Bill Text: CA AB3218 | 2023-2024 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Unflavored Tobacco List.
Spectrum: Partisan Bill (Democrat 10-0)
Status: (Passed) 2024-09-28 - Chaptered by Secretary of State - Chapter 849, Statutes of 2024. [AB3218 Detail]
Download: California-2023-AB3218-Amended.html
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
Bill Title: Unflavored Tobacco List.
Spectrum: Partisan Bill (Democrat 10-0)
Status: (Passed) 2024-09-28 - Chaptered by Secretary of State - Chapter 849, Statutes of 2024. [AB3218 Detail]
Download: California-2023-AB3218-Amended.html
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Amended
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Senate
August 23, 2024 |
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Amended
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Senate
August 15, 2024 |
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Amended
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Senate
June 27, 2024 |
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Amended
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Assembly
May 16, 2024 |
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Amended
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Assembly
April 01, 2024 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 3218
| Introduced by Assembly Member Wood (Principal coauthor: Assembly Member Robert Rivas) (Coauthors: Assembly Members Berman, Connolly, Grayson, McCarty, Quirk-Silva, and Weber) (Coauthors: Senators Portantino and Rubio) |
February 16, 2024 |
An act to amend Sections 22980 and 22990 of, and to add Sections 22974.2 and 22978.3 to, the Business and Professions Code, to amend Section 104559.5 of, and to add Article 4.5 (commencing with Section 104559.1) to Chapter 1 of Part 3 of Division 103 of, the Health and Safety Code, and to amend Section 30101.7 of the Revenue and Taxation Code, relating to tobacco, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 3218, as amended, Wood.
Unflavored Tobacco List.
Existing law prohibits a person from selling or otherwise furnishing tobacco products, as defined, to a person under 21 years of age. Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, provides for enforcement of that prohibition by the Attorney General.
Existing law prohibits a tobacco retailer, as defined, from offering for sale any flavored tobacco product or tobacco product flavor enhancer, as specified. A violation of this prohibition is an infraction.
This bill would require the Attorney General to, by no later than December 31, 2025, establish and maintain on the Attorney General’s internet website a list of tobacco product brand styles that lack a characterizing flavor, as defined.
This bill would require each manufacturer or
importer of tobacco products to submit to the Attorney General a list of all brand styles, as defined, of tobacco products that they manufacture or import for sale or distribution in or into California. The bill would require a manufacturer or importer that submits a product pursuant to these provisions to, under penalty of perjury, describe each brand style, brand, and product category, as specified, describe, for each brand style, if a formal authorization, approval, or order from the United States Food and Drug Administration has been sought and its status, if applicable, and certify that each brand style lacks a characterizing flavor. By expanding the scope of the crime of perjury, this bill would create a state-mandated local program. The bill would authorize the Attorney General to charge require a fee for each
submission and renewal of a brand style for the costs of incurred by the Attorney General for processing the submissions, and operating the list, as specified. The bill would create the California Unflavored Tobacco List Fund for the collection of these fees, and would continuously appropriate these fees to the Attorney General for the purposes above, thereby making an appropriation. The bill would require the Attorney General to determine whether each brand style has a characterizing flavor, as specified. The bill would require any manufacturer or importer that submits a brand style in this way to, among other things, consent to the jurisdiction of the California courts for the purpose of enforcing these provisions and to appoint an agent for service of process, as specified. The bill would authorize the Attorney
General to seek injunctive relief and a civil penalty up to $50,000 against any manufacturer or importer who falsely certifies that brand style determined to have a characteristic flavor, lacks a characteristic flavor.
This bill would refine the definitions of characteristic flavor and tobacco product for purposes of the prohibition and these provisions.
This bill would prohibit a distributor or wholesaler from selling any tobacco product not listed on the Unflavored Tobacco List or any tobacco product flavor enhancer to any person, as specified, for sale in the state and would prohibit a delivery seller from selling a tobacco product not listed on the Unflavored Tobacco List or a tobacco product flavor enhancer to a consumer in California. The bill would authorize the Attorney General to assess civil penalties, as specified, for violations of these prohibitions.
