In September of 2009, the California State Senate passed SB400, a bill that started out as promoting green cars and ended up being all about tobacco advertising and marketing. In early Sept, Senator Corbett, the drafter of the bill, added a ban on the sale of Electronic Cigarettes to that bill.
Ultimately, this move proved fatal for the entire bill as Governor Swarzenegger was forced to veto SB 400 based on it's inclusion of electronic cigarettes.
To the Members of the California State Senate:
I am returning Senate Bill 400 without my signature.
While I support restricting access of electronic cigarettes to children under the age of 18, I cannot sign a measure that also declares them a federally regulated drug when the matter is currently being decided through pending litigation.
Items defined as “tobacco products” are legal for anyone over the age of 18. If adults want to purchase and consume these products with an understanding of the associated health risks, they should be able to do so unless and until federal law changes the legal status of these tobacco products.
For this reason, I am unable to sign this bill.
Sincerely,
Arnold Schwarzenegger
As the governor pointed out, tobacco products are legal for those over 18 and the decision of whether electronic cigarettes are a drug delivery system and should be regulated by the FDA is not for states to decide, but rather the FDA and the courts.
Since the matter of FDA jurisdiction is pending Federal litigation brought by two electronic cigarette manufacturers, the governor had no choice but to veto this bill.
For full text versions and other SB 400 related info see below:
AMENDED IN SENATE JUNE 25, 2009
INTRODUCED BY Senator Corbett
MAY 19, 2009
Relative to electronic cigarettes.
SJR 8, as amended, Corbett. Electronic cigarettes.
This measure would request that the federal Food and Drug
Administration (FDA) prohibit all sales of electronic
cigarettes until they have been found by FDA to be safe
the FDA has found them to be safe .
Fiscal committee: no.
WHEREAS, The chemical nicotine is classified as a drug due to its
stimulative, sedative, and addictive qualities; and
WHEREAS, More that than 90 percent
of smokers who seek to quit their addiction to nicotine fail, most
relapsing within one week; and
WHEREAS, Extended exposure to nicotine results in tolerance,
requiring escalating doses of the drug to receive the desired
stimulation; and
WHEREAS, Withdrawal symptoms from nicotine include cognitive and
attention defects, cravings, inability to sleep, and sleep
disturbance; and
WHEREAS, An unregulated product called electronic cigarettes is
currently being marketed as a smokeless alternative to traditional
cigarettes; and
WHEREAS, Electronic cigarettes are rechargeable, battery operated
drug delivery devices that look similar to cigarettes and allow the
user to inhale a smokeless vapor often containing nicotine; and
WHEREAS, Electronic cigarette producers market their product to
children by utilizing shopping mall kiosks and locations frequented
by children; and
WHEREAS, These marketing efforts are similar to previous attempts
to entice children to use nicotine products. Previous campaigns have
included products such as cigarette candy and advertisements with
cartoon characters and flashy packaging; and
WHEREAS, Studies show a correlation between children who used
cigarette candy and adults who are current or former smokers; and
WHEREAS, The federal Food and Drug Administration has previously
banned nicotine lollipops and nicotine lip balm; and
WHEREAS, A study published in the Journal of the National Cancer
Institute found that teens were more likely to be influenced to smoke
by cigarette marketing than by peer pressure. Similarly, a study
published in the Journal of the American Medical Association found
that as much as one-third of underage experimentation with smoking
was attributable to tobacco company marketing efforts; and
WHEREAS, Electronic cigarettes may increase the number of young
smokers; and
WHEREAS, According to the National Survey on Drug Use and Health,
over 3,600 people under the age of 18 18 years
of age begin smoking daily, 1,100 of whom will become regular
smokers. One-third of these young smokers will die of smoking-related
illnesses; and
WHEREAS, It is in the best interest of California to protect
children from these products; now, therefore, be it
Resolved by the Senate and the Assembly of the State of
California, jointly, That the Legislature calls upon local, state,
and federal governments to find ways to prevent the use of nicotine
products by children; and be it further
Resolved, That the Legislature requests that the federal Food and
Drug Administration (FDA), which has jurisdiction over the regulation
of nicotine products, prohibit all sales of electronic cigarettes
until they have been found by that FDA to be safe
the FDA has found them to be safe ; and be it further
Resolved, That the Secretary of the Senate transmit copies of this
resolution to the President and Vice President of the United States,
to the President pro Tempore of the United States Senate, to the
Speaker of the House of Representatives, to each Senator and
Representative from California in the Congress of the United States,
to the Commissioner of the United States Food and Drug
Administration, and to the author for appropriate distribution.
MEASURE: SJR 8
AUTHOR: Corbett
TOPIC: Electronic cigarettes.
DATE: 07/16/2009
LOCATION: SEN. FLOOR
MOTION: Senate 3rd Reading SJR8 Corbett
(AYES 22. NOES 13.) (PASS)
AYES
****
Alquist Calderon Cedillo Corbett
Correa DeSaulnier Hancock Kehoe
Leno Liu Lowenthal Maldonado
Negrete McLeod Pavley Price Romero
Simitian Steinberg Wiggins Wolk
Wright Yee
NOES
****
Aanestad Ashburn Cogdill Cox
Denham Dutton Harman Hollingsworth
Huff Runner Strickland Walters
Wyland
ABSENT, ABSTAINING, OR NOT VOTING
*********************************
Benoit Ducheny Florez Oropeza Padilla
MEASURE : S.J.R. No. 8
AUTHOR(S) : Corbett.
