Bill Text: CA AB1639 | 2019-2020 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Tobacco and cannabis products.

Spectrum: Moderate Partisan Bill (Democrat 4-1)

Status: (Engrossed - Dead) 2020-07-27 - From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on HEALTH. [AB1639 Detail]

Download: California-2019-AB1639-Amended.html

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Amended  IN  Assembly  July 02, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill

No. 1639

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Introduced by Assembly Member Gray Members Gray, Cunningham, and Robert Rivas

February 22, 2019

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An act to amend Section 25511 of the Business and Professions Code, relating to alcoholic beverages, and declaring the urgency thereof, to take effect immediately. An act to amend Sections 22952, 22956, 22958, and 22962 of, and to add Section 22964.5 to, the Business and Professions Code, to add Section 119408 to, and to add and repeal Sections 119409 and 119410 of, the Health and Safety Code, to amend Section 308 of the Penal Code, and to add Section 13202.3 to the Vehicle Code, relating to tobacco products, and declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL'S DIGEST

AB 1639, as amended, Gray. Alcoholic beverages: tied-house restrictions: natural disaster. Tobacco products.

(1) 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. The STAKE Act requires a person engaged in the retail sale of tobacco products to check the identification of a tobacco purchaser to establish the purchaser’s age if the purchaser reasonably appears to be under 21 years of age.

This bill would, among other things, require a person engaged in the retail sale of tobacco products to use age verification software or an age verification device to establish the age of a tobacco purchaser if the purchaser reasonably appears to be under 27 years of age.

The act requires the State Department of Public Health to, among other things, establish and develop a program to reduce the availability of tobacco products to persons under 21 years of age through enforcement activities, and conduct random, onsite sting inspections at retail sites. The act authorizes the department to also conduct onsite sting inspections in response to public complaints or at retail sites where violations have previously occurred.

This bill would, among other things, instead require the department to conduct random, onsite sting inspections at retail sites of at least 20% of the total number of licensed tobacco retailers, and in the event of a violation at a retail site, would require the department to conduct a 2nd sting inspection at that retail site within 6 months of the first violation, and a 3rd sting inspection within 12 months of the first violation.

The act imposes specified civil penalties for the furnishing of tobacco products to a person under 21 years of age. Existing law imposes additional civil penalties in the amount of $250 for a 3rd, 4th, and 5th violation, requires a 45-day suspension of the license to sell tobacco or cigarettes for a 3rd violation at the same location within a 5-year period, a similar 90-day suspension of the license for a 4th violation, and a revocation of the license for a 5th violation.

This bill would decrease the 5-year period for calculating the civil penalties and license suspensions and revocations for violations to a 36-month period and increase the penalty amount for a first, 2nd, and 3rd or subsequent violation imposed by an enforcement agency, as specified. The bill would instead require the additional $250 civil penalty and the license suspensions and revocation for the first, 2nd, and 3rd violations in a 36-month period, and would instead require a 60-day suspension of the license for the first violation.

(2) Existing law makes every person, firm, or corporation that knowingly or under circumstances in which it has knowledge, or should otherwise have grounds for knowledge, sells, gives, or in any way furnishes to another person who is under 21 years of age any tobacco, cigarette, cigarette papers, or blunt wraps, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance, subject to either a criminal action for a misdemeanor or a civil action, punishable by a fine, as specified.

This bill would instead subject a person described above to that criminal or civil fine, specified community service, or the criminal or civil fine and community service.

This bill would make every person under 21 years of age who purchases, receives, or possesses any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking of tobacco, products prepared from tobacco, or any controlled substance guilty, upon conviction, of an infraction to be punished by a fine of $100 if they are at least 18 years of age, but less than 21 years of age, or with drug or tobacco cessation education and community service, as specified, if they are under 18 years of age. By creating a new crime, the bill would impose a state-mandated local program.

This bill would require, for each conviction of a person for a violation of those provisions committed while the person was under 18 years of age, but 13 years of age or older, the court to suspend the person’s driving privilege for one year, or if the person convicted does not yet have the privilege to drive, to order the Department of Motor Vehicles to delay issuing the privilege to drive for one year subsequent to the time the person becomes legally eligible to drive.

(3) Existing law requires that cartridges for electronic cigarettes and solutions for filling or refilling an electronic cigarette be in child-resistant packaging, as defined.

