Bill Text: CA SB400 | 2009-2010 | Regular Session | Enrolled
Bill Title: Tobacco.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Vetoed) 2010-01-19 - Stricken from Senate file. [SB400 Detail]
Download: California-2009-SB400-Enrolled.html
BILL NUMBER: SB 400 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 11, 2009
PASSED THE ASSEMBLY SEPTEMBER 8, 2009
AMENDED IN ASSEMBLY SEPTEMBER 2, 2009
AMENDED IN ASSEMBLY JULY 23, 2009
AMENDED IN ASSEMBLY JUNE 23, 2009
AMENDED IN SENATE JUNE 1, 2009
AMENDED IN SENATE MAY 21, 2009
AMENDED IN SENATE MAY 12, 2009
AMENDED IN SENATE APRIL 23, 2009
INTRODUCED BY Senator Corbett
(Coauthor: Senator Alquist)
(Coauthors: Assembly Members Eng, Fong, and Jones)
FEBRUARY 26, 2009
An act to amend Sections 22950.5, 22955, and 22962 of the Business
and Professions Code, and to add Section 111247 to the Health and
Safety Code, relating to tobacco.
LEGISLATIVE COUNSEL'S DIGEST
SB 400, Corbett. Tobacco.
Existing law, the Stop Tobacco Access to Kids Enforcement Act
(STAKE Act), establishes various requirements for retailers relating
to tobacco sales to minors. A violation of this act is a crime.
This bill would authorize action to halt the sale, distribution,
or offering for sale of electronic cigarettes that have not been
approved or cleared by the federal Food and Drug Administration. By
changing the definition of an existing crime, this bill would impose
a state-mandated local program.
Existing law, the Sherman Food, Drug, and Cosmetic Law, requires
the State Department of Public Health to regulate the manufacture,
sale, labeling, and advertising activities related to food, drugs,
devices, and cosmetics in conformity with the federal Food, Drug, and
Cosmetic Act. A violation of these provisions is a crime.
This bill would deem any article that can provide inhaled doses of
nicotine by delivering a vaporized solution a drug under these
provisions. By expanding the definition of an existing crime, this
bill would impose a state-mandated local program.
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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 22950.5 of the Business and Professions Code is
amended to read:
22950.5. For purposes of this division, the following terms have
the following meanings:
(a) "Department" means the State Department of Public Health.
(b) "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.
(c) "Tobacco product" means a product containing tobacco leaf,
including, but not limited to, cigarettes, cigars, pipe tobacco,
snuff, chewing tobacco, dipping tobacco, bidis, or other preparation
of tobacco.
SEC. 2. Section 22955 of the Business and Professions Code is
amended to read:
22955. Agents of the department, while conducting enforcement
activities pursuant to this division, are peace officers and are
subject to all of the powers and immunities granted to Food and Drug
Section inspectors pursuant to Section 106500 of the Health and
Safety Code in the same manner as are any Food and Drug Section
inspectors of the state department. These agents may take enforcement
action to halt the sale, distribution, or offering for sale of
electronic cigarettes that can deliver inhaled doses of nicotine by
delivering a vaporized solution that has not been approved or cleared
by the United States Food and Drug Administration.
SEC. 3. Section 22962 of the Business and Professions Code is
amended to read:
22962. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Self-service display" means the open display of tobacco
products or tobacco paraphernalia in a manner that is accessible to
the general public without the assistance of the retailer or employee
of the retailer.
(2) "Tobacco paraphernalia" means cigarette papers or wrappers,
blunt wraps as defined in Section 308 of the Penal Code, pipes,
holders of smoking materials of all types, cigarette rolling
machines, or other instruments or things designed for the smoking or
ingestion of tobacco products.
(3) "Tobacco store" means a retail business that meets all of the
following requirements:
(A) Primarily sells tobacco products.
(B) Generates more than 60 percent of its gross revenues annually
from the sale of tobacco products and tobacco paraphernalia.
(C) Does not permit a person under 18 years of age to be present
or enter the premises at any time, unless accompanied by the person's
parent or legal guardian, as defined in Section 6903 of the Family
Code.
(D) Does not sell alcoholic beverages or food for consumption on
the premises.
(b) (1) (A) Except as permitted in subdivision (b) of Section
22960, it is unlawful for a person engaged in the retail sale of
tobacco products to sell, offer for sale, or display for sale a
tobacco product or tobacco paraphernalia by self-service display. A
person who violates this section is subject to those civil penalties
specified in the schedule in subdivision (a) of Section 22958.
(B) A person who violates this section is subject to those civil
penalties specified in the schedule in subdivision (a) of Section
22958.
(2) It is unlawful for a person engaged in the retail sale of
blunt wraps to place or maintain, or to cause to be placed or
maintained, a blunt wraps advertising display within two feet of
candy, snack, or nonalcoholic beverage displayed inside a store or
business.
(3) It is unlawful for a person or business to place or maintain,
or cause to be placed or maintained, a blunt wrap advertising display
that is less than four feet above the floor.
(c) Subdivision (b) shall not apply to the display in a tobacco
store of cigars, pipe tobacco, snuff, chewing tobacco, or dipping
tobacco, provided that in the case of cigars they are generally not
sold or offered for sale in a sealed package of the manufacturer or
importer containing less than six cigars. In an enforcement action
brought pursuant to this division, the retail business that displays
any of the items described in this subdivision in a self-service
display shall have the burden of proving that it qualifies for the
exemption established in this subdivision.
(d) The Attorney General, a city attorney, a county counsel, or a
district attorney may bring a civil action to enforce this section.
(e) 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. 4. Section 111247 is added to the Health and Safety Code, to
read:
111247. Any article that can provide inhaled doses of nicotine by
delivering a vaporized solution, including, but not limited to, an
electronic cigarette, shall be deemed to be a drug as defined in
Section 109925. This section shall not be construed as bearing on or
being relevant to the question of whether any other product is a drug
as defined in Section 109925 or a device as defined in Section
109920.
SEC. 5. 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.