This bill would
authorize the Attorney General to recover reasonable attorney’s fees, investigative costs, and other related costs, against a nonprevailing party in a civil action brought pursuant to these provisions. The bill would require moneys recovered by the Attorney General in an action pursuant to these provisions to be deposited in the Public Rights Law Enforcement Special Fund, as specified.
This bill would also ban the retail sale of any tobacco product not on the Unflavored Tobacco List, as specified. By expanding the scope of an existing crime, this bill would impose a state-mandated local program. The bill would authorize the California Tax and Fee Administration or a law enforcement agency that discovers that a retailer possesses, stores, owns, or has made a retail sale of flavored tobacco products or tobacco product flavor enhancers to seize those products, as specified. Under the bill, seized products would be delivered to the department within 30 days and deemed
forfeited to the state. The bill would require the department to issue a civil penalty against the retailer equal to $50 per individual package of flavored tobacco product or tobacco product flavor enhancer seized or delivered to the department, with increasing penalties for subsequent seizures. If a wholesaler possesses, stores, or owns, or has made a sale of, a tobacco product not on the Unflavored Tobacco List or a tobacco product flavor enhancer, the bill would authorize the department to seize the tobacco product or tobacco product flavor enhancer and would require the department to impose a civil penalty if the property is seized, as specified. If a distributor or other person has made a sale of a tobacco product not on the Unflavored Tobacco List or a tobacco product flavor enhancer, or a wholesaler has made a sale of a tobacco product not on the Unflavored Tobacco List or a tobacco product flavor enhancer and the department or a local law enforcement agency has not seized the product, the bill would
require the department to issue a warning for a first offense, suspend their license for a second offense, and revoke their license for a third offense.
Existing law, the Cigarette and Tobacco Products Tax Law, generally prohibits the retail sale of cigarettes in California unless the sale is a vendor-assisted, face-to-face sale. Existing law authorizes the delivery sale of cigarettes or tobacco products if specified conditions are met.
This bill would refine the definition of cigarette for the purpose of these provisions, and would expand that prohibition to include the sale of tobacco products. The bill would require a delivery seller of cigarettes or tobacco products to comply with any applicable state law or local ordinance that imposes restrictions on the retail sale of cigarettes or tobacco products directly to the public from a retail location as if the delivery sale occurred entirely within the state and place.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
This bill would incorporate additional changes to Section 104559.5 of the Health and Safety Code proposed by SB 1230 to be operative only if this bill and SB 1230 are enacted and this bill is enacted last.
The California Constitution requires the state to reimburse local agencies and school districts for certain
costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Digest Key
Vote: MAJORITY Appropriation: YES Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
The Legislature finds and declares all of the following:(a) A large and increasing number of flavored tobacco products are available for sale in California, which appeal to minors and nonsmokers, initiate nonusers, and impede cessation.
(b) There is evidence that those products are disproportionately used by youth and marketed to certain minorities and marginalized communities.
(c) A growing number of cities and counties have restricted or banned the retail sale of flavored tobacco products, and a statewide ban on the
retail sale of certain flavored tobacco products has been approved by California voters.
(d) Because many tobacco manufacturers do not disclose whether their products are flavored, it is difficult for government agencies, distributors, wholesalers, retailers, and consumers to identify whether tobacco products are flavored without actually using the products.
(e) There is a need in California for a reliable and complete public list of unflavored tobacco products, meaning tobacco products that do not have a flavor other than that of tobacco.
SEC. 2.
Section 22974.2 is added to the Business and Professions Code, to read:22974.2.
