Legislature(2015 - 2016)BELTZ 105 (TSBldg)
03/07/2016 01:30 PM JUDICIARY
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SB 141-E-CIGS: SALE TO AND POSSESSION BY MINOR 1:40:24 PM CHAIR MCGUIRE announced the consideration of SB 141. She asked if version P needed to be adopted. TIM LAMKIN, Staff, Senator Gary Stevens, Alaska State Legislature, said version P passed from the Senate Labor and Commerce Committee and is identical to version I. [Version I was before the committee.] SENATOR GARY STEVENS, Alaska State Legislature, sponsor of SB 141, began by describing what the bill is not. He stated that the bill is not a tax and does not restrict adults from smoking e-cigarettes or tobacco. The bill applies to youth - minors under 19 - and requires that e-cigarettes and its components be treated like tobacco. The bill requires a business license endorsement, relates to vending machines, and keeps exemptions for e-cigarettes in place for medical use. 1:42:15 PM SENATOR MICCICHE requested clarification of the age the bill applies to. SENATOR STEVENS said it only applies to minors under 19 years of age. CHAIR MCGUIRE clarified that the reason behind that age requirement is because smoking falls under the Commerce Clause, as opposed to First Amendment rights. MR. LAMKIN showed a slide presentation on "Kids are Fast Learners" that dealt with how e-cigarettes and vaping affect Alaska's youth. He said there are hundreds of smoking products, but no conclusive evidence about long-term health effects. He debunked the idea that e-cigarettes will help people quit smoking, except possibly for adult smokers. MR. LAMKIN addressed the limit of personal freedoms for youth. He listed things that are banned from youth. He said it is not known whether vaping and e-cigarettes are healthier than smoking. He questioned the health advantages of e-cigarettes over cigarettes and maintained that they are chemical products and often contain nicotine. He concluded that the bill is about long-term health for youth and restricting access to electronic smoking products in the same manner as youth are restricted from tobacco products. 1:47:14 PM MR. LAMKIN explained that the bill proposes to add electronic smoking products (ESPs) to existing law that prohibits minors from possessing tobacco. It also proposes to hold the industry and consumers accountable for selling and possessing ESPs, in order to protect young people. 1:48:21 PM CHAIR MCGUIRE stated that nothing in the bill applies to adults age 20 and older. MR. LAMKIN agreed. CHAIR MCGUIRE asked if there are any exceptions to the addition of e-products to provisions in existing law regarding minors possessing tobacco or cigarettes. MR. LAMKIN said no. He noted the policy call regarding whether an e-cigarette suspension should also result in a suspension in the ability to sell tobacco products. CHAIR MCGUIRE asked what happens when an alcohol vendor receives an alcohol violation and they also sell tobacco products. MR. LAMKIN said it is not the intent of the bill to suspend the vendor from the ability to sell an unrelated product. 1:50:58 PM CHAIR MCGUIRE listed teleconference resources available from various entities regarding SB 141. 1:51:39 PM MR. LAMKIN explained the sections of version I: Section 1: AS 11.76.105(a) Adds to existing law that, as with prohibiting minors from possessing cigarettes or tobacco, to also prohibit possession of electronic cigarettes and any component thereof. Section 2: AS 11.76.107(a) Adds to existing law that, as with tobacco product vending machines, vending machines dispensing electronic cigarette or nicotine products must also be supervised. Section 3: AS 11.76.109(a) Adds to existing law that a minor may not sell tobacco or nicotine products, nor sell electronic cigarettes, or any related component thereof. 1:52:18 PM SENATOR WIELECHOWSKI inquired if the bill bans the selling of non-nicotine e-cigarettes to children. MR. LAMKIN said that the intent is to include all components of electronic paraphernalia. Section 4: AS 11.76.109(b) Provides an exception for persons to sell or give E-cigarettes to a minor, provided the minor is using an e-cigarette for an approved medical purpose, such as smoking cessation, and is provided by a parent or prescribed by a doctor. 