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HILLS
STAFF REPORT
Meeting Date:
To:
From:
Subject:
October 18. 2022
Honorable Mayor & City Council
Cynthia Owens, Municipal Affairs Manager
Request by Councilmember Mirisch for the City Council to Consider Taking a Position of Support on Proposition 1, the Right to Reproductive Freedom Amendment, and Proposition 31, a Referendum on the 2020 Law that Would Prohibit the Retail Sale of Certain Flavored Tobacco Products
Attachment: 1. Text of SB 793
2. Text of Proposition 31
3. Text of Proposition 1
INTRODUCTION
This item is a request by Councilmember Mirisch for the City Council to approve a position of support on both Proposition 1, an amendment establishing an individual's right to reproductive freedom, and Proposition 31, a referendum on Senate Bill 793 (Hill, 2020) - Flavored Tobacco Products ("SB 793"). Should Proposition 1 pass, an amendment would be made to the state constitution to prohibit the state from interfering with or denying an individual's reproductive freedom, including the right to an abortion and to choose or refuse contraceptives. Should Proposition 31 pass, then SB 793 would become law. SB 793 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, certain flavored tobacco products or tobacco product flavor enhancers.
DISCUSSION
Proposition 1
Abortion is legal in California up to fetal viability and after viability if the procedure is necessary to protect the life or health of the mother. In 2002, the California State Legislature passed the Reproductive Privacy Act, which added language to state statute declaring that women have a "fundamental right to choose to bear a child or to choose and to obtain an abortion."
On May 2, 2022, Politico published a leaked draft opinion of Dobbs v. Jackson Women's Health Organization, which showed the Supreme Court overturning Roe v.
Wade and Planned Parenthood v. Casey and determining that the US constitution does not grant a right to an abortion.
Meeting Date: October 18, 2022
On June 8, 2022, Senate President pro tempore Toni Atkins introduced Senate Constitutional Amendment 10, co-authored by Assembly Speaker Anthony Rendon and other Democrats in the state legislature. Atkins stated that SCA 10 would codify abortion and contraception protections that already exist in California state law.
On June 24, the Supreme Court overturned both Roe and Casey, with the final opinion being largely similar to the leaked draft opinion.
For the constitutional amendment to appear on the November 2022 ballot, it had to pass through two-thirds of both houses of the California State Legislature by June 30.
On June 27, the Assembly voted 58–17 to pass SCA 10, allowing the amendment to be put to a vote before California voters in the November 2022 general election.
On June 29, the Senate voted 29–8 to pass SB 131, sending the bill to the Governor Newsom, who approved the legislation, which required the California Secretary of State to designate SCA 10 as Proposition 1 on the ballot of the upcoming election.
On July 1, California Secretary of State Shirley Weber formally designated the amendment as Proposition 1, titled Constitutional Right to Reproductive Freedom, to be voted upon in the general election on November 8, 2022. Any amendment to the Constitution of California requires the passage of a California ballot proposition by a simple majority of the voters. Proposition 1 would add Section 1.1 to Article I of the state constitution to read:
The state shall not deny or interfere with an individual's reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives. This section is intended to further the constitutional right to privacy guaranteed by Section 1, and the constitutional right to not be denied equal protection guaranteed by Section 7. Nothing herein narrows or limits the right to privacy or equal protection.
A "yes" vote supports amending the state constitution to prohibit the state from interfering with or denying an individual's reproductive freedom, which is defined to include a right to an abortion and a right to contraceptives.
A "no" vote opposes this amendment providing a right to reproductive freedom in the state constitution.
Proposition 1 is the first abortion-related ballot measure in California since Proposition 4 in 2008, a rejected initiative that would have imposed a waiting period on abortions and parental notification in the case of minors. California is one of six US states that will have abortion-related ballot measures in 2022, the most to occur in the US in a single year, with votes also occurring in Kansas, Kentucky, Michigan, Montana, and Vermont.
Of the six, three – California, Michigan, and Vermont – will ask voters to enshrine the right to an abortion in their respective state constitutions while the other states are working to implement restrictive abortion policies.