(a) (1) Notwithstanding any other provision of this division, upon discovery by the department or a law enforcement agency that a retailer possesses, stores, owns, or has made a retail sale of flavored tobacco products or tobacco product flavor enhancers in violation of Section 104559.5 of the Health and Safety Code, the department or the law enforcement agency may seize the flavored tobacco products or tobacco product flavor enhancers at the retail location or any other person’s location.(2) Any flavored tobacco products or tobacco product flavor enhancers seized by a law enforcement agency shall be delivered to the department, or its designee,
within 30 days, unless the seized flavored tobacco products or tobacco product flavor enhancers shall be destroyed by that law enforcement agency, or unless the seized flavored tobacco products or tobacco product flavor enhancers are otherwise required to be used as evidence in an administrative, criminal, or civil proceeding, or as part of an ongoing law enforcement operation. Any flavored tobacco products or tobacco product flavor enhancers seized by the department or delivered to the department by a law enforcement agency shall be deemed forfeited to the state and the department shall comply with procedures set forth in Chapter 7.5 (commencing with Section 30435) of Part 13 of Division 2 of the Revenue and Taxation Code.
(b) (1) In addition to seizure and forfeiture of the flavored tobacco products or tobacco product
flavor enhancers under subdivision (a), the department shall issue a civil penalty against the retailer equal to fifty dollars ($50) per individual package of flavored tobacco product or tobacco product flavor enhancer seized or delivered to the department by a law enforcement agency regardless of the authority used by the law enforcement agency to seize the flavored tobacco product or tobacco product flavor enhancer. The department shall issue the civil penalty in accordance with the procedures applicable to the civil penalty authorized under Section 22974.7.
(2) In the case of a second seizure and forfeiture of flavored tobacco products or tobacco product flavor enhancers under subdivision (a), the department shall suspend the license of the retailer, in accordance with the procedures set forth in Section 22980.3.
(3) In the case of a third seizure and forfeiture of flavored tobacco products or tobacco product flavor enhancers under subdivision (a), the department shall revoke the license of the retailer, in accordance with the procedures set forth in Section 22980.3.
(4) Civil penalties collected pursuant to this section shall be deposited into the Cigarette and Tobacco Products Compliance Fund created pursuant to Section 22990.
(5) For the purposes of paragraph (1), “package” means the individual packet, box, or other container of flavored tobacco products or tobacco product flavor enhancers that are normally sold or intended to be sold at retail. “Package” does not include containers that contain smaller packaging units of
flavored tobacco products or tobacco product flavor enhancers, including, but not limited to, cartons, cases, bales, or boxes.
SEC. 3.
Section 22978.3 is added to the Business and Professions Code, to read:22978.3.
(a) (1) Notwithstanding any other provision of this division, upon discovery by the department or a law enforcement agency that a wholesaler possesses, stores, or owns flavored tobacco products or tobacco product flavor enhancers, or has made a sale of flavored tobacco products or tobacco product flavor enhancers in violation of Section 104559.1 of the Health and Safety Code, the department or the law enforcement agency may seize the flavored tobacco products or tobacco product flavor enhancers possessed, stored, owned, or sold by the wholesaler.(2) Any flavored tobacco products or tobacco product flavor enhancers seized by a law enforcement
agency shall be delivered to the department, or its designee, within 30 days, unless the seized flavored tobacco products or tobacco product flavor enhancers will be destroyed by that law enforcement agency, or unless the seized flavored tobacco products or tobacco product flavor enhancers are otherwise required to be used as evidence in an administrative, criminal, or civil proceeding, or as part of an ongoing law enforcement operation. Any flavored tobacco products or tobacco product flavor enhancers seized by the department or delivered to the department by a law enforcement agency shall be deemed forfeited to the state and the department shall comply with procedures set forth in Chapter 7.5 (commencing with Section 30435) of Part 13 of Division 2 of the Revenue and Taxation Code.
(b) (1) In addition to seizure and
forfeiture of the flavored tobacco products or tobacco product flavor enhancers described in subdivision (a), the department shall impose a civil penalty upon the wholesaler equal to fifty dollars ($50) per individual package of flavored tobacco product or tobacco product flavor enhancer seized or delivered to the department by a law enforcement agency regardless of the authority used by the law enforcement agency to seize the flavored tobacco product or tobacco product flavor enhancer. The department shall impose the civil penalty in accordance with the procedures applicable to the civil penalty authorized in Section 22978.7.