1:53:19 PM SENATOR MICCICHE questioned a part of Section 4, lines 21-23, and asked if it is legal for a parent or guardian to give someone under 19 an electronic cigarette. MR. LAMKIN offered his understanding that there were legitimate means for a parent or guardian to provide their child or dependent with this product, such as for a prescribed medical purpose. SENATOR MICCICHE highlighted that subparagraph (B) provides four instances of when that can happen, just like the old legislation did for nicotine products. MR. LAMKIN said he'd inquire why it was drafted this way; the intent is to allow legitimate access to these products. CHAIR MCGUIRE requested a follow up of that intent. 1:55:24 PM MR. LAMKIN continued: Section 5: AS 11.76.109(f) adds a new subsection that is consistent with existing law regarding placement of vending machines dispensing tobacco products; that the same requirements are applied to vending machines dispensing E-cigarette or nicotine products. He noted he is not aware of any existing vending machines. Section 6: AS 11.81.900(b) Makes new definition for "electronic smoking product," summarized as follows: (67) a device designed to aerosolize and inhale nicotine, a synthetic of nicotine, or other a potentially hazardous substance that "may have an adverse effect" on the person inhaling it. He called Section 6 the cornerstone of the bill. The "adverse effect" component was gleaned from the FDA. 1:56:45 PM SENATOR WIELECHOWSKI asked if it applies to a substance in a bottle without nicotine. MR. LAMKIN said the key is whether it would have an adverse effect on minors' health. He added that currently there is not enough data to know. SENATOR WIELECHOWSKI restated the question asking whether someone under 19 could use an e-cigarette that did not contain nicotine. He opined that it appears to be permitted in the bill. MR. LAMKIN responded that it was not the intent. There is no proof of product content yet, due to lack of labeling requirements. SENATOR WIELECHOWSKI recalled seeing bottles with various strength of nicotine, including zero nicotine. He asked Mr. Lamkin to look into it. 1:58:12 PM SENATOR MICCICHE responded that it seems like in Section 6, (67)(A)(ii), products that don't contain nicotine are covered. MR. LAMKIN agreed. CHAIR MCGUIRE opined that the language on page 4, lines 14-16, appear to address the content and potential health issues of a person inhaling from the device. 1:59:23 PM MR. LAMKIN continued: Section 7: AS 43.50.105(b) is amended for conformity, changing "tobacco" endorsement to "business license" endorsement, for purposes of shipping or transport of cigarettes. It also sets up conformity for the following Section 8 of the bill, relating to a required business license endorsement for selling E- cigarette or nicotine products. Section 8: AS 43.70.075(a) amends existing law requiring a special business license endorsement in order to lawfully sell tobacco products, by including the same licensing requirements for lawfully selling E-cigarette or nicotine products. CHAIR MCGUIRE asked if that was currently not required. MR. LAMKIN confirmed it wasn't. SENATOR WIELECHOWSKI asked about the rationale for changing "tobacco" to "business license" in Section 7, page 4, line 31. MR. LAMKIN explained that the bill does not define any ESP as a tobacco product. They want vendors selling ESPs to have an endorsement for enforcement purposes. It would put an umbrella over those selling tobacco products and ESPs. CHAIR MCGUIRE anticipated that the Department of Commerce, Community and Economic Development would later define that endorsement. MR. LAMKIN agreed. 2:01:30 PM CHAIR MCGUIRE questioned why "tobacco" is replaced with "business license" instead of adding "e-cigarette," by "tobacco endorsement." She wondered if that would inadvertently be broadening the underlying tobacco statute by changing it to "business license." MR. LAMKIN said it was a legal drafting choice and the intent is to put an umbrella over both tobacco and ESP products. He said they don't want to separate the two because it would require a second endorsement. He summarized that if a business already has a tobacco endorsement, it would automatically have the ESP endorsement. 