This bill would create various advertising, promoting, packaging, and selling prohibitions on electronic cigarettes, including, among others, prohibiting an electronic cigarette manufacturer from advertising, promoting, or packaging the electronic cigarette in a manner that is attractive to persons under 21 years of age, as specified, or is intended to encourage persons under 21 years of age to use the device, prohibiting a person from displaying on an electronic cigarette, or on its packaging, an indication or illustration that could cause a person to believe that the product is flavored if there is reasonable belief that the indication or illustration could be appealing to persons under 21 years of age, and prohibiting the sale of flavored electronic cigarettes until January 1, 2022, except as specified. The bill would authorize the State Department of Public Health to assess specified civil penalties for each violation.

This bill would require the State Department of Public Health and the State Department of Education to report to the Legislature, the Senate Committee on Health, and the Assembly Committee on Governmental Organization, on or before January 1, 2021, on the use of electronic cigarettes in California among persons under 21 years of age and the impact of flavored electronic cigarette products on the interest of persons under 21 years of age in trying electronic cigarettes, among other things.

(4) 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.

This bill would declare that it is to take effect immediately as an urgency statute.

The Alcoholic Beverage Control Act contains limitations on sales commonly known as “tied-house” restrictions, which generally prohibit a manufacturer, wholesaler, and specified others from furnishing, giving, or lending any money or other thing of value to any person engaged in operating, owning, or maintaining any licensed premises. Existing law permits a manufacturer or wholesaler to furnish, give, rent, lend, or sell equipment, fixtures, or supplies, other than alcoholic beverages, to a retailer whose equipment, fixtures, or supplies were lost or damaged as a result of a natural disaster and whose premises are located in an area proclaimed to be in a state of disaster by the Governor, except for transactions that occur 3 months or more after the Governor proclaims an area to be in a state of disaster.

This bill would revise the above-described exception to permit a manufacturer or wholesaler to furnish, give, rent, lend, or sell equipment, fixtures, or supplies, other than alcoholic beverages, to a retailer whose equipment, fixtures, or supplies were destroyed or damaged as a result of a fire, any act of God, or other force beyond the control of the retailer and whose premises are located in an area proclaimed to be in a state of disaster by the Governor, except for transactions that occur 90 days or more after the Governor proclaims an area to be in a state of disaster or after a fire, any act of God, or other force beyond the control of the retailer. The bill would authorize the Director of Alcoholic Beverage Control, in their discretion, to extend the 90-day period by an additional 90 days.

This bill would declare that it is to take effect immediately as an urgency statute.

Digest Key

Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: NOYES  

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Bill Text

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

SECTION 1.Section 25511 of the Business and Professions Code is amended to read:

25511.

(a)Notwithstanding any other provision of this division, a manufacturer or wholesaler, or any officer, director, or agent of any of those persons may furnish, give, rent, lend, or sell, directly or indirectly, any equipment, fixtures, or supplies, other than alcoholic beverages, to a retailer whose equipment, fixtures, or supplies were destroyed or damaged as a result of a fire, any act of God, or other force beyond the control of the retailer or whose premises are located in an area proclaimed to be in a state of disaster by the Governor.

(b)(1)This section does not apply to transactions that occur 90 days or more after the Governor proclaims an area to be in a state of disaster or after a fire, any act of God, or other force beyond the control of the retailer.

(2)The director, in their discretion, may extend the 90-day period by an additional 90 days.

(c)Nothing in this section is intended to affect or otherwise limit Section 23104.1, 23104.2, or 23104.3.

SECTION 1.

 Section 22952 of the Business and Professions Code is amended to read:

22952.

 The State Department of Public Health shall do all of the following:

(a) Establish and develop a program to reduce the availability of tobacco products to persons under 21 years of age through the enforcement activities authorized by this division.

(b) Establish requirements that retailers of tobacco products post conspicuously, at each point of purchase, a notice stating that selling tobacco products to anyone under 21 years of age is illegal and subject to penalties. The notice shall also state that the law requires that all persons selling tobacco products check the identification of a purchaser of tobacco products who reasonably appears to be under 21 years of age. The warning signs shall include a toll-free telephone number to the department for persons to report unlawful sales of tobacco products to any person under 21 years of age.

