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AB-598 Unflavored tobacco list.(2021-2022)

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Date Published: 02/11/2021 09:00 PM
AB598:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 598

Introduced by Assembly Member Robert Rivas

February 11, 2021

An act to add Article 4.5 (commencing with Section 104559.1) to Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, relating to tobacco, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


AB 598, as introduced, Robert Rivas. Unflavored tobacco list.
Existing law prohibits a person from selling or otherwise furnishing tobacco products, as defined, to a person under 21 years of age. Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, provides for enforcement of that prohibition by the Attorney General.
This bill would require the Attorney General to establish and maintain on the Attorney General’s internet website a list of tobacco product brand styles that lack a characterizing flavor, as defined. The bill would authorize the Attorney General to require a manufacturer or importer of tobacco products to submit a list of all brand stages of tobacco products they manufacturer or import to the Attorney General. The bill would authorize manufacturers and importers of tobacco products to submit to the Attorney General a list of all brand styles, as defined, of tobacco products that they manufacture or import for sale or distribution in or into California that lack a characterizing flavor. The bill would require a manufacturer or importer that submits a product pursuant to these provisions to, under penalty of perjury, describe each brand style and state that it lacks a characterizing flavor. By expanding the scope of the crime of perjury, this bill would create a state-mandated local program. The bill would require the Attorney General to determine whether each brand style has a characterizing flavor, as specified. The bill would require any manufacturer or importer that submits a product in this way to, among other things, consent to the jurisdiction of the California courts for the purpose of enforcing these provisions and to appoint an agent for service of process, as specified. The bill would authorize the Attorney General to recover reasonable attorney’s fees, investigative costs, and other related costs, against an entity that makes a clearly frivolous submission to the Attorney General for inclusion on the list. The bill would require moneys recovered by the Attorney General in an action pursuant to these provisions to be deposited in the Public Rights Law Enforcement Special Fund, as specified.
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.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 The Legislature finds and declares all of the following:
(a) A large and increasing number of flavored tobacco products are available for sale in California, which appeal to minors and nonsmokers, initiate nonusers, and impede cessation.
(b) There is evidence that those products are disproportionately marketed to certain minorities and LGBTQ individuals.
(c) A growing number of cities and counties have restricted or banned the retail sale of flavored tobacco products.
(d) Because many tobacco manufactures do not disclose whether their products are flavored, it is difficult for government agencies, distributors, retailers and consumers to identify whether tobacco products are flavored without actually using the products.
(e) There is a need in California for a reliable and complete public list of unflavored tobacco products, meaning tobacco products that do not have a flavor other than that of tobacco.

SEC. 2.

 Article 4.5 (commencing with Section 104559.1) is added to Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, to read:
Article  4.5. Unflavored Tobacco

