HB 360-REGULATION OF SMOKING  3:42:22 PM CHAIR HIGGINS announced that the next order of business would be HOUSE BILL NO. 360, "An Act prohibiting smoking in certain locations; and providing for an effective date." REPRESENTATIVE KELLER moved to adopt the proposed committee substitute (CS) CSHB 360, labeled 28-LS1336\U, Strasbaugh, 3/21/14, as the working draft. There being no objection, it was so ordered. 3:42:39 PM REPRESENTATIVE LINDSEY HOLMES, Alaska State Legislature, declared that the proposed bill was also called "the take it outside bill." She explained that it was designed to protect people in their own workplaces from having to breathe second hand smoke. She stated that there was now more knowledge about the effects from second hand smoke and she offered anecdotes about past experiences with second hand smoke. She reported that second hand smoke killed an estimated 50,000 Americans every year from lung cancer and heart disease, and the Surgeon General had reported that even brief exposure to second hand smoke could have immediate adverse effects on the cardio- vascular system. This same report estimated that second hand smoke caused about $5.6 billion in loss productivity annually. An analysis from the Institute of Medicine in 2009 concluded that smoke free workplace laws helped reduce heart attacks from 6 - 47 percent. She noted that stroke had also been added to the list as caused by exposure to second hand smoke. She said that approximately half of the jobs in Alaska were covered by smoke free workplace laws. She reported that more than 400 businesses in Alaska had signed resolutions supporting a state wide smoke free indoor workplace law [Included in members' packets], noting that the Alaska Supreme Court had recently recognized that the government did have a legitimate interest in protecting citizens from "the well-established dangers of second hand tobacco smoke." She reported that more than 30 other states already had similar laws. CHAIR HIGGINS asked if the decision by work places to be smoke free was voluntary. REPRESENTATIVE HOLMES replied that some were voluntary, although many were in areas of the state that had local, smoke free work place laws. She pointed out that, in many unincorporated areas, local government did not have the power to impose these ordinances. CHAIR HIGGINS asked how the proposed bill would be enforced. REPRESENTATIVE HOLMES replied that "it's fairly well self- policing" and there had been very little need for enforcement. 3:47:37 PM ROBERT ERVINE, Staff, Representative Lindsey Holmes, Alaska State Legislature, explained that smoking laws in Alaska were under the purview of Department of Environmental Conservation (DEC) although a goal of the proposed bill was to shift this to Department of Health and Social Services (DHSS). This would allow an employee to make a complaint if there was a violation. He referred to the Sectional Summary [Included in members' packets]. He explained that Section 1, paragraph (1), created new smoking laws to prohibit smoking in, among others, enclosed areas within places of employment, public places, schools, and transportation facilities. Describing paragraph (2), he stated that it applied to, among others, outdoor arenas, stadiums, and areas of public schools. Moving on to subsection (b), he listed the three exemptions to include private clubs, private residences except hotels or motels, and vessels engaged in commercial or sport fishing activities. The next section, AS 18.35.331, required employers, owners, and operators to post no smoking signs within places or vehicles where smoking was prohibited. REPRESENTATIVE SEATON asked for identification of the referenced page and line. REPRESENTATIVE KELLER stated that this was on page 3, line 3. MR. ERVINE directed attention to page 3, line 23, which required the commissioner of DHSS to develop and maintain procedures for processing reports of violations. He observed that it would be necessary for further clarification that this was not "a gotcha task force as enforcement." He moved on to page 3, line 31 through page 4, line 13, which established the fine amounts for violations. He noted that, although these regulations did not fall under the purview of DHSS, DEC did not have enforcement capabilities for the current smoking law either. This would shift the enforcement to DHSS, and "hopefully give them some measure of teeth to enforce this." REPRESENTATIVE SEATON directed attention to page 3, line 6, and asked about a task force. MR. ERVINE stated that a task force was not being established. REPRESENTATIVE HOLMES said that the goal was for clarification that the intent for the proposed bill was not to be "a sting operation," or a "big enforcement effort." She offered that her intent was for this to be "complaint driven only, and fairly limited in scope," and not for "a big enforcement effort." CHAIR HIGGINS said that the proposed bill would be held over. MR. ERVINE directed attention back to AS 18.35.344(c) through (e), page 3, line 31 through page 4, line 13, which allowed peace officers, or an employee designated by the commissioner, to issue citations for violations of the new law. These violations could be reported by a person observing the violation. He stated that it went on to discuss ticketing and bail for violations. 