TOPIC : Electronic cigarettes.
HOUSE LOCATION : ASM
+LAST AMENDED DATE : 06/25/2009
TYPE OF BILL :
Active
Non-Urgency
Non-Appropriations
Majority Vote Required
Non-State-Mandated Local Program
Non-Fiscal
Non-Tax Levy
LAST HIST. ACT. DATE: 08/20/2009
LAST HIST. ACTION : To Com. on G.O.
COMM. LOCATION : ASM GOVERNMENTAL ORGANIZATION
TITLE : Relative to electronic cigarettes.
BILL NUMBER: SJR 8 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 25, 2009
INTRODUCED BY Senator Corbett
MAY 19, 2009
Relative to electronic cigarettes.
LEGISLATIVE COUNSEL'S DIGEST
SJR 8, as amended, Corbett. Electronic cigarettes.
This measure would request that the federal Food and Drug
Administration (FDA) prohibit all sales of electronic
cigarettes until they have been found by FDA to be safe
the FDA has found them to be safe .
Fiscal committee: no.
WHEREAS, The chemical nicotine is classified as a drug due to its
stimulative, sedative, and addictive qualities; and
WHEREAS, More that than 90 percent
of smokers who seek to quit their addiction to nicotine fail, most
relapsing within one week; and
WHEREAS, Extended exposure to nicotine results in tolerance,
requiring escalating doses of the drug to receive the desired
stimulation; and
WHEREAS, Withdrawal symptoms from nicotine include cognitive and
attention defects, cravings, inability to sleep, and sleep
disturbance; and
WHEREAS, An unregulated product called electronic cigarettes is
currently being marketed as a smokeless alternative to traditional
cigarettes; and
WHEREAS, Electronic cigarettes are rechargeable, battery operated
drug delivery devices that look similar to cigarettes and allow the
user to inhale a smokeless vapor often containing nicotine; and
WHEREAS, Electronic cigarette producers market their product to
children by utilizing shopping mall kiosks and locations frequented
by children; and
WHEREAS, These marketing efforts are similar to previous attempts
to entice children to use nicotine products. Previous campaigns have
included products such as cigarette candy and advertisements with
cartoon characters and flashy packaging; and
WHEREAS, Studies show a correlation between children who used
cigarette candy and adults who are current or former smokers; and
WHEREAS, The federal Food and Drug Administration has previously
banned nicotine lollipops and nicotine lip balm; and
WHEREAS, A study published in the Journal of the National Cancer
Institute found that teens were more likely to be influenced to smoke
by cigarette marketing than by peer pressure. Similarly, a study
published in the Journal of the American Medical Association found
that as much as one-third of underage experimentation with smoking
was attributable to tobacco company marketing efforts; and
WHEREAS, Electronic cigarettes may increase the number of young
smokers; and
WHEREAS, According to the National Survey on Drug Use and Health,
over 3,600 people under the age of 18 18 years
of age begin smoking daily, 1,100 of whom will become regular
smokers. One-third of these young smokers will die of smoking-related
illnesses; and
WHEREAS, It is in the best interest of California to protect
children from these products; now, therefore, be it
Resolved by the Senate and the Assembly of the State of
California, jointly, That the Legislature calls upon local, state,
and federal governments to find ways to prevent the use of nicotine
products by children; and be it further
Resolved, That the Legislature requests that the federal Food and
Drug Administration (FDA), which has jurisdiction over the regulation
of nicotine products, prohibit all sales of electronic cigarettes
until they have been found by that FDA to be safe
the FDA has found them to be safe ; and be it further
Resolved, That the Secretary of the Senate transmit copies of this
resolution to the President and Vice President of the United States,
to the President pro Tempore of the United States Senate, to the
Speaker of the House of Representatives, to each Senator and
Representative from California in the Congress of the United States,
to the Commissioner of the United States Food and Drug
Administration, and to the author for appropriate distribution.
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.
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.
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.
It's back to the California Senate for senator Ellen Corbetts SB 400. What started out as a green energy and vehicle bill, then morphed into a protect the children from cigarettes bill and finally in early september became a bill to ban the sale of electronic cigarettes until they were FDA approved or "cleared", is now back on her desk once again.
The sad part for the senator, the last minute additions of the electronic cigarette ban have left her other modifications to the Stop Tobacco Access to Kids Enforcement Act on the cutting room floor as well.
Governor Schwarzenegger said in his message to lawmakers:
To the Members of the California State Senate:
I am returning Senate Bill 400 without my signature.
While I support restricting access of electronic cigarettes to children under the age of 18, I cannot sign a measure that also declares them a federally regulated drug when the matter is currently being decided through pending litigation.
Items defined as “tobacco products” are legal for anyone over the age of 18. If adults want to purchase and consume these products with an understanding of the associated health risks, they should be able to do so unless and until federal law changes the legal status of these tobacco products.
For this reason, I am unable to sign this bill.
Sincerely,
Arnold Schwarzenegger
Schwarzenegger is a life long champion of health, multi year winner of Mr. Universe and a strong anti smoking proponent, yet in a bold move on this issue he seems to have sided with the rights of adults to choose their tobacco products. He will also leave it up to the FDA and the courts to decide if electronic cigarettes are a drug delivery system and refuses to set national policy from his desk.
Way to go Arnold!!