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SB-38 Flavored tobacco products.(2019-2020)

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Date Published: 05/17/2019 11:34 AM

Amended  IN  Senate  May 17, 2019


Senate Bill No. 38

Introduced by Senators Hill, Glazer, McGuire, and Portantino
(Principal coauthors: Assembly Members McCarty and Wood)
(Coauthors: Senators Allen, Beall, Leyva, Skinner, and Wiener)
(Coauthors: Assembly Members Berman, Bloom, Cristina Garcia, Muratsuchi, O’Donnell, Mark Stone, and Ting)

December 03, 2018

An act to add Division 8.7 (commencing with Section 22995) to the Business and Professions Code, relating to tobacco products.


SB 38, as amended, Hill. Flavored tobacco products.
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. Exsale of flavored tobacco products. The bill would state that its provisions are severable.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


 Division 8.7 (commencing with Section 22995) is added to the Business and Professions Code, to read:

DIVISION 8.7. Prohibition on the Sale of Flavored Tobacco Products

 For purposes of this division, the following definitions apply:
(a) “Characterizing flavor” means a any 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.
(b) “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.
(c) “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.
(d) “Flavored tobacco product” means any tobacco product that contains a constituent that imparts a characterizing flavor. flavor, except for tobacco products designed for a nonelectronic hookah.
(e) “Labeling” means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.
(f) “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.
(g) “Retail location” means both of the following:
(1) A building from which tobacco products are sold at retail.
(2) A vending machine.
(h) “Sale” or “sold” means a sale as defined in Section 30006 of the Revenue and Taxation Code.
(i) “Tobacco product” means a product that meets both of the following requirements:
(1) The product either does not have a patent issued prior to January 1, 2000, or is a menthol flavored product.
(2) The product is a tobacco product as defined in paragraph 8 of subdivision (a) of Section 104495 of the Health and Safety Code, as that provision may be amended from time to time.
(j) “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.

 (a) 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.
(b) There shall be 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 his or her 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.

 An enforcing agency may assess civil penalties in the amounts set forth in subdivision (a) of Section 22958 for a violation of this division.

 This section division 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 division 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. 2.

 The provisions of this act are severable. If any provision of this act 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.