3:54:47 PM MR. ERVINE directed attention to AS 18.35.351, page 5, lines 30 - 31, and page 6, lines 1 - 9, which required the Commissioner of DHSS "to administer and enforce the provisions of the new law and adopt regulations as needed." He referred to AS 18.35.356, page 6, lines 10 - 19, which required the [DHSS] commissioner to provide ongoing access to the public about the law, including an electronically published brochure explaining the new requirements for employers, property owners, property operators, and the public. He said this was an important component of the proposed bill, as it focused on public education and not enforcement. MR. ERVINE moved on to AS 18.35.357, page 6, lines 20 - 27, noting that this was an important protection for employees from retaliation by an employer. He said that AS 18.35.359, page 6, lines 28 - 31, and page 7, line 1, established that a municipality may adopt and enforce local laws that were more stringent that the proposed bill. He explained that AS 18.35.366, page 7, lines 3 - 31 and page 8, lines 1 - 14, were the definitions provided for business, commissioner, department, e-cigarette, employee, employer, enclosed area, health care facility, private club, place of employment, public place, and smoking. MR. ERVINE referred to page 8, lines 15 - 16, which repealed the listed existing statutes. CHAIR HIGGINS asked about the authority to issue citations. MR. ERVINE replied that the proposed bill would designate that authority. REPRESENTATIVE KELLER asked for clarification that the person issuing the citation had to see the offense committed. MR. ERVINE referred to page 4, lines 21 - 23. REPRESENTATIVE KELLER asked if the criteria for a citation were for the complainant to witness the offense. MR. ERVINE replied that either a peace officer or the designated department person could issue the citation. REPRESENTATIVE KELLER asked for more clarification. REPRESENTATIVE HOLMES offered her understanding that the peace officer must witness the offense, but that the designated department person did not have to witness it. 3:59:14 PM REPRESENTATIVE PRUITT, asking for clarification that a person designated by the commissioner could issue a citation without having to see the offense, announced that this "could be opening ourselves up" and declared "that's a slippery slope." MR. ERVINE explained that the intention was for the commissioner, or the designated person, to follow up on a report with a letter, instead of an actual citation. He offered to provide clarification in the proposed bill. REPRESENTATIVE PRUITT stated his recognition for an indeterminate fiscal note, as it "could be huge if you're talking about having enough people out there for all the little situations." REPRESENTATIVE HOLMES said that this was not the intent for the proposed bill, and they would continue to work for clarification. REPRESENTATIVE SEATON referred to page 4, lines 16 - 17, and stated that a violation of AS 18.35.301 had to be committed in the presence of the officer, although a citation could be issued for a violation of AS 18.35.331 or AS 18.35.357 that did not occur in the presence of the officer. REPRESENTATIVE SEATON, referring to page 5, line 27, asked for clarification and the intent that a commissioner may bring civil action to enjoin a violation of these statutes. REPRESENTATIVE HOLMES replied that this would be a result of non-compliance with the law. REPRESENTATIVE SEATON asked if this could result from a $100 violation in Superior Court. REPRESENTATIVE HOLMES explained that enjoining the action was similar to a temporary restraining order after non-compliance to repeated complaints. MR. ERVINE pointed out that the fines and the injunction sections were modeled from existing law. He discussed Section 3, page 8, lines 17 - 20, which was uncodified law and clarified that the new provisions of the bill applied to violations or failure to comply that occur on or after the effective date. Section 4, page 8, lines 21 - 26, was uncodified law and permitted Department of Health and Social Services to adopt regulations to implement Section 1 of the proposed bill. He noted that any regulations could not take effect before the effective date. He concluded with Sections 5 and 6, page 8, lines 27 and 28, which set the effective date of October 1, 2014 for the bill, although Section 4 would take effect immediately. 