SENATE BILL REPORT

SB 6328

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

As Reported by Senate Committee On:

Health Care, February 4, 2016

Title: An act relating to vapor products in respect to provisions concerning certain child-resistant packaging, definitions related to "vapor product," signage requirements prohibiting vapor product sales to minors, prohibition of the purchase and possession of vapor products by minors, the liquor and cannabis board's enforcement authority over vapor products, preemption of certain local regulation of vapor products, and a requirement for vendor-assisted sales of vapor products in retail establishments.

Brief Description: Concerning vapor products in respect to provisions concerning certain child-resistant packaging, definitions related to "vapor product," signage requirements prohibiting vapor product sales to minors, prohibition of the purchase and possession of vapor products by minors, the liquor and cannabis board's enforcement authority over vapor products, preemption of certain local regulation of vapor products, and a requirement for vendor-assisted sales of vapor products in retail establishments.

Sponsors: Senators Dammeier, Hasegawa, Conway, O'Ban, Becker and Carlyle.

Brief History:

Committee Activity: Health Care: 1/26/16, 2/04/16 [DPS-WM, DNP, w/oRec].

SENATE COMMITTEE ON HEALTH CARE

Majority Report: That Substitute Senate Bill No. 6328 be substituted therefor, and the substitute bill do pass and be referred to Committee on Ways & Means.

Signed by Senators Becker, Chair; Dammeier, Vice Chair; Angel, Bailey, Baumgartner, Brown, Conway, Parlette and Rivers.

Minority Report: Do not pass.

Signed by Senators Cleveland, Ranking Minority Member; Jayapal.

Minority Report: That it be referred without recommendation.

Signed by Senators Frockt and Keiser.

Staff: Evan Klein (786-7483)

Background: Electronic cigarettes are battery-operated inhalers containing nicotine. The battery heats liquid in the cartridge, turning it into vapor that can be inhaled. The process of inhaling e-cigarette liquid is often called vaping.

State Law. Washington currently defines a vapor product as: a noncombustible tobacco-derived product containing nicotine that employs a mechanical heating element, battery, or circuit, regardless of shape or size, that can be used to heat a liquid nicotine solution contained in cartridges. Vapor product does not include any product that is regulated by the United States food and drug administration under chapter V of the federal food, drug, and cosmetic act.

Vapor products may not be sold or given to any person under the age of 18.

WSIPP Study. In 2014 the Legislature directed the Washington Institute for Public Policy (WSIPP) to research e-cigarette prevention programs. After an extensive search for rigorous outcome evaluations of e-cigarette prevention and cessation programs, WSIPP was unable to locate any studies that met WSIPP's research standards. WSIPP found that relatively little research has been conducted on e-cigarettes as a cessation tool. Surveys suggest that e-cigarette use grew from 1 percent in 2009 to over 6 percent in 2011 among adults. WSIPP found use rates grew from 3 percent to 7 percent between 2011 and 2012 among adolescents. According to the National Monitoring the Future Project, as of 2014, 16 percent of tenth graders used e-cigs.

FDA Regulations. The Food and Drug Administration (FDA) proposed regulations in April 2014, that would include coverage of e-cigarettes under their tobacco authority. The proposed rules include the following:

The proposed rules were delivered to the White House Office of Management and Budget in October 2015, for final review.

Summary of Bill (Recommended Substitute): Vapor Products. Vapor products are defined as any noncombustible product that may contain nicotine and that employ a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, that can be used to produce vapor from a solution or other substance. "Vapor product" does not include any product regulated as a drug or device by the United States food and drug administration under chapter V of the federal food, drug, and cosmetic act.

Licensing. Vapor product retailers must obtain a license from the Washington State Liquor and Cannabis Board (Board) in order to conduct business in Washington. Applications for licensing must be made through the business licensing system, on a form prescribed by the Board. License applications and renewals must include a $93 fee, unless the retailer already has a Washington wholesaler, retailer, or distributor license for tobacco products. Licenses must be exhibited in the retailer's place of business.

The Board is given authorities, enumerated in the language of the bill, to enforce vapor product retailer licenses.

Signage. A person who holds a vapor product retailer license must display a sign concerning the prohibition of vapor product sales to minors, including specific language enumerated in the language of the bill. The signs must be provided, free of charge, by the Board. The Board may issue a single tobacco and vapor product sign to cigarette retailers and wholesalers who are also vapor product retailers.

Sales Requirements. It is a class 3 civil infraction for any person under the age of 18 to purchase or attempt to purchase, possess, or obtain vapor products. Whenever there is a question as to whether someone is old enough to purchase vapor products, the retailer or their agent must require the purchaser to present an official form of photo identification. Vapor product retailers may not sell products containing cannabinoid, synthetic cannabinoid, cathinone, or methcathinone.

It is unlawful to sell or distribute vapor products at a retail store unless the customer has no direct access to the product except through assistance of the seller. It is also unlawful to sell vapor products from a self-service display. Retail establishments are exempt from both restrictions if they do not allow minors into the store.

No person may mail, ship or otherwise deliver any vapor products unless the purchaser verifies, through a commercially available database, that they are at least 18 years old prior to the vapor products' sale.

