from which tobacco products are sold in this state.
(b)(1)A tobacco retailer, or any of the tobacco retailers agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer.
(2)There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturers agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the products labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
(c)Subdivision (b) does not apply to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the following conditions are met:
(1)The hookah tobacco retailer has a valid license to sell tobacco products issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 of the Business and Professions Code.
(2)The hookah tobacco retailer does not permit any person under 21 years of age to be present or enter the premises at any time.
(3)The hookah tobacco retailer shall operate in accordance with all relevant state and local laws relating to the sale of tobacco products.
(4)If consumption of tobacco products is allowed on the premises of the hookah tobacco retailer, the hookah tobacco retailer shall operate in accordance with all state and local laws relating to the consumption of tobacco products on the premises of a tobacco retailer, including, but not limited to, Section 6404.5 of the Labor Code.
(d)Subdivision (b) does not apply to sales of premium cigars sold in cigar lounges where products are purchased and consumed only on the premises.
(e)Subdivision (b) does not apply to looseleaf tobacco or premium cigars.
(f)(1)An enforcing agency may assess civil penalties against any person or entity that violates subdivision (b) according to the schedule of civil penalties prescribed in subdivision (a) of Section 22958 of the Business and Professions Code. In the case of a corporation or business with more than one retail location, the number of accumulated violations for purposes of the penalty schedule shall be determined in accordance with subdivision (h) of that section.
(2)In addition to the civil penalties described in paragraph (1), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the California Department of Tax and Fee Administration of the violation who shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22972) of Division 8.6 of the Business and Professions Code, in accordance with the schedule listed in paragraph (1) of subdivision (b) of Section 22958 of the Business and Professions Code.
(3)Notwithstanding paragraph (7), the civil penalty assessed pursuant to paragraph (2) shall be deposited into the Cigarette and Tobacco Products Compliance Fund and shall be made available to the California Department of Tax and Fee Administration, upon appropriation by the Legislature, for the purposes of meeting its duties prescribed in paragraph (2).
(4)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the California Department of Tax and Fee Administration pursuant to paragraph (2).
(5)The department shall, upon request, provide information concerning any person or entity that has been assessed a civil penalty for violation of this section to the California Department of Tax and Fee Administration when the department has notified the California Department of Tax and Fee Administration of the violation.
(6)Proceedings under this section shall be conducted pursuant to Section 131071, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071.
(7)Except as otherwise provided in paragraph (3), all moneys collected as civil penalties by the department or by any other state agency or department pursuant to this section shall be deposited in the Sale of Tobacco to Minors Control Account.
(g)(1)Primary responsibility for enforcement of this section shall be with the department. In carrying out its enforcement responsibilities, the department may conduct onsite sting inspections at tobacco retailers randomly, in response to public complaints, or at retailers where violations have previously occurred. Agents of the department, while conducting enforcement activities pursuant to this section, are peace officers and are subject to all of the powers and immunities granted to Food and Drug Section inspectors pursuant to Section 106500 in the same manner as are any Food and Drug Section inspectors of the department.
(2)In addition to the primary enforcement responsibility assumed by the department, another enforcing agency may conduct inspections and assess penalties for violations of this section if that enforcing agency complies with the applicable provisions of this section and with all other applicable provisions of law.
(3)State and local enforcing agencies are encouraged, in order to avoid duplication, to share the results of inspections and coordinate with the department when enforcing this section.
(4)An enforcing agency may use audio or video recording equipment when conducting inspections, to record and document illegal sales or attempted sales.
(h)(1)The department may adopt any regulations that it determines are necessary for the enforcement of this section. The regulations shall be adopted by the department in the manner prescribed by Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2)The department may adopt emergency regulations to implement this section. Any emergency regulation shall be adopted in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Emergency regulations adopted shall remain in effect until regulations have been adopted pursuant to paragraph (1).
(i)This section does not preempt or otherwise prohibit the adoption of a local standard that imposes greater restrictions on the access to tobacco products than the restrictions imposed by this section. To the extent that there is an inconsistency between this section and a local standard that imposes greater restrictions on the access to tobacco products, the greater restriction on the access to tobacco products in the local standard shall prevail.
SEC. 6.Section 30449 of the Revenue and Taxation Code is amended to read:30449.(a)Except as provided in subdivision (b), (c), or (d), any property, except money, forfeited to the state under this chapter shall be sold by the board at public auction. Notice of the sale shall be given by posting a written notice of the time and place of sale in three public places in the county where the property is to be sold for not less than 5 days nor more than 10 days before the sale. If the board is unable to sell any property forfeited to the state under this part or, if the board determines that the property is unsalable, it may destroy that property.
(b)Any property forfeited to the state pursuant to subdivision (e) of Section 30436 shall be destroyed.
(c)Any cigarettes forfeited to the state pursuant to subdivision (b) of Section 30436 shall be destroyed.
(d)Any cigarettes, tobacco products, flavored tobacco products, or tobacco product flavor enhancers forfeited to the state pursuant to Division 8.6 (commencing with Section 22970) of the Business and Professions Code shall be destroyed.
(e)A record shall be kept of all property destroyed pursuant to this section showing the nature of the property, the quantity, the reason for, and the manner of destruction. The proceeds of the sale and any money forfeited to the state shall be deposited in the State Treasury to the credit of the General Fund.
(f)For purposes of this section, flavored tobacco product and tobacco product flavor enhancer shall have the same meaning as those terms are defined in Section 104559.5 of the Health and Safety Code.
SEC. 7.Section 5.5 of this bill incorporates amendments to Section 104559.5 of the Health and Safety Code proposed by both this bill and Assembly Bill 3218. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2025, (2) each bill amends Section 104559.5 of the Health and Safety Code, and (3) this bill is enacted after Assembly Bill 3218, in which case Section 5 of this bill shall not become operative.
This act shall be known, and may be cited, as the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)According to the federal Centers for Disease Control and Prevention, nicotine is highly addictive and can harm brain development, which continues until about 25 years of age. The use of any tobacco product, including flavored tobacco products, is unsafe for young people.
(b)According to the 2023 National Youth Tobacco Survey conducted by the federal Centers for Disease Control and Prevention and the United States Food and Drug Administration, approximately 2,800,000 high school students and middle school students reported using a tobacco product in the past year, and nearly 90 percent of youth electronic cigarette users used flavored products.
(c)The Legislature passed Senate Bill 793 of the 201920 Regular Session to protect the health and safety of all Californians, including California children, by prohibiting the sale of flavored tobacco products in California.
(d)Despite the overwhelming passage of Senate Bill 793, tobacco manufacturers delayed implementation of the law by taking the issue to the ballot for a referendum vote as Proposition 31 at the November 8, 2022, statewide general election, and voters overwhelmingly supported the policy of a flavored tobacco ban.
(e)Despite the overwhelming support of both the Legislature and the public, tobacco manufacturers sought to delay implementation of the law by challenging the constitutionality of Senate Bill 793. The tobacco manufacturers legal challenge was ultimately unsuccessful when the United States Supreme Court declined to hear their challenge in January 2024.
(f)Even after Californias ban on the sale of flavored tobacco products took effect, researchers at the University of California, San Diego found that online shopping for flavored tobacco products increased significantly in the weeks after the implementation of Senate Bill 793.
(g)Additionally, sales data has shown a surge in illegal, unregulated flavored tobacco products, such as flavored disposable electronic cigarettes, being imported into the United States from foreign countries in recent years. In December 2023, the United States Food and Drug Administration and the United States Customs and Border Protection announced the seizure of approximately 1,400,000 units of unauthorized electronic cigarette products worth over $18,000,000 at Los Angeles International Airport.
(h)Strengthening tobacco oversight programs and expanding the seizure of illegal tobacco products is essential to achieving the states public health goal of lowering youth tobacco use.
SEC. 3.Section 22958 of the Business and Professions Code is amended to read:22958.(a)An enforcing agency may assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21 years of age any tobacco, cigarette, cigarette papers, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance, according to the following schedule:
(1)A civil penalty of one thousand dollars ($1,000) to one thousand five hundred dollars ($1,500) for the first violation.
(2)A civil penalty of two thousand dollars ($2,000) to three thousand dollars ($3,000) for the second violation at the same location within a five-year period.
(3)A civil penalty of five thousand dollars ($5,000) to ten thousand dollars ($10,000) for the third violation at the same location within a five-year period.
(4)A civil penalty of ten thousand dollars ($10,000) to twenty thousand dollars ($20,000) for a fourth violation within a five-year period.
(5)A civil penalty of at least twenty thousand dollars ($20,000) for five or more violations within a five-year period.
(b)(1)In addition to the civil penalties described in subdivision (a), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the State Board of Equalization of the violation. The State Board of Equalization shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 in accordance with the following schedule:
(A)A 45-day suspension of the license for a third violation at the same location within a five-year period.
(B)A 90-day suspension of the license for a fourth violation at the same location within a five-year period.
(C)Revocation of the license for a fifth violation at the same location within a five-year period.
(2)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the State Board of Equalization pursuant to paragraph (1).
(c)(1)For each suspension or revocation pursuant to subdivision (b), the civil penalty of two hundred fifty dollars ($250) assessed pursuant to that subdivision, notwithstanding Section 22953, shall be deposited into the Cigarette and Tobacco Products Compliance Fund established pursuant to Section 22990. Moneys from that civil penalty deposited into this fund shall be made available to the State Board of Equalization, upon appropriation by the Legislature, for the purposes of meeting its duties under subdivision (b).
(2)The department shall, upon request, provide to the State Board of Equalization information concerning any person, firm, or corporation that has been assessed a civil penalty for violation of the STAKE Act pursuant to this section when the department has notified the State Board of Equalization of the violation.
(d)The enforcing agency shall assess penalties pursuant to the schedule set forth in subdivision (a) against a person, firm, or corporation that sells, offers for sale, or distributes tobacco products from a cigarette or tobacco products vending machine, or a person, firm, or corporation that leases, furnishes, or services these machines in violation of Section 22960.
(e)An enforcing agency may assess civil penalties against a person, firm, or corporation that sells or deals in tobacco or any preparation thereof, and fails to post conspicuously and keep posted in the place of business at each point of purchase the notice required pursuant to subdivision (b) of Section 22952. The civil penalty shall be in the amount of two hundred dollars ($200) for the first offense and five hundred dollars ($500) for each additional violation.
(f)An enforcing agency shall assess penalties in accordance with the schedule set forth in subdivision (a) against a person, firm, or corporation that advertises or causes to be advertised a tobacco product on an outdoor billboard in violation of Section 22961.
(g)If a civil penalty has been assessed pursuant to this section against a person, firm, or corporation for a single, specific violation of this division, the person, firm, or corporation shall not be prosecuted under Section 308 of the Penal Code for a violation based on the same facts or specific incident for which the civil penalty was assessed. If a person, firm, or corporation has been prosecuted for a single, specific violation of Section 308 of the Penal Code, the person, firm, or corporation shall not be assessed a civil penalty under this section based on the same facts or specific incident upon which the prosecution under Section 308 of the Penal Code was based.
(h)(1)In the case of a corporation or business with more than one retail location, to determine the number of accumulated violations for purposes of the penalty schedule set forth in subdivision (a), violations of this division by one retail location shall not be accumulated against other retail locations of that same corporation or business.
(2)In the case of a retail location that operates pursuant to a franchise as defined in Section 20001, violations of this division accumulated and assessed against a prior owner of a single franchise location shall not be accumulated against a new owner of the same single franchise location for purposes of the penalty schedule set forth in subdivision (a).
(i)Proceedings under this section shall be conducted pursuant to Section 131071 of the Health and Safety Code, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071 of the Health and Safety Code.
SEC. 4.Section 22974.1 is added to the Business and Professions Code, to read:22974.1.(a)Notwithstanding any other law, if the department discovers that a retailer, or any of the tobacco retailers agents or employees, sell, offer for sale or possess with the intent to sell or offer for sale, a flavored tobacco product or tobacco product flavor enhancer, in violation of Section 104559.5 of the Health and Safety Code, the department may seize those flavored tobacco products or tobacco product flavor enhancers at the retail location or any other persons location. Any flavored tobacco products or tobacco product flavor enhancers seized by the department shall be deemed forfeited and the department shall comply with the procedures set forth in Chapter 7.5 (commencing with Section 30435) of Part 13 of Division 2 of the Revenue and Taxation Code.
(b)For purposes of this section, flavored tobacco product and tobacco product flavor enhancer shall have the same meaning as the terms are defined in Section 104559.5 of the Health and Safety Code.
SEC. 5.Section 104559.5 of the Health and Safety Code is amended to read:104559.5.(a)For purposes of this section, the following definitions apply:
(1)Characterizing flavor means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, vanilla, chocolate, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a characterizing flavor.
(2)Constituent means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.
(3)Department means the State Department of Public Health.
(4)Enforcing agency means the State Department of Public Health, another state agency, including, but not limited to, the office of the Attorney General, or a local law enforcement agency, including, but not limited to, a city attorney, district attorney, or county counsel.
(5)Flavored shisha tobacco product means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.
(6)Flavored tobacco product means any tobacco product that contains a constituent that imparts a characterizing flavor.
(7)Hookah means a type of waterpipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.
(8)Hookah tobacco retailer means a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.
(9)Labeling means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.
(10)Loose leaf tobacco consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.
(11)Packaging means a pack, box, carton, or container of any kind, or, if no other container, any wrapping, including cellophane, in which a tobacco product is sold or offered for sale to a consumer.
(12)Premium cigar means any cigar that is handmade, is not mass produced by use of mechanization, has a wrapper that is made entirely from whole tobacco leaf, and has a wholesale price of no less than twelve dollars ($12). A premium cigar does not have a filter, tip, or nontobacco mouthpiece and is capped by hand.
(13)Retail location means both of the following:
(A)A building from which tobacco products are sold at retail.
(B)Any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public.
(14)Sale or sold means a sale as that term is defined in Section 30006 of the Revenue and Taxation Code.
(15)Shisha tobacco product means a tobacco product smoked or intended to be smoked in a hookah. Shisha tobacco product includes, and may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. Shisha tobacco product does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.
(16)Tobacco product means a tobacco product as defined in paragraph (8) of subdivision (a) of Section 104495, as that provision may be amended from time to time.
(17)Tobacco product flavor enhancer means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
(18)Tobacco retailer means a person who engages in this state in the sale of tobacco products directly to the public from a retail location. Tobacco retailer includes a person who operates vending machines from which tobacco products are sold in this state.
(b)(1)A tobacco retailer, or any of the tobacco retailers agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer.
(2)There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturers agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the products labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
(c)Subdivision (b) does not apply to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the following conditions are met:
(1)The hookah tobacco retailer has a valid license to sell tobacco products issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 of the Business and Professions Code.
(2)The hookah tobacco retailer does not permit any person under 21 years of age to be present or enter the premises at any time.
(3)The hookah tobacco retailer shall operate in accordance with all relevant state and local laws relating to the sale of tobacco products.
(4)If consumption of tobacco products is allowed on the premises of the hookah tobacco retailer, the hookah tobacco retailer shall operate in accordance with all state and local laws relating to the consumption of tobacco products on the premises of a tobacco retailer, including, but not limited to, Section 6404.5 of the Labor Code.
(d)Subdivision (b) does not apply to sales of premium cigars sold in cigar lounges where products are purchased and consumed only on the premises.
(e)Subdivision (b) does not apply to loose leaf tobacco or premium cigars.
(f)(1)An enforcing agency may assess civil penalties against any person or entity that violates subdivision (b) according to the schedule of civil penalties prescribed in subdivision (a) of Section 22958 of the Business and Professions Code. In the case of a corporation or business with more than one retail location, the number of accumulated violations for purposes of the penalty schedule shall be determined in accordance with subdivision (h) of that section.
(2)In addition to the civil penalties described in paragraph (1), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the California Department of Tax and Fee Administration of the violation who shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22972) of Division 8.6 of the Business and Professions Code, in accordance with the schedule listed in paragraph (1) of subdivision (b) of Section 22958 of the Business and Professions Code.
(3)Notwithstanding paragraph (7), the civil penalty assessed pursuant to paragraph (2) shall be deposited into the Cigarette and Tobacco Products Compliance Fund and shall be made available to the California Department of Tax and Fee Administration, upon appropriation by the Legislature, for the purposes of meeting its duties prescribed in paragraph (2).
(4)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the California Department of Tax and Fee Administration pursuant to paragraph (2).
(5)The department shall, upon request, provide information concerning any person or entity that has been assessed a civil penalty for violation of this section to the California Department of Tax and Fee Administration when the department has notified the California Department of Tax and Fee Administration of the violation.
(6)Proceedings under this section shall be conducted pursuant to Section 131071, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071.
(7)Except as otherwise provided in paragraph (3), all moneys collected as civil penalties by the department or by any other state agency or department pursuant to this section shall be deposited in the State Treasury to the credit of the Sale of Tobacco to Minors Control Account.
(g)(1)Primary responsibility for enforcement of this section shall be with the department. In carrying out its enforcement responsibilities, the department may conduct onsite sting inspections at tobacco retailers randomly, in response to public complaints, or at retailers where violations have previously occurred. Agents of the department, while conducting enforcement activities pursuant to this section, are peace officers and are subject to all of the powers and immunities granted to Food and Drug Section inspectors pursuant to Section 106500 in the same manner as are any Food and Drug Section inspectors of the department.
(2)In addition to the primary enforcement responsibility assumed by the department, another enforcing agency may conduct inspections and assess penalties for violations of this section if that enforcing agency complies with the applicable provisions of this section and with all other applicable provisions of law.
