Bill Text: CA AB935 | 2023-2024 | Regular Session | Amended

California Assembly Bill 935

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

Bill Title: Tobacco sales: flavored tobacco ban.

Spectrum: Partisan Bill (Democrat 7-0)

Status: (Passed) 2023-10-07 - Chaptered by Secretary of State - Chapter 351, Statutes of 2023. [AB935 Detail]

Download: California-2023-AB935-Amended.html

Amended IN Senate June 12, 2023

Amended IN Assembly May 18, 2023

Amended IN Assembly April 13, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 935

Introduced by Assembly Member Connolly
(Coauthors: Assembly Members Addis, Low, and Luz Rivas)

February 14, 2023

An act to amend Section 22974.8 of the Business and Professions Code, and to 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: 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, as specified.

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

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

SECTION 1.

Section 22974.8 of the Business and Professions Code is amended to read:

22974.8.

(a) Except as provided in subdivision (b), the board shall suspend or revoke the license of a retailer upon notification by the State Department of Public Health pursuant to subdivision (b) of Section 22958.

(b) Notwithstanding any other provision regarding the suspension or revocation of a license pursuant to this part, the board shall provide a licensee with ~~at least~~ no fewer than 10 days’ written notice of a pending suspension or revocation pursuant to this section and an opportunity to appeal the suspension or revocation and the civil penalty assessed pursuant to subdivision (b) of Section 22958 only to correct a mistake or clerical error. The board shall not accept or consider an appeal of suspension or revocation under this section if the appeal is founded upon the grounds of whether the retailer, or any employee or agent of the retailer, violated the STAKE Act (Division 8.5 (commencing with Section 22950)) or Section 104559.5 of the Health and Safety Code for which violation civil penalties are imposed by the State Department of Public Health pursuant to subdivision (a) of Section 22958. This section shall not be construed to prevent the board from modifying its action on its own to correct a mistake or clerical error.

SEC. 2.

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) (1) 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.

(2) The civil penalty assessed by the California Department of Tax and Fee Administration pursuant to paragraph (1), as it applies to subdivision (b) of Section 22958 of the Business and Professions Code, shall be deposited into the Cigarette and Tobacco Products Compliance Fund. Moneys from these civil penalties deposited into that fund shall be made available to the California Department of Tax and Fee Administration, upon appropriation by the Legislature, for the purposes of carrying out the provisions of this subdivision.

(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.