(c) Provide that primary responsibility for enforcement of this division shall be with the department. In carrying out its enforcement responsibilities, the department shall conduct random, onsite sting inspections at retail sites and shall enlist the assistance of persons that are under 21 years of age in conducting these enforcement activities. of at least 20 percent of the total number of licensed tobacco retailers. In the event of a violation at a retail site, the department shall conduct a second sting inspection at that retail site within 6 months of the first violation, and a third sting inspection within 12 months of the first violation. The department may conduct onsite sting inspections in response to public complaints or at retail sites where violations have previously occurred, complaints and investigate illegal sales of tobacco products to any person under 21 years of age by telephone, mail, or the Internet. internet. The department shall enlist the assistance of persons that are under 21 years of age in conducting these enforcement activities. A person under 21 years of age who participates in these enforcement activities is immune from prosecution under any provision of law prohibiting the purchase of these products by a person under 21 years of age.

(d) In accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department shall adopt and publish guidelines for the use of persons under 21 years of age in inspections conducted pursuant to subdivision (c) that shall include, but not be limited to, all of the following:

(1) An enforcing agency may use persons under 21 years of age in random inspections to determine if sales of cigarettes or other tobacco products are being made to persons under 21 years of age.

(2) A photograph or video recording of the person under 21 years of age shall be taken prior to each inspection or shift of inspections and retained by the enforcing agency for purposes of verifying appearances.

(3) An enforcing agency may use video recording equipment when conducting the inspections to record and document illegal sales or attempted sales.

(4) The person under 21 years of age, if questioned about his or her their age, need not state his or her their actual age age, but shall present a true and correct identification if verbally asked to present it. Any failure on the part of the person under 21 years of age to provide true and correct identification, if verbally asked for it, shall be a defense to an action pursuant to this section.

(5) The person under 21 years of age shall be under the supervision of a regularly employed peace officer during the inspection.

(6) All persons under 21 years of age used in this manner by an enforcing agency shall display the appearance of a person under 21 years of age. It shall be a defense to an action under this division that the person’s appearance was not that which could be generally expected of a person under 21 years of age, under the actual circumstances presented to the seller of the cigarettes or other tobacco products at the time of the alleged offense.

(7) Following the completion of the sale, the peace officer accompanying the person under 21 years of age shall reenter the retail establishment and shall inform the seller of the random inspection. Following an attempted sale, the enforcing agency shall notify the retail establishment of the inspection.

(8) Failure to comply with the procedures set forth in this subdivision shall be a defense to an action brought pursuant to this section.

(e) Be responsible for ensuring and reporting the state’s compliance with Section 1926 of Title XIX of the federal Public Health Service Act (42 U.S.C. Sec. 300x-26) and any implementing regulations adopted in relation thereto by the United States Department of Health and Human Services. A copy of this report shall be made available to the Governor and the Legislature.

(f) Provide that any civil penalties imposed pursuant to Section 22958 shall be enforced against the owner or owners of the retail business and not the employees of the business.

SEC. 2.

 Section 22956 of the Business and Professions Code is amended to read:

22956.

 All persons A person engaging in the retail sale of tobacco products shall check the identification of tobacco purchasers, a tobacco purchaser using age verification software or an age verification device to establish the age of the purchaser, purchaser if the purchaser reasonably appears to be under 21 27 years of age.

SEC. 3.

 Section 22958 of the Business and Professions Code is amended to read:

22958.

 (a) (1) An enforcing agency may assess civil penalties against any person, firm, or corporation that sells, gives, or in any way furnishes to another person who is under 21 years of age, any tobacco, cigarette, cigarette papers, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance, according to the following schedule: (1) a civil penalty of four hundred dollars ($400) to six hundred dollars ($600) for the first violation, (2) a civil penalty of nine hundred dollars ($900) to one thousand dollars ($1,000) for the second violation within a five-year period, (3) a

(A) A civil penalty of one thousand two hundred dollars ($1,200) to one thousand eight hundred dollars ($1,800) for a third violation within a five-year period, (4) a the first violation.

(B) A civil penalty of three thousand dollars ($3,000) to four thousand dollars ($4,000) for a fourth second violation within a five-year period, or (5) a 36-month period.

(C) A civil penalty of five thousand dollars ($5,000) to six thousand dollars ($6,000) for a fifth third or subsequent violation within a five-year 36-month period.