(2) In the case of a second seizure and forfeiture of flavored tobacco products or tobacco product flavor enhancers made pursuant to subdivision (a), the department shall suspend the license of the wholesaler in
accordance with the procedures set forth in Section 22980.3.
(3) In the case of a third seizure and forfeiture of flavored tobacco products or tobacco product flavor enhancers made pursuant to subdivision (a), the department shall revoke the license of the wholesaler in accordance with the procedures set forth in Section 22980.3.
(4) Civil penalties collected pursuant to this section shall be deposited into the Cigarette and Tobacco Products Compliance Fund created pursuant to Section 22990.
(c) Upon discovery by the department that a distributor, wholesaler, or other person has made a sale in violation of Section 104559.1 of the Health and Safety Code, and, for wholesalers, if neither the department nor a law
enforcement agency seized flavored tobacco products or tobacco product flavor enhancers from the wholesaler pursuant to subdivision (a), all of the following shall apply:
(1) Upon a first offense, the department shall issue a warning notice to the distributor, wholesaler, or other person.
(2) Upon a second offense, the department shall suspend the license of the distributor, wholesaler, or person in accordance with the procedures set forth in Section 22980.3.
(3) Upon a third offense, the department shall revoke the license of the distributor, wholesaler, or other person in accordance with the procedures set forth in Section 22980.3.
(d) The appeals procedures
applicable to Section 22978.7 shall apply to the warning notice, suspension, and revocation actions taken by the department pursuant to this section.
SEC. 4.
Section 22980 of the Business and Professions Code is amended to read:22980.
(a) A peace officer or department employee granted limited peace officer status pursuant to paragraph (6) of subdivision (a) of Section 830.11 of the Penal Code, upon presenting appropriate credentials, is authorized to enter any place as described in paragraph (2) or (3) and to conduct inspections in accordance with all of the following:(1) Inspections shall be performed in a reasonable manner and at times that are reasonable under the circumstances, taking into consideration the normal business hours of the place to be entered.
(2) Inspections may be at any place at which cigarettes or tobacco products are sold, produced,
or stored or at any site where evidence of activities involving evasion of cigarette or tobacco products tax and violations of Section 30165.1 of the Revenue and Taxation Code may be discovered.
(3) Inspections may be at any place where evidence of a violation of Section 104559.1 or 104559.5 of the Health and Safety Code may be discovered.
(4) Inspections shall be requested or conducted no more than once in a 24-hour period.
(b) Any person that refuses to allow an inspection shall be subject to the penalties imposed pursuant to Section 22981.
SEC. 5.
Section 22990 of the Business and Professions Code is amended to read:22990.
(a) All moneys collected pursuant to this division shall be deposited in the Cigarette and Tobacco Products Compliance Fund, which is hereby created in the State Treasury. No moneys in the Cigarette and Tobacco Products Compliance Fund shall be used to supplant state or local General Fund money for any purpose.(b) All moneys in the Cigarette and Tobacco Products Compliance Fund are available for expenditure, upon appropriation by the Legislature, solely for the purpose of implementing, enforcing, and administering the California Cigarette and Tobacco Products Licensing Act of 2003, including the seizure and destruction of cigarettes and
tobacco products.
SEC. 6.
Article 4.5 (commencing with Section 104559.1) is added to Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, to read:Article 4.5. Unflavored Tobacco
104559.1.
