Amended  IN  Assembly  April 13, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 935

Introduced by Assembly Member Connolly

February 14, 2023

An act to add Article 6 (commencing with Section 104559.7) to Chapter 1 of Part 3 of Division 103 amend Section 104559.5 of the Health and Safety Code, relating to tobacco sales.


LEGISLATIVE COUNSEL'S DIGEST


AB 935, as amended, Connolly. Tobacco sales: phased tobacco ban. flavored tobacco ban.
Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, prohibits a person from selling or otherwise furnishing tobacco products, as defined, to a person under 21 years of age. Under existing law, violations of the act are punishable by civil penalties, as specified, and primary enforcement of the act is the responsibility of the State Department of Public Health.
Existing law prohibits a tobacco retailer, or any of the tobacco retailer’s agents or employees, from selling, offering for sale, or possessing with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer, as those terms are defined, except as specified. Under existing law, a violation of this prohibition is punishable as an infraction.
This bill would instead make the provisions of the flavored tobacco ban punishable by civil penalties in the same manner as the STAKE Act.

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

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

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 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, 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.
(2) “Constituent” means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.
(3) “Flavored shisha tobacco product” means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.
(4) “Flavored tobacco product” means any tobacco product that contains a constituent that imparts a characterizing flavor.
(5) “Hookah” means a type of waterpipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.
(6) “Hookah tobacco retailer” means a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.
(7) “Labeling” means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.
(8) “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.
(9) “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.
(10) “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.
(11) “Retail location” means both of the following:
(A) A building from which tobacco products are sold at retail.
(B) A vending machine.
(12) “Sale” or “sold” means a sale as that term is defined in Section 30006 of the Revenue and Taxation Code.
(13) “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.
(14) “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.
(15) “Tobacco product flavor enhancer” means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
(16) “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 tobacco or premium cigars.

(f)A tobacco retailer, or agent or employee of a tobacco retailer, who violates this section is guilty of an infraction and shall be punished by a fine of two hundred fifty dollars ($250) for each violation of this section.

(f) Violations of this section are enforceable and punishable in the same manner as violations of Division 8.5 (commencing with Section 22950) of the Business and Professions Code.
(g) 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.

SECTION 1.Article 6 (commencing with Section 104559.7) is added to Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, to read:
6.Phased Tobacco Ban
104559.7.

(a)Notwithstanding any other law, a tobacco retailer shall not sell any tobacco product to any person born on or after January 1, 2007.

(b)All persons engaging in the retail sale of tobacco products shall check the identification of tobacco purchasers, to establish the date of birth of the purchaser, if the purchaser reasonably appears to have been born on or after January 1, 2007. A good faith effort to comply with this subdivision shall provide an affirmative defense to a violation of subdivision (a).

(c)Responsibility for enforcement of this article shall be with the department.

(d)(1)The department may assess civil penalties against any person, firm, or corporation that violates subdivision (a), according to the following schedule:

(A)A civil penalty of from four hundred dollars ($400) to six hundred dollars ($600) for the first violation.

(B)A civil penalty of from nine hundred dollars ($900) to one thousand dollars ($1,000) for the second violation within a five-year period.

(C)A civil penalty of from one thousand two hundred dollars ($1,200) to one thousand eight hundred dollars ($1,800) for a third violation within a five-year period.

(D)A civil penalty of from three thousand dollars ($3,000) to four thousand dollars ($4,000) for a fourth violation within a five-year period.

(E)A civil penalty of from five thousand dollars ($5,000) to six thousand dollars ($6,000) for a fifth violation within a five-year period.

(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 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) of Division 8.6 of the Business and Professions Code 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.

(3)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 (2).

(4)(A)In the case of a corporation or business with more than one retail location, to determine the number of accumulated violations for purposes of the penalty schedules set forth in paragraphs (1) and (2), violations of this section by one retail location shall not be accumulated against other retail locations of that same corporation or business.

(B)In the case of a retail location that operates pursuant to a franchise as defined in Section 20001 of the Business and Professions Code, 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 schedules set forth in paragraphs (1) and (2).

(5)Proceedings under this subdivision shall be conducted pursuant to Section 131071.

(e)This section does not authorize the sale of any tobacco products to any person born before January 1, 2007, that is otherwise prohibited by law.

(f)As used in this section, the following terms have the following meanings:

(1)“Department” means the State Department of Public Health.

(2)“Tobacco product” means a product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, vaping liquid, or snuff. “Tobacco product” does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose.

(3)“Tobacco retailer” means a person who engages in this state in the sale of tobacco products directly to the public from a retail location.