(3)State and local enforcing agencies are encouraged, in order to avoid duplication, to share the results of inspections and coordinate with the department when enforcing this section.
(4)An enforcing agency may use audio or video recording equipment when conducting inspections, to record and document illegal sales or attempted sales.
(h)(1)The department may adopt any regulations that it determines are necessary for the enforcement of this section. The regulations shall be adopted by the department in the manner prescribed by Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2)The department may adopt emergency regulations to implement this section. Any emergency regulation shall be adopted in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Emergency regulations adopted shall remain in effect until regulations have been adopted pursuant to paragraph (1).
(i)This section does not preempt or otherwise prohibit the adoption of a local standard that imposes greater restrictions on the access to tobacco products than the restrictions imposed by this section. To the extent that there is an inconsistency between this section and a local standard that imposes greater restrictions on the access to tobacco products, the greater restriction on the access to tobacco products in the local standard shall prevail.
SEC. 5.5.Section 104559.5 of the Health and Safety Code is amended to read:104559.5.(a)For purposes of this section, the following definitions apply:
(1)Characterizing flavor means a taste or odor, distinguishable by an ordinary consumer either prior to or during the consumption of a tobacco product, other than the taste or odor of tobacco, including, but not limited to, tastes or odors relating to any fruit, vanilla, chocolate, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice, or a cooling sensation distinguishable by an ordinary consumer during the consumption of a tobacco product.
(2)Constituent means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.
(3)Department means the State Department of Public Health.
(4)Enforcing agency means the State Department of Public Health, another state agency, including, but not limited to, the office of the Attorney General, or a local law enforcement agency, including, but not limited to, a city attorney, district attorney, or county counsel.
(5)Flavored shisha tobacco product means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.
(6)Flavored tobacco product means any tobacco product that contains a constituent that imparts a characterizing flavor. Flavored tobacco product includes any tobacco product, other than looseleaf tobacco, a premium cigar, or a shisha tobacco product, that is not listed on the Unflavored Tobacco List established and maintained by the Attorney General pursuant to Section 104559.1.
(7)Hookah means a type of waterpipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.
(8)Hookah tobacco retailer means a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.
(9)Labeling means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.
(10)Looseleaf tobacco consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.
(11)Nicotine means any form of the chemical nicotine, including any salt or complex, regardless of whether the chemical is naturally or synthetically derived, and includes nicotinic alkaloids and nicotine analogs.
(12)Packaging means a pack, box, carton, or container of any kind, or, if no other container, any wrapping, including cellophane, in which a tobacco product is sold or offered for sale to a consumer.
(13)Premium cigar means any cigar that is handmade, is not mass produced by use of mechanization, has a wrapper that is made entirely from whole tobacco leaf, and has a wholesale price of no less than twelve dollars ($12). A premium cigar does not have a filter, tip, or nontobacco mouthpiece and is capped by hand.
(14)Retail location means both of the following:
(A)A building from which tobacco products are sold at retail.
(B)Any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public.
(15)Sale or sold means a sale as that term is defined in Section 30006 of the Revenue and Taxation Code.
(16)Shisha tobacco product means a tobacco product smoked or intended to be smoked in a hookah. Shisha tobacco product includes, and may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. Shisha tobacco product does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.
(17)(A)Tobacco product means any of the following:
(i)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 cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff.
(ii)An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including an electronic cigarette, cigar, pipe, or hookah.
(iii)Any component, part, or accessory of a tobacco product, whether or not sold separately.
(B)Notwithstanding subparagraph (A), tobacco product does not include: (i) a nicotine replacement product approved by the United States Food and Drug Administration, or (ii) cannabis or a cannabis product, as those terms are defined in Section 26001 of the Business and Professions Code. Cannabis or a cannabis product that includes an ingredient, substance, chemical, or compound that contains or is made or derived from tobacco or nicotine is a tobacco product under this section.
(18)Tobacco product flavor enhancer means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
(19)Tobacco retailer means a person who engages in this state in the sale of tobacco products directly to the public from a retail location. Tobacco retailer includes a person who operates vending machines from which tobacco products are sold in this state.
(b)(1)A tobacco retailer, or any of the tobacco retailers agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer.
(2)There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturers agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the products labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
(c)Subdivision (b) does not apply to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the following conditions are met:
(1)The hookah tobacco retailer has a valid license to sell tobacco products issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 of the Business and Professions Code.
(2)The hookah tobacco retailer does not permit any person under 21 years of age to be present or enter the premises at any time.
(3)The hookah tobacco retailer shall operate in accordance with all relevant state and local laws relating to the sale of tobacco products.
(4)If consumption of tobacco products is allowed on the premises of the hookah tobacco retailer, the hookah tobacco retailer shall operate in accordance with all state and local laws relating to the consumption of tobacco products on the premises of a tobacco retailer, including, but not limited to, Section 6404.5 of the Labor Code.
(d)Subdivision (b) does not apply to sales of premium cigars sold in cigar lounges where products are purchased and consumed only on the premises.
(e)Subdivision (b) does not apply to looseleaf tobacco or premium cigars.
(f)(1)An enforcing agency may assess civil penalties against any person or entity that violates subdivision (b) according to the schedule of civil penalties prescribed in subdivision (a) of Section 22958 of the Business and Professions Code. In the case of a corporation or business with more than one retail location, the number of accumulated violations for purposes of the penalty schedule shall be determined in accordance with subdivision (h) of that section.
(2)In addition to the civil penalties described in paragraph (1), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the California Department of Tax and Fee Administration of the violation who shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22972) of Division 8.6 of the Business and Professions Code, in accordance with the schedule listed in paragraph (1) of subdivision (b) of Section 22958 of the Business and Professions Code.
(3)Notwithstanding paragraph (7), the civil penalty assessed pursuant to paragraph (2) shall be deposited into the Cigarette and Tobacco Products Compliance Fund and shall be made available to the California Department of Tax and Fee Administration, upon appropriation by the Legislature, for the purposes of meeting its duties prescribed in paragraph (2).
(4)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the California Department of Tax and Fee Administration pursuant to paragraph (2).
(5)The department shall, upon request, provide information concerning any person or entity that has been assessed a civil penalty for violation of this section to the California Department of Tax and Fee Administration when the department has notified the California Department of Tax and Fee Administration of the violation.
(6)Proceedings under this section shall be conducted pursuant to Section 131071, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071.
(7)Except as otherwise provided in paragraph (3), all moneys collected as civil penalties by the department or by any other state agency or department pursuant to this section shall be deposited in the Sale of Tobacco to Minors Control Account.
(g)(1)Primary responsibility for enforcement of this section shall be with the department. In carrying out its enforcement responsibilities, the department may conduct onsite sting inspections at tobacco retailers randomly, in response to public complaints, or at retailers where violations have previously occurred. Agents of the department, while conducting enforcement activities pursuant to this section, are peace officers and are subject to all of the powers and immunities granted to Food and Drug Section inspectors pursuant to Section 106500 in the same manner as are any Food and Drug Section inspectors of the department.
(2)In addition to the primary enforcement responsibility assumed by the department, another enforcing agency may conduct inspections and assess penalties for violations of this section if that enforcing agency complies with the applicable provisions of this section and with all other applicable provisions of law.
(3)State and local enforcing agencies are encouraged, in order to avoid duplication, to share the results of inspections and coordinate with the department when enforcing this section.
(4)An enforcing agency may use audio or video recording equipment when conducting inspections, to record and document illegal sales or attempted sales.
(h)(1)The department may adopt any regulations that it determines are necessary for the enforcement of this section. The regulations shall be adopted by the department in the manner prescribed by Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2)The department may adopt emergency regulations to implement this section. Any emergency regulation shall be adopted in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Emergency regulations adopted shall remain in effect until regulations have been adopted pursuant to paragraph (1).
(i)This section does not preempt or otherwise prohibit the adoption of a local standard that imposes greater restrictions on the access to tobacco products than the restrictions imposed by this section. To the extent that there is an inconsistency between this section and a local standard that imposes greater restrictions on the access to tobacco products, the greater restriction on the access to tobacco products in the local standard shall prevail.
SEC. 6.Section 30449 of the Revenue and Taxation Code is amended to read:30449.(a)Except as provided in subdivision (b), (c), or (d), any property, except money, forfeited to the state under this chapter shall be sold by the board at public auction. Notice of the sale shall be given by posting a written notice of the time and place of sale in three public places in the county where the property is to be sold for not less than 5 days nor more than 10 days before the sale. If the board is unable to sell any property forfeited to the state under this part or, if the board determines that the property is unsalable, it may destroy that property.
(b)Any property forfeited to the state pursuant to subdivision (e) of Section 30436 shall be destroyed.
(c)Any cigarettes forfeited to the state pursuant to subdivision (b) of Section 30436 shall be destroyed.
(d)Any cigarettes, tobacco products, flavored tobacco products, or tobacco product flavor enhancers forfeited to the state pursuant to Division 8.6 (commencing with Section 22970) of the Business and Professions Code shall be destroyed.
(e)A record shall be kept of all property destroyed pursuant to this section showing the nature of the property, the quantity, the reason for, and the manner of destruction. The proceeds of the sale and any money forfeited to the state shall be deposited in the State Treasury to the credit of the General Fund.
(f)For purposes of this section, flavored tobacco product and tobacco product flavor enhancer shall have the same meaning as those terms are defined in Section 104559.5 of the Health and Safety Code.
SEC. 7.Section 5.5 of this bill incorporates amendments to Section 104559.5 of the Health and Safety Code proposed by both this bill and Assembly Bill 3218. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2025, (2) each bill amends Section 104559.5 of the Health and Safety Code, and (3) this bill is enacted after Assembly Bill 3218, in which case Section 5 of this bill shall not become operative.
This act shall be known, and may be cited, as the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)According to the federal Centers for Disease Control and Prevention, nicotine is highly addictive and can harm brain development, which continues until about 25 years of age. The use of any tobacco product, including flavored tobacco products, is unsafe for young people.
(b)According to the 2023 National Youth Tobacco Survey conducted by the federal Centers for Disease Control and Prevention and the United States Food and Drug Administration, approximately 2,800,000 high school students and middle school students reported using a tobacco product in the past year, and nearly 90 percent of youth electronic cigarette users used flavored products.
(c)The Legislature passed Senate Bill 793 of the 201920 Regular Session to protect the health and safety of all Californians, including California children, by prohibiting the sale of flavored tobacco products in California.
(d)Despite the overwhelming passage of Senate Bill 793, tobacco manufacturers delayed implementation of the law by taking the issue to the ballot for a referendum vote as Proposition 31 at the November 8, 2022, statewide general election, and voters overwhelmingly supported the policy of a flavored tobacco ban.
(e)Despite the overwhelming support of both the Legislature and the public, tobacco manufacturers sought to delay implementation of the law by challenging the constitutionality of Senate Bill 793. The tobacco manufacturers legal challenge was ultimately unsuccessful when the United States Supreme Court declined to hear their challenge in January 2024.
(f)Even after Californias ban on the sale of flavored tobacco products took effect, researchers at the University of California, San Diego found that online shopping for flavored tobacco products increased significantly in the weeks after the implementation of Senate Bill 793.
(g)Additionally, sales data has shown a surge in illegal, unregulated flavored tobacco products, such as flavored disposable electronic cigarettes, being imported into the United States from foreign countries in recent years. In December 2023, the United States Food and Drug Administration and the United States Customs and Border Protection announced the seizure of approximately 1,400,000 units of unauthorized electronic cigarette products worth over $18,000,000 at Los Angeles International Airport.
(h)Strengthening tobacco oversight programs and expanding the seizure of illegal tobacco products is essential to achieving the states public health goal of lowering youth tobacco use.
SEC. 3.Section 22958 of the Business and Professions Code is amended to read:22958.(a)An enforcing agency may assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21 years of age any tobacco, cigarette, cigarette papers, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance, according to the following schedule:
(1)A civil penalty of one thousand dollars ($1,000) to one thousand five hundred dollars ($1,500) for the first violation.
(2)A civil penalty of two thousand dollars ($2,000) to three thousand dollars ($3,000) for the second violation at the same location within a five-year period.
(3)A civil penalty of five thousand dollars ($5,000) to ten thousand dollars ($10,000) for the third violation at the same location within a five-year period.
(4)A civil penalty of ten thousand dollars ($10,000) to twenty thousand dollars ($20,000) for a fourth violation within a five-year period.
(5)A civil penalty of at least twenty thousand dollars ($20,000) for five or more violations within a five-year period.
(b)(1)In addition to the civil penalties described in subdivision (a), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the State Board of Equalization of the violation. The State Board of Equalization shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 in accordance with the following schedule:
(A)A 45-day suspension of the license for a third violation at the same location within a five-year period.
(B)A 90-day suspension of the license for a fourth violation at the same location within a five-year period.
(C)Revocation of the license for a fifth violation at the same location within a five-year period.
(2)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the State Board of Equalization pursuant to paragraph (1).
(c)(1)For each suspension or revocation pursuant to subdivision (b), the civil penalty of two hundred fifty dollars ($250) assessed pursuant to that subdivision, notwithstanding Section 22953, shall be deposited into the Cigarette and Tobacco Products Compliance Fund established pursuant to Section 22990. Moneys from that civil penalty deposited into this fund shall be made available to the State Board of Equalization, upon appropriation by the Legislature, for the purposes of meeting its duties under subdivision (b).
(2)The department shall, upon request, provide to the State Board of Equalization information concerning any person, firm, or corporation that has been assessed a civil penalty for violation of the STAKE Act pursuant to this section when the department has notified the State Board of Equalization of the violation.
(d)The enforcing agency shall assess penalties pursuant to the schedule set forth in subdivision (a) against a person, firm, or corporation that sells, offers for sale, or distributes tobacco products from a cigarette or tobacco products vending machine, or a person, firm, or corporation that leases, furnishes, or services these machines in violation of Section 22960.
(e)An enforcing agency may assess civil penalties against a person, firm, or corporation that sells or deals in tobacco or any preparation thereof, and fails to post conspicuously and keep posted in the place of business at each point of purchase the notice required pursuant to subdivision (b) of Section 22952. The civil penalty shall be in the amount of two hundred dollars ($200) for the first offense and five hundred dollars ($500) for each additional violation.
(f)An enforcing agency shall assess penalties in accordance with the schedule set forth in subdivision (a) against a person, firm, or corporation that advertises or causes to be advertised a tobacco product on an outdoor billboard in violation of Section 22961.
(g)If a civil penalty has been assessed pursuant to this section against a person, firm, or corporation for a single, specific violation of this division, the person, firm, or corporation shall not be prosecuted under Section 308 of the Penal Code for a violation based on the same facts or specific incident for which the civil penalty was assessed. If a person, firm, or corporation has been prosecuted for a single, specific violation of Section 308 of the Penal Code, the person, firm, or corporation shall not be assessed a civil penalty under this section based on the same facts or specific incident upon which the prosecution under Section 308 of the Penal Code was based.
(h)(1)In the case of a corporation or business with more than one retail location, to determine the number of accumulated violations for purposes of the penalty schedule set forth in subdivision (a), violations of this division by one retail location shall not be accumulated against other retail locations of that same corporation or business.
(2)In the case of a retail location that operates pursuant to a franchise as defined in Section 20001, violations of this division accumulated and assessed against a prior owner of a single franchise location shall not be accumulated against a new owner of the same single franchise location for purposes of the penalty schedule set forth in subdivision (a).
(i)Proceedings under this section shall be conducted pursuant to Section 131071 of the Health and Safety Code, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071 of the Health and Safety Code.
SEC. 4.Section 22974.1 is added to the Business and Professions Code, to read:22974.1.(a)Notwithstanding any other law, if the department discovers that a retailer, or any of the tobacco retailers agents or employees, sell, offer for sale or possess with the intent to sell or offer for sale, a flavored tobacco product or tobacco product flavor enhancer, in violation of Section 104559.5 of the Health and Safety Code, the department may seize those flavored tobacco products or tobacco product flavor enhancers at the retail location or any other persons location. Any flavored tobacco products or tobacco product flavor enhancers seized by the department shall be deemed forfeited and the department shall comply with the procedures set forth in Chapter 7.5 (commencing with Section 30435) of Part 13 of Division 2 of the Revenue and Taxation Code.
(b)For purposes of this section, flavored tobacco product and tobacco product flavor enhancer shall have the same meaning as the terms are defined in Section 104559.5 of the Health and Safety Code.
SEC. 5.Section 104559.5 of the Health and Safety Code is amended to read:104559.5.(a)For purposes of this section, the following definitions apply:
(1)Characterizing flavor means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, vanilla, chocolate, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a characterizing flavor.
(2)Constituent means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.
(3)Department means the State Department of Public Health.
(4)Enforcing agency means the State Department of Public Health, another state agency, including, but not limited to, the office of the Attorney General, or a local law enforcement agency, including, but not limited to, a city attorney, district attorney, or county counsel.
(5)Flavored shisha tobacco product means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.
(6)Flavored tobacco product means any tobacco product that contains a constituent that imparts a characterizing flavor.
(7)Hookah means a type of waterpipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.
(8)Hookah tobacco retailer means a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.
(9)Labeling means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.
(10)Loose leaf tobacco consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.
(11)Packaging means a pack, box, carton, or container of any kind, or, if no other container, any wrapping, including cellophane, in which a tobacco product is sold or offered for sale to a consumer.