4:05:32 PM MR. ERVINE paraphrased from the Summary of Changes [Included in members' packets] and stated that there was a slight modification of the bill title. He directed attention to page 1, line 8, and said that the proposed areas for prohibiting smoking had been split to just include enclosed areas, with page 2, line 15, now including enclosed areas and the grounds. On page 2, line 1, "health care facility" was deleted from the list in subsection (a)(1)(D). On page 2, lines 11 - 12, a new subparagraph (H) specified that smoking was only allowed in vehicles driven by an owner/operator, and not in any vehicle used as a place of employment. On page 3, line 1, "or adult" was inserted after "children" to clarify that the exemption was for private residences, and did not include a location where adult care was provided on a fee for service basis. Moving on to page 3, lines 13 - 17, he described that subsections (b) and (c) were combined and rewritten to place responsibility for posting signage that smoking was prohibited on the person in charge of the building. On page 3, lines 21 - 22, subsection (d) was rewritten to require the Department of Health and Social Services to provide the required signs in this section. On page 3, AS 18.35.331, subsection (f) was deleted, and on page 6, line 29, "or a political subdivision of the state" was deleted. Finally, on page 7, lines 9 - 12, the definition of "e- cigarette" was amended to include a broader range of e-cigarette products that produce a vapor for inhalation, even though this vapor may not be nicotine, but could contain other harmful toxins. 4:08:47 PM The committee took an at-ease from 4:08 p.m. to 4:10 p.m. 4:10:23 PM CHAIR HIGGINS said that the proposed bill would be held over, and he opened public testimony. 4:11:22 PM JANET KINCAID, Business Owner, reported that there was a no smoking ordinance in Palmer with almost universal support and that it had been very good for business and health. CARMEN LUNDE, Kodiak Cabaret, Hotel, Restaurant, & Retailers Association (CHARR), stated that government intervention needed to stop. She declared that the proposed bill was targeted at bars, as there was no longer smoking in the other places described in the proposed bill. She said that Kodiak used common sense for its smoking issues and allowed a free choice for individuals. She opined that no government at any level should have the right to dictate how a business owner chooses to run their business. She declared that citizens should have the right to make their own choices. LARRY HACKENMILLER, member, Alaska Cabaret, Hotel, Restaurant, & Retailers Association, stated that the Fairbanks City Council had decided that there was sufficient choice and had decided not to implement any widespread ban. He declared that the statistics for death from second hand smoke had not changed since initial testimonies, and he opined that this would have declined as there were now fewer smokers. He questioned the hazards included with smoking. He said that there was not any science to support harm from e-cigarettes. He compared the toxins, chemicals, and carcinogens emitted from e-cigarettes with those from candles, declaring them to be similar. He pointed out that candles were not included in the proposed bill. He stated that, as 95 percent of restaurants in Fairbanks were non-smoking by choice, the proposed bill was not necessary and only "makes criminals out of people" and "beefs up the government payroll beyond what's necessary and it doesn't address [the] real issue." He referenced the building code requirement for air exchanges, which did not mention second hand smoke, and he said "well, this bull about, well, the employee's safety, it's a matter of preference and an employee may not like the smell of smoke or whatever, but it's still.. again, when they keep telling you that we have a right to smoke free air, well, that's true, but you also have a right to smoke filled air. Those rights exist for everybody." He declared that, as the discussion was for second hand smoke, he had not found any research that "shows a miniscule exposure" was a health issue. 4:17:09 PM MARK MILITELLO, owner, Sumo Vapor, said that, although he was a non-smoker, he did not agree with a comparison of cigarettes to e-cigarettes. He said he had not yet been shown that anyone had died from exposure to e-cigarettes. He offered his belief that e-cigarettes should be compared to the nicotine patch or nicotine gum. He stated that he was the owner of an electronic cigarette store, and he opined that e-cigarettes should not be included in the proposed bill. DANIEL LYNCH said that he had been a smoker for forty years, although he recognized that it was "a bad habit." He stated that "a few do-gooders want to make me a criminal for having a bad legal habit." He pointed out that he voluntarily paid substantial taxes on his cigarette purchases. He stated that cigarette smoke was healthier than tailpipe exhaust. He relayed that