Due to the Supreme Court decision and abortion bans in other states, California experienced an increase of patients seeking abortions, with Planned Parenthood saying that the majority of new patients came from Texas. The UCLA School of Law Center on Reproductive Health, Law, and Policy estimates that approximately 10,600 more people will come to California for abortion services each year.
Meeting Date: October 18, 2022
Yes on 1 is leading the campaign in support of Proposition 1. As of October 11, 2022, the committee sponsoring the campaign has raised $9.3 million. The campaign has received endorsements from:
• U.S. Sen. Dianne Feinstein (D)
• U.S. Sen. Alex Padilla (D)
• U.S. Rep. Judy Chu (D)
• U.S. Rep. John Garamendi (D)
• U.S. Rep. Jackie Speier (D)
• U.S. Rep. Mike Thompson (D)
• Gov. Gavin Newsom (D)
• State Sen. Toni Atkins (D)
• State Sen. Nancy Skinner (D)
• State Asm. Sabrina Cervantes (D)
• State Asm. Cristina Garcia (D)
• State Asm. Anthony Rendon (D)
• State Asm. Phil Ting (D)
• Lt. Gov. Eleni Kounalakis (D)
• Secretary of State Shirley Weber (D)
• Peace and Freedom Party of California
• California Nurses Association
• California Teachers Association
• ACLU of California
• American College of Obstetricians and
Gynecologists
• California Medical Association
• Human Rights Campaign PAC
• NARAL Pro-Choice California
• Planned Parenthood Affiliates of California
California Together, No on Proposition 1 is leading the campaign in opposition to Proposition 1. As of October 11, 2022, the committees behind the campaign have reported over $71,000 in contributions. The campaign has received endorsements from:
• State Sen. Brian Dahle (R)
• State Rep. Megan Dahle (R)
• State Asm. James Gallagher (R)
• State Rep. Jim Patterson (R)
• U.S. Rep. Tom Campbell (R)
• Republican Party of California
• California Conference of Catholic Bishops
• Democrats for Life of America
• Knights of Columbus
• Students for Life
Proposition 31
On March 17, 2020, the City Council approved a positon of support for SB 793 and a letter of support was sent to Senator Hill.
On August 28, 2020, SB 793 was passed by the state legislature and then signed by Governor Newsom on the same day. This bill contains several provisions relating to the sale of flavored tobacco products in California including, but not limited to:
1) Prohibiting 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. 2) Allowing for the sale of flavored shisha tobacco products by a hookah tobacco retailer if certain requirements are met.
3) Deeming a tobacco product as a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees, in the course of his or her 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, Meeting Date: October 18, 2022
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.
Additionally, SB 793 does not preempt or prohibit the adoption and implementation of local ordinances which impose greater restrictions on the access to tobacco products than the restrictions imposed by SB 793.
Opponents of SB 793 filed a veto referendum on August 31, 2020 with the Attorney General, Xavier Becerra. A veto referendum is a type of citizen-initiated ballot measure which asks registered voters in California whether to uphold or repeal a law passed by the state legislature. Opponents of the state law must collect signatures to place the veto referendum on the ballot, with the aim of allowing voters in California to decide if the law should be repealed. In California, voters have voted on 49 veto referendums, upholding the laws passed by the state legislature 20 times (40.8 percent) and repealing the laws 29 times (59.2 percent).
On September 10, 2020, Attorney General Becerra released the ballot petition language, which allowed the proponents for the veto referendum to begin collecting signatures.
Proponents had until December 10, 2020, to collect 623,212 valid signatures (five percent of the registered voters in the state).
On December 7, 2020, the Secretary of State's office reported 1,023,529 signatures were filed for the veto referendum for verification. On January 22, 2021, the Secretary of State announced an estimated 76.41 percent of the submitted signatures were valid, allowing the measure to qualify for the November 2022 general election.
Sponsors of the measure hired 2020 Ballcamp LLC to collect signatures for the petition to qualify this measure for the ballot. A total of $13,699,810.05 was spent to collect the 623,212 valid signatures required to put this measure before voters, resulting in a total cost per required signature (CPRS) of $21.98.
A "yes" vote on Proposition 31 would uphold the contested legislation, allowing SB 793 to go into effect, which would ban the sale of most flavored tobacco products in California.
