CA AB3218

Find the most up-to-date revision of this bill here.

 

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 3218


Introduced by Assembly Member Wood
(Principal coauthor: Assembly Member Robert Rivas)
(Coauthors: Assembly Members Berman, Grayson, McCarty, and Quirk-Silva)
(Coauthors: Senators Portantino and Rubio)

February 16, 2024


An act to amend Section 104559.5 of, and 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, and to amend Section 30436 of the Revenue and Taxation Code, relating to tobacco.


LEGISLATIVE COUNSEL'S DIGEST


AB 3218, as introduced, Wood. 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.
Existing law prohibits a tobacco retailer, as defined, from offering for sale any flavored tobacco product or tobacco product flavor enhancer, as specified. A violation of this prohibition is an infraction.
This bill would require the Attorney General to, by no later than July 1, 2025, establish and maintain on the Attorney General’s internet website a list of tobacco product brand styles that lack a characterizing flavor, as defined.
This bill would require each manufacturer or importer 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. 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 and provide documentation demonstrating compliance with specified federal requirements. 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 seek injunctive relief and a civil penalty up to $50,000 against any manufacturer or importer who falsely certifies that brand style determined to have a characteristic flavor, lacks a characteristic flavor.
The bill would refine the definition of characteristic flavor for purposes of the prohibition and these provisions.
This bill would prohibit a distributor from selling any tobacco product not listed on the Unflavored Tobacco List to any person, as specified, for sale in the state and would authorize the Attorney General to assess civil penalties, as specified, for violations of this prohibition.
This bill would authorize the Attorney General to recover reasonable attorney’s fees, investigative costs, and other related costs, against a nonprevailing party in a civil action brought pursuant to these provisions. 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 bill would deem certain tobacco products possessed in violation of these provisions that are seized by the California Tax and Fee Administration to be forfeited to the state.
This bill would also ban the retail sale of any tobacco product not on the Unflavored Tobacco List, as specified. By expanding the scope of an existing crime, this 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.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

Bill Text

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 used by youth and marketed to certain minorities and marginalized communities.
(c) A growing number of cities and counties have restricted or banned the retail sale of flavored tobacco products, and a statewide ban on the retail sale of certain flavored tobacco products has been approved by California voters.
(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 (UTL).
(b) Every manufacturer and every importer of tobacco products shall 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 UTL. Any submission under this section shall be accompanied by a certification by the manufacturer or importer, under penalty of perjury, that describes each brand style, documents the product’s submission and order status under Section 905(j) or 910(b) of the Federal Food, Drug, and Cosmetic Act (FFDCA), and states that it lacks a characterizing flavor. Upon the request of the Attorney General, a manufacturer or importer shall provide additional information and factual substantiation regarding the lack of 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 or importer, or any employee or agent of the manufacturer or importer, in the course of their employment by the agency, 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, any text, color, or images on the product’s labeling or packaging, that explicitly or implicitly communicates that the tobacco product has a characterizing flavor. This presumption may be rebutted by the manufacturer or importer.
(e) The Attorney General shall decline to include on the UTL any brand style that the Attorney General reasonably determines has a characterizing flavor. The Attorney General may decline to include on the UTL any brand style that has not received a formal authorization, approval, or order under Section 905(j) or 910(b) of the FFDCA.