2:02:45 PM SENATOR MICCICHE noted that AS 43.70.075 is the ESP endorsement; it adds ESP to existing law. MR. LAMKIN continued: Section 9: AS 43.70.075(d) amends existing law relating to selling tobacco to minors, by adding the same penalty provisions, including graduated fines, for selling E-cigarette or nicotine products to minors. Section 10: AS 43.70.075(f) amends existing law requiring signage when selling tobacco products, to also require signage for selling E-cigarette or nicotine products. The signage must read "The sale of electronic smoking products or products containing nicotine to a person under the age of 19 without a prescription is illegal." He noted the department is required to provide the signage to the vendor and has designed a PDF version of the sign so the vendor can print it off on their own, resulting in nearly zero fiscal impact to the state. SENATOR COGHILL asked whether nicotine cigarettes are currently prescribed to minors. MR. LAMKIN said they may be. He deferred to the department to answer, but thought the prescriptions might be targeted for kids addicted to nicotine. 2:05:18 PM SENATOR MICCICHE referred to page 3 where it addresses existing prescriptions for smoking cessation or harm reduction. MR. LAMKIN continued: Section 11: AS 43.70.07(i) amends existing enforcement provisions that, as with tobacco sales, to allow the State to seize a vendors' business license endorsement and E-cigarette or nicotine products in the event of such products being sold to minors. Section 12: AS 43.70.075(l) is amended for conformity that, as with tobacco sales, to allow one business license endorsement to serve as an umbrella if a vendor has multiple locations they are selling E- cigarette or nicotine products, and to shut down only the offending vending machine or outlet location in the event of a violation. Sections 13 through Sections 18: AS 43.70.075(m), (r), (t), (v), (w), and (x) are amended for conformity that, as with tobacco sales, to allow an evidentiary and administrative hearing, appeal process, and penalties in the event of violations of these statutes, involving the sale of E-cigarette or nicotine products to minors. Section 19: AS 43.70.075(y) is added for consistency, linking the definitions of "electronic smoking products," and distinguishing between traditional cigarette (tobacco) products and other modern nicotine alternatives. Section 20: AS 43.70.105(b) is amended for conformity that, as with tobacco products, a vendor must have the appropriate business license endorsement in order to lawfully sell E-cigarette or nicotine products. Section 21: AS 44.29.092 is amended for conformity that, as with tobacco sales, providing the Dept. of Health and Social Services the authority to issue citations for violating state law regarding minors buying, selling or possessing E-cigarette or nicotine products. Section 22: Is the applicability and effective date, applying to offenses committed only after the effective date of the bill, which would be 90 days after the bill is enacted. 2:08:00 PM SENATOR MICCICHE said he is struggling with Section 4, page 3, lines 4-19, where it says the product is expected to be consumed without combustion. He concluded that meant smoking cessation products. MR. LAMKIN said he would have to check with the bill drafter. He noted on page 2, lines 21-31, through page 3, line 3, are identical to Senator Micciche's reference on page 3. The first part focuses on ESPs and the second reference is focused on all other nicotine products. It was the drafter's choice to separate them. SENATOR MICCICHE suggested "a product containing nicotine or an electronic smoking product" would be better and to not include the new section. He said the new section opens up the distribution of electronic smoking products by a parent and it seems to need a qualifier. MR. LAMKIN offered to look into it and report back to the committee. 2:10:31 PM CHAIR MCGUIRE asked how marijuana is dealt with in this legislation. MR. LAMKIN replied the bill does not deal with marijuana. He pointed out that some products, depending on the chemical components, are odorless, tasteless, vaporless, smokeless, and undetectable. He understood they could include THC capsules. He reiterated that marijuana does not apply to the bill. CHAIR MCGUIRE thought that concern would come before the regulatory board. CHAIR MCGUIRE opened public testimony. 2:12:50 PM ASHLEY STRAUCH, representing herself, testified in support of SB 141. She voiced concern about e-cigarette sales and usage by minors. She shared that currently 18 percent of youth are using e-cigarettes. She warned of the chemicals and nicotine in e- cigarettes. She noted that 900 youth in Alaska became tobacco users. She spoke in favor of strongly regulating e-cigarettes. She said Alaska has made great strides in getting youth to quit smoking and not become new users. She urged caution when regulating e-cigarettes. 