(a) The Attorney General shall establish and maintain on the Attorney General’s internet website a list of tobacco product brand styles that lack a characterizing flavor. This list shall be known as the Unflavored Tobacco List (UTL).(b) (1) Every manufacturer and every importer of tobacco products shall submit to the Attorney General a list of all brand styles of tobacco products that they manufacture or import for sale or distribution in or into California that lack a characterizing flavor. The Attorney General may deem each submission to be a request that the brand style be included on the UTL. Any submission under this section shall be
accompanied by a certification by the manufacturer or importer, under penalty of perjury, that does all of the following:
(A) Describes each brand style, brand, and tobacco product category. Categories shall include, but not be limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, electronic cigarettes, electronic pipes, and electronic hookahs.
(B) Describes, for each brand style, if a formal authorization, approval, or order from the United States Food and Drug Administration under Section 387e(j) or 387j of the Federal Food, Drug, and Cosmetic Act (FFDCA) (21 U.S.C. Sec. 301 et seq.) has been sought and, if so, the status of any request for that authorization, approval, or order.
(C) Certifies that each brand style lacks a characterizing flavor.
(2) (A) Upon the request of the Attorney General, a manufacturer or importer shall provide additional information and factual substantiation regarding a brand style’s lack of characterizing flavor.
(B) Information submitted to the Attorney General by a manufacturer or importer pursuant to this paragraph shall be considered confidential and corporate proprietary information. This information shall not be subject to disclosure under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).
(3) (A) Upon the request of the Attorney General, a manufacturer
or importer shall provide additional information and documentation regarding tobacco product status, packaging, or marketing of a brand style.
(B) Information submitted to the Attorney General by a manufacturer or importer pursuant to this paragraph and designated as nonpublic shall be considered confidential and corporate proprietary information. This information shall not be subject to disclosure under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).
(c) In determining whether or not a brand style has a characterizing flavor the Attorney General shall consider, among other factors, information received from the manufacturer or importer to the Attorney General regarding the brand style.
(d) The Attorney General shall presume a brand style to have a characterizing flavor if the manufacturer or importer, or any employee or agent of the manufacturer or importer, in the course of their employment by the agency, 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, any text, color, or images on the product’s labeling or packaging, that explicitly or implicitly communicates that the tobacco product has a characterizing flavor. This presumption may be rebutted by the manufacturer or importer.
(e) The Attorney General shall decline to include on the UTL any brand style that the Attorney General reasonably determines has a characterizing flavor. The Attorney
General may decline to include on the UTL any brand style that is adulterated as defined in Section 387b of or misbranded as defined in Section 387c of the FFDCA or that is otherwise required to obtain and has not received a formal authorization, approval, or order under Section 387e(j) or 387j of the FFDCA.
(f) (1) The Attorney General shall remove from the UTL any brand style that the Attorney General determines has a characterizing flavor. The Attorney General may remove from the UTL any brand style that the Attorney General determines is adulterated as defined in Section 387b of or misbranded as defined in Section 387c of the FFDCA or that is required to obtain and has not received a formal authorization, approval, or order under Section 387e(j) or 387j of the FFDCA.
(2) (A) The Attorney General shall promptly provide the manufacturer or importer that submitted a certification regarding a brand style with written notice when the Attorney General removes it from the UTL. This notice shall include the basis for the Attorney General’s determination.
(B) Removal of a brand style from the UTL will be effective 30 days after the manufacturer or importer is given notice pursuant to subparagraph (A).
(C) A manufacturer or importer may provide additional materials that the manufacturer or importer deems relevant to the determination described in paragraph (1) within 30 days of the notice provided pursuant to subparagraph (A).
(D) Information submitted to the
Attorney General by a manufacturer or importer pursuant to this paragraph shall be considered confidential and corporate proprietary information. This information shall not be subject to disclosure under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).
(g) Any brand style not on the UTL shall be deemed a flavored tobacco product under subdivision (b) of Section 104559.5.
(h) Every manufacturer and every importer that has made a submission under this section shall submit updated information to the Attorney General whenever it no longer manufactures or imports for sale or distribution in or into the state a brand style listed on the UTL or when the brand style it manufactures or imports no longer lacks a
characterizing flavor. This updated information shall be provided to the Attorney General by the manufacturer or importer prior to or on the date upon which the manufacture or importation of the brand style ceases, or prior to or on the date upon which the brand style no longer lacks a characterizing flavor.