(f) The Attorney General shall remove from the UTL any brand style that the Attorney General determines has a characterizing flavor. The Attorney General may remove from the UTL any brand style that the Attorney General determines does not possess a formal authorization, approval, or order under Section 905(j) or 910(b) of the FFDCA. 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 UTL. This notice shall include the basis for the Attorney General’s determination.
(g) Any brand style not on the UTL shall be deemed a flavored tobacco product under subdivision (b) of Section 104559.5.
(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 the state a brand style listed on the UTL 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) Every 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 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 the state.
(k) Upon receiving notice from the Attorney General that a brand style is either removed from the UTL 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.
(l) The Attorney General shall publish the UTL beginning on or before July 1, 2025.
(m) No person shall affix, or cause to be affixed, any tax stamp or meter impression to a package of cigarettes as described in Chapter 3.5 (commencing with Section 30161) of Part 13 of Division 2 of the Revenue and Taxation Code, or pay any tax levied on a tobacco product under Chapter 2 (commencing with Section 30101) of Part 13 of Division 2 of the Revenue and Taxation Code, unless the brand style of the cigarettes or tobacco products is included on the UTL.
(n) The Attorney General may seek injunctive relief and a civil penalty not to exceed fifty thousand dollars ($50,000) and recover reasonable attorney’s fees, investigation costs, and expert fees against an entity or individual that certifies to the Attorney General that a brand style lacks a characterizing flavor when the certifying entity or individual had no reasonable basis to believe the certification was true.
(o) No distributor may sell any tobacco product not appearing on the UTL to any retailer, wholesaler, or other person for sale in California. For each tobacco product sold in violation of this subdivision, the Attorney General may assess civil penalties against the distributor according to the following schedule:
(1) A civil penalty of not less than one thousand dollars ($1,000) and not more than two thousand dollars ($2,000) for the first violation.
(2) A civil penalty of not less than two thousand five hundred dollars ($2,500) and not more than three thousand five hundred dollars ($3,500) for the second violation.
(3) A civil penalty of not less than four thousand dollars ($4,000) and not more than five thousand dollars ($5,000) for the third violation within a five-year period.
(4) A civil penalty of not less than five thousand five hundred dollars ($5,500) and not more than six thousand five hundred dollars ($6,500) for the fourth violation within a five-year period.
(5) A civil penalty of ten thousand dollars ($10,000) for a fifth or subsequent violation within a five-year period.
(p) 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.
(q) The Attorney General may adopt those rules and regulations the Attorney General deems necessary to implement the purposes of this section, including regulations further delineating characterizing flavor determinations, requiring a fee for manufacturer and importer certifications, and adopting an administrative process for the imposition of civil penalties. 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.
(r) This section does not preempt or otherwise prohibit the adoption of a local ordinance that is more restrictive than this section, that references or incorporates the UTL, or that imposes standards or definitions for a characterizing flavor that are more restrictive than those in this section.
(s) For the purposes of this section, the following definitions apply:
(1) “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.
(2) “Characterizing flavor” has the same meaning as in Section 104559.5.
(3) “Tobacco product” means a tobacco product as defined in Section 104495, but excludes looseleaf tobacco, premium cigars, and shisha tobacco products, as those terms are defined in that section.
(4) “UTL” means the Unflavored Tobacco List described in subdivision (a).
(t) 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.