A "no" vote on Proposition 31 would repeal the contested legislation, effectively enacting a citizen veto on SB 793, which would allow the sale of flavored tobacco to continue in California.
As of October 1, 2022, the “Yes” on Proposition 31 campaign has raised $6,268,437.68 with major contributions from:
• Mike Bloomberg
• Kaiser Foundation Health Plan, Inc.
• American Cancer Society, Cancer Action Network Inc.
• American Heart Association
• American Lung Association.
The “No” on Proposition 31 campaign has raised $22,960,569.56 with major contributions from:
• R.J. Reynolds Tobacco Company
• Phillip Morris USA, Inc.
• American Snuff Company
Meeting Date: October 18, 2022
• ITG Brands, LLC
• Swedish Match North America, LLC
As of 2020, Massachusetts is the only state in the United States to adopt a ban on the sale of flavored tobacco products, including flavored e-cigarettes and menthol cigarettes.
New Jersey, New York, and Rhode Island have adopted bans on the sale of flavored ecigarettes but not menthol cigarettes.
FISCAL IMPACT
Proposition 1
The summary language for Proposition 1 notes that there is no direct fiscal effect related to this ballot measure because reproductive rights already are protected by state law; thus, there is little to no direct fiscal impacts on the City.
Proposition 31
On December 21, 2018, a City Ordinance went into effect prohibiting the sale of flavored tobacco products in Beverly Hills.
On January 1, 2021, the prohibition on the sale of tobacco products in Beverly Hills went into effect with three exceptions:
• Current and future hotels are allowed to sell tobacco products to hotel guests via a concierge level of service;
• A cigar lounge operating in compliance with state law and holding a valid tobacco and electronic cigarette retailer permit as of March 25, 2019 may apply annually to renew their existing permit; and
• Any business who has received a tobacco hardship exemption. The last tobacco hardship exemption will end on December 31, 2022.
As the sale of most tobacco products are prohibited in Beverly Hills, there is little to no anticipated fiscal impact on the City should Proposition 31 pass.
RECOMMENDATION
Staff recommends the City Council consider the request by Councilmember Mirisch for the City to take a position of support on Proposition 1 and a position of support on Proposition 31.
Nancy Hunt-Coffey
Assistant City Manager
Approved By
Attachment 1
Senate Bill No. 793
CHAPTER 34
An act to add Article 5 (commencing with Section 104559.5) to Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, relating to tobacco products.
[Approved by Governor August 28, 2020. Filed with Secretary of State August 28, 2020.]
legislative counsel’s digest
SB 793, 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. Existing law also prohibits the use of tobacco products in county offices of education, on charter school or school district property, or near a playground or youth sports event, as specified.
This bill would prohibit 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. The bill would make a violation of this prohibition an infraction punishable by a fine of $250 for each violation. The bill would state the intent of the Legislature that these provisions do not preempt or prohibit the adoption and implementation of local ordinances that impose greater restrictions on the access to tobacco products than the restrictions imposed by the bill, as specified. The bill would state that its provisions are severable. By creating a new crime, the bill would impose a state-mandated local program.
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.
The people of the State of California do enact as follows:
SECTION 1. Article 5 (commencing with Section 104559.5) is added to Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, to read:
93 STATE OF CALIFORNIA
AUTHENTICATED
ELECTRONIC LEGAL MATERIAL
Article 5. Tobacco Sale Prohibition
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.
93 Ch. 34 — 2 —
(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.
93 — 3 — Ch. 34
(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) A tobacco retailer, or agent or employee of a tobacco retailer, who violates this section is guilty of an infraction and shall be punished by a fine of two hundred fifty dollars ($250) for each violation of this section. (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.
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.
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.
O
93 Ch. 34 — 4 —
Attachment 2
30 31
Text of Proposed Laws | 121
TEXT OF PROPOSED LAWS PROPOSITION 30 Continued
that both this initiative measure and the other
initiative measure(s) should both be given full force
and effect.
(c) If this initiative measure is approved by the voters but superseded in whole or in part by any other
conflicting initiative measure approved by the voters
at the same election, and such conflicting measure is
later held invalid, this measure shall be self-executing and given full force and effect.
SEC. 6. Liberal Construction.