(12)Premium cigar means any cigar that is handmade, is not mass produced by use of mechanization, has a wrapper that is made entirely from whole tobacco leaf, and has a wholesale price of no less than twelve dollars ($12). A premium cigar does not have a filter, tip, or nontobacco mouthpiece and is capped by hand.
(13)Retail location means both of the following:
(A)A building from which tobacco products are sold at retail.
(B)Any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public.
(14)Sale or sold means a sale as that term is defined in Section 30006 of the Revenue and Taxation Code.
(15)Shisha tobacco product means a tobacco product smoked or intended to be smoked in a hookah. Shisha tobacco product includes, and may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. Shisha tobacco product does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.
(16)Tobacco product means a tobacco product as defined in paragraph (8) of subdivision (a) of Section 104495, as that provision may be amended from time to time.
(17)Tobacco product flavor enhancer means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
(18)Tobacco retailer means a person who engages in this state in the sale of tobacco products directly to the public from a retail location. Tobacco retailer includes a person who operates vending machines from which tobacco products are sold in this state.
(b)(1)A tobacco retailer, or any of the tobacco retailers agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer.
(2)There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturers agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the products labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
(c)Subdivision (b) does not apply to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the following conditions are met:
(1)The hookah tobacco retailer has a valid license to sell tobacco products issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 of the Business and Professions Code.
(2)The hookah tobacco retailer does not permit any person under 21 years of age to be present or enter the premises at any time.
(3)The hookah tobacco retailer shall operate in accordance with all relevant state and local laws relating to the sale of tobacco products.
(4)If consumption of tobacco products is allowed on the premises of the hookah tobacco retailer, the hookah tobacco retailer shall operate in accordance with all state and local laws relating to the consumption of tobacco products on the premises of a tobacco retailer, including, but not limited to, Section 6404.5 of the Labor Code.
(d)Subdivision (b) does not apply to sales of premium cigars sold in cigar lounges where products are purchased and consumed only on the premises.
(e)Subdivision (b) does not apply to loose leaf tobacco or premium cigars.
(f)(1)An enforcing agency may assess civil penalties against any person or entity that violates subdivision (b) according to the schedule of civil penalties prescribed in subdivision (a) of Section 22958 of the Business and Professions Code. In the case of a corporation or business with more than one retail location, the number of accumulated violations for purposes of the penalty schedule shall be determined in accordance with subdivision (h) of that section.
(2)In addition to the civil penalties described in paragraph (1), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the California Department of Tax and Fee Administration of the violation who shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22972) of Division 8.6 of the Business and Professions Code, in accordance with the schedule listed in paragraph (1) of subdivision (b) of Section 22958 of the Business and Professions Code.
(3)Notwithstanding paragraph (7), the civil penalty assessed pursuant to paragraph (2) shall be deposited into the Cigarette and Tobacco Products Compliance Fund and shall be made available to the California Department of Tax and Fee Administration, upon appropriation by the Legislature, for the purposes of meeting its duties prescribed in paragraph (2).
(4)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the California Department of Tax and Fee Administration pursuant to paragraph (2).
(5)The department shall, upon request, provide information concerning any person or entity that has been assessed a civil penalty for violation of this section to the California Department of Tax and Fee Administration when the department has notified the California Department of Tax and Fee Administration of the violation.
(6)Proceedings under this section shall be conducted pursuant to Section 131071, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071.
(7)Except as otherwise provided in paragraph (3), all moneys collected as civil penalties by the department or by any other state agency or department pursuant to this section shall be deposited in the State Treasury to the credit of the Sale of Tobacco to Minors Control Account.
(g)(1)Primary responsibility for enforcement of this section shall be with the department. In carrying out its enforcement responsibilities, the department may conduct onsite sting inspections at tobacco retailers randomly, in response to public complaints, or at retailers where violations have previously occurred. Agents of the department, while conducting enforcement activities pursuant to this section, are peace officers and are subject to all of the powers and immunities granted to Food and Drug Section inspectors pursuant to Section 106500 in the same manner as are any Food and Drug Section inspectors of the department.
(2)In addition to the primary enforcement responsibility assumed by the department, another enforcing agency may conduct inspections and assess penalties for violations of this section if that enforcing agency complies with the applicable provisions of this section and with all other applicable provisions of law.
(3)State and local enforcing agencies are encouraged, in order to avoid duplication, to share the results of inspections and coordinate with the department when enforcing this section.
(4)An enforcing agency may use audio or video recording equipment when conducting inspections, to record and document illegal sales or attempted sales.
(h)(1)The department may adopt any regulations that it determines are necessary for the enforcement of this section. The regulations shall be adopted by the department in the manner prescribed by Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2)The department may adopt emergency regulations to implement this section. Any emergency regulation shall be adopted in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Emergency regulations adopted shall remain in effect until regulations have been adopted pursuant to paragraph (1).
(i)This section does not preempt or otherwise prohibit the adoption of a local standard that imposes greater restrictions on the access to tobacco products than the restrictions imposed by this section. To the extent that there is an inconsistency between this section and a local standard that imposes greater restrictions on the access to tobacco products, the greater restriction on the access to tobacco products in the local standard shall prevail.
SEC. 5.5.Section 104559.5 of the Health and Safety Code is amended to read:104559.5.(a)For purposes of this section, the following definitions apply:
(1)Characterizing flavor means a distinguishable taste or aroma, or both, taste or odor, distinguishable by an ordinary consumer either prior to or during the consumption of a tobacco product, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are odor of tobacco, including, but not limited to, tastes or aromas odors relating to any fruit, vanilla, chocolate, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a characterizing flavor. spice, or a cooling sensation distinguishable by an ordinary consumer during the consumption of a tobacco product.
(2)Constituent means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.
(3)Department means the State Department of Public Health.
(4)Enforcing agency means the State Department of Public Health, another state agency, including, but not limited to, the office of the Attorney General, or a local law enforcement agency, including, but not limited to, a city attorney, district attorney, or county counsel.
(5)Flavored shisha tobacco product means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.
(6)Flavored tobacco product means any tobacco product that contains a constituent that imparts a characterizing flavor. Flavored tobacco product includes any tobacco product, other than looseleaf tobacco, a premium cigar, or a shisha tobacco product, that is not listed on the Unflavored Tobacco List established and maintained by the Attorney General pursuant to Section 104559.1.
(7)Hookah means a type of waterpipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.
(8)Hookah tobacco retailer means a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.
(9)Labeling means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.
(10)Loose leaf Looseleaf tobacco consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.
(11)Nicotine means any form of the chemical nicotine, including any salt or complex, regardless of whether the chemical is naturally or synthetically derived, and includes nicotinic alkaloids and nicotine analogs.
(11)(12)Packaging means a pack, box, carton, or container of any kind, or, if no other container, any wrapping, including cellophane, in which a tobacco product is sold or offered for sale to a consumer.
(12)(13)Premium cigar means any cigar that is handmade, is not mass produced by use of mechanization, has a wrapper that is made entirely from whole tobacco leaf, and has a wholesale price of no less than twelve dollars ($12). A premium cigar does not have a filter, tip, or nontobacco mouthpiece and is capped by hand.
(13)(14)Retail location means both of the following:
(A)A building from which tobacco products are sold at retail.
(B)Any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public.
(14)(15)Sale or sold means a sale as that term is defined in Section 30006 of the Revenue and Taxation Code.
(15)(16)Shisha tobacco product means a tobacco product smoked or intended to be smoked in a hookah. Shisha tobacco product includes, and may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. Shisha tobacco product does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.
(16)(17)(A)Tobacco product means a tobacco product as defined in paragraph (8) of subdivision (a) of Section 104495, as that provision may be amended from time to time. any of the following:
(i)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 cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff.
(ii)An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including an electronic cigarette, cigar, pipe, or hookah.
(iii)Any component, part, or accessory of a tobacco product, whether or not sold separately.
(B)Notwithstanding subparagraph (A), tobacco product does not include: (i) a nicotine replacement product approved by the United States Food and Drug Administration, or (ii) cannabis or a cannabis product, as those terms are defined in Section 26001 of the Business and Professions Code. Cannabis or a cannabis product that includes an ingredient, substance, chemical, or compound that contains or is made or derived from tobacco or nicotine is a tobacco product under this section.
(17)(18)Tobacco product flavor enhancer means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
(18)(19)Tobacco retailer means a person who engages in this state in the sale of tobacco products directly to the public from a retail location. Tobacco retailer includes a person who operates vending machines from which tobacco products are sold in this state.
(b)(1)A tobacco retailer, or any of the tobacco retailers agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer.
(2)There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturers agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the products labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
(c)Subdivision (b) does not apply to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the following conditions are met:
(1)The hookah tobacco retailer has a valid license to sell tobacco products issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 of the Business and Professions Code.
(2)The hookah tobacco retailer does not permit any person under 21 years of age to be present or enter the premises at any time.
(3)The hookah tobacco retailer shall operate in accordance with all relevant state and local laws relating to the sale of tobacco products.
(4)If consumption of tobacco products is allowed on the premises of the hookah tobacco retailer, the hookah tobacco retailer shall operate in accordance with all state and local laws relating to the consumption of tobacco products on the premises of a tobacco retailer, including, but not limited to, Section 6404.5 of the Labor Code.
(d)Subdivision (b) does not apply to sales of premium cigars sold in cigar lounges where products are purchased and consumed only on the premises.
(e)Subdivision (b) does not apply to loose leaf looseleaf tobacco or premium cigars.
(f)(1)An enforcing agency may assess civil penalties against any person or entity that violates subdivision (b) according to the schedule of civil penalties prescribed in paragraph (1) of subdivision (a) of Section 22958 of the Business and Professions Code. In the case of a corporation or business with more than one retail location, the number of accumulated violations for purposes of the penalty schedule shall be determined in accordance with subdivision (h) of that section.
(2)In addition to the civil penalties described in paragraph (1), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the California Department of Tax and Fee Administration of the violation who shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22972) of Division 8.6 of the Business and Professions Code, in accordance with the schedule listed in paragraph (1) of subdivision (b) of Section 22958 of the Business and Professions Code.
(3)Notwithstanding paragraph (7), the civil penalty assessed pursuant to paragraph (2) shall be deposited into the Cigarette and Tobacco Products Compliance Fund and shall be made available to the California Department of Tax and Fee Administration, upon appropriation by the Legislature, for the purposes of meeting its duties prescribed in paragraph (2).
(4)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the California Department of Tax and Fee Administration pursuant to paragraph (2).
(5)The department shall, upon request, provide information concerning any person or entity that has been assessed a civil penalty for violation of this section to the California Department of Tax and Fee Administration when the department has notified the California Department of Tax and Fee Administration of the violation.
(6)Proceedings under this section shall be conducted pursuant to Section 131071, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071.
(7)Except as otherwise provided in paragraph (3), all moneys collected as civil penalties by the department or by any other state agency or department pursuant to this section shall be deposited in the State Treasury to the credit of the Sale of Tobacco to Minors Control Account.
(g)(1)Primary responsibility for enforcement of this section shall be with the department. In carrying out its enforcement responsibilities, the department may conduct onsite sting inspections at tobacco retailers randomly, in response to public complaints, or at retailers where violations have previously occurred. Agents of the department, while conducting enforcement activities pursuant to this section, are peace officers and are subject to all of the powers and immunities granted to Food and Drug Section inspectors pursuant to Section 106500 in the same manner as are any Food and Drug Section inspectors of the department.
(2)In addition to the primary enforcement responsibility assumed by the department, another enforcing agency may conduct inspections and assess penalties for violations of this section if that enforcing agency complies with the applicable provisions of this section and with all other applicable provisions of law.
(3)State and local enforcing agencies are encouraged, in order to avoid duplication, to share the results of inspections and coordinate with the department when enforcing this section.
(4)An enforcing agency may use audio or video recording equipment when conducting inspections, to record and document illegal sales or attempted sales.
(h)(1)The department may adopt any regulations that it determines are necessary for the enforcement of this section. The regulations shall be adopted by the department in the manner prescribed by Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2)The department may adopt emergency regulations to implement this section. Any emergency regulation shall be adopted in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Emergency regulations adopted shall remain in effect until regulations have been adopted pursuant to paragraph (1).
(i)This section does not preempt or otherwise prohibit the adoption of a local standard that imposes greater restrictions on the access to tobacco products than the restrictions imposed by this section. To the extent that there is an inconsistency between this section and a local standard that imposes greater restrictions on the access to tobacco products, the greater restriction on the access to tobacco products in the local standard shall prevail.
SEC. 6.Section 30449 of the Revenue and Taxation Code is amended to read:30449.(a)Except as provided in subdivision (b), (c), or (d), any property, except money, forfeited to the state under this chapter shall be sold by the board at public auction. Notice of the sale shall be given by posting a written notice of the time and place of sale in three public places in the county where the property is to be sold for not less than 5 days nor more than 10 days before the sale. If the board is unable to sell any property forfeited to the state under this part or, if the board determines that the property is unsalable, it may destroy that property.
(b)Any property forfeited to the state pursuant to subdivision (e) of Section 30436 shall be destroyed.
(c)Any cigarettes forfeited to the state pursuant to subdivision (b) of Section 30436 shall be destroyed.
(d)Any cigarettes, tobacco products, flavored tobacco products, or tobacco product flavor enhancers forfeited to the state pursuant to Division 8.6 (commencing with Section 22970) of the Business and Professions Code shall be destroyed.
(e)A record shall be kept of all property destroyed pursuant to this section showing the nature of the property, the quantity, the reason for, and the manner of destruction. The proceeds of the sale and any money forfeited to the state shall be deposited in the State Treasury to the credit of the General Fund.
(f)For purposes of this section, flavored tobacco product and tobacco product flavor enhancer shall have the same meaning as those terms are defined in Section 104559.5 of the Health and Safety Code.
SEC. 7.Section 5.5 of this bill incorporates amendments to Section 104559.5 of the Health and Safety Code proposed by both this bill and Assembly Bill 3218. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2025, (2) each bill amends Section 104559.5 of the Health and Safety Code, and (3) this bill is enacted after Assembly Bill 3218, in which case Section 5 of this bill shall not become operative.
This act shall be known, and may be cited, as the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)According to the federal Centers for Disease Control and Prevention, nicotine is highly addictive and can harm brain development, which continues until about 25 years of age. The use of any tobacco product, including flavored tobacco products, is unsafe for young people.
(b)According to the 2023 National Youth Tobacco Survey conducted by the federal Centers for Disease Control and Prevention and the United States Food and Drug Administration, approximately 2,800,000 high school students and middle school students reported using a tobacco product in the past year, and nearly 90 percent of youth electronic cigarette users used flavored products.
(c)The Legislature passed Senate Bill 793 of the 201920 Regular Session to protect the health and safety of all Californians, including California children, by prohibiting the sale of flavored tobacco products in California.
(d)Despite the overwhelming passage of Senate Bill 793, tobacco manufacturers delayed implementation of the law by taking the issue to the ballot for a referendum vote as Proposition 31 at the November 8, 2022, statewide general election, and voters overwhelmingly supported the policy of a flavored tobacco ban.
(e)Despite the overwhelming support of both the Legislature and the public, tobacco manufacturers sought to delay implementation of the law by challenging the constitutionality of Senate Bill 793. The tobacco manufacturers legal challenge was ultimately unsuccessful when the United States Supreme Court declined to hear their challenge in January 2024.
(f)Even after Californias ban on the sale of flavored tobacco products took effect, researchers at the University of California, San Diego found that online shopping for flavored tobacco products increased significantly in the weeks after the implementation of Senate Bill 793.
(g)Additionally, sales data has shown a surge in illegal, unregulated flavored tobacco products, such as flavored disposable electronic cigarettes, being imported into the United States from foreign countries in recent years. In December 2023, the United States Food and Drug Administration and the United States Customs and Border Protection announced the seizure of approximately 1,400,000 units of unauthorized electronic cigarette products worth over $18,000,000 at Los Angeles International Airport.
(h)Strengthening tobacco oversight programs and expanding the seizure of illegal tobacco products is essential to achieving the states public health goal of lowering youth tobacco use.
SEC. 3.Section 22958 of the Business and Professions Code is amended to read:22958.(a)(1)An enforcing agency may assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21 years of age any tobacco, cigarette, cigarette papers, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance, according to the following schedule:
(A)(1)A civil penalty of one thousand dollars ($1,000) to one thousand five hundred dollars ($1,500) for the first violation.
(B)(2)A civil penalty of two thousand dollars ($2,000) to three thousand dollars ($3,000) for the second violation at the same location within a five-year period.
(C)(3)A civil penalty of five thousand dollars ($5,000) to ten thousand dollars ($10,000) for the third violation at the same location within a five-year period.
(D)(4)A civil penalty of ten thousand dollars ($10,000) to twenty thousand dollars ($20,000) for a fourth violation within a five-year period.
(E)(5)A civil penalty of at least twenty thousand dollars ($20,000) for five or more violations within a five-year period.
(2)This subdivision does not apply to the sale, giving, or furnishing of any of the products specified in paragraph (1) to active duty military personnel who are 18 years of age or older. An identification card issued by the United States Armed Forces shall be used as proof of age for this purpose.(b)(1)In addition to the civil penalties described in subdivision (a), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the State Board of Equalization of the violation. The State Board of Equalization shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 in accordance with the following schedule:
(A)A 45-day suspension of the license for a third violation at the same location within a five-year period.
(B)A 90-day suspension of the license for a fourth violation at the same location within a five-year period.
(C)Revocation of the license for a fifth violation at the same location within a five-year period.
(2)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the State Board of Equalization pursuant to paragraph (1).