all of his previous employers had the freedom to make and enforce their own policies on work place activities, including smoking, and that these policies worked well. ANGELA CARROLL, Owner, Glacier Vapors, said that she was an owner of a vapor e-cigarette shop, and that she was opposed to the language including electronic cigarettes in the proposed bill. She offered her belief that a business owner should make the decision to allow vaping or smoking in their establishment. She stated that e-cigarettes should not be included with cigarettes. She reported that she had been a smoker for 37 years, and that e-cigarettes had dramatically lowered her nicotine intake. She offered her belief that the proposed bill would close down most e-cigarette stores. She pointed to studies which indicated that vaping was far less harmful than cigarettes, and she asked for an educated vote on the proposed bill, and an exclusion of e-cigarettes in the language of the proposed bill. 4:24:41 PM DALE FOX, President & CEO, Alaska Cabaret, Hotel, Restaurant, & Retailers Association (CHARR), declared that the "ban on smoking is a ban on bars." He said that almost every place on the list was already excluded from smoking, and that most communities offered a number of choices for bars and businesses to visit. He said that CHARR members were really frightened, as significant losses of revenue were reported after a smoking ban. His observations were that smoking bans had led to a 30 percent decrease in revenue. He stated that there should be a freedom of choice for smoking or non-smoking. He said that many CHARR members were angry, as local votes had allowed the maintenance of both smoking and non-smoking establishments. He stated that, if legislators believed in smaller government and the right of self-determination by local government, there would not be support of the proposed bill. BETTY MACTAVISH commended the committee for considering the proposed bill. She reported that only half of Alaskan workers were protected by smoke free workplace laws, and that one non- smoker died from second hand smoke for every nine smokers "who died from their addiction." Her extended exposure to second hand smoke had resulted in her diagnosis as "having the lungs of a smoker." She stated that the science was clear that exposure to tobacco smoke kills. She addressed e-cigarettes and second hand aerosol, and stated that this was not harmless water vapor, as stated by the tobacco industry. She noted that research had just begun for the health effects of e-cigarettes. She reported that second hand e-cigarette aerosol contained nicotine and ultra-fine particles, concentrated at levels higher than in conventional tobacco cigarette smoke, which exacerbated respiratory ailments. She listed some of the compounds and metals known to be in second hand e-cigarette aerosol, including chromium, nickel, tin, benzene, acetone, and glycerol. She shared that three other states had already protected their workers from second hand aerosol exposure from e-cigarettes in the work place by passing strong work place laws. 4:29:13 PM CHAIR HIGGINS stated that public testimony would be kept open. 4:29:32 PM The committee took a brief at-ease. 4:30:47 PM MATT WAGNER, Bad Boy Vapors Alaska, LLC, stated his opposition to the proposed bill. He expressed his agreement for consistent regulation of smoking in Alaska and the detrimental health effects to both users and those in proximity to second hand smoke. He stated, however, that inclusion of e-cigarettes in the proposed bill was a mistake. He declared "smoking is not vaping and vaping is not smoking." He explained that there was not any combustion from use of e-cigarettes, and therefore, there were no dangerous by-products. He directed attention to studies which indicated that the second hand effects of vaping were extremely negligible. He shared his excitement for the success of people who had "quit smoking paper cigarettes with the help of electronic cigarettes." He declared that these e- cigarettes were an effective alternative, and that they did not put anyone at risk for inhaling the toxic by-products of smoking. He declared opposition to the proposed bill, as it would no longer be possible to demonstrate the benefits of vaping. SEAN DASILVA, Bad Boy Vapors Alaska, LLC, shared that the aforementioned technical research had been from a study conducted almost six years prior, when the industry was still extremely primitive. He acknowledged that the e-cigarettes and the "e-juice" were then coming from China, and that there had not been any regulation. He stated expectations for the FDA to regulate and certify the "e-juice." He pointed to two studies that reported no meaningful risk from second hand vapor. He asked that the committee gather all the facts to better understand that policy in HB 360 for e-cigarettes was mis- guided. [HB 360 was held over]