BILL ANALYSIS
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Elaine K. Alquist, Chair
BILL NO: SB 882
S
AUTHOR: Corbett
B
AMENDED: April 28, 2010
HEARING DATE: May 5, 2010
8
CONSULTANT:
8
Dunstan/
2
SUBJECT
Electronic cigarettes
SUMMARY
This urgency measure requires cities and counties to revoke
the license of a business that, on two or more occasions,
provides or offers electronic cigarettes, as defined, to a
person less than 18 years of age, and makes it unlawful to
sell or furnish electronic cigarettes to a person less than
18 years of age.
CHANGES TO EXISTING LAW
Existing state law:
Authorizes cities and counties to issue business licenses,
set licensing fees and collect licensing fees.
Establishes the Stop Tobacco Access to Kids Enforcement
(STAKE) Act which contains several provisions, including
civil penalties for the sale of tobacco to minors.
Requires a retailer to maintain a license issued by the
Board of Equalization to engage in the sale of cigarettes
or tobacco products.
Prohibits any person, firm, or corporation from selling,
giving or in any way furnishing cigarettes or tobacco
products to any person who is under the age of 18 years and
provides that the punishment for violations shall be a fine
Continued---
STAFF ANALYSIS OF SENATE BILL 882 (Corbett) Page 2
of two hundred dollars ($200) for the first offense, five
hundred dollars ($500) for the second offense, and one
thousand dollars ($1,000) for the third offense.
This bill:
Requires cities and counties to revoke the license of a
business that, on two or more occasions, provides or offers
electronic cigarettes to a person less than 18 years of
age.
Defines "electronic cigarette" as any device that can
provide inhaled doses of nicotine by delivering a vaporized
solution.
Makes it unlawful to sell or otherwise furnish electronic
cigarettes to a person less than 18 years of age.
Provides that the bill's provision shall become effective
immediately as an urgency measure. Establishes how any
state mandated local costs shall be reimbursed. Provides
that the Legislature makes various findings and
declarations regarding electronic cigarettes.
FISCAL IMPACT
This bill moved out of the Senate Appropriations Committee
pursuant to Section 28.8.
BACKGROUND AND DISCUSSION
According to the author, electronic cigarettes, which are
rechargeable, battery operated devices that allow the user
to inhale a smokeless vapor often containing nicotine, are
completely unregulated and available for purchase by
minors. The author argues that producers of electronic
cigarettes have used a loophole in state and federal law to
sell their product without age restrictions. The author
notes that this is occurring despite initial studies by the
U.S. Food and Drug Administration that have found that
electronic cigarettes contain known carcinogens and
misrepresentations in labeling. The author also states
that the FDA has sent out a health warning about this
product. The author notes that local county tobacco
control agencies have reported that minors have been able
STAFF ANALYSIS OF SENATE BILL 882 (Corbett) Page 3
to successfully purchase electronic cigarettes in mall
kiosks, and by locating these kiosks close to food courts
and popular teen stores, are successfully enticing young
consumers to hear their targeted pitches on flavored
cartridges and the appeal of a product that can be used in
all public places since it emits no smoke. The author also
points to a 2008 report prepared for the State Department
of Public Health that found, with regard to the California
Tobacco Control Program, law enforcement agencies continue
to rank policies and procedures, such as suspension or
revocation of business licenses, and civil and criminal
penalties for owners and clerks who sell tobacco to minors,
as effective strategies to reduce youth access to tobacco.
Electronic cigarettes
Electronic cigarettes are neither cigarettes nor a tobacco
product. They are electronic devices that are manufactured
to look like cigarettes that cost between $40 and $70.
They are battery powered and provide the person who uses
them a vaporized liquid to inhale. The liquid solution may
contain nicotine, which is then delivered to the user. The
solution also comes in a variety of flavors, such as
chocolate, mint and apple, which are thought to make them
appealing to children and adolescents.
Since electronic cigarettes are not cigarettes, they fall
outside of the tobacco regulatory scheme at the state and
federal levels. As an unregulated product, there is no age
limit for purchasing them. Electronic cigarettes do not
contain warnings, which are required on nicotine
replacement therapies and tobacco products. These products
have also not been subject to an analysis to determine the
possible impact on consumer health. The amount of nicotine
they deliver is unknown. The existence and possible levels
of other compounds they may contain is uncertain, although
the FDA has researched some samples and announced that they
contain toxic and carcinogenic chemicals. Studies are
underway to examine the health effects, but the results
won't be known for many years.
Nicotine
Nicotine is highly addictive. It is both a stimulant and a
sedative to the central nervous system. The ingestion of
nicotine has an almost immediate effect because it causes a
discharge of epinephrine from the adrenal cortex. This
stimulates the central nervous system and other endocrine
STAFF ANALYSIS OF SENATE BILL 882 (Corbett) Page 4
glands, which causes a sudden release of glucose.
Stimulation is then followed by depression and fatigue,
leading the abuser to seek more nicotine.
Nicotine is absorbed readily from tobacco smoke in the
lungs, and it does not matter whether the tobacco smoke is
from cigarettes, cigars, or pipes. Nicotine also is
absorbed readily when tobacco is chewed. With regular use
of tobacco, levels of nicotine accumulate in the body
during the day and persist overnight. Thus, daily smokers
or chewers are exposed to the effects of nicotine for 24
hours each day. Nicotine taken by cigarette or cigar
smoking takes only seconds to reach the brain and has a
direct effect on the body for up to 30 minutes.
Nicotine is one of the most heavily used addictive drugs in
the United States. Cigarette smoking has been the most
popular method of taking nicotine since the beginning of
the 20th century. In 1989, the U.S. Surgeon General issued
a report that concluded that cigarettes and other forms of
tobacco, such as cigars, pipe tobacco, and chewing tobacco,
are addictive and that nicotine is the drug in tobacco that
causes addiction. In addition, the report determined that
smoking was a major cause of stroke and the third leading
cause of death in the United States.