(c)(1)For each suspension or revocation pursuant to subdivision (b), the civil penalty of two hundred fifty dollars ($250) assessed pursuant to that subdivision, notwithstanding Section 22953, shall be deposited into the Cigarette and Tobacco Products Compliance Fund established pursuant to Section 22990. Moneys from that civil penalty deposited into this fund shall be made available to the State Board of Equalization, upon appropriation by the Legislature, for the purposes of meeting its duties under subdivision (b).
(2)The department shall, upon request, provide to the State Board of Equalization information concerning any person, firm, or corporation that has been assessed a civil penalty for violation of the STAKE Act pursuant to this section when the department has notified the State Board of Equalization of the violation.
(d)The enforcing agency shall assess penalties pursuant to the schedule set forth in subdivision (a) against a person, firm, or corporation that sells, offers for sale, or distributes tobacco products from a cigarette or tobacco products vending machine, or a person, firm, or corporation that leases, furnishes, or services these machines in violation of Section 22960.
(e)An enforcing agency may assess civil penalties against a person, firm, or corporation that sells or deals in tobacco or any preparation thereof, and fails to post conspicuously and keep posted in the place of business at each point of purchase the notice required pursuant to subdivision (b) of Section 22952. The civil penalty shall be in the amount of two hundred dollars ($200) for the first offense and five hundred dollars ($500) for each additional violation.
(f)An enforcing agency shall assess penalties in accordance with the schedule set forth in subdivision (a) against a person, firm, or corporation that advertises or causes to be advertised a tobacco product on an outdoor billboard in violation of Section 22961.
(g)If a civil penalty has been assessed pursuant to this section against a person, firm, or corporation for a single, specific violation of this division, the person, firm, or corporation shall not be prosecuted under Section 308 of the Penal Code for a violation based on the same facts or specific incident for which the civil penalty was assessed. If a person, firm, or corporation has been prosecuted for a single, specific violation of Section 308 of the Penal Code, the person, firm, or corporation shall not be assessed a civil penalty under this section based on the same facts or specific incident upon which the prosecution under Section 308 of the Penal Code was based.
(h)(1)In the case of a corporation or business with more than one retail location, to determine the number of accumulated violations for purposes of the penalty schedule set forth in subdivision (a), violations of this division by one retail location shall not be accumulated against other retail locations of that same corporation or business.
(2)In the case of a retail location that operates pursuant to a franchise as defined in Section 20001, violations of this division accumulated and assessed against a prior owner of a single franchise location shall not be accumulated against a new owner of the same single franchise location for purposes of the penalty schedule set forth in subdivision (a).
(i)Proceedings under this section shall be conducted pursuant to Section 131071 of the Health and Safety Code, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071 of the Health and Safety Code.
SEC. 4.Section 22974.1 is added to the Business and Professions Code, to read:22974.1.(a)Notwithstanding any other law, if the department discovers that a retailer, or any of the tobacco retailers agents or employees, sell, offer for sale or possess with the intent to sell or offer for sale, a flavored tobacco product or tobacco product flavor enhancer, in violation of Section 104559.5 of the Health and Safety Code, the department may seize those flavored tobacco products or tobacco product flavor enhancers at the retail location or any other persons location. Any flavored tobacco products or tobacco product flavor enhancers seized by the department shall be deemed forfeited and the department shall comply with the procedures set forth in Chapter 7.5 (commencing with Section 30435) of Part 13 of Division 2 of the Revenue and Taxation Code.
(b)For purposes of this section, flavored tobacco product and tobacco product flavor enhancer shall have the same meaning as the terms are defined in Section 104559.5 of the Health and Safety Code.
SEC. 5.Section 104559.5 of the Health and Safety Code is amended to read:104559.5.(a)For purposes of this section, the following definitions apply:
(1)Characterizing flavor means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, vanilla, chocolate, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a characterizing flavor.
(2)Constituent means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.
(3)Department means the State Department of Public Health.
(4)Enforcing agency means the State Department of Public Health, another state agency, including, but not limited to, the office of the Attorney General, or a local law enforcement agency, including, but not limited to, a city attorney, district attorney, or county counsel.
(5)Flavored shisha tobacco product means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.
(6)Flavored tobacco product means any tobacco product that contains a constituent that imparts a characterizing flavor.
(7)Hookah means a type of waterpipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.
(8)Hookah tobacco retailer means a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.
(9)Labeling means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.
(10)Loose leaf tobacco consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.
(11)Packaging means a pack, box, carton, or container of any kind, or, if no other container, any wrapping, including cellophane, in which a tobacco product is sold or offered for sale to a consumer.
(12)Premium cigar means any cigar that is handmade, is not mass produced by use of mechanization, has a wrapper that is made entirely from whole tobacco leaf, and has a wholesale price of no less than twelve dollars ($12). A premium cigar does not have a filter, tip, or nontobacco mouthpiece and is capped by hand.
(13)Retail location means both of the following:
(A)A building from which tobacco products are sold at retail.
(B)Any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public.
(14)Sale or sold means a sale as that term is defined in Section 30006 of the Revenue and Taxation Code.
(15)Shisha tobacco product means a tobacco product smoked or intended to be smoked in a hookah. Shisha tobacco product includes, and may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. Shisha tobacco product does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.
(16)Tobacco product means a tobacco product as defined in paragraph (8) of subdivision (a) of Section 104495, as that provision may be amended from time to time.
(17)Tobacco product flavor enhancer means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
(18)Tobacco retailer means a person who engages in this state in the sale of tobacco products directly to the public from a retail location. Tobacco retailer includes a person who operates vending machines from which tobacco products are sold in this state.
(b)(1)A tobacco retailer, or any of the tobacco retailers agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer.
(2)There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturers agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the products labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
(c)Subdivision (b) does not apply to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the following conditions are met:
(1)The hookah tobacco retailer has a valid license to sell tobacco products issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 of the Business and Professions Code.
(2)The hookah tobacco retailer does not permit any person under 21 years of age to be present or enter the premises at any time.
(3)The hookah tobacco retailer shall operate in accordance with all relevant state and local laws relating to the sale of tobacco products.
(4)If consumption of tobacco products is allowed on the premises of the hookah tobacco retailer, the hookah tobacco retailer shall operate in accordance with all state and local laws relating to the consumption of tobacco products on the premises of a tobacco retailer, including, but not limited to, Section 6404.5 of the Labor Code.
(d)Subdivision (b) does not apply to sales of premium cigars sold in cigar lounges where products are purchased and consumed only on the premises.
(e)Subdivision (b) does not apply to loose leaf tobacco or premium cigars.
(f)(1)An enforcing agency may assess civil penalties against any person or entity that violates subdivision (b) according to the schedule of civil penalties prescribed in paragraph (1) of subdivision (a) of Section 22958 of the Business and Professions Code. In the case of a corporation or business with more than one retail location, the number of accumulated violations for purposes of the penalty schedule shall be determined in accordance with subdivision (h) of that section.
(2)In addition to the civil penalties described in paragraph (1), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the California Department of Tax and Fee Administration of the violation who shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22972) of Division 8.6 of the Business and Professions Code, in accordance with the schedule listed in paragraph (1) of subdivision (b) of Section 22958 of the Business and Professions Code.
(3)Notwithstanding paragraph (7), the civil penalty assessed pursuant to paragraph (2) shall be deposited into the Cigarette and Tobacco Products Compliance Fund and shall be made available to the California Department of Tax and Fee Administration, upon appropriation by the Legislature, for the purposes of meeting its duties prescribed in paragraph (2).
(4)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the California Department of Tax and Fee Administration pursuant to paragraph (2).
(5)The department shall, upon request, provide information concerning any person or entity that has been assessed a civil penalty for violation of this section to the California Department of Tax and Fee Administration when the department has notified the California Department of Tax and Fee Administration of the violation.
(6)Proceedings under this section shall be conducted pursuant to Section 131071, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071.
(7)Except as otherwise provided in paragraph (3), all moneys collected as civil penalties by the department or by any other state agency or department pursuant to this section shall be deposited in the State Treasury to the credit of the Sale of Tobacco to Minors Control Account.
(g)(1)Primary responsibility for enforcement of this section shall be with the department. In carrying out its enforcement responsibilities, the department may conduct onsite sting inspections at tobacco retailers randomly, in response to public complaints, or at retailers where violations have previously occurred. Agents of the department, while conducting enforcement activities pursuant to this section, are peace officers and are subject to all of the powers and immunities granted to Food and Drug Section inspectors pursuant to Section 106500 in the same manner as are any Food and Drug Section inspectors of the department.
(2)In addition to the primary enforcement responsibility assumed by the department, another enforcing agency may conduct inspections and assess penalties for violations of this section if that enforcing agency complies with the applicable provisions of this section and with all other applicable provisions of law.
(3)State and local enforcing agencies are encouraged, in order to avoid duplication, to share the results of inspections and coordinate with the department when enforcing this section.
(4)An enforcing agency may use audio or video recording equipment when conducting inspections, to record and document illegal sales or attempted sales.
(h)(1)The department may adopt any regulations that it determines are necessary for the enforcement of this section. The regulations shall be adopted by the department in the manner prescribed by Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2)The department may adopt emergency regulations to implement this section. Any emergency regulation shall be adopted in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Emergency regulations adopted shall remain in effect until regulations have been adopted pursuant to paragraph (1).
(i)This section does not preempt or otherwise prohibit the adoption of a local standard that imposes greater restrictions on the access to tobacco products than the restrictions imposed by this section. To the extent that there is an inconsistency between this section and a local standard that imposes greater restrictions on the access to tobacco products, the greater restriction on the access to tobacco products in the local standard shall prevail.
SEC. 5.SEC. 6.Section 30449 of the Revenue and Taxation Code is amended to read:30449.(a)Except as provided in subdivision (b), (c), or (d), any property, except money, forfeited to the state under this chapter shall be sold by the board at public auction. Notice of the sale shall be given by posting a written notice of the time and place of sale in three public places in the county where the property is to be sold for not less than 5 days nor more than 10 days before the sale. If the board is unable to sell any property forfeited to the state under this part or, if the board determines that the property is unsalable, it may destroy that property.
(b)Any property forfeited to the state pursuant to subdivision (e) of Section 30436 shall be destroyed.
(c)Any cigarettes forfeited to the state pursuant to subdivision (b) of Section 30436 shall be destroyed.
(d)Any cigarettes, tobacco products, flavored tobacco products, or tobacco product flavor enhancers forfeited to the state pursuant to Division 8.6 (commencing with Section 22970) of the Business and Professions Code shall be destroyed.
(e)A record shall be kept of all property destroyed pursuant to this section showing the nature of the property, the quantity, the reason for, and the manner of destruction. The proceeds of the sale and any money forfeited to the state shall be deposited in the State Treasury to the credit of the General Fund.
(f)For purposes of this section, flavored tobacco product and tobacco product flavor enhancer shall have the same meaning as those terms are defined in Section 104559.5 of the Health and Safety Code.
This act shall be known, and may be cited, as the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)According to the federal Centers for Disease Control and Prevention, nicotine is highly addictive and can harm brain development, which continues until about 25 years of age. The use of any tobacco product, including flavored tobacco products, is unsafe for young people.
(b)According to the 2023 National Youth Tobacco Survey conducted by the federal Centers for Disease Control and Prevention and the United States Food and Drug Administration, approximately 2,800,000 high school students and middle school students reported using a tobacco product in the past year, and nearly 90 percent of youth electronic cigarette users used flavored products.
(c)The Legislature passed Senate Bill 793 of the 201920 Regular Session to protect the health and safety of all Californians, including California children, by prohibiting the sale of flavored tobacco products in California.
(d)Despite the overwhelming passage of Senate Bill 793, tobacco manufacturers delayed implementation of the law by taking the issue to the ballot for a referendum vote as Proposition 31 at the November 8, 2022, statewide general election, and voters overwhelmingly supported the policy of a flavored tobacco ban.
(e)Despite the overwhelming support of both the Legislature and the public, tobacco manufacturers sought to delay implementation of the law by challenging the constitutionality of Senate Bill 793. The tobacco manufacturers legal challenge was ultimately unsuccessful when the United States Supreme Court declined to hear their challenge in January 2024.
(f)Even after Californias ban on the sale of flavored tobacco products took effect, researchers at the University of California, San Diego found that online shopping for flavored tobacco products increased significantly in the weeks after the implementation of Senate Bill 793.
(g)Additionally, sales data has shown a surge in illegal, unregulated flavored tobacco products, such as flavored disposable electronic cigarettes, being imported into the United States from foreign countries in recent years. In December 2023, the United States Food and Drug Administration and the United States Customs and Border Protection announced the seizure of approximately 1,400,000 units of unauthorized electronic cigarette products worth over $18,000,000 at Los Angeles International Airport.
(h)Strengthening tobacco oversight programs and expanding the seizure of illegal tobacco products is essential to achieving the states public health goal of lowering youth tobacco use.
SEC. 3.Section 22958 of the Business and Professions Code is amended to read:22958.(a)(1)An enforcing agency may assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21 years of age, age any tobacco, cigarette, cigarette papers, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance, 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, or (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.
(A)A civil penalty of one thousand dollars ($1,000) to one thousand five hundred dollars ($1,500) for the first violation.
(B)A civil penalty of two thousand dollars ($2,000) to three thousand dollars ($3,000) for the second violation at the same location within a five-year period.
(C)A civil penalty of five thousand dollars ($5,000) to ten thousand dollars ($10,000) for the third violation at the same location within a five-year period.
(D)A civil penalty of ten thousand dollars ($10,000) to twenty thousand dollars ($20,000) for a fourth violation within a five-year period.
(E)A civil penalty of at least twenty thousand dollars ($20,000) for five or more violations within a five-year period.
(2)This subdivision does not apply to the sale, giving, or furnishing of any of the products specified in paragraph (1) to active duty military personnel who are 18 years of age or older. An identification card issued by the United States Armed Forces shall be used as proof of age for this purpose.
(b)(1)In addition to the civil penalties described in subdivision (a), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the State Board of Equalization of the violation. The State Board of Equalization shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22972) 22971.7) of Division 8.6 in accordance with the following schedule:
(A)A 45-day suspension of the license for a third violation at the same location within a five-year period.
(B)A 90-day suspension of the license for a fourth violation at the same location within a five-year period.
(C)Revocation of the license for a fifth violation at the same location within a five-year period.
(2)The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the State Board of Equalization pursuant to paragraph (1).
(c)(1)For each suspension or revocation pursuant to subdivision (b), the civil penalty of two hundred fifty dollars ($250) assessed pursuant to that subdivision, notwithstanding Section 22953, shall be deposited into the Cigarette and Tobacco Products Compliance Fund established pursuant to Section 22990. Moneys from that civil penalty deposited into this fund shall be made available to the State Board of Equalization, upon appropriation by the Legislature, for the purposes of meeting its duties under subdivision (b).
(2)The department shall, upon request, provide to the State Board of Equalization information concerning any person, firm, or corporation that has been assessed a civil penalty for violation of the STAKE Act pursuant to this section when the department has notified the State Board of Equalization of the violation.
(d)The enforcing agency shall assess penalties pursuant to the schedule set forth in subdivision (a) against a person, firm, or corporation that sells, offers for sale, or distributes tobacco products from a cigarette or tobacco products vending machine, or a person, firm, or corporation that leases, furnishes, or services these machines in violation of Section 22960.
(e)An enforcing agency may assess civil penalties against a person, firm, or corporation that sells or deals in tobacco or any preparation thereof, and fails to post conspicuously and keep posted in the place of business at each point of purchase the notice required pursuant to subdivision (b) of Section 22952. The civil penalty shall be in the amount of two hundred dollars ($200) for the first offense and five hundred dollars ($500) for each additional violation.
(f)An enforcing agency shall assess penalties in accordance with the schedule set forth in subdivision (a) against a person, firm, or corporation that advertises or causes to be advertised a tobacco product on an outdoor billboard in violation of Section 22961.
(g)If a civil penalty has been assessed pursuant to this section against a person, firm, or corporation for a single, specific violation of this division, the person, firm, or corporation shall not be prosecuted under Section 308 of the Penal Code for a violation based on the same facts or specific incident for which the civil penalty was assessed. If a person, firm, or corporation has been prosecuted for a single, specific violation of Section 308 of the Penal Code, the person, firm, or corporation shall not be assessed a civil penalty under this section based on the same facts or specific incident upon which the prosecution under Section 308 of the Penal Code was based.
(h)(1)In the case of a corporation or business with more than one retail location, to determine the number of accumulated violations for purposes of the penalty schedule set forth in subdivision (a), violations of this division by one retail location shall not be accumulated against other retail locations of that same corporation or business.
(2)In the case of a retail location that operates pursuant to a franchise as defined in Section 20001, violations of this division accumulated and assessed against a prior owner of a single franchise location shall not be accumulated against a new owner of the same single franchise location for purposes of the penalty schedule set forth in subdivision (a).
(i)Proceedings under this section shall be conducted pursuant to Section 131071 of the Health and Safety Code, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071 of the Health and Safety Code.
SEC. 4.Section 22974.1 is added to the Business and Professions Code, to read:22974.1.(a)Notwithstanding any other law, if the department discovers that a retailer, or any of the tobacco retailers agents or employees, sell, offer for sale or possess with the intent to sell or offer for sale, a flavored tobacco product or tobacco product flavor enhancer, in violation of Section 104559.5 of the Health and Safety Code, the department may seize those flavored tobacco products or tobacco product flavor enhancers at the retail location or any other persons location. Any flavored tobacco products or tobacco product flavor enhancers seized by the department shall be deemed forfeited and the department shall comply with the procedures set forth in Chapter 7.5 (commencing with Section 30435) of Part 13 of Division 2 of the Revenue and Taxation Code.