(2) This subdivision does not apply to the sale, giving, or furnishing of any of the products specified in paragraph (1) to active duty military personnel who are 18 years of age or older. An identification card issued by the United States Armed Forces shall be used as proof of age for this purpose.

(b) (1) In addition to the civil penalties described in subdivision (a), upon the assessment of a civil penalty for the third, fourth, or fifth a 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 California Department of Tax and Fee Administration of the violation. The State Board of Equalization California Department of Tax and Fee Administration 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) 22971.7) of Division 8.6 in accordance with the following schedule:

(A) A 45-day 60-day suspension of the license for a third violation at the same location within a five-year period. the first violation.

(B) A 90-day suspension of the license for a fourth second violation at the same location within a five-year 36-month period.

(C) Revocation of the license for a fifth third violation at the same location within a five-year 36-month period.

(2) 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 California Department of Tax and Fee Administration pursuant to paragraph (1).

(c) (1) For each suspension or revocation pursuant to subdivision (b), the civil penalty of two hundred fifty dollars ($250) assessed pursuant to that subdivision, notwithstanding Section 22953, shall be deposited into the Cigarette and Tobacco Products Compliance Fund established pursuant to Section 22990. Moneys from that civil penalty deposited into this fund shall be made available to the State Board of Equalization, California Department of Tax and Fee Administration, upon appropriation by the Legislature, for the purposes of meeting its duties under subdivision (b).

(2) The department shall, upon request, provide to the State Board of Equalization California Department of Tax and Fee Administration information concerning any person, firm, or corporation that has been assessed a civil penalty for violation of the STAKE Act pursuant to this section when the department has notified the State Board of Equalization California Department of Tax and Fee Administration of the violation.

(d) The enforcing agency shall assess penalties pursuant to the schedule set forth in subdivision (a) against a person, firm, or corporation that sells, offers for sale, or distributes tobacco products from a cigarette or tobacco products vending machine, or a person, firm, or corporation that leases, furnishes, or services these machines in violation of Section 22960.

(e) An enforcing agency may assess civil penalties against a person, firm, or corporation that sells or deals in tobacco or any preparation thereof, and fails to post conspicuously and keep posted in the place of business at each point of purchase the notice required pursuant to subdivision (b) of Section 22952. The civil penalty shall be in the amount of two hundred dollars ($200) for the first offense and five hundred dollars ($500) for each additional violation.

(f) An enforcing agency shall assess penalties in accordance with the schedule set forth in subdivision (a) against a person, firm, or corporation that advertises or causes to be advertised a tobacco product on an outdoor billboard in violation of Section 22961.

(g) If a civil penalty has been assessed pursuant to this section against a person, firm, or corporation for a single, specific violation of this division, the person, firm, or corporation shall not be prosecuted under Section 308 of the Penal Code for a violation based on the same facts or specific incident for which the civil penalty was assessed. If a person, firm, or corporation has been prosecuted for a single, specific violation of Section 308 of the Penal Code, the person, firm, or corporation shall not be assessed a civil penalty under this section based on the same facts or specific incident upon which the prosecution under Section 308 of the Penal Code was based.

(h) (1) In the case of If a corporation or business with has more than one retail location, to determine the number of accumulated violations for purposes of the penalty schedule set forth in subdivision (a), violations of this division by one retail location shall not be accumulated against other retail locations of that same corporation or business.

(2) In the case of If a retail location that operates pursuant to a franchise franchise, as defined in Section 20001, 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 schedule set forth in subdivision (a).

(i) Proceedings under this section shall be conducted pursuant to Section 131071 of the Health and Safety Code, except in cases where in which 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 of the Health and Safety Code.

SEC. 4.

 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 product” means a product or device as defined in subdivision (d) of Section 22950.5 of the Business and Professions Code.

(4) “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 any person under 18 21 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 any 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, any blunt wraps advertising display within two feet of candy, snack, or nonalcoholic beverage displayed inside any store or business.

(3) It is unlawful for any person or business to place or maintain, or cause to be placed or maintained, any 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 any 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. 5.

 Section 22964.5 is added to the Business and Professions Code, to read:

22964.5.

 (a) No person under 21 years of age may enter into a tobacco store.

(b) This section does not apply to active duty military personnel who are 18 years of age or older. An identification card issued by the United States Armed Forces shall be used as proof of age for this purpose.