Labeling and Advertising Requirements. A manufacturer that sells or distributes vapor products must label the product with:

A manufacturer or retailer that advertises a vapor product must include the following warnings in any advertisements:

Child Resistant Packaging. Liquid nicotine containers that are sold in Washington must satisfy the child-resistant effectiveness standards, established by the poison prevention packaging act of 1970, and enforced by the federal Consumer Product Safety Commission.

Use Restrictions. The use of vapor products is prohibited, with certain exemptions enumerated in the bill, in the following areas:

Board Authority. The Board may impose penalties, sanctions and other actions against licensees, and is given other powers and authorities as necessary to enforce the provisions of this act.

Youth Tobacco Prevention Account. The youth tobacco prevention account name is changed to the youth tobacco and vapor product prevention account. Ninety percent of all licensing fees and fees collected by the Board for imposition of monetary penalties must be deposited into the youth tobacco prevention account. The remaining 10 percent must be deposited in the state general fund.

Preemption. Political subdivisions of the state are preempted from adopting or enforcing requirements for licensure and regulation of vapor product promotions and sales at retail.

Exemption. Motor carriers, freight forwarders and air carriers are exempted from the vapor product provisions in the bill.

EFFECT OF CHANGES MADE BY HEALTH CARE COMMITTEE (Recommended Substitute): The substitute:

Appropriation: None.

Fiscal Note: Available.

Committee/Commission/Task Force Created: No.

Effective Date: The bill contains several effective dates. Please refer to the bill.

Staff Summary of Public Testimony: PRO: Exposure and risk of poisoning to young children is serious. A bill preventing exposure and preventing youth access passed out of the Senate last year but didn't pass the House. Over the last year, more young children have been exposed, there has been rampant use of vaping on school grounds, and other state entities have started to take action. However, this patchwork action has created irregularities in law in different areas of the state. What we all know, is doing nothing at the state level is unacceptable. School districts are frustrated that they have no vehicle to enforce the use of vapor products. This bill also prohibits vending machine sales. For store owners and retailers with more than one location, it is important to have uniformity throughout the state. This bill balances adult access and youth prevention. The online sale requirements in the bill will ensure that youth prevention extends to online sales. The pink lung brigade manufacturers already use child resistant packaging.

CON: There are many concerning elements of this bill. It would permit the use of vapor products in many public spaces. Permitting the use of these devices where children can see it, sends a message that these devices are okay to use. The effects of vapor devices harm the developing brains of children. Given that most smokers become addicted in their teens, we must avoid exposing young people to use of vapor products in public spaces. Being that we don't know what is being vaped when someone is vaping, it is difficult to enforce consumption rules. Nicotine is as addictive as heroin, and young people are extremely vulnerable. This bill fails to implement an effective youth prevention strategy. State preemption also undermines the ability to implement local regulations.

OTHER: This bill is about our kids and saving the next generation from getting addicted to nicotine. The tobacco industry and nicotine patch companies use evidence based approaches to get people hooked on tobacco. Vapor product companies target marketing towards children. Vapor product companies are using the same type of marketing as tobacco companies use to get children addicted to nicotine. Tenth grade use of tobacco and e-cigarette products went up 67 percent in two years. The fee revenue generated by this bill will not provide for robust enforcement. There is also concern that this bill would allow internet sales of vapor products since there is no consistent way to ensure that youth cannot access the products online. In 2015, 70 percent of calls into the poison control center regarding vapor products, pertained to pediatrics. There is no standardized labeling on any vapor product packaging. This makes it difficult to know how much nicotine is in a package, and how much nicotine is consumed when a child gets into the product. The low monetary penalties in the bill are concerning. Larger penalties lead to higher rates of compliance. Applications for liquor and tobacco licenses require a criminal background check, but this bill does not require that for vapor products. Vapor products are also used as a vehicle for synthetic drugs. These vapor products sometimes contain THC and other cannabis based products. This bill does not offer enough protection to teenagers.

Persons Testifying: PRO: Senator Dammeier, Prime Sponsor; Kim Thompson, Pink Lung Brigade, President; Marc Jarrett, Pink Lung Brigade, Vice President; Joe Baba, WaVape (The Washington Vape Association); Joanie Deutsch, Washington Retail Association; Cliff Webster, 7-Eleven Corporation; Justin D. Lewis, Viper Vapor.

CON: Sarah Stewart, High School Student; Alexander Garrard, Washington Poison Center/Clinical Managing Director; Dr. Gary Goldbaum, Snohomish Health Dist. Health Officer & Director, WSMA; Dr. Jeff Duchin, Public Health Seattle & King County / Health Officer; Derek Young, Pierce County Councilmember.

OTHER: Rusty Fallis, Office of the Attorney General; Josh Bolender, Liquor and Cannabis Board; John Wiesman, Department of Health; Sarah Stewart, High School student; Dr. Alex Garrard, Poison Center.

Persons Signed In To Testify But Not Testifying: PRO: Mark LaBudde, DBA CC Vapour; Johnny Vigil, CC Vapour. OTHER: Al Ralston, FedEx.