(b)For purposes of this section, flavored tobacco product and tobacco product flavor enhancer shall have the same meaning as the terms are defined in Section 104559.5 of the Health and Safety Code.
SEC. 5.Section 30449 of the Revenue and Taxation Code is amended to read:30449.(a)Except as provided in subdivision (b), (c), or (d), any property, except money, forfeited to the state under this chapter shall be sold by the board at public auction. Notice of the sale shall be given by posting a written notice of the time and place of sale in three public places in the county where the property is to be sold for not less than five 5 days nor more than 10 days before the sale. If the board is unable to sell any property forfeited to the state under this part or, if the board determines that the property is unsalable, it may destroy that property.
(b)Any property forfeited to the state pursuant to subdivision (e) of Section 30436 shall be destroyed.
(c)Any cigarettes forfeited to the state pursuant to subdivision (b) of Section 30436 shall be destroyed.
(d)Any cigarettes or cigarettes, tobacco products products, flavored tobacco products, or tobacco product flavor enhancers forfeited to the state pursuant to Division 8.6 (commencing with Section 22970) of the Business and Professions Code shall be destroyed.
(e)A record shall be kept of all property destroyed pursuant to this section showing the nature of the property, the quantity, the reason for, and the manner of destruction. The proceeds of the sale and any money forfeited to the state shall be deposited in the State Treasury to the credit of the General Fund.
(f)For purposes of this section, flavored tobacco product and tobacco product flavor enhancer shall have the same meaning as those terms are defined in Section 104559.5 of the Health and Safety Code.
|
Date
|
Status
|
|---|---|
| Sep 22, 2024 | Chaptered by Secretary of State. Chapter 462, Statutes of 2024. |
| Sep 22, 2024 | Approved by the Governor. |
| Sep 4, 2024 | Enrolled and presented to the Governor at 4 p.m. |
| Aug 28, 2024 | Assembly amendments concurred in. (Ayes 31. Noes 5. Page 5588.) Ordered to engrossing and enrolling. |
| Aug 28, 2024 | In Senate. Concurrence in Assembly amendments pending. |
| Aug 27, 2024 | Read third time. Passed. (Ayes 68. Noes 2. Page 6658.) Ordered to the Senate. |
| Aug 22, 2024 | Read third time and amended. |
| Aug 22, 2024 | Ordered to third reading. |
| Aug 20, 2024 | Read second time. Ordered to third reading. |
| Aug 19, 2024 | Read second time and amended. Ordered to second reading. |
| Aug 15, 2024 | From committee: Do pass as amended. (Ayes 11. Noes 0.) (August 15). |
| Aug 7, 2024 | August 7 set for first hearing. Placed on suspense file. |
| Jul 2, 2024 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 18. Noes 0.) (July 2). Re-referred to Com. on APPR. |
| Jun 12, 2024 | From committee: Do pass and re-refer to Com. on G.O. (Ayes 16. Noes 0.) (June 11). Re-referred to Com. on G.O. |
| Jun 3, 2024 | Referred to Coms. on HEALTH and G.O. |
| May 21, 2024 | In Assembly. Read first time. Held at Desk. |
| May 20, 2024 | Read third time. Passed. (Ayes 31. Noes 5. Page 4030.) Ordered to the Assembly. |
| May 16, 2024 | Read second time. Ordered to third reading. |
| May 16, 2024 | From committee: Do pass. (Ayes 5. Noes 2. Page 3976.) (May 16). |
| May 10, 2024 | Set for hearing May 16. |
| May 6, 2024 | May 6 hearing: Placed on APPR suspense file. |
| Apr 26, 2024 | Set for hearing May 6. |
| Apr 23, 2024 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 9. Noes 0. Page 3702.) (April 22). Re-referred to Com. on APPR. |
| Apr 18, 2024 | Set for hearing April 22. |
| Apr 18, 2024 | April 24 hearing postponed by committee. |
| Apr 12, 2024 | Set for hearing April 24. |
| Apr 10, 2024 | From committee: Do pass and re-refer to Com. on HEALTH. (Ayes 6. Noes 1. Page 3564.) (April 10). Re-referred to Com. on HEALTH. |
| Mar 19, 2024 | Set for hearing April 10. |
| Feb 29, 2024 | Referred to Coms. on REV. & TAX. and HEALTH. |
| Feb 16, 2024 | From printer. May be acted upon on or after March 17. |
| Feb 15, 2024 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 28, 2024 | Unfinished Business SB1230 Rubio et al. Concurrence | Senate Floor |
Passed |
|
| Aug 27, 2024 | SB 1230 Rubio Senate Third Reading By Wood | Assembly Floor |
Passed |
|
| Aug 15, 2024 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jul 2, 2024 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Governmental Organization |
Passed |
|
| Jun 11, 2024 | Do pass and be re-referred to the Committee on [Governmental Organization] | Assembly Standing Committee on Health |
Passed |
|
| May 20, 2024 | Senate 3rd Reading SB1230 Rubio et al. | Senate Floor |
Passed |
|
| May 16, 2024 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| May 6, 2024 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 22, 2024 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Health |
Passed |
|
| Apr 10, 2024 | Do pass, but first be re-referred to the Committee on [Health] | Senate Standing Committee on Revenue and Taxation |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| American Cancer Society Cancer Action Network Inc. | ** Support | |
| American Heart Association | ** Support | |
| American Lung Association in California | ** Support | |
| American Lung Association Of California | ** Support | |
| California Dental Association | ** Support | |
| California Medical Association | ** Support | |
| California Youth Advocacy Network | * Support | Jun 11, 2024 |
| Campaign for Tobacco-Free Kids | ** Support | |
| Children Now | ** Support | |
| City of Alameda | ** Support | |
| cleanearth4kids.org | ** Support | |
| County Health Executives Association Of California | ** Support | |
| Day One | ** Support | |
| Dougherty Valley High School | * Support | Jun 11, 2024 |
| Dougherty Valley High School | * Support | Apr 10, 2024 |
| Greater Sacramento Smoke and Tobacco Free Coalition | ** Support | |
| International Youth Tobacco Control | ** Support | |
| Placer County Youth Commission | * Support | Jun 11, 2024 |
| The Greater Sacramento Smoke and Tobacco Free Coalition | ** Support | |
| Tobacco Education and Research Oversight Committee | ** Support | |
| Tobacco-Free Kids Action Fund | ** Support | |
| Western University Of Health Sciences | ** Support |
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 1230 |
UNFINISHED BUSINESS
Bill No: SB 1230
Author: Rubio (D), et al.
Amended: 8/22/24
Vote: 21
SENATE REVENUE AND TAXATION COMMITTEE: 6-1, 4/10/24
AYES: Glazer, Ashby, Bradford, Dodd, Padilla, Skinner
NOES: Dahle
SENATE HEALTH COMMITTEE: 9-0, 4/22/24
AYES: Roth, Glazer, Gonzalez, Hurtado, Limón, Menjivar, Rubio, Smallwood-Cuevas, Wiener
NO VOTE RECORDED: Nguyen, Grove
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/16/24
AYES: Caballero, Ashby, Becker, Bradford, Wahab
NOES: Jones, Seyarto
SENATE FLOOR: 31-5, 5/20/24
AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener
NOES: Dahle, Grove, Jones, Niello, Seyarto
NO VOTE RECORDED: Min, Nguyen, Ochoa Bogh, Wilk
ASSEMBLY FLOOR: 68-2, 8/27/24 - See last page for vote
SUBJECT: Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act
SOURCE: The American Cancer Society Cancer Action Network
The American Heart Association
The American Lung Association
Campaign for Tobacco-Free Kids
DIGEST:
This bill enacts the Strengthen Tobacco Oversight Programs and Seize Illegal Tobacco Products Act, which increases civil penalties on retailers who violate the Stop Tobacco Access to Kids Act, and authorizes the California Department of Tax and Fee Administration to seize flavored tobacco products or tobacco product flavor enhancers that violate the flavored tobacco products ban
Assembly Amendments
(1) repeal an exception allowing the sale of tobacco products to active duty military personnel who are at least 18 years of age from the prohibition on selling, giving, or furnishing tobacco products to those under the age of 21, and (2) insert provisions to resolve conflicts with AB 3218 (Wood).
ANALYSIS:
Existing law:
- Directs the California Department of Public Health (CDPH) to administer the Stop Tobacco Access to Kids Enforcement Act (STAKE Act) to reduce the availability of tobacco to those under the age of 21.
- Allows under the STAKE Act, an enforcing agency, which includes CDPH, the Attorney General, and local law enforcement agencies, to 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.
- Sets fine ranges between $400 to $6,000 for a first, second, third, fourth, or fifth violation within a five-year period.
- Directs enforcement agencies to deposit civil penalties in the State Treasury to the credit of the Sale of Tobacco to Minors Control Account.
- Enacts the Cigarette and Tobacco Products Licensing Act (AB 71, Horton, Chapter 890, Statutes of 2003), which 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.
- Enacts the Taxpayer Transparency and Fairness Act (AB 102, Committee on Budget, Chapter 16, Statutes of 2017), 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).
- Requires retailers to have and maintain a license to sell cigarettes or tobacco products to purchasers.
- Provides that a retailer who owns or controls more than one retail location where cigarette and tobacco products are sold must obtain a separate license for each retail location.
- Directs each retailer to 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.
- Allows CDTFA to suspend a retailer’s license under the Licensing Act or the Cigarette and Tobacco Products Tax Law, for a first or subsequent license violation.
- Requires 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.
- Directs CDTFA to 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.
- Requires CDTFA to impose 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 efforts.
- Requires cigarette and tobacco products distributors to pay appropriate taxes by purchasing cigarette tax stamps from the CDTFA, which they then must affix to each package of cigarettes before distribution.
- Provides that possession, storage, ownership, or retail sales of unstamped packages of cigarettes by a retailer or other person, is a misdemeanor punishable by a fine of between $1,000 and $5,000, and imprisonment in a county jail for up to one year, or both, with higher fine amounts for repeat violators or when more than 20 unstamped packages are found.
- Provides that if CDTFA discovers that a retailer, or any of its agents or employees, sells or offers to sell unstamped cigarette packages, it can seize the packages, which is then treated as forfeit to the state.
- Directs CDTFA to provide notice of the seizure and forfeiture of the property by personal service or certified mail to all persons known to have interest in the property and to post the notice on its website for 6 months.
- Allows persons claiming an interest in the property may file a petition for the release of the property within 20 days.
- Permits a petitioner to file an action with the Superior Court of the County of Sacramento and the court must enter an order for the disposition of the property within 20 days of CDTFA’s denial of their petition.
- Requires CDTFA to either sell at public auction or destroy any property seized and forfeited to the state.
- Directs CDTFA to instead destroy, and not sell, any of the following:
- Cigarettes and tobacco products that are non-compliant with the Master Settlement Agreement.
- Unstamped cigarettes and untaxed tobacco products.
- Any cigarettes or tobacco products in possession of a person who continues to sell or gift those products without a valid license or after a notification of suspension or revocation of their license.
- 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, and provided that violations of the flavored tobacco ban were punishable as infractions, with a fine of $250 per violation (SB 793, Hill, Chapter 34, Statutes of 2020).
- Authorizes CDPH, the Attorney General, and local law enforcement agencies to enforce the ban, and makes violations subject to civil penalties contained in the STAKE Act, not as infractions (AB 935, Connolly, Chapter 351, Statutes of 2023).
- Requires any enforcement entity imposing a civil penalty for a third, fourth, or fifth violation of the flavored tobacco ban to notify CDTFA, which could then impose its own $250 penalty and proceed to suspend or revoke a tobacco products license as appropriate.
This bill:
- Increases civil penalty amounts imposed for violations of the STAKE Act as follows:
- First violation: $1,000 to $1,500 (currently $400 - $600).
- Second violation: $2,000 to $3,000 (currently $900 to $1,000).
- Third violation: $5,000 to $10,000 (currently $1,200 to $1,800).
- Fourth violation: $10,000 to $20,000 (currently $3,000 to $4,000).
- Fifth violation: At least $20,000 (currently $5,000 to $6,000).
- Repeals an exception allowing the sale of tobacco products to active duty military personnel who are at least 18 years of age from the prohibition on selling, giving, or furnishing tobacco products to those under the age of 21
- Authorizes CDTFA to seize flavored tobacco products or tobacco product flavor enhancers that violate the flavored tobacco products ban, and deems any seized products forfeited to the state.
- Requires CDTFA to comply with the same procedures as applies to seized tobacco products.
- Makes technical and conforming changes.
- Includes legislative findings and declarations supporting its purposes.
- Contains provisions to resolve conflicts with AB 3218 (Wood)
Background
As of February 20, 2024, approximately 29,400 cigarette and tobacco products retailer locations are licensed to sell cigarettes and tobacco products in California. CDTFA annually conducts about 10,000 inspections of licensed cigarette and tobacco products retailers to ensure compliance with the cigarette and tobacco products licensing and tax laws. According to CDTFA, during these inspections, approximately 50 percent of the licensed retail locations CDTFA examined were found to have violated the flavored tobacco products ban. Currently, CDTFA cannot seize the products; instead, they must refer violations to the local tobacco law enforcement agency. SB 1230 would extend similar authority for flavored tobacco products that CDTFA can currently exercise with regard to unstamped tobacco products and cannabis products when held by unlicensed parties.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Assembly Appropriations Committee:
- CDTFA estimates costs for the destruction of seized flavored tobacco products or tobacco product flavor enhancers, as follows:
- $1.6 million for fiscal year (FY) 2024-25.
- $2.9 million for FYs 2025-26 and 2026-27.
- $1.7 million for FY 2027-28 and ongoing (Cigarettes and Tobacco Products Compliance Fund).
- CDTFA also estimates the bill would likely result in a decrease in cigarette and tobacco products tax revenues of an unknown, likely minor, amount
SUPPORT: (Verified 8/27/24)
American Cancer Society Cancer Action Network INC. (co-source)
American Heart Association (co-source)
American Lung Association of California (co-source)
Campaign for Tobacco Free Kids (co-source)
American Lung Association in California
California Dental Association
California Medical Association
Children Now
City of Alameda
Cleanearth4kids.org
County Health Executives Association of California
Day One
International Youth Tobacco Control
The Greater Sacramento Smoke and Tobacco Free Coalition
Tobacco - Free Kids Action Fund
Tobacco Education and Research Oversight Committee
Western University of Health Sciences
OPPOSITION: (Verified 8/27/24)
None received
ARGUMENTS IN SUPPORT: According to the author, “as a school teacher, I know all too well that California students continue to have easy access to addictive tobacco products and vapes with flavors designed to appeal to youth. Even after the passage of California’s flavored tobacco ban, unauthorized tobacco products continue to flow into California and end up in the hands of consumers of all ages. We must increase the enforcement of California’s flavored tobacco ban to stop the spread of illegal tobacco products. SB 1230 – also known as The STOP and Seize Illegal Tobacco Products Act – will strengthen enforcement of the law and remove illegal tobacco products from the market. The bill does this by explicitly authorizing employees of the California Department of Tax and Fee Administration to seize and destroy flavored tobacco products discovered during inspections of tobacco retailers and warehouses, and reasonably increasing the civil penalties for retailers who continue to violate the law and sell flavored tobacco products and tobacco products to people under 21 years old. Passing this legislation will send a signal that California cares deeply about the health of our community and we will not allow the industry to break the law to hook the next generation of nicotine addicts.”
ASSEMBLY FLOOR: 68-2, 8/27/24
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NOES: Essayli, Gallagher
NO VOTE RECORDED: Cervantes, Megan Dahle, Hoover, Lackey, Ortega, Jim Patterson, Joe Patterson, Sanchez, Ta
Prepared by: Colin Grinnell / REV. & TAX. / (916) 651-4117
8/27/24 19:51:25
SENATE THIRD READING
STR Bill Id:SB 1230
Author:(Rubio)
As Amended Ver:August 22, 2024
Majority vote
SUMMARY
Authorizes the Department of Tax and Fee Administration (CDTFA) to seize flavored tobacco products or product flavor enhancers being sold in violation of existing law. Increases civil penalties for violations of the Stop Tobacco Access to Kids Enforcement Act, and requires flavored tobacco products and flavor enhancers forfeited to the state to be destroyed. Repeals (to conform with federal law) the provision authorizing the sale of tobacco products to active duty military personnel who are at least 18 years of age.
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.
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, in violation of this section is guilty of an infraction and will be punished by a fine of two hundred fifty dollars ($250) for each violation. 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
As a schoolteacher, the author knows all too well that California students continue to have easy access to addictive tobacco products and vapes with flavors designed to appeal to youth. Even after the passage of California's flavored tobacco ban, unauthorized tobacco products continue to flow into California and end up in the hands of consumers of all ages. The author states that this bill – also known as The STOP and Seize Illegal Tobacco Products Act – will strengthen enforcement of the law and remove illegal flavored tobacco products from the market. The bill does this by explicitly authorizing employees of the California Department of Tax and Fee Administration to seize and destroy flavored tobacco products discovered during inspections of tobacco retailers and warehouses, and reasonably increasing the civil penalties for retailers who continue to violate the law and sell flavored tobacco products and tobacco products to people under 21 years old. The author concludes that passing this legislation will send a signal that California cares deeply about the health of our community and we will not allow the industry to break the law to hook the next generation of nicotine addicts.