 Section 104559.5 of the Health and Safety Code is amended to read:

 

104559.5.
 (a) For purposes of this section, the following definitions apply:
(1) “Characterizing flavor” means a distinguishable taste or aroma, or both, odor, distinguishable by an ordinary consumer either prior to or during the consumption of a tobacco product, other than the taste or aroma odor 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, vanilla, chocolate, 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. including, but not limited to, tastes or odors relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice, or a cooling or numbing sensation distinguishable by an ordinary consumer during the consumption of a tobacco product.
(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) “Department” means the State Department of Public Health.
(4) “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.
(5) “Flavored shisha tobacco product” means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.
(6) “Flavored tobacco product” means any tobacco product that contains a constituent that imparts a characterizing flavor. “Flavored tobacco product” includes any tobacco product, other than looseleaf tobacco, a premium cigar, or a shisha tobacco product, that is not listed on the Unflavored Tobacco List established and maintained by the Attorney General pursuant to Section 104559.1.
(7) “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.
(8) “Hookah tobacco retailer” means a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.
(9) “Labeling” means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.
(10) “Loose leaf “Looseleaf 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.
(11) “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.
(12) “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.
(13) “Retail location” means both of the following:
(A) A building from which tobacco products are sold at retail.
(B) Any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public.
(14) “Sale” or “sold” means a sale as that term is defined in Section 30006 of the Revenue and Taxation Code.
(15) “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.
(16) “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.
(17) “Tobacco product flavor enhancer” means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
(18) “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.
(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 looseleaf tobacco or premium cigars.
(f) (1) An enforcing agency may assess civil penalties against any person or entity that violates subdivision (b) according to the schedule of civil penalties prescribed in paragraph (1) of subdivision (a) of Section 22958 of the Business and Professions Code. In the case of a corporation or business with more than one retail location, the number of accumulated violations for purposes of the penalty schedule shall be determined in accordance with subdivision (h) of that section.
(2) In addition to the civil penalties described in paragraph (1), upon the assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 days of the date of service of the final administrative adjudication on the parties or payment of the civil penalty for an uncontested violation, shall notify the California Department of Tax and Fee Administration of the violation who shall then assess a civil penalty of two hundred fifty dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with Section 22972) of Division 8.6 of the Business and Professions Code, in accordance with the schedule listed in paragraph (1) of subdivision (b) of Section 22958 of the Business and Professions Code.
(3) Notwithstanding paragraph (7), the civil penalty assessed pursuant to paragraph (2) shall be deposited into the Cigarette and Tobacco Products Compliance Fund and shall be made available to the California Department of Tax and Fee Administration, upon appropriation by the Legislature, for the purposes of meeting its duties prescribed in paragraph (2).
(4) The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed by the California Department of Tax and Fee Administration pursuant to paragraph (2).
(5) The department shall, upon request, provide information concerning any person or entity that has been assessed a civil penalty for violation of this section to the California Department of Tax and Fee Administration when the department has notified the California Department of Tax and Fee Administration of the violation.
(6) Proceedings under this section shall be conducted pursuant to Section 131071, except in cases where a civil penalty is assessed by an enforcing agency other than the department, in which case proceedings shall be conducted pursuant to the procedures of that agency that are consistent with Section 131071.
(7) Except as otherwise provided in paragraph (3), all moneys collected as civil penalties by the department or by any other state agency or department pursuant to this section shall be deposited in the State Treasury to the credit of the Sale of Tobacco to Minors Control Account.
(g) (1) Primary responsibility for enforcement of this section shall be with the department. In carrying out its enforcement responsibilities, the department may conduct onsite sting inspections at tobacco retailers randomly, in response to public complaints, or at retailers where violations have previously occurred. Agents of the department, while conducting enforcement activities pursuant to this section, are peace officers and are subject to all of the powers and immunities granted to Food and Drug Section inspectors pursuant to Section 106500 in the same manner as are any Food and Drug Section inspectors of the department.
(2) In addition to the primary enforcement responsibility assumed by the department, another enforcing agency may conduct inspections and assess penalties for violations of this section if that enforcing agency complies with the applicable provisions of this section and with all other applicable provisions of law.
(3) State and local enforcing agencies are encouraged, in order to avoid duplication, to share the results of inspections and coordinate with the department when enforcing this section.
(4) An enforcing agency may use audio or video recording equipment when conducting inspections, to record and document illegal sales or attempted sales.
(h) (1) The department may adopt any regulations that it determines are necessary for the enforcement of this section. The regulations shall be adopted by the department in the manner prescribed by Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2) The department may adopt emergency regulations to implement this section. Any emergency regulation shall be adopted 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 deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Emergency regulations adopted shall remain in effect until regulations have been adopted pursuant to paragraph (1).
(i) 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. 4.

 Section 30436 of the Revenue and Taxation Code is amended to read:

 

30436.
 The following property, upon seizure by the board, is hereby forfeited to the state:
(a) Cigarettes or tobacco products transported upon the highways, roads, or streets of this state in violation of Section 30431 or Section 30432.
(b) Cigarettes not contained in packages to which are affixed California cigarette tax stamp or meter impressions or tobacco products upon which the tobacco products surtax has not been paid, which are offered for sale, possessed, kept, stored, or owned by any person with the intent of the person to sell the cigarettes or tobacco products without payment of the taxes imposed by this part.
(c) Any cigarette or tobacco product vending machine, together with the cigarettes, tobacco products, money or other contents thereof, that has been loaded, in whole or in part, with packages of cigarettes that do not have California cigarette tax stamps or meter impressions affixed or tobacco products upon which the tobacco products surtax has not been paid.
(d) Cigarettes contained in packages to which are affixed California cigarette tax stamps or meter impressions in violation of Section 30163.
(e) Cigarettes or tobacco products to which are affixed California cigarette tax stamps or meter impressions, or for which tax is paid pursuant to Sections 30123 and 30131.2, in violation of Section 30165.1, regardless of whether the violation is subject to the defense described in paragraph (2) of subdivision (i) of Section 30165.1.
(f) Cigarettes or tobacco products to which are affixed California cigarette tax stamps or meter impressions, or for which tax is paid, that are offered for sale, possessed, kept, stored, or owned by any person with the intent to sell the cigarettes or tobacco products in violation of Section 104559.1 of the Health and Safety Code.

 

SEC. 5.

 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.
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