(c) For purposes of this section, “tobacco store” means a retail business that meets all of the following requirements:

(1) Primarily sells tobacco products.

(2) Generates more than 60 percent of its gross revenues annually from the sale of tobacco products and tobacco paraphernalia.

(3) Does not sell alcoholic beverages or food for consumption on the premises.

SEC. 6.

 Section 119408 is added to the Health and Safety Code, to read:

119408.

 (a) An electronic cigarette manufacturer shall not advertise, promote, or package electronic cigarettes in a manner that does either of the following:

(1) Is intended to encourage persons under 21 years of age to use an electronic cigarette.

(2) Is attractive to persons under 21 years of age, including, but not limited to, by showing any of the following:

(A) Cartoons.

(B) An image, character, or phrase that is similar to one popularly used to advertise to children.

(C) A video game, movie, video, or animated television show known to appeal primarily to persons under 21 years of age.

(D) An imitation of candy packaging or labeling.

(E) The terms “candy” or “candies,” or other variants in spelling, such as “kandy” or “kandeez.”

(b) (1) No person shall display on an electronic cigarette, or on its packaging, an indication or illustration, including a brand element, that could cause a person to believe that the product is flavored if there is reasonable belief that the indication or illustration could be appealing to persons under 21 years of age.

(2) No person shall sell an electronic cigarette described in paragraph (1).

(c) No person shall advertise an electronic cigarette, an electronic cigarette-related brand element, or anything that displays an electronic cigarette-related brand element by means of lifestyle advertising.

(d) No person shall advertise or promote an electronic cigarette, including by means of packaging, in a manner that could cause a person to believe that health benefits may be derived from the use of the electronic cigarette or from its emissions, unless approved by the federal Food and Drug Administration.

(e) No person shall advertise or promote an electronic cigarette, including by means of packaging, by comparing the health effects arising from the use of the electronic cigarette or from its emissions with those arising from the use of other tobacco products or from its emissions.

(f) No person shall promote electronic cigarettes through a testimonial or an endorsement, however displayed or communicated, including by means of packaging.

(g) The State Department of Public Health may assess civil penalties for a violation of this section according to the following schedule:

(1) A civil penalty of one thousand dollars ($1,000) for the first or second violation.

(2) A civil penalty of two thousand five hundred dollars ($2,500) for the third or fourth violation.

(3) A civil penalty of ten thousand dollars ($10,000) for the fifth violation or any violation thereafter.

(h) Proceedings under this section shall be conducted pursuant to Section 131071.

(i) For purposes of this section, the following terms have the following definitions:

(1) “Electronic cigarette” means either of the following:

(A) An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, vape pen, cigar, or pipe.

(B) A component, part, or accessory of an electronic cigarette, whether or not sold separately.

(2) “Electronic cigarette manufacturer” means a person or business who produces an electronic cigarette to be sold within this state, including a person or business who imports an electronic cigarette from outside of this state.

(3) “Lifestyle advertising” means advertising that associates a product with, or evokes a positive or negative emotion about or image of, a way of life, including one that includes glamor, recreation, excitement, vitality, risk, or daring.

SEC. 7.

 Section 119409 is added to the Health and Safety Code, to read:

119409.

 (a) A tobacco retailer licensed under Division 8.6 (commencing with Section 22970) of the Business and Professions Code and an online retailer shall not sell flavored electronic cigarettes, except as provided in subdivision (b).

(b) (1) Subdivision (a) does not apply to electronic cigarettes with tobacco, mint, or menthol flavors.

(2) A tobacco retailer may sell flavored electronic cigarettes in a retail location that does not permit any person under 21 years of age to be present or to enter the premises at any time.

(3) An online retailer may sell flavored electronic cigarettes if the online retailer uses an age verification process to establish that the purchaser of the flavored electronic cigarettes is 21 years of age or older.

(c) The State Department of Public Health may assess civil penalties for a violation of this section according to the schedule described in Section 119408.

(d) Proceedings under this section shall be conducted pursuant to Section 131071.

(e) For purposes of this section, the following terms have the following definitions:

(1) “Electronic cigarette” has the same definition as provided in Section 119408.

(2) “Online retailer” means any person who sells tobacco products directly to the public through orders placed on the internet.