2:15:05 PM OCTAVIA HARRIS, representing herself, testified in support of SB 141. She said the bill requires e-cigarette vendors to be subject to under-age sales enforcement and have an endorsement. She said, as a mother of two boys, she likes that it also provides a clear message to youth that vaping is dangerous and illegal. 2:16:13 PM STEVE MAPES, Business Owner, testified in support of SB 141. He said he has been working to keep youth from nicotine products. He said his store checks IDs and refuse to sell to those under 19. He opined that there is a problem with the bill in that the vaping industry is very different than the tobacco industry. He did not feel the two should be tied together for an endorsement. He maintained that the vaping industry helps people stop smoking. He asked the sponsor to consider all the research done on e-cigarettes as a smoking reduction tool. He believed the vaping industry needs its own endorsement and said to let vaping products be available to adults. 2:18:53 PM CHAIR MCGUIRE noted the bill deals only with youth. 2:19:05 PM ASHLEY PELTIER, representing herself, testified in support of SB 141. She echoed the sentiments of the Fairbanks testifiers. She questioned the provision in Section 4 regarding allowing e- cigarettes to be prescribed by a health care professional and given to a minor by their parents. She said those devices are not FDA approved and are not an FDA approved cessation device. The seven FDA approved cessation medications are not approved for use by anyone under 18. 2:20:35 PM ANGELA CARROLL, Member, Smoke Free Alternative Trade Association, testified in support of SB 141. She said her organization is in full agreement with age restrictions on electronic nicotine delivery systems. She requested that a separate endorsement for electronic nicotine delivery systems be enacted. She suggested some improvements to the bill. She noted that pawn shops can sell ESP devices to anyone. She said her association would like to see any business that wishes to sell electronic nicotine delivery system devices be included as a separate industry from the tobacco industry. 2:22:24 PM GEORGE STEWART, representing himself, testified in support of SB 141. He spoke as a retired medical doctor and noted that there are medical problems associated with ESPs, and their use by young people should be banned. It is not known what the chemical content of ESPs is because they are not labeled. He said in Alaska e-cigarettes are being marketed to teens. He listed the contents in the fumes. He opined that there is a higher risk of youth becoming smokers as adults due to vaping first. 2:24:26 PM KATIE STEFFENS, representing herself, testified in support of SB 141. She said ESPs are targeted to kids similar to the way tobacco companies targeted them decades ago. ESPs are not risk- free products for youth. She encouraged passage of SB 141 in order to support the health of Alaska's youth. 2:25:18 PM AMANDA LENNARD, representing herself, testified in support of SB 141. She said she supports enforcing the legal purchase age of 19 for ESPs and licensing of shops that sell those products. It is important to reduce the accessibility of these products to youth and prevent the increase in cigarette use by teens. 2:26:19 PM EMILY NENON, Alaska Government Relations Director, American Cancer Society Action Network, testified in support of SB 141. She addressed a problem of lack of enforcement ability during compliance checks of vendors. Compliance has gone up due to placing suspensions on business license endorsements for tobacco sales to youth. CHAIR MCGUIRE requested a history of tobacco cessation efforts and current youth smoking rates. MS. NENON related that there is a 70 percent decline in smoking rates by youth in the last 20 years. However, there are 18 percent more high school students using electronic products. She noted that high school students were more likely to smoke cigarettes if they had used e-cigarettes. She reported that when the FDA took over the regulation of tobacco products in 2010, e- cigarette vendors went to court and demanded that e-cigarettes be treated as tobacco products instead of as a drug-delivery device. The vendors won and their products are being regulated as tobacco products under federal law. CHAIR MCGUIRE thanked Ms. Nenon for all her work in preventing kids from becoming addicted to nicotine. CHAIR MCGUIRE closed public testimony and held SB 141 in committee.