Arguments in Support
The American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association, and Campaign for Tobacco-Free Kids write as co-sponsors to support this bill, also the STOP and Seize Illegal Tobacco Products Act, which will protect the public health of all Californians, including California youth, by strengthening enforcement of California's flavored tobacco law and removing illegal tobacco products from the market.
According to the 2023 National Youth Tobacco Survey, approximately 2.8 million high school students and middle school students used a tobacco product in the past year, and nearly 90% of youth electronic cigarette users used flavored products. The California State Legislature passed SB 793 in 2020 to protect public health by prohibiting the sale of flavored tobacco products in California. But despite this law, illegal tobacco products continue to make their way into the hands of our youth. The co-sponsors note that this bill will authorize employees of the CDTFA to seize and destroy flavored tobacco products discovered during existing inspections of locations where tobacco products are sold or stored and increase the civil penalties for retailers who illegally sell tobacco products to people under 21 years old. The co-sponsors conclude that by expanding enforcement of California's flavored tobacco law and removing these illegal products from the market, this bill will curb the spread of these addictive, illegal products in California schools and homes.
Arguments in Opposition
There is no known opposition to this bill.
FISCAL COMMENTS
According to the Assembly Appropriations Committee, CDTFA estimates costs for the destruction of seized flavored tobacco products or tobacco product flavor enhancers, as follows: $1.6 million for fiscal year (FY) 2024-25. $2.9 million for FYs 2025-26 and 2026-27. $1.7 million for FY 2027-28 and ongoing (Cigarettes and Tobacco Products Compliance Fund). CDTFA also estimates the bill would likely result in a decrease in cigarette and tobacco products tax revenues of an unknown, likely minor, amount.
VOTES
SENATE FLOOR: 31-5-4
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener
NO: Dahle, Grove, Jones, Niello, Seyarto
ABS, ABST OR NV: Min, Nguyen, Ochoa Bogh, Wilk
ASM HEALTH: 16-0-0
YES: Bonta, Waldron, Aguiar-Curry, Arambula, Wendy Carrillo, Flora, Haney, Jones-Sawyer, Maienschein, McCarty, Joe Patterson, Rodriguez, Sanchez, Santiago, Lowenthal, Pellerin
ASM GOVERNMENTAL ORGANIZATION: 18-0-4
YES: Blanca Rubio, Addis, Bains, Bryan, Cervantes, Davies, Dixon, Gabriel, Gipson, Haney, Hart, Low, McKinnor, Pacheco, Ramos, Soria, Valencia, Wallis
ABS, ABST OR NV: Lackey, Papan, Jim Patterson, Ta
ASM APPROPRIATIONS: 11-0-4
YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua
ABS, ABST OR NV: Sanchez, Dixon, Jim Patterson, Ta
UPDATED
VERSION: August 22, 2024
CONSULTANT: Lara Flynn / HEALTH / (916) 319-2097 FN: 0004458
SENATE THIRD READING
STR Bill Id:SB 1230
Author:(Rubio)
As Amended Ver:August 19, 2024
Majority vote
SUMMARY
Authorizes the Department of Tax and Fee Administration (CDTFA) to seize flavored tobacco products or product flavor enhancers being sold in violation of existing law. Increases civil penalties for violations of the Stop Tobacco Access to Kids Enforcement Act, and requires flavored tobacco products and flavor enhancers forfeited to the state to be destroyed. Repeals (to conform with federal law) the provision authorizing the sale of tobacco products to active duty military personnel who are at least 18 years of age.
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.
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, in violation of this section is guilty of an infraction and will be punished by a fine of two hundred fifty dollars ($250) for each violation. 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
As a schoolteacher, the author knows all too well that California students continue to have easy access to addictive tobacco products and vapes with flavors designed to appeal to youth. Even after the passage of California's flavored tobacco ban, unauthorized tobacco products continue to flow into California and end up in the hands of consumers of all ages. The author states that this bill – also known as The STOP and Seize Illegal Tobacco Products Act – will strengthen enforcement of the law and remove illegal flavored tobacco products from the market. The bill does this by explicitly authorizing employees of the California Department of Tax and Fee Administration to seize and destroy flavored tobacco products discovered during inspections of tobacco retailers and warehouses, and reasonably increasing the civil penalties for retailers who continue to violate the law and sell flavored tobacco products and tobacco products to people under 21 years old. The author concludes that passing this legislation will send a signal that California cares deeply about the health of our community and we will not allow the industry to break the law to hook the next generation of nicotine addicts.
Arguments in Support
The American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association, and Campaign for Tobacco-Free Kids write as co-sponsors to support this bill, also the STOP and Seize Illegal Tobacco Products Act, which will protect the public health of all Californians, including California youth, by strengthening enforcement of California's flavored tobacco law and removing illegal tobacco products from the market.
According to the 2023 National Youth Tobacco Survey, approximately 2.8 million high school students and middle school students used a tobacco product in the past year, and nearly 90% of youth electronic cigarette users used flavored products. The California State Legislature passed SB 793 in 2020 to protect public health by prohibiting the sale of flavored tobacco products in California. But despite this law, illegal tobacco products continue to make their way into the hands of our youth. The co-sponsors note that this bill will authorize employees of the CDTFA to seize and destroy flavored tobacco products discovered during existing inspections of locations where tobacco products are sold or stored and increase the civil penalties for retailers who illegally sell tobacco products to people under 21 years old. The co-sponsors conclude that by expanding enforcement of California's flavored tobacco law and removing these illegal products from the market, this bill will curb the spread of these addictive, illegal products in California schools and homes.
Arguments in Opposition
There is no known opposition to this bill.
FISCAL COMMENTS
According to the Assembly Appropriations Committee, CDTFA estimates costs for the destruction of seized flavored tobacco products or tobacco product flavor enhancers, as follows: $1.6 million for fiscal year (FY) 2024-25. $2.9 million for FYs 2025-26 and 2026-27. $1.7 million for FY 2027-28 and ongoing (Cigarettes and Tobacco Products Compliance Fund). CDTFA also estimates the bill would likely result in a decrease in cigarette and tobacco products tax revenues of an unknown, likely minor, amount.
VOTES
SENATE FLOOR: 31-5-4
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener
NO: Dahle, Grove, Jones, Niello, Seyarto
ABS, ABST OR NV: Min, Nguyen, Ochoa Bogh, Wilk
ASM HEALTH: 16-0-0
YES: Bonta, Waldron, Aguiar-Curry, Arambula, Wendy Carrillo, Flora, Haney, Jones-Sawyer, Maienschein, McCarty, Joe Patterson, Rodriguez, Sanchez, Santiago, Lowenthal, Pellerin
ASM GOVERNMENTAL ORGANIZATION: 18-0-4
YES: Blanca Rubio, Addis, Bains, Bryan, Cervantes, Davies, Dixon, Gabriel, Gipson, Haney, Hart, Low, McKinnor, Pacheco, Ramos, Soria, Valencia, Wallis
ABS, ABST OR NV: Lackey, Papan, Jim Patterson, Ta
ASM APPROPRIATIONS: 11-0-4
YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua
ABS, ABST OR NV: Sanchez, Dixon, Jim Patterson, Ta
UPDATED
VERSION: August 19, 2024
CONSULTANT: Lara Flynn / HEALTH / (916) 319-2097 FN: 0004123
Date of Hearing: August 7, 2024
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Buffy Wicks, Chair
SBPCA Bill Id:SB 1230
Author:(Rubio) – As Introduced Ver:February 15, 2024
Policy Committee: | Health | Vote: | 16 - 0 |
Governmental Organization | 18 - 0 | ||
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill authorizes the Department of Tax and Fee Administration (CDTFA) to seize a flavored tobacco product or tobacco product flavor enhancer being sold in violation of existing law and increases civil penalties for violations of the STOP Tobacco Access to Kids Enforcement (STAKE) Act. The bill also requires flavored tobacco products and flavor enhancers forfeited to the state be destroyed.
Specifically, this bill:
- Increases the civil penalties an enforcing agency may assess against a person, firm, or corporation that sells, gives, or furnishes to a person who is under 21 years of age any tobacco, cigarette, cigarette papers, or any other instrument or paraphernalia designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance, as follows :
- $1,000 to $1,500, for the first violation.
- $2,000 to $3,000 for the second violation at the same location within a five-year period.
- $5,000 to $10,000 for the third violation at the same location within a five-year period.
- $10,000 to $20,000 for a fourth violation within a five-year period.
- At least $20,000 for five or more violations within a five-year period.
- Authorizes CDTFA to seize flavored tobacco products or tobacco product flavor enhancers if a retailer, or any of the retailer’s agents or employees, sell, offer for sale, or possess with the intent to sell or offer for sale, such products at the retail location or any other person’s location. Requires the seized products to be deemed forfeited.
- Adds flavored tobacco products and tobacco product flavor enhancers to existing law regarding forfeited products to be destroyed.
- Make various findings and declarations.
FISCAL EFFECT:
CDTFA estimates costs for the destruction of seized flavored tobacco products or tobacco product flavor enhancers, as follows:
- $1.6 million for fiscal year (FY) 2024-25.
- $2.9 million for FYs 2025-26 and 2026-27.
- $1.7 million for FY 2027-28 and ongoing (Cigarettes and Tobacco Products Compliance Fund).
CDTFA also estimates the bill would likely result in a decrease in cigarette and tobacco products tax revenues of an unknown, likely minor, amount.
COMMENTS:
- Purpose. This bill is sponsored by the American Cancer Society Cancer Action Network, American Heart Association, American Lung Association, and Campaign for Tobacco-Free Kids. According to the author:
As a school teacher, I know all too well that California students continue to have easy access to addictive tobacco products and vapes with flavors designed to appeal to youth…[This bill] will strengthen enforcement of the law and remove illegal flavored tobacco products from the market. The bill does this by explicitly authorizing employees of the California Department of Tax and Fee Administration to seize and destroy flavored tobacco products…and reasonably increasing the civil penalties for retailers who continue to violate the law and sell flavored tobacco products and tobacco products to people under 21 years old. Passing this legislation will send a signal that California cares deeply about the health of our community and we will not allow the industry to break the law to hook the next generation of nicotine addicts.
- Background.
California’s Flavored Tobacco Ban. Attracted by kid-friendly flavors like cotton candy and bubblegum, 3.6 million middle and high school students started using e-cigarettes in 2018. 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. SB 793 (Hill), Chapter 34, Statutes of 2020, prohibited the sale of flavored tobacco products or tobacco product flavor enhancers, with exceptions. The tobacco industry unsuccessfully challenged SB 793, and California’s ban on flavored tobacco went into effect in December 2022. This bill authorizes CDTFA to enforce the flavored tobacco ban through seizure of flavored tobacco products.
STAKE Act. Under the STAKE Act, if an employee sells tobacco to an underage individual, the business owner and the employee may be penalized for STAKE Act violations. Violators are subject to license-related penalties. The California Department of Public Health’s STAKE Program has the primary responsibility to enforce the state’s minimum age tobacco sales law. Another agency, such as a local enforcement agency, may also conduct inspections and assess penalties for violations. This bill increases civil penalties for sales of tobacco products to youth under 21 years old.
Analysis Prepared by: Allegra Kim / APPR. / (916) 319-2081
Date of Hearing: July 2, 2024
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Blanca Rubio, Chair
SBPCA Bill Id:SB 1230
Author:(Rubio) – As Introduced Ver:February 15, 2024
SENATE VOTE: 31-5
SUBJECT: Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act
SUMMARY: This bill, the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act, authorizes the Department of Tax and Fee Administration (CDTFA) to seize flavored tobacco products or product flavor enhancers being sold in violation of existing law. Increases civil penalties for violations of the Stop Tobacco Access to Kids Enforcement (STAKE) Act, and requires flavored tobacco products and tobacco product flavor enhancers forfeited to the state pursuant to the Cigarette and Tobacco Products Licensing Act of 2003 to be destroyed. Specifically, this bill:
1) Increases the civil penalties in 2) of existing law (STAKE Act) below as follows:
- A civil penalty of $1,000 to $1,500 for the first violation.
- A civil penalty of $2,000 to $3,000 for the second violation at the same location within a five-year period.
- A civil penalty of $5,000 to $10,000 for the third violation at the same location within a five-year period.
- A civil penalty of $10,000 to $20,000 for a fourth violation within a five-year period.
- A civil penalty of at least $20,000 for five or more violations within a five-year period.
2) Allows the CDTFA, if it discovers that a retailer, or any of the tobacco retailer’s agents or employees, sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or tobacco product flavor enhancer, to seize those flavored tobacco products or tobacco product flavor enhancers at the retail location or any other person’s location. Requires any flavored tobacco products or tobacco product flavor enhancers seized by CDTFA to be deemed forfeited, as specified.
3) Adds flavored tobacco products and tobacco product flavor enhancers to existing law regarding forfeited products to be destroyed.
4) Make various findings and declarations.
EXISTING LAW:
1) Requires the California Department of Public Health 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 STAKE Act. (Business and Professions §22950, et seq.)
2) Provides an enforcing agency may assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21 years of age (except for military personnel 18 years of age or older), any tobacco, cigarette, cigarette papers, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance, according to the following schedule:
- A civil penalty of $400 to $600 for the first violation,
- A civil penalty of $900 to $1,000 for the second violation within a five-year period,
- A civil penalty of $1,200 to $1,800 for a third violation within a five-year period,
- A civil penalty of $3,000 to $4,000 for a fourth violation within a five-year period, or
- A civil penalty of $5,000) to $6,000 for a fifth violation within a five-year period. (Business and Professions §22958)
3) 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. (Health and Safety Code §104559.5)
4) Defines “flavored tobacco product” as any tobacco product that contains a constituent that imparts a characterizing flavor. (Health and Safety Code § 104559.5)
5) Defines “Tobacco product flavor enhancer” to mean a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product. (Health and Safety Code § 104559.5)
6) 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. A Tobacco retailer includes a person who operates vending machines from which tobacco products are sold in this state. (Health and Safety Code § 104559.5)
7) Requires any cigarettes or tobacco products forfeited to the state pursuant the Cigarette and Tobacco Products Licensing Act to be destroyed. (Revenue and Taxation Code § 30449)
8) Requires 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 specified enforcement activities.
FISCAL EFFECT: This bill is keyed fiscal by Legislative Counsel.
COMMENTS:
Purpose of the bill. According to the author, “as a schoolteacher, she knows all too well that California students continue to have easy access to addictive tobacco products and vapes with flavors designed to appeal to youth. Even after the passage of California’s flavored tobacco ban, unauthorized tobacco products continue to flow into California and end up in the hands of consumers of all ages. We must increase enforcement of California’s flavored tobacco ban to stop the spread of illegal tobacco products. The author states that this bill – also known as The STOP and Seize Illegal Tobacco Products Act – will strengthen enforcement of the law and remove illegal flavored tobacco products from the market.”
The author further states, “this bill does this by explicitly authorizing employees of the CDTFA to seize and destroy flavored tobacco products discovered during inspections of tobacco retailers and warehouses, and reasonably increasing the civil penalties for retailers who continue to violate the law and sell flavored tobacco products and tobacco products to people under 21 years old. The author concludes that passing this legislation will send a signal that California cares deeply about the health of our community and we will not allow the industry to break the law to hook the next generation of nicotine addicts.”
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. Additionally, an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah.
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. 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 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.
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.
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, thus upholding SB 793 of 2020. 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.
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. Violations are punishable by civil penalties in the same manner as the STAKE Act, as specified.
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. 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.
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.
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 380 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 190 of these communities—restrict the sale of menthol cigarettes, in addition to other flavored tobacco products.
The Federal government also regulates tobacco products. In 2009, the FDA was granted regulatory 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 law banned cigarettes with nontobacco flavors, except menthol, beginning in 2009. In 2020, the FDA began stepping up enforcement against certain unauthorized ENDS products, including ENDS products targeted toward youth. In April 2022, the FDA proposed banning menthol-flavored cigarettes and banning all nontobacco flavored cigars. The FDA now is deciding whether to finalize these bans. The FDA has authorized the sale of only 23 tobacco-flavored e-cigarette products that may be lawfully sold in the U.S. All e-cigarette products are required by law to have FDA authorization to be legally marketed.
In support. The American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association, and Campaign for Tobacco-Free Kids write as co-sponsors to support this bill, also the STOP and Seize Illegal Tobacco Products Act, which will protect the public health of all Californians, including California youth, by strengthening enforcement of California’s flavored tobacco law and removing illegal tobacco products from the market.
According to the 2023 National Youth Tobacco Survey, approximately 2.8 million high school students and middle school students used a tobacco product in the past year, and nearly 90% of youth electronic cigarette users used flavored products. The California State Legislature passed Senate Bill 793 in 2020 to protect public health by prohibiting the sale of flavored tobacco products in California. But despite this law, illegal tobacco products continue to make their way into the hands of our youth. The co-sponsors note that this bill will authorize employees of the CDTFA to seize and destroy flavored tobacco products discovered during existing inspections of locations where tobacco products are sold or stored and increase the civil penalties for retailers who illegally sell tobacco products to people under 21 years old. The co-sponsors conclude that by expanding enforcement of California’s flavored tobacco law and removing these illegal products from the market, this bill will curb the spread of these addictive, illegal products in California schools and homes.
Double-referred. In addition to this Committee, this bill was referred to the Assembly Committee on Health, which passed this measure on June 16, 2024 on a vote of 16-0.