104559.1.
 (a) The Attorney General shall establish and maintain on the Attorney General’s internet website a list of tobacco product brand styles that lack a characterizing flavor. This list shall be known as the Unflavored Tobacco List.
(b) Every manufacturer and every importer of tobacco products may submit to the Attorney General a list of all brand styles of tobacco products that they manufacture or import for sale or distribution in or into California that lack a characterizing flavor. The Attorney General may deem each submission to be a request that the brand style be included on the Unflavored Tobacco List. A submission under this section shall be accompanied by a certification by the manufacturer or importer, under penalty of perjury, that describes each brand style and states that it lacks a characterizing flavor.
(c) In determining whether or not a brand style has a characterizing flavor the Attorney General shall consider, among other factors, information received from the manufacturer or importer to the Attorney General regarding the brand style.
(d) The Attorney General shall presume a brand style to have a characterizing flavor if the manufacturer, importer, distributor, wholesaler, or retailer of that brand style, or an employee, contractor, agent, or affiliate of that entity, makes a statement that the brand style has or produces a characterizing flavor. A statement includes, but is not limited to, text, color, or images on the brand style’s labeling, packaging, marketing materials, social media, or advertising, or a submission to a government agency, that communicates explicitly or implicitly that the brand style has a characterizing flavor. This presumption may be rebutted by the manufacturer or importer.
(e) The Attorney General shall decline to list on the Unflavored Tobacco List a brand style that the Attorney General reasonably determines has a characterizing flavor.
(f) The Attorney General shall remove from the Unflavored Tobacco List a brand style that the Attorney General determines has a characterizing flavor. The Attorney General shall promptly provide the manufacturer or importer that submitted a certification regarding a brand style with written notice when the Attorney General removes it from the Unflavored Tobacco List. This notice shall include the basis for the Attorney General’s determination.
(g) A brand style not on the Unflavored Tobacco List shall be presumed to have a characterizing flavor. This presumption may be rebutted by the manufacturer or importer of that brand style. A manufacturer or importer that seeks to rebut this presumption shall notify the Attorney General, provide a certification by the manufacturer or importer that the brand style lacks a characterizing flavor, and, upon the request of the Attorney General, provide additional information and factual substantiation regarding the lack of a characterizing flavor.
(h) Every manufacturer and every importer that has made a submission under this section shall submit updated information to the Attorney General whenever it no longer manufactures or imports for sale or distribution in or into California a brand style listed on the Unflavored Tobacco List or when the brand style it manufactures or imports no longer lacks a characterizing flavor. This updated information shall be provided to the Attorney General by the manufacturer or importer prior to or on the date upon which the manufacture or importation of the brand style ceases, or prior to or on the date upon which the brand style no longer lacks a characterizing flavor.
(i) A manufacturer or importer that submits a product pursuant to this section shall also do all of the following:
(1) Consent to the jurisdiction of the California courts for the purpose of enforcement of this section and for enforcement of regulations adopted pursuant to this section.
(2) Appoint a registered agent for service of process in this state.
(3) Identify the registered agent to the Attorney General.
(4) Waive any sovereign immunity defense that may apply in an action to enforce this section or to enforce regulations adopted pursuant to this section.
(j) The Attorney General may require manufacturers or importers submitting products pursuant to this section to provide factual substantiation regarding the presence or lack of a characterizing flavor of a brand style that appears on the Unflavored Tobacco List, and may request manufacturers or importers to provide information regarding the presence or lack of a characterizing flavor of a brand style submitted to the Attorney General by the manufacturer or importer as a product that lacks a characterizing flavor.
(k) The Attorney General may require a manufacturer or importer of tobacco products that are sold or distributed in or into California, whether directly or indirectly through a distributor, wholesaler, or retailer, to submit to the Attorney General a list of all brand styles of tobacco products that they manufacture or import into California.
(l) Upon receiving notice from the Attorney General that a brand style is either removed from the Unflavored Tobacco List or that the Attorney General declines to include it on the list, the manufacturer or importer that provided the certification to the Attorney General that the brand style lacks a characterizing flavor may challenge the Attorney General’s determination as erroneous, seek to rebut any presumption relied upon by the Attorney General, and seek relief from the determination, by filing a writ of mandate pursuant to Section 1085 of the Code of Civil Procedure in the Superior Court of the County of Sacramento, or as otherwise provided by law. The filing of the petition shall not operate to stay the Attorney General’s determination except upon a ruling of a court of competent jurisdiction.
(m) The Attorney General shall publish the Unflavored Tobacco List on or before July 1, 2022.
(n) The Attorney General may recover reasonable attorney’s fees, investigation costs, and expert fees, or seek injunctive relief in the courts, against an entity or individual that makes a clearly frivolous submission to the Attorney General for inclusion on the Unflavored Tobacco List a brand style that has a characterizing flavor.
(o) Whenever the Attorney General prevails in a civil action to enforce this section, the court shall award to the Attorney General all costs of investigating and prosecuting the action, including expert fees, reasonable attorney’s fees, and costs. Awards under this section shall be paid to the Public Rights Law Enforcement Special Fund established pursuant to Section 12530 of the Government Code.
(p) The Attorney General may adopt rules and regulations to implement the purposes of this section. The regulations adopted to implement this section are emergency regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and shall be considered by the Office of Administrative Law to be necessary for the immediate preservation of the public health, safety, and welfare.
(q) This section does not preempt or otherwise prohibit the adoption of a local ordinance that is more restrictive than this provision, that references or incorporates the Unflavored Tobacco List, or that imposes standards or definitions for a characterizing flavor that are more restrictive than those in this section. A local standard for a characterizing flavor that imposes a more restrictive requirement shall control in the event of any inconsistency between this section and a local standard.
(r) For the purposes of this section, the following definitions apply:
(1) “Tobacco product” means a tobacco product as defined in paragraph (8) of subdivision (a) of Section 104495 of the Health and Safety Code.
(2) “Brand style” means a style of tobacco product within a brand that is differentiated from other styles of that brand by weight, volume, size, Universal Product Code, Stock Keeping Unit, nicotine content, characterizing flavor, logo, symbol, motto, labeling, marketing, materials, packaging, or other indicia of product identification.
(3) “Characterizing flavor” means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or a byproduct of the tobacco product. Characterizing flavors include, but are not limited to, tastes or aromas relating to fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. The presence of a distinguishable taste or aroma, or both, constitutes a characterizing flavor, which may be ascertained by reference to ingredient information, use of additives, use of flavorings, testing, sampling, or other procedures.
(s)  The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 3.

 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. 4.

 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 discourage further increases in youth smoking and to enable state and local enforcement of prohibitions on the sale of flavored tobacco products, it is necessary for this act to take effect immediately.