This act is an exercise of the initiative power of the
people of the State of California pursuant to Article II and Article IV of the California Constitution, and shall be liberally construed to effectuate the purposes set
forth in this act.
SEC. 7. Standing.
Notwithstanding any other provision of law, if the state or any of its officials fail to defend the constitutionality of this act, following its approval by the voters, any
other state or local government agency of this state
shall have the authority to intervene on behalf of the
State of California in any court action challenging the constitutionality of this act for the purpose of
defending its constitutionality, whether that action is in state or federal trial court, on appeal, or on
discretionary review by the Supreme Court of
California or the Supreme Court of the United States.
The reasonable fees and costs of defending the action
shall be a charge on funds appropriated to the
Department of Justice, which shall be satisfied
promptly.
PROPOSITION 31
This law proposed by Senate Bill 793 of the 2019–
2020 Regular Session (Chapter 34, Statutes of 2020)
is submitted to the people as a referendum in
accordance with the provisions of Section 9 of
Article II of the California Constitution.
This proposed law adds sections to the Health and
Safety Code; therefore, new provisions proposed to be
added are printed in italic type to indicate that they
are new.
PROPOSED LAW
SECTION 1. Article 5 (commencing with Section
104559.5) is added to Chapter 1 of Part 3 of Division
103 of the Health and Safety Code, to read:
Article 5. Tobacco Sale Prohibition
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
court of competent jurisdiction, that decision shall not affect the validity of the remaining portions of this
act. The people of the State of California hereby
declare that they would have adopted this act and
each and every portion, section, subdivision,
paragraph, subparagraph, clause, sentence, phrase,
word, and application not declared invalid or
unconstitutional without regard to whether any part of
this act or application thereof would be subsequently
declared invalid.
SEC. 5. Conflicting and Nonconflicting Initiative
Measures.
The people of the State of California hereby find and
declare all of the following:
(a) Conflicting Initiative Measures.
In the event that this initiative measure and another
initiative measure or measures that raises state
revenues to fund reductions in GHG emissions from
transportation and wildfires appear on the same
statewide election ballot, the other initiative measure or measures shall be deemed to be in conflict with
this measure. In the event that this initiative measure receives a greater number of affirmative votes, the
provisions of this measure shall prevail in their
entirety, and the provisions of the other initiative
measure or measures shall be null and void.
(b) Nonconflicting Initiative Measures.
(1) This initiative measure is an exercise of the
statewide voters’ initiative power pursuant to
Section 1 of Article IV, and Section 8 of Article II, of the California Constitution.
(2) (A) Other initiative measures that deal with the
procedures for the adoption of taxes, fees, and
charges by the state Legislature, local legislative
bodies, and local voters deal with separate and
distinct constitutional powers from the constitutional
powers described in paragraph (1). These initiatives
include, but are not necessarily limited to, the
initiatives initially designated by the Attorney General as Initiative No. 21-0026 and Initiative No. 21-0042.
(B) Other initiative measures that increase taxes on
personal incomes to fund programs or efforts not
including reductions in GHG emissions from
transportation and wildfires deal with separate and
distinct subjects. These initiatives include, but are not necessarily limited to, the initiative initially designated by the Attorney General as Initiative No. 21-0022.
(3) For purposes of subdivision (b) of Section 10 of
Article II of the California Constitution, because they deal with separate and distinct constitutional powers
and separate and distinct subjects, this initiative
measure does not conflict with any initiative measure
described in paragraph (2). The voters hereby declare
that this initiative measure and the initiative measures described in paragraph (2) are not competing all-ornothing alternatives. The voters hereby freely and unequivocally express their intent that if this initiative measure and any of the initiative measures described
in paragraph (2) are approved at the same election,
31 122 | Text of Proposed Laws
TEXT OF PROPOSED LAWS PROPOSITION 31 Continued
(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.
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.
31 Text of Proposed Laws | 123
TEXT OF PROPOSED LAWS PROPOSITION 31 Continued
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.
SEC. 3. No reimbursement is required by this act
pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution.
(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) A tobacco retailer, or agent or employee of a
tobacco retailer, who violates this section is guilty of an infraction and shall be punished by a fine of two
hundred fifty dollars ($250) for each violation of this section.
(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.
Attachment 3