(i) Every manufacturer or importer that submits a brand style pursuant to this section shall also do all of the following:
(1) Consent to the jurisdiction of the California courts for the purpose of enforcement of this section and for enforcement of regulations adopted pursuant to this section.
(2) Appoint a registered agent for service of process in this state.
(3) Identify the registered agent to the Attorney General.
(4) Waive any sovereign immunity defense that may apply in an action to enforce this section or to enforce regulations adopted pursuant to this section.
(j) The Attorney General may require a manufacturer or importer of tobacco products that are sold or distributed in or into California, whether directly or indirectly through a distributor, wholesaler, or retailer, to submit to the Attorney General a list of all brand styles of tobacco products that they manufacture or import.
(k) (1) Every manufacturer and importer submission under paragraph (1) of subdivision (b) shall be accompanied by an initial application fee of up to one
thousand dollars ($1,000) per brand style, not to exceed the reasonable costs of processing the submissions and operating the UTL, to offset the costs incurred by the Attorney General for processing the submissions and operating the UTL. The Attorney General shall collect an annual renewal fee of up to one thousand dollars ($1,000) per brand style, not to exceed the reasonable costs of maintaining the UTL, to offset the costs associated with operating the UTL. The fee shall be for the fiscal year ending June 30 and shall not be prorated.
(2) Application and renewal fees received under this subdivision shall be deposited into the California Unflavored Tobacco List Fund, which is hereby created in the State Treasury. Notwithstanding Section 13340 of the Government Code, all amounts deposited into the California Unflavored Tobacco List Fund
are hereby continuously appropriated without regard to fiscal year to the office of the Attorney General for the purpose of processing the submissions and operating the UTL.
(l) (1) Upon receiving notice from the Attorney General that a brand style is either removed from the UTL or that the Attorney General declines to include it on the list, the manufacturer or importer that provided the certification to the Attorney General that the brand style lacks a characterizing flavor may challenge the Attorney General’s determination as erroneous, seek to rebut any presumption relied upon by the Attorney General, and seek relief from the determination, by filing a writ of mandate pursuant to Section 1085 of the Code of Civil Procedure in the Superior Court of the County of Sacramento, or as otherwise provided by law. The filing
of the petition shall not operate to stay the Attorney General’s determination except upon a ruling of a court of competent jurisdiction.
(2) A manufacturer or importer may challenge a decision by the Attorney General pursuant to paragraph (1) in addition to providing additional materials to the Attorney General pursuant to subdivision (f).
(m) The Attorney General shall publish the UTL beginning on or before December 31, 2025.
(n) The Attorney General may seek injunctive relief and a civil penalty not to exceed fifty thousand dollars ($50,000) and recover reasonable attorney’s fees, investigation costs, and expert fees against an entity or individual that certifies to the Attorney General that a brand style lacks a
characterizing flavor when the certifying entity or individual had no reasonable basis to believe the certification was true.
(o) (1) Except as provided in paragraph (2), a distributor or wholesaler shall not sell any tobacco product not appearing on the UTL or any tobacco product flavor enhancer to any retailer, wholesaler, or other person for sale in California. A delivery seller shall not sell a tobacco product not appearing on the UTL or a tobacco product flavor enhancer to a consumer in California.
(2) This subdivision does not apply to the sale of tobacco products by a distributor or wholesaler to a retailer, wholesaler, distributor, or any other person that the state, pursuant to the United States Constitution, the laws of the United States, or the California
Constitution, is prohibited from regulating.
(3) For each tobacco product or tobacco product flavor enhancer sold in violation of this subdivision, the Attorney General may assess civil penalties against the distributor, wholesaler, or delivery seller according to the following schedule:
(A) A civil penalty of not more than two thousand dollars ($2,000) for the first violation.