Related legislation. AB 3218 (Wood) of 2024. Requires the AG to establish and maintain on its website a list of tobacco product brand styles that lack a characterizing flavor, known as the “Unflavored Tobacco List” (UTL). Requires any brand style not on the UTL to be deemed a flavored tobacco product. Permits the AG to deny inclusion of a tobacco product on the UTL. (Pending in the Senate Committee on Health)
Prior legislation. AB 935 (Connolly), Chapter 351, Statutes of 2023. Aligned violations of the prohibition on sales of flavored tobacco and civil penalties with penalties for the STAKE Act. This bill required civil penalties to be deposited in the Cigarette and Tobacco Products Compliance Fund for specified enforcement activities.
AB 1742 (R. Rivas), Chapter 454, Statutes of 2022. 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. Banned 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.
SBX2 5 (Leno), Chapter 7, Statutes of 2016. Recasts and broadens the definition of “tobacco product” to include 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.
AB 768 (Thurmond), Chapter 779, Statutes of 2015. Prohibited 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. Repealed 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
American Cancer Society Cancer Action Network INC. (co-sponsor)
American Heart Association (co-sponsor)
American Lung Association of California (co-sponsor)
California Dental Association
Campaign for Tobacco Free Kids (co-sponsor)
City of Alameda
Cleanearth4kids.org
County Health Executives Association of California (CHEAC)
Tobacco Education and Research Oversight Committee
Opposition
None on file
Analysis Prepared by: Eric Johnson / G.O. / (916) 319-2531
Date of Hearing: June 11, 2024
ASSEMBLY COMMITTEE ON HEALTH
Mia Bonta, Chair
SBPCA Bill Id:SB 1230
Author:(Rubio) – As Introduced Ver:February 15, 2024
SENATE VOTE: 31-5
SUBJECT: Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act.
SUMMARY: Authorizes the Department of Tax and Fee Administration (CDTFA) to seize flavored tobacco products or product flavor enhancers being sold in violation of existing law. Increases civil penalties for violations of the Stop Tobacco Access to Kids Enforcement (STAKE) Act, and requires flavored tobacco products and flavor enhancers forfeited to the state to be destroyed. Specifically, this bill:
- Increases the civil penalties in 2) of existing law below as follows:
- $1,000 to $1,500 for the first violation;
- $2,000 to $3,000 for the second violation at the same location within a five-year period;
- $5,000 to $10,000 for the third violation at the same location within a five-year period;
- $10,000 to $20,000 for a fourth violation within a five-year period; and,
- At least $20,000 for five or more violations within a five-year period.
- Permits the CDTFA, if it discovers that a retailer, or any of the tobacco retailer’s agents or employees, sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or tobacco product flavor enhancer, to seize those flavored tobacco products or tobacco product flavor enhancers at the retail location or any other person’s location. Requires any flavored tobacco products or tobacco product flavor enhancers seized by CDTFA to be deemed forfeited, as specified.
- Adds flavored tobacco products and tobacco product flavor enhancers to existing law regarding forfeited products to be destroyed.
EXISTING LAW:
- Requires the California Department of Public Health 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 STAKE Act. [Business and Professions (BPC) §22950, et seq.]
- 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]
- 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. [Health and Safety Code §104559.5]
- 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. [Ibid.]
- Requires any cigarettes or tobacco products forfeited to the state pursuant the Cigarette and Tobacco Products Licensing Act to be destroyed. [Revenue and Taxation Code §30449]
FISCAL EFFECT: According to the Senate Appropriations Committee, CDTFA indicates that it initially would incur administrative costs of up to $1 million per year for the destruction of the seized flavored tobacco products or tobacco product flavor enhancers; however, over time, CDTFA anticipates that this amount would decrease as retailers become aware of its enforcement actions (Cigarettes and Tobacco Products Compliance Fund). CDTFA estimates that the bill would likely result in a minor decrease in cigarette and tobacco products tax revenues of an unknown amount.
COMMENTS:
- PURPOSE OF THIS BILL. According to the author, as a schoolteacher, she knows all too well that California students continue to have easy access to addictive tobacco products and vapes with flavors designed to appeal to youth. Even after the passage of California’s flavored tobacco ban, unauthorized tobacco products continue to flow into California and end up in the hands of consumers of all ages. We must increase enforcement of California’s flavored tobacco ban to stop the spread of illegal tobacco products. The author states that this bill – also known as The STOP and Seize Illegal Tobacco Products Act – will strengthen enforcement of the law and remove illegal flavored tobacco products from the market. The bill does this by explicitly authorizing employees of the California Department of Tax and Fee Administration to seize and destroy flavored tobacco products discovered during inspections of tobacco retailers and warehouses, and reasonably increasing the civil penalties for retailers who continue to violate the law and sell flavored tobacco products and tobacco products to people under 21 years old. The author concludes that passing this legislation will send a signal that California cares deeply about the health of our community and we will not allow the industry to break the law to hook the next generation of nicotine addicts.
- 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.
- Centers for Disease Control and Prevention 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. - 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 (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, in violation of this section is guilty of an infraction and will be punished by a fine of two hundred fifty dollars ($250) for each violation. This law does not specify where the enforcement authority of this statute resides, which implies local jurisdictions have authority to enforce this law.
- Centers for Disease Control and Prevention 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.
- SUPPORT. The American Cancer Society Cancer Action Network, the American Heart Association (AHA), the American Lung Association, and Campaign for Tobacco-Free Kids write as co-sponsors to support this bill, also the STOP and Seize Illegal Tobacco Products Act, which will protect the public health of all Californians, including California youth, by strengthening enforcement of California’s flavored tobacco law and removing illegal tobacco products from the market.
According to the 2023 National Youth Tobacco Survey, approximately 2.8 million high school students and middle school students used a tobacco product in the past year, and nearly 90% of youth electronic cigarette users used flavored products. The California State Legislature passed Senate Bill 793 in 2020 to protect public health by prohibiting the sale of flavored tobacco products in California. But despite this law, illegal tobacco products continue to make their way into the hands of our youth. The co-sponsors note that this bill will authorize employees of the CDTFA to seize and destroy flavored tobacco products discovered during existing inspections of locations where tobacco products are sold or stored and increase the civil penalties for retailers who illegally sell tobacco products to people under 21 years old. The co-sponsors conclude that by expanding enforcement of California’s flavored tobacco law and removing these illegal products from the market, this bill will curb the spread of these addictive, illegal products in California schools and homes.
- RELATED LEGISLATION. AB 3218 (Wood) requires the Attorney General (AG) to establish and maintain on the AG’s website, a list of tobacco product brand styles that lack a characterizing flavor, to be known as the Unflavored Tobacco List.
- PREVIOUS LEGISLATION.
- AB 935 (Connolly), Chapter 351, Statutes of 2023, 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 STAKE Act.
- SB 793 (Hill) prohibits a tobacco retailer, or any of the tobacco retailer’s agents or employees, from selling, offering for sale, or possessing with the intent to sell or offer for sale a flavored tobacco product or a tobacco product flavor enhancer, as specified.
- AB 598 (Rivas) of 2021 would have required the AG to establish and maintain a list of tobacco product brand styles that lack a characterizing flavor. AB 598 was not heard in the Assembly Health Committee.
- DOUBLE REFERRAL. This bill is double referred, upon passage of this committee, it will be referred to the Assembly Committee on Governmental Organization.
REGISTERED SUPPORT / OPPOSITION:
Support
American Cancer Society Cancer Action Network INC. (cosponsor)
American Heart Association (cosponsor)
American Lung Association of California (cosponsor)
Campaign for Tobacco Free Kids (cosponsor)
California Dental Association
California Medical Association
Children Now
City of Alameda
CleanEarth4Kids.org
County Health Executives Association of California (CHEAC)
Day One
International Youth Tobacco Control
The Greater Sacramento Smoke and Tobacco Free Coalition
Tobacco - Free Kids Action Fund
Tobacco Education and Research Oversight Committee
Western University of Health Sciences
Opposition
None on file.
Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 1230 |
THIRD READING
Bill No: SB 1230
Author: Rubio (D), et al.
Introduced: 2/15/24
Vote: 21
SENATE REVENUE AND TAXATION COMMITTEE: 6-1, 4/10/24
AYES: Glazer, Ashby, Bradford, Dodd, Padilla, Skinner
NOES: Dahle
SENATE HEALTH COMMITTEE: 9-0, 4/22/24
AYES: Roth, Glazer, Gonzalez, Hurtado, Limón, Menjivar, Rubio, Smallwood-Cuevas, Wiener
NO VOTE RECORDED: Nguyen, Grove
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/16/24
AYES: Caballero, Ashby, Becker, Bradford, Wahab
NOES: Jones, Seyarto
SUBJECT: Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act
SOURCE: Author
DIGEST:
This bill enacts the Strengthen Tobacco Oversight Programs and Seize Illegal Tobacco Products Act.
ANALYSIS:
Existing law:
- Directs the California Department of Public Health (CDPH) to administer the Stop Tobacco Access to Kids Enforcement Act (STAKE Act) to reduce the availability of tobacco to those under the age of 21.
- Allows under the STAKE Act, an enforcing agency, which includes CDPH, the Attorney General, and local law enforcement agencies, to 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.
- Sets fine ranges between $400 to $6,000 for a first, second, third, fourth, or fifth violation within a five-year period.
- Directs enforcement agencies to deposit civil penalties in the State Treasury to the credit of the Sale of Tobacco to Minors Control Account.
- Enacts the Cigarette and Tobacco Products Licensing Act (AB 71, Horton, Chapter 890, Statutes of 2003), which 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.
- Enacts the Taxpayer Transparency and Fairness Act (AB 102, Committee on Budget, Chapter 16, Statutes of 2017), 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).
- Requires retailers to have and maintain a license to sell cigarettes or tobacco products to purchasers.
- Provides that a retailer who owns or controls more than one retail location where cigarette and tobacco products are sold must obtain a separate license for each retail location.
- Directs each retailer to 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.
- Allows CDTFA to suspend a retailer’s license under the Licensing Act or the Cigarette and Tobacco Products Tax Law, for a first or subsequent license violation.
- Requires 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.
- Directs CDTFA to 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.
- Requires CDTFA to impose 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 efforts.
- Requires cigarette and tobacco products distributors to pay appropriate taxes by purchasing cigarette tax stamps from the CDTFA, which they then must affix to each package of cigarettes before distribution.
- Provides that possession, storage, ownership, or retail sales of unstamped packages of cigarettes by a retailer or other person, is a misdemeanor punishable by a fine of between $1,000 and $5,000, and imprisonment in a county jail for up to one year, or both, with higher fine amounts for repeat violators or when more than 20 unstamped packages are found.
- Provides that if CDTFA discovers that a retailer, or any of its agents or employees, sells or offers to sell unstamped cigarette packages, it can seize the packages, which is then treated as forfeit to the state.
- Directs CDTFA to provide notice of the seizure and forfeiture of the property by personal service or certified mail to all persons known to have interest in the property and to post the notice on its website for 6 months.
- Allows persons claiming an interest in the property may file a petition for the release of the property within 20 days.
- Permits a petitioner to file an action with the Superior Court of the County of Sacramento and the court must enter an order for the disposition of the property within 20 days of CDTFA’s denial of their petition.
- Requires CDTFA to either sell at public auction or destroy any property seized and forfeited to the state.
- Directs CDTFA to instead destroy, and not sell, any of the following:
- Cigarettes and tobacco products that are non-compliant with the Master Settlement Agreement.
- Unstamped cigarettes and untaxed tobacco products.
- Any cigarettes or tobacco products in possession of a person who continues to sell or gift those products without a valid license or after a notification of suspension or revocation of their license.
- 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, and provided that violations of the flavored tobacco ban were punishable as infractions, with a fine of $250 per violation (SB 793, Hill, Chapter 34, Statutes of 2020).
- Authorizes CDPH, the Attorney General, and local law enforcement agencies to enforce the ban, and makes violations subject to civil penalties contained in the STAKE Act, not as infractions (AB 935, Connolly, Chapter 351, Statutes of 2023).
- Requires any enforcement entity imposing a civil penalty for a third, fourth, or fifth violation of the flavored tobacco ban to notify CDTFA, which could then impose its own $250 penalty and proceed to suspend or revoke a tobacco products license as appropriate.
This bill:
- Increases civil penalty amounts imposed for violations of the STAKE Act as follows:
- First violation: $1,000 to $1,500 (currently $400 - $600).
- Second violation: $2,000 to $3,000 (currently $900 to $1,000).
- Third violation: $5,000 to $10,000 (currently $1,200 to $1,800).
- Fourth violation: $10,000 to $20,000 (currently $3,000 to $4,000).
- Fifth violation: At least $20,000 (currently $5,000 to $6,000).
- Authorizes CDTFA to seize flavored tobacco products or tobacco product flavor enhancers that violate the flavored tobacco products ban, and deems any seized products forfeited to the state.
- Requires CDTFA to comply with the same procedures as applies to seized tobacco products.
- Makes technical and conforming changes.
- Includes legislative findings and declarations supporting its purposes.
Background
As of February 20, 2024, approximately 29,400 cigarette and tobacco products retailer locations are licensed to sell cigarettes and tobacco products in California. CDTFA annually conducts about 10,000 inspections of licensed cigarette and tobacco products retailers to ensure compliance with the cigarette and tobacco products licensing and tax laws. According to CDTFA, during these inspections, approximately 50 percent of the licensed retail locations CDTFA examined were found to have violated the flavored tobacco products ban. Currently, CDTFA cannot seize the products; instead, they must refer violations to the local tobacco law enforcement agency. SB 1230 would extend similar authority for flavored tobacco products that CDTFA can currently exercise with regard to unstamped tobacco products and cannabis products when held by unlicensed parties.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Senate Appropriations Committee, The California Department of Tax and Fee Administration (CDTFA) indicates that it initially would incur administrative costs of up to $1 million per year for the destruction of the seized flavored tobacco products or tobacco product flavor enhancers; however, over time, CDTFA anticipates that this amount would decrease as retailers become aware of its enforcement actions (Cigarettes and Tobacco Products Compliance Fund). The Department estimates that the bill would likely result in a minor decrease in cigarette and tobacco products tax revenues of an unknown amount
SUPPORT: (Verified 5/16/24)
American Cancer Society Cancer Action Network INC.
American Heart Association
American Lung Association of California
Campaign for Tobacco Free Kids
American Lung Association in California
California Dental Association
California Medical Association
Children Now
City of Alameda
County Health Executives Association of California (CHEAC)
Day One
International Youth Tobacco Control
The Greater Sacramento Smoke and Tobacco Free Coalition
Tobacco - Free Kids Action Fund
Tobacco Education and Research Oversight Committee
Western University of Health Sciences
OPPOSITION: (Verified 5/16/24)
None received
ARGUMENTS IN SUPPORT: According to the author, “as a school teacher, I know all too well that California students continue to have easy access to addictive tobacco products and vapes with flavors designed to appeal to youth. Even after the passage of California’s flavored tobacco ban, unauthorized tobacco products continue to flow into California and end up in the hands of consumers of all ages. We must increase the enforcement of California’s flavored tobacco ban to stop the spread of illegal tobacco products. SB 1230 – also known as The STOP and Seize Illegal Tobacco Products Act – will strengthen enforcement of the law and remove illegal tobacco products from the market. The bill does this by explicitly authorizing employees of the California Department of Tax and Fee Administration to seize and destroy flavored tobacco products discovered during inspections of tobacco retailers and warehouses, and reasonably increasing the civil penalties for retailers who continue to violate the law and sell flavored tobacco products and tobacco products to people under 21 years old. Passing this legislation will send a signal that California cares deeply about the health of our community and we will not allow the industry to break the law to hook the next generation of nicotine addicts.”
Prepared by: Colin Grinnell / REV. & TAX. / (916) 651-4117
5/17/24 17:19:26
**** END ****
SENATE COMMITTEE ON
Senator Anna Caballero, Chair
2023 - 2024 Regular Session
SB 1230 (Rubio) - Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
Bill Summary:
SB 1230 would enact the Strengthen Tobacco Oversight Programs and Seize Illegal Tobacco Products Act.
Fiscal Impact:
The California Department of Tax and Fee Administration (CDTFA) indicates that it initially would incur administrative costs of up to $1 million per year for the destruction of the seized flavored tobacco products or tobacco product flavor enhancers; however, over time, CDTFA anticipates that this amount would decrease as retailers become aware of its enforcement actions (Cigarettes and Tobacco Products Compliance Fund). The Department estimates that the bill would likely result in a minor decrease in cigarette and tobacco products tax revenues of an unknown amount.
Background:
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. Enforcement agencies deposit civil penalties in the State Treasury to the credit of the Sale of Tobacco to Minors Control Account.
Cigarette distributors must pay appropriate taxes by purchasing cigarette tax stamps from CDTFA, which they then must affix to each package of cigarettes before distribution. Possession, storage, ownership, or retail sales of unstamped packages of cigarettes by a retailer or other person, is a misdemeanor punishable by a fine of between $1,000 and $5,000, and imprisonment in a county jail for up to one year, or both, with higher fine amounts for repeat violators or when more than 20 unstamped packages are found. Additionally, if CDTFA discovers that a retailer, or any of its agents or employees, sells or offers to sell unstamped cigarette packages, it can seize the packages. Similar authority exists for CDTFA to seize cannabis products under specified circumstances. When seized, the law treats the products as forfeited to the state.