Because electronic cigarettes are a means of delivering
nicotine, public health officials are concerned that the
use of them may lead to nicotine addiction, especially
among youth. Concerns have also been raised that this
nicotine addiction could lead to increased underage
smoking.
Health agency response
Because they deliver nicotine, these devices are sometimes
marketed for nicotine replacement therapy. The World
Health Organization (WHO) does not consider the electronic
cigarette to be a legitimate smoking cessation aid, and has
demanded that marketers immediately remove from their
materials any suggestions that the WHO considers electronic
cigarettes safe and effective. WHO states that, to its
knowledge, "No rigorous, peer-reviewed studies have been
conducted showing that the electronic cigarette is a safe
and effective nicotine replacement therapy. WHO does not
discount the possibility that the electronic cigarette
could be useful as a smoking cessation aid."
STAFF ANALYSIS OF SENATE BILL 882 (Corbett) Page 5
Many countries have taken some action to regulate
electronic cigarettes. The actions range from an outright
ban of nicotine in electronic cigarettes (Australia,
Singapore) to treating them as a medicinal product with the
attendant regulation as a device that delivers a drug.
(Austria, Denmark). Their use is not restricted currently
in the United Kingdom, but regulation as a medical device
is being considered by the nation's health agency. In
Canada, Health Canada issued an advisory against electronic
cigarettes. The advisory stated that, "Although these
electronic smoking products may be marketed as a safer
alternative to conventional tobacco products and, in some
cases, as an aid to quitting smoking, electronic smoking
products may pose risks such as nicotine poisoning and
addiction."
The FDA has opined that nicotine is a drug and therefore
subject to agency regulation and that electronic cigarettes
are devices used to deliver drugs. For that reason, the FDA
asserts that they must be approved by the FDA before being
marketed within the United States. Before approval could
be gained, the manufacturers would have to show that
electronic cigarettes are safe and effective.
Pursuant to its authority, the FDA has been examining and
detaining shipments of e-cigarettes at the U.S. border.
The FDA states that the products it has examined meet the
definition of a combination drug-device product under the
Federal Food, Drug and Cosmetic Act. However, the FDA has
not taken any steps to remove them from the U.S. market.
The FDA has been challenged regarding its jurisdiction over
electronic cigarettes in a case currently pending in
federal courts (Smoking Everywhere, Inc. v. FDA). The
basis of the challenge is that electronic cigarettes are
nontherapeutic alternatives to cigarettes; hence, they do
not fall under FDA regulation. The lower court agreed with
this logic and stated that they should be regulated as
tobacco products and enjoined FDA from acting to block
imports. The FDA is appealing the ruling and the U.S.
Court of Appeals has reinstated the FDA's right to regulate
the importation of electronic cigarettes pending final
disposition of the case.
Prior legislation
SB 400 (Corbett) of 2009 provided that electronic
STAFF ANALYSIS OF SENATE BILL 882 (Corbett) Page 6
cigarettes are drugs under state law, making them subject
to the Sherman Food, Drug, and Cosmetic Law and allowed the
Department of Public Health (DPH) to halt the sale,
distribution, or offering of electronic cigarettes as part
of its enforcement of the Stop Tobacco Access to Kids
Enforcement (STAKE) Act. This bill was vetoed and the
Governor stated in his veto message, "I cannot sign a
measure that also declares them [electronic cigarettes] a
federally regulated drug when the matter is currently being
decided through pending litigation."
SJR 8 (Corbett), requests that the federal Food and Drug
Administration prohibit all sales of electronic cigarettes
until they have been found by the Food and Drug
Administration to be safe. This resolution is in Assembly
Governmental Organization Committee.
Arguments in support
Supporters argue that SB 882 would take significant steps
to prevent minors from purchasing electronic cigarettes.
The Health Officers Association of California points out
that tobacco use is a major public health problem, and
cigarette use among minors is of great concern to public
health professionals. They argue that electronic
cigarettes are an unregulated alternative to cigarettes
which, because they have not yet been reviewed by the FDA,
are not yet illegal to sell to minors and manufacturers and
distributors of electronic cigarettes are taking advantage
of this technicality to sell electronic cigarettes in mall
kiosks and other places frequented by teenagers. They
argue that SB 882 would close this loophole.
STAFF ANALYSIS OF SENATE BILL 882 (Corbett) Page 7
COMMENTS
1. Author's proposed amendments to remove the penalty of
business license revocation. The penalty of license
revocation for two violations of the ban on selling or
furnishing electronic cigarettes to underage purchasers is
much more punitive than the penalty for violations of
underage sales laws for cigarettes and tobacco products.
To remedy this, the author proposes to delete the penalty
of business license revocation and substitute a fine that
is the same as the Penal Code provisions for underage sales
of cigarettes and tobacco products.
Proposed Amendments
Page 3, line 15 to page 4, line 9, delete.
Page 4, after line 17, insert
(c) Any violation of this section is an infraction
punishable by a fine not exceeding two hundred dollars
($200) for a first violation, by a fine not exceeding five
hundred dollars ($500) for a second violation, or by a fine
not exceeding one thousand dollars ($1000) for a third and
for each subsequent violation.
PRIOR ACTIONS
Senate Business, Professions and
Economic Development: 5-2
Senate Appropriations: This bill moved out of the Senate
Appropriations Committee
pursuant to Section 28.8.
POSITIONS
Support: First 5 Association of California
Health Officers Association of California (HOAC)
Oppose: None received
-- END --
I want a cloned pony ride! 