(B) A civil penalty of not more than three thousand five hundred dollars ($3,500) for the second violation within a five-year period.
(C) A civil penalty of not more than five thousand dollars ($5,000) for the third violation within a five-year period.
(D) A civil penalty of not more than six thousand five hundred dollars ($6,500) for the fourth violation within a five-year period.
(E) A civil penalty of not more than ten thousand dollars ($10,000) for a fifth or subsequent violation within a five-year period.
(p) Whenever the Attorney General prevails in a civil action to enforce this section, the court shall award to the Attorney General all costs of investigating and prosecuting the action, including expert fees, reasonable attorney’s fees, and costs. Awards under this section shall be paid to the Public Rights Law Enforcement Special Fund established pursuant to Section 12530 of the Government Code.
(q) The Attorney General may adopt those rules and
regulations the Attorney General deems necessary to implement the purposes of this section, including regulations further delineating tobacco product status and characterizing flavor
determinations, requiring reporting of delivery sales of tobacco products and constitutionally exempted distributions of flavored tobacco products, and adopting an administrative process for the imposition of civil penalties. The regulations adopted to implement this section are emergency regulations 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 considered by the Office of Administrative Law to be necessary for the immediate preservation of the public health, safety, and welfare.
(r) This section does not preempt or otherwise prohibit the adoption of a local ordinance that is more restrictive than this section, that references or incorporates the UTL, or that imposes standards or definitions for a characterizing flavor that are more restrictive
than those in this section.
(s) For the purposes of this section, the following definitions apply:
(1) “Brand style” means a style of tobacco product within a brand that is differentiated from other styles of that brand by
weight, volume, size, Universal Product Code, Stock Keeping Unit, nicotine content, characterizing flavor, logo, symbol, motto, labeling, marketing, materials, packaging, or other indicia of product identification.
(2) “Characterizing flavor” has the same meaning as in Section 104559.5.
(3) “Tobacco product” means a tobacco product as defined in Section 104559.5, but excludes looseleaf tobacco, premium cigars, and shisha tobacco products, as those terms are defined in that section.
(4) “Tobacco product flavor enhancer” has the same meaning as defined in Section 104559.5.
(5) “UTL” means the Unflavored Tobacco List described in subdivision
(a).
(t) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 7.
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, chocolate, vanilla, 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 retailer’s 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 manufacturer’s 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 product’s 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 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 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. 7.5.
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, vanilla, 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)“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) (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.
(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 retailer’s 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 manufacturer’s 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 product’s 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. 8.
Section 30101.7 of the Revenue and Taxation Code is amended to read:30101.7.
(a) It is the intent of the Legislature in enacting this section to facilitate the collection of all applicable state surtaxes, sales or use taxes, and escrow and other payment obligations on cigarettes sold to residents of the state and to ensure compliance with the Prevent All Cigarette Trafficking Act of 2009 (PACT Act; Public Law 111-154).(b) Except as provided in subdivision (d), no person may engage in a retail sale of cigarettes or tobacco products in California unless the sale is a vendor-assisted, face-to-face sale.
(c) For the purposes of this section, the following definitions
shall apply:
(1) “Cigarette” has the same meaning as provided in Section 375 of Title 15 of the United States Code, as amended from time to time.
(2) “Consumer” means a person who purchases cigarettes or tobacco products. “Consumer” does not include any person licensed under this part or under Division 8.6 (commencing with Section 22970) of the Business and Professions Code and lawfully operating as a manufacturer, distributor, wholesaler, or retailer of cigarettes or tobacco products.
(3) “Delivery sale” means sale of cigarettes or tobacco products into and in this state in either of the following cases:
(A) The consumer submits the order
for the sale by means of a telephone or other method of voice transmission, the mail, or the Internet or other online service, or the seller is otherwise not in the physical presence of the consumer when the request for purchase or order is made.
(B) The cigarettes or tobacco products are delivered to the consumer by common carrier, private delivery service, or other method of remote delivery, or the seller is not in the physical presence of the consumer when the consumer obtains possession of the cigarettes or tobacco products.