(f) This section shall remain in effect only until January 1, 2022, and as of that date is repealed.

SEC. 8.

 Section 119410 is added to the Health and Safety Code, to read:

119410.

 (a) On or before January 1, 2021, the State Department of Public Health and the State Department of Education shall report to the Legislature, the Senate Committee on Health, and the Assembly Committee on Governmental Organization on all of the following:

(1) The use of electronic cigarettes in California among persons under 21 years of age.

(2) The impact of flavored electronic cigarette products on the interest of persons under 21 years of age in trying electronic cigarettes.

(3) The perceptions of, and reasons for, the attraction to specific flavors of electronic cigarettes.

(4) The perceived health impacts of electronic cigarette use.

(b) For purposes of this section, “electronic cigarettes” has the same definition as provided in Section 119408.

(c) This section shall remain in effect only until January 1, 2024, and as of that date is repealed.

SEC. 9.

 Section 308 of the Penal Code is amended to read:

308.

 (a) (1) (A) (i) Every person, firm, firm or corporation that knowingly or under circumstances in which it has knowledge, or should otherwise have grounds for knowledge, sells, gives, or in any way furnishes to another person who is under 21 years of age any tobacco, cigarette, or cigarette papers, or blunt wraps, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance, is subject to either a criminal action for a misdemeanor or a civil action brought by a city attorney, a county counsel, or a district attorney, punishable by a fine of two hundred dollars ($200) four hundred dollars ($400) for the first offense, five hundred dollars ($500) one thousand dollars ($1,000) for the second offense, and one thousand dollars ($1,000) two thousand dollars ($2,000) for the third offense.

(ii) Every person who knowingly or under circumstances in which it has knowledge, or should otherwise have grounds for knowledge, sells, gives, or in any way furnishes to another person who is under 21 years of age any tobacco, cigarette, or cigarette papers, or blunt wraps, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance, is subject to (I) either a criminal action for a misdemeanor or a civil action brought by a city attorney, a county counsel, or a district attorney, punishable by a fine of four hundred dollars ($400) for the first offense, one thousand dollars ($1,000) for the second offense, and two thousand dollars ($2,000) for the third offense, (II) performing not less than 24 hours of community service during hours when the person is not employed and is not attending school, or (III) both the criminal or civil fine and the community service.

(ii)

(iii) This subparagraph does not apply to the sale, giving, or furnishing of any of the products specified in clause (i) to active duty military personnel who are 18 years of age or older. An identification card issued by the United States Armed Forces shall be used as proof of age for this purpose.

(B) Notwithstanding Section 1464 or any other law, 25 percent of each civil and criminal penalty collected pursuant to this subdivision shall be paid to the office of the city attorney, county counsel, or district attorney, whoever is responsible for bringing the successful action.

(C) Proof that a defendant, or his or her the defendant’s employee or agent, demanded, was shown, and reasonably relied upon evidence of majority shall be defense to any action brought pursuant to this subdivision. Evidence of majority of a person is a facsimile of, or a reasonable likeness of, a document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, a motor vehicle operator’s license, a registration certificate issued under the federal Military Selective Service Act (50 U.S.C. Sec. 3801 et seq.), or an identification card issued to a member of the Armed Forces.

(D) For purposes of this section, the person liable for selling or furnishing tobacco products to persons under 21 years of age by a tobacco vending machine shall be the person authorizing the installation or placement of the tobacco vending machine upon premises he or she manages they manage or otherwise controls control and under circumstances in which he or she the person has knowledge, or should otherwise have grounds for knowledge, that the tobacco vending machine will be utilized by persons under 21 years of age.

(2) For purposes of this section, “blunt wraps” means cigar papers or cigar wrappers of all types that are designed for smoking or ingestion of tobacco products and contain less than 50 percent tobacco.

(b) Every person, firm, or corporation that sells, or deals in tobacco or any preparation thereof, shall post conspicuously and keep so posted in his, her, or their place of business at each point of purchase the notice required pursuant to subdivision (b) of Section 22952 of the Business and Professions Code, and any person failing to do so shall, upon conviction, be punished by a fine of fifty dollars ($50) for the first offense, one hundred dollars ($100) for the second offense, two hundred fifty dollars ($250) for the third offense, and five hundred dollars ($500) for the fourth offense and each subsequent violation of this provision, or by imprisonment in a county jail not exceeding 30 days.