For tobacco products, CDTFA must provide notice of the seizure and forfeiture of the property by personal service or certified mail to all persons known to have interest in the property and to post the notice on its website for 6 months. Persons claiming an interest in the property may file a petition for the release of the property within 20 days. CDTFA may not return the property unless it is determined the property was seized erroneously or illegally. Within 20 days of the denial of the petition, the petitioner may file an action with the Superior Court of the County of Sacramento and the court must enter an order for the disposition of the property.
CDTFA must either sell at public auction or destroy any property seized and forfeited to the state. However, CDTFA must destroy, and cannot sell, any of the following: (1) cigarettes and tobacco products that are non-compliant with the Master Settlement Agreement, (2) unstamped cigarettes and untaxed tobacco products, and (3) any cigarettes or tobacco products in possession of a person who continues to sell or gift those products without a valid license or after a notification of suspension or revocation of their license.
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). SB 793 provided that violations were punishable as infractions, with a fine of $250 per violation. However, SB 793 did not specify who was responsible for enforcement. Last year, the Legislature enacted AB 935 (Connolly), which authorized CDPH, the Attorney General, and local law enforcement agencies to enforce the ban. The measure also made violations subject to civil penalties contained in the STAKE Act, not as infractions. Additionally, AB 935 required any enforcement entity imposing a civil penalty for a third, fourth, or fifth violation to notify CDTFA, which could then impose its own $250 penalty and proceed to suspend or revoke a tobacco products license as appropriate.
Proposed Law:
This bill would, among other things do the following:
- Increase civil penalty amounts imposed for violations of the STAKE Act, as specified. Civil penalties. SB 1230 increases civil penalty amounts imposed for violations of the STAKE Act as follows:
- First violation: $1,000 to $1,500 (currently $400 - $600)
- Second violation: $2,000 to $3,000 (currently $900 to $1,000)
- Third violation: $5,000 to $10,000 (currently $1,200 to $1,800)
- Fourth violation: $10,000 to $20,000 (currently $3,000 to $4,000)
- Fifth violation: At least $20,000 (currently $5,000 to $6,000)
- Authorize CDTFA to seize flavored tobacco products or tobacco product flavor enhancers at a retail or any other location that violate the flavored tobacco products ban, as specified
Related Legislation:
- AB 935 (Connolly, Chapter 351, Statutes of 2023) effective January 1, 2024, makes violations of the flavored tobacco products ban enforceable by CDPH or other enforcing agencies through the imposition of civil penalties. The bill also requires CDTFA to impose a $250 civil penalty and suspend or revoke a retailer’s license to engage in cigarette and tobacco product sales when CDPH notifies CDTFA of violations of the flavored tobacco products ban, as specified.
- SB 793 (Hill, Chapter 34, Statutes of 2020) enacted the flavored tobacco products ban, which 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, and makes a violation of the prohibition an infraction punishable by a fine of $250 for each violation.
- AB 71 (J. Horton, Chapter 890, Statutes of 2003) enacted the Licensing Act, which established a statewide licensure program administered by the Board of Equalization (currently CDTFA) to help stem the tide of untaxed distributions and illegal sales of cigarettes and tobacco products.
Staff Comments:
Roughly 50 percent of the licensed retailer locations CDTFA has inspected violate the flavored tobacco products ban. As noted previously, when the Department discovers such banned products, it is not authorized to seize them. Instead, it refers the retailer’s violations to the local tobacco law enforcement agency. Local ordinances govern whether local law enforcement agencies may seize banned flavored tobacco products.
-- END --
SENATE COMMITTEE ON HEALTH
Senator Richard Roth, Chair
BILL NO: SB 1230
AUTHOR: | Rubio | ||
VERSION: | February 15, 2024 | ||
HEARING DATE: | April 22, 2024 | ||
CONSULTANT: | Reyes Diaz | ||
SUBJECT: Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act
SUMMARY:
Increases civil penalties for violations of the Stop Tobacco Access to Kids Enforcement Act from $400 to $6,000, in current law, to $1,000 to $20,000 for various violations. Requires flavored tobacco products or tobacco product flavor enhancers to be seized from retail locations, as specified, and adds those products to existing law regarding forfeited products to be destroyed.
Existing law:
- 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.]
- 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]
- 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]
- Requires any cigarettes or tobacco products forfeited to the state pursuant the Cigarette and Tobacco Products Licensing Act to be destroyed. [RTC §30449]
This bill:
- Increases the civil penalties in 2) of existing law above as follows:
- $1,000 to $1,500 for the first violation;
- $2,000 to $3,000 for the second violation at the same location within a five-year period;
- $5,000 to $10,000 for the third violation at the same location within a five-year period;
- $10,000 to $20,000 for a fourth violation within a five-year period; and,
- At least $20,000 for five or more violations within a five-year period.
- Permits the California Department of Tax and Fee Administration (CDTFA), if it discovers that a retailer, or any of the tobacco retailer’s agents or employees, sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or tobacco product flavor enhancer, to seize those flavored tobacco products or tobacco product flavor enhancers at the retail location or any other person’s location. Requires any flavored tobacco products or tobacco product flavor enhancers seized by CDTFA to be deemed forfeited, as specified.
- Adds flavored tobacco products and tobacco product flavor enhancers to existing law regarding forfeited products to be destroyed.
FISCAL EFFECT:
This bill has not been analyzed by a fiscal committee.
COMMENTS:
- Author’s statement. According to the author, as a school teacher, she knows all too well that California students continue to have easy access to addictive tobacco products and vapes with flavors designed to appeal to youth. Even after the passage of California’s flavored tobacco ban, unauthorized tobacco products continue to flow into California and end up in the hands of consumers of all ages. We must increase enforcement of California’s flavored tobacco ban to stop the spread of illegal tobacco products. This bill, also known as The STOP and Seize Illegal Tobacco Products Act, will strengthen enforcement of the law and remove illegal flavored tobacco products from the market by explicitly authorizing employees of CDTFA to seize and destroy flavored tobacco products discovered during inspections of tobacco retailers and warehouses, and reasonably increasing the civil penalties for retailers who continue to violate the law and sell flavored tobacco products and tobacco products to people under 21 years old. Passing this bill will send a signal that California cares deeply about the health of our community, and we will not allow the industry to break the law to hook the next generation of nicotine users.
- 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.
- California’s flavored tobacco ban. SB 793 (Hill et al, Chapter 34, Statutes of 2020) 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. SB 793 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. A subsequent challenge was submitted by R.J. Reynolds, but in January 2024, the U.S. Supreme Court declined to hear it.
- 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. In November 2023, the CDC and FDA released data from the 2023 National Youth Tobacco Survey (NYTS), which found that among U.S. high school students, current overall tobacco product use declined during 2022-2023 (16.5% to 12.6%). This decline was primarily driven by e-cigarettes (14.1% to 10.0%), which translates to 580,000 fewer high school students who currently used e-cigarettes in 2023. Among high school students, declines were also observed during 2022-2023 for cigars and overall combustible tobacco smoking, representing all-time lows. Although a decrease in e-cigarette use was observed among high school students, there was an increase in current overall tobacco product use among middle school students (4.5% to 6.6%) and multiple tobacco product use (1.5% to 2.5%). However, among middle school students overall, no significant change was observed during 2022-2023 for any individual tobacco product type, including e-cigarettes. Although there were declines, e-cigarettes are still the most favored tobacco product among youth (7.7% vs 1.6% of youth who smoke cigarettes.) Additionally, 10.0% (1.56 million) high school students and 4.6% (550,000) middle school students reported current use of e-cigarettes.
- Double referral. This bill was heard in the Senate Revenue and Taxation Committee on April 10, 2024, and passed with a 6-1 vote.
- Related legislation. AB 3218 (Wood) requires the Attorney General to establish and maintain on the website a list of tobacco product brand styles that lack a characterizing flavor to be known as the Unflavored Tobacco List. AB 3218 is pending in the Assembly Appropriations Committee.
- Prior legislation. SB 626 (Rubio, Chapter 182, Statutes of 2023) 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.
AB 935 (Connolly, Chapter 351, Statutes of 2023) aligns violations of the prohibition on sales of flavored tobacco and civil penalties with penalties for the Stop Tobacco Access to Kids Enforcement Act. AB 935 requires civil penalties to be deposited in the Cigarette and Tobacco Products Compliance Fund for specified enforcement activities.
AB 598 (Rivas of 2021) was similar to AB 3218 (Wood). AB 598 was not heard in the Assembly Health Committee.
SB 793 (Hill, Chapter 34, Statutes of 2020) enacted the prohibition on 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.
- Support. The co-sponsors of this bill and other supporters cite the 2023 NYTS, which found that approximately 2.8 million high school students and middle school students used a tobacco product in the past year, and nearly 90% of youth electronic cigarette users used flavored products. Data from the CDC Foundation show that while sales of flavored e-cigarettes have declined by 70% since implementation of the law, over one-third of e-cigarette sales in California are still for prohibited, flavored e-cigarettes. It is clear that more work is needed to end the availability of flavored tobacco products in California. By expanding enforcement of California’s flavored tobacco law and removing these illegal products from the market, this bill will curb the spread of these addictive, illegal products in California schools and homes.
SUPPORT AND OPPOSITION:
Support: American Cancer Society Cancer Action Network (co-sponsor)
American Heart Association (co-sponsor)
American Lung Association (co-sponsor)
Campaign for Tobacco-Free Kids (co-sponsor)
California Dental Association
California Medical Association
Children Now
Day One
Greater Sacramento Smoke and Tobacco Free Coalition
International Youth Tobacco Control
Tobacco Education and Research Oversight Committee
Oppose: None received
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SENATE COMMITTEE ON REVENUE AND TAXATION
Senator Steven Glazer, Chair
2023 - 2024 Regular
Bill No: | SB 1230 | Hearing Date: | 4/10/24 |
Author: | Rubio | Tax Levy: | No |
Version: | 2/15/24 | Fiscal: | Yes |
Consultant: | Grinnell | ||
Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act
Enacts the Strengthen Tobacco Oversight Programs and Seize Illegal Tobacco Products 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. Enforcement agencies deposit civil penalties in the State Treasury to the credit of the Sale of Tobacco to Minors Control Account.
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 Licensing 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 efforts. 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.
Unstamped cigarettes. Cigarette distributors must pay appropriate taxes by purchasing cigarette tax stamps from the CDTFA, which they then must affix to each package of cigarettes before distribution. Possession, storage, ownership, or retail sales of unstamped packages of cigarettes by a retailer or other person, is a misdemeanor punishable by a fine of between $1,000 and $5,000, and imprisonment in a county jail for up to one year, or both, with higher fine amounts for repeat violators or when more than 20 unstamped packages are found. Additionally, if CDTFA discovers that a retailer, or any of its agents or employees, sells or offers to sell unstamped cigarette packages, it can seize the packages. Similar authority exists for CDTFA to seize cannabis products under specified circumstances. When seized, the law treats the products as forfeited to the state.
For tobacco products, CDTFA must provide notice of the seizure and forfeiture of the property by personal service or certified mail to all persons known to have interest in the property and to post the notice on its website for 6 months. Persons claiming an interest in the property may file a petition for the release of the property within 20 days. CDTFA may not return the property unless it is determined the property was seized erroneously or illegally. Within 20 days of the denial of the petition, the petitioner may file an action with the Superior Court of the County of Sacramento and the court must enter an order for the disposition of the property.
CDTFA must either sell at public auction or destroy any property seized and forfeited to the state. However, CDTFA must destroy, and cannot sell, any of the following:
- Cigarettes and tobacco products that are non-compliant with the Master Settlement Agreement.
- Unstamped cigarettes and untaxed tobacco products.
- Any cigarettes or tobacco products in possession of a person who continues to sell or gift those products without a valid license or after a notification of suspension or revocation of their license.
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). SB 793 provided that violations were punishable as infractions, with a fine of $250 per violation.
AB 935 (Connolly). While SB 793 specified violations of the flavored tobacco ban were infractions, and punishable by a $250 fine, it did not specify who was responsible for enforcement. Last year, the Legislature enacted AB 935 (Connolly), which authorized CDPH, the Attorney General, and local law enforcement agencies to enforce the ban. The measure also made violations subject to civil penalties contained in the STAKE Act, not as infractions. Additionally, AB 935 required any enforcement entity imposing a civil penalty for a third, fourth, or fifth violation to notify CDTFA, which could then impose its own $250 penalty and proceed to suspend or revoke a tobacco products license as appropriate.
Seeking to strengthen enforcement of California’s flavored tobacco ban and remove illegal tobacco products from the market, the author wants to increase civil penalties for violations of the STAKE Act, and allow CDTFA to seize flavored tobacco products.
Proposed Law
Senate Bill 1230 enacts the Strengthen Tobacco Oversight Programs and Seize Illegal Tobacco Products Act, which makes two changes: first, it increases civil penalty amounts imposed for violations of the STAKE Act, and second, it authorizes CDTFA to seize flavored tobacco products or tobacco product flavor enhancers at a retail or any other location.
Civil penalties. SB 1230 increases civil penalty amounts imposed for violations of the STAKE Act as follows:
- First violation: $1,000 to $1,500 (currently $400 - $600)
- Second violation: $2,000 to $3,000 (currently $900 to $1,000)
- Third violation: $5,000 to $10,000 (currently $1,200 to $1,800)
- Fourth violation: $10,000 to $20,000 (currently $3,000 to $4,000)
- Fifth violation: At least $20,000 (currently $5,000 to $6,000)
CDTFA seizure authority. SB 1230 authorizes CDTFA to seize flavored tobacco products or tobacco product flavor enhancers that violate the flavored tobacco products ban, and deems any seized products forfeited to the state. CDTFA must comply with the same procedures as applies to seized tobacco products.
SB 1230 makes technical and conforming changes, and includes legislative findings and declarations supporting its purposes.
State Revenue Impact
CDTFA estimates that SB 1230 will likely result in a minor decrease in cigarette and tobacco products tax revenues of an unknown amount.
Comments
1. Purpose of the bill. According to the author, “as a school teacher, I know all too well that California students continue to have easy access to addictive tobacco products and vapes with flavors designed to appeal to youth. Even after the passage of California’s flavored tobacco ban, unauthorized tobacco products continue to flow into California and end up in the hands of consumers of all ages. We must increase the enforcement of California’s flavored tobacco ban to stop the spread of illegal tobacco products. SB 1230 – also known as The STOP and Seize Illegal Tobacco Products Act – will strengthen enforcement of the law and remove illegal tobacco products from the market. The bill does this by explicitly authorizing employees of the California Department of Tax and Fee Administration to seize and destroy flavored tobacco products discovered during inspections of tobacco retailers and warehouses, and reasonably increasing the civil penalties for retailers who continue to violate the law and sell flavored tobacco products and tobacco products to people under 21 years old. Passing this legislation will send a signal that California cares deeply about the health of our community and we will not allow the industry to break the law to hook the next generation of nicotine addicts.”
2. Crime and punishment. In 1992, Congress enacted the Synar Amendment, which aimed to decrease minors’ access to tobacco, by requiring states to adopt and enforce laws prohibiting any manufacturer, retailer, or distributor from selling or distributing tobacco products to minors. In 1994, the Legislature enacted Stop Tobacco Access to Kids Enforcement (STAKE) Act (Hayden, SB 1927) to meet the requirements of the Synar Amendment, which also set the current penalty amounts SB 1230 seeks to change. SB 1230’s supporters argue the current penalty amounts are low compared to the profit that can be made from the illegal sales of tobacco. Supporters add increased STAKE Act penalties are more necessary today because tobacco addiction usually starts during youth: according to the Center on Disease Control, nearly 9 out of 10 adults who smoke cigarettes daily first start smoking by age 18; after age 25, almost no adults begin smoking or transition to daily smoking. SB 1230’s penalty increase should enhance the deterrent effect on retailers of selling tobacco to those below the legal age.
3. Seize the day. In addition to increasing civil penalty amounts for violations of the STAKE Act, SB 1230 extends CDTFA’s seizure authority to flavored tobacco products, which currently applies to unstamped cigarettes as well as cannabis products under specified circumstances. As of February 20, 2024, approximately 29,400 cigarette and tobacco products retailer locations are licensed to sell cigarettes and tobacco products in California. CDTFA annually conducts about 10,000 inspections of licensed cigarette and tobacco products retailers to ensure compliance with the cigarette and tobacco products licensing and tax laws. According to CDTFA, during these inspections, approximately 50 percent of the licensed retail locations CDTFA examined were found to have violated the flavored tobacco products ban. Currently, CDTFA is not authorized to seize the products. Instead, they must refer violations to the local tobacco law enforcement agency.
4. Double-referred. The Senate Committee on Rules ordered a double-referral of SB 1230: first to the Committee on Revenue and Taxation, and second to the Committee on Health.
Support and Opposition
(4/5/24)
Support: American Cancer Society Cancer Action Network INC. (Co-Sponsor)
American Heart Association (Co-Sponsor)
American Lung Association of California (Co-Sponsor)
Campaign for Tobacco Free Kids (Co-Sponsor)
California Dental Association
California Medical Association
Children Now
International Youth Tobacco Control
The Greater Sacramento Smoke and Tobacco Free Coalition
Tobacco Education and Research Oversight Committee
Opposition: None submitted.
-- END --
Discussed in Hearing
1MIN
Senate Floor
1MIN
Assembly Floor
8MIN
Assembly Standing Committee on Governmental Organization
12MIN
Assembly Standing Committee on Health
2MIN
Senate Floor
8MIN
Senate Standing Committee on Health
6MIN
Senate Standing Committee on Health
9MIN
Senate Standing Committee on Revenue and Taxation
Bill Author
Bill Co-Author(s):