(4) “Delivery seller” means a person who makes a delivery sale.
(5) “Face-to-face sale” means a sale in which the purchaser is in the physical presence of the seller or the seller’s employee or agent
at the time of the sale. A face-to-face sale does not include a delivery sale.
(6) “Indian country” shall have the same meaning as provided in Section 1151 of Title 18 of the United States Code, and includes any other land held by the United States in trust or restricted status for one or more Indian tribes.
(7) “Interstate commerce” means commerce between a state and any place outside the state, commerce between a state and Indian country in the state, or commerce between points in the same state but through a place outside of the state or through any Indian country.
(8) “Tobacco products” shall have the same meaning as otherwise defined under this part with the exception of cigars.
(d) A person may engage in delivery sale of cigarettes or tobacco products to a person in California provided that all of the following conditions are met:
(1) The delivery seller has fully complied with all of the requirements of Chapter 10A (commencing with Section 375) of Title 15 of the United States Code, otherwise known as the Jenkins Act.
(2) The delivery seller obtains and maintains any applicable license under this part and under Division 8.6 (commencing with Section 22970) of the Business and Professions Code, as if the
delivery sales occurred entirely within this state.
(3) The delivery seller complies with any applicable state law that imposes escrow or other payment obligations on tobacco product manufacturers, including, but not limited to, Sections 104555 to 104557, inclusive, of the Health and Safety Code.
(4) The delivery seller complies with any applicable state law or local ordinance that imposes restrictions on the retail sale of cigarettes or tobacco products directly to the public from a retail location, including Section 104559.5 of the Health and Safety Code, as if the delivery sales occurred entirely within the state and place.
(5) The Attorney General may require the delivery seller to report to the
Attorney General its delivery sales of cigarettes and tobacco products to California consumers in the form and manner specified by the Attorney General.
(e) Any violation of this section by any person is a misdemeanor. Each offense shall be punishable by a fine not to exceed five thousand dollars ($5,000), or imprisonment not to exceed one year in a county jail, or both the fine and imprisonment. The amount of any fines assessed shall be deposited in the Cigarette and Tobacco Products Compliance Fund.
(f) The State Board of Equalization may provide information relative to a seller’s failure or attempt to comply with the PACT Act and the Jenkins Act to the Attorney General.
(g) The Attorney General or a city
attorney, county counsel, or district attorney may bring a civil action to enforce this section against a person that violates this section and, in addition to any other remedy provided by law, the court shall assess a civil penalty in accordance with the following schedule:
(1) A civil penalty of not less than one thousand dollars ($1,000) and not more than two thousand dollars ($2,000) for the first violation.
(2) A civil penalty of not less than two thousand five hundred dollars ($2,500) and not more than three thousand five hundred dollars ($3,500) for the second violation within a five-year period.
(3) A civil penalty of not less than four thousand dollars ($4,000) and not more than five thousand dollars ($5,000) for the
third violation within a five-year period.
(4) A civil penalty of not less than five thousand five hundred dollars ($5,500) and not more than six thousand five hundred dollars ($6,500) for a fourth violation within a five-year period.
(5) A civil penalty of up to ten thousand dollars ($10,000) for a fifth or subsequent violation within a five-year period.
(h) This section does not prohibit the lawful sale of a tobacco product that occurs by means of a vending machine.
(i) Nothing in this section shall relieve the seller of cigarettes from any other applicable requirement of state law relating to the sale or distribution of cigarettes or tobacco products in this
state.
(j) The board shall enforce the licensing and tax provisions of this section. Other provisions of this section shall be enforced by the Attorney General.
(k) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 9.
The Legislature finds and declares that Section 6 of this act, which adds Section 104559.1 to the Health and Safety Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:In order to facilitate manufacturer submissions of information related to brand styles of tobacco products for consideration by the
Attorney General, it is necessary to protect the confidential and proprietary nature of that information.