(c) For purposes of determining the liability of persons, firms, or corporations controlling franchises or business operations in multiple locations for the second and subsequent violations of this section, each individual franchise or business location shall be deemed a separate entity.

(d) Every person under 21 years of age who purchases, receives, or possesses any tobacco, cigarette, cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking of tobacco, products prepared from tobacco, or any controlled substance shall, upon conviction, be punished or adjudicated as follows:

(1) Persons under 18 years of age are guilty of an infraction and shall be required to:

(A) Upon a finding that a first offense has been committed, complete 4 hours of drug education or counseling or tobacco cessation education or counseling and up to 10 hours of community service over a period not to exceed 60 days.

(B) Upon a finding that a second offense or subsequent offense has been committed, complete 6 hours of drug education or counseling or tobacco cessation education or counseling and up to 20 hours of community service over a period not to exceed 90 days.

(2) Persons at least 18 years of age, but less than 21 years of age are guilty of an infraction and punishable by a fine of not more than one hundred dollars ($100).

(e) Notwithstanding subdivision (d), a person under 21 years of age who purchases, receives, or possesses any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, any other instrument or paraphernalia that is designed for the smoking of tobacco, or products prepared from tobacco is immune from prosecution for that purchase, receipt, or possession while participating in either of the following:

(1) An enforcement activity that complies with the guidelines adopted pursuant to subdivisions (c) and (d) of Section 22952 of the Business and Professions Code.

(2) An activity conducted by the State Department of Public Health, a local health department, or a law enforcement agency for the purpose of determining or evaluating youth tobacco purchase rates.

(d)

(f) It is the Legislature’s intent to regulate the subject matter of this section. As a result, a city, county, or city and county shall not adopt any ordinance or regulation inconsistent with this section.

(e)

(g) For purposes of this section, “smoking” has the same meaning as in subdivision (c) of Section 22950.5 of the Business and Professions Code.

(f)

(h) For purposes of this section, “tobacco products” means a product or device as defined in subdivision (d) of Section 22950.5 of the Business and Professions Code.

SEC. 10.

 Section 13202.3 is added to the Vehicle Code, to read:

13202.3.

 (a) (1) For each conviction of a person for a violation of subdivision (d) of Section 308 of the Penal Code committed while the person was under 18 years of age, but 13 years of age or older, the court shall suspend the person’s driving privilege for one year. If the person convicted does not yet have the privilege to drive, the court shall order the department to delay issuing the privilege to drive for one year subsequent to the time the person becomes legally eligible to drive. However, if there is no further conviction for a violation of subdivision (d) of Section 308 of the Penal Code in a 12-month period after the conviction, the court, upon petition of the person affected, may modify the order imposing the delay of the privilege. For each successive offense, the court shall suspend the person’s driving privilege for those possessing a license or delay the eligibility for those not in possession of a license at the time of their conviction for one additional year.

(2) As used in this section, the term “conviction” includes the findings in juvenile proceedings specified in Section 13105.

(b) Whenever the court suspends driving privileges pursuant to subdivision (a), the court in which the conviction is had shall require all driver’s licenses held by the person to be surrendered to the court. The court shall within 10 days following the conviction transmit a certified abstract of the conviction, together with any driver’s licenses surrendered, to the department.

(c) (1) After a court has issued an order suspending or delaying driving privileges pursuant to subdivision (a), the court, upon petition of the person affected, may review the order and may impose restrictions on the person’s privilege to drive based upon a showing of a critical need to drive.

(2) As used in this section, “critical need to drive” means the circumstances that are required to be shown for the issuance of a junior permit pursuant to Section 12513.

(3) The restriction shall remain in effect for the balance of the period of suspension or restriction in this section. The court shall notify the department of any modification within 10 days of the order of modification.

(d) Suspension, restriction, or delay of driving privileges pursuant to this section shall be in addition to any penalty imposed upon conviction of a violation of subdivision (d) of Section 308 of the Penal Code.

SEC. 11.

 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.

SEC. 2.SEC. 12.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:

In order to protect businesses affected by fires, natural disasters, or other forces beyond control of the business owner, substantially reverse the youth use trend, prompted by increasing access to tobacco products among youth, it is necessary that this act take effect immediately.