Legislature(2017 - 2018)ADAMS ROOM 519
04/12/2018 01:30 PM House FINANCE
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CS FOR SENATE BILL NO. 15(FIN) "An Act relating to possession of an electronic smoking product or a product containing nicotine by a minor and to selling or giving a product containing nicotine or an electronic smoking product to a minor; relating to business license endorsements to sell cigarettes, cigars, tobacco, products containing tobacco, electronic smoking products, or products containing nicotine; and relating to citations for certain offenses concerning tobacco, products containing nicotine, or electronic smoking products." 3:00:20 PM TIM LAMKIN, STAFF, SENATOR GARY STEVENS, read a prepared statement: For anyone not acquainted with E-cigarettes, I have prepared a brief slideshow, to play in the background as I discuss the purpose of this bill. These images will introduce, or remind, you of their common components, sample styles and brands, what are now a multitude of exotic flavorings, and marketing strategies. This bill is about protecting our children from becoming addicted to nicotine. It is about clearly restricting sales to and possession of these products to youth under the age of 19. The use of electronic cigarettes is an exploding new trend in smoking. It is commonly referred to as "vaping." Public health advocacy, with the help of proven scientific evidence, is winning the war against tobacco. Use of traditional tobacco cigarette and related products is clearly on the decline. Tobacco is a dying industry. The tobacco manufacturers have acknowledged this trend and are responding with a barrage of new fashionable smoking options, in the form of E-Cigarettes and related modular devices designed to appeal to a wide range of consumers. Currently, according to the US Center for Disease Control, there are in the neighborhood of 4 million middle and high school students using these products nationwide. In Alaska, the numbers show about 15-25 percent of our students have at least been exposed to, if they are not regularly using E-cigarette products. See, there is a loophole. While it is currently technically illegal to buy or sell nicotine products to minors, it is not illegal to possess E-Cig products. Nor are all of the products supposedly containing nicotine, supposedly. Furthermore, there is currently no provision for law enforcement or investigators to enforce or issue violations for possession. Nor cite vendors for selling E-products to minors, the penalties are pretty weak right now. And the industry and youth know it. An informal survey our office commissioned last March, asking Alaska school teachers and administrators about E-Cigarette use in our schools, showed that 78 percent of educators are concerned with a current or foreseeable problem with youth access to and use of E- cigarette products. Meanwhile, the feds, public health advocates, state and local governments, schools and communities are all struggling to catch up and respond to this fast-moving industry. There are a lot of questions, perhaps the biggest one being, "Are these products safe?" and "should we be tacitly allowing our children to take up this activity?" The latest research available, not funded by big tobacco, shows the health benefits being dubious at best. I would concede that the chemicals used in E-cig products may be safer than smoking tobacco, but we would should not be too quick to accept these chemicals as themselves being safe. The FDA has approved of many of the known chemicals used in E-juice to be safe enough for ingestion, but not as an inhalant, long-term effects are just beginning to be studied. The most common and intuitive approach to addressing a policy on this new era of smoking products is to treat them in the exact same manner as we have structured tobacco policies. And that is what this bill does. We start with the commercial activity and the vendors selling the products, to include a requirement for a special endorsement on their business license, just like tobacco retailers. This is the only way we can effectively identify who is out there selling these products, and in turn provided state agency authority to monitor sales activity and enforce violations, with stiffer penalties. Currently, there are several hidden shops out there, selling these products, but by the nature of their business name, would give no indication they are selling E-products. Examples: Tesoro in the valley, Zooks downtown, Lola's Filipino restaurant and mini grocery store, and the Gas N Go Coffee hut, by Western Auto. Currently the only way to find out that these vendors are selling E- products is by word of mouth, or by driving around and visiting random stores. In wrap up, and before we get into the nuts and bolts of the bill, I would like to take a moment to address some of the rhetoric you will likely be hearing in opposition to this bill. You will likely hear that we do not need this bill, that the feds already have laws in place restricting youth access and enforce those laws. The fact is the Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act of 1992 requires states to enact and enforce laws restricting youth access to tobacco products. The FDA does have a limited enforcement resources, that are usually contracted out for occasional compliance checks, but penalties consist of little more than a slap on the wrist for vendors. I can go into some detail about federal enforcement if you wish. But, we do need this bill for meaningful monitoring and enforcement purposes. You may hear that the paperwork for getting the tobacco endorsement is onerous and hurts businesses. Standard business license applications are 4-pages and takes about 10 minutes to complete. You check a box for the endorsement and fill out a 5th page. The cost of a license is $50 per year and $100 for and endorsement per location, which were not onerous or damaging to business. This is a very lucrative business. You may hear that these products are a miracle for smokers trying to quit, which may be true in some cases, most typically for older adults who have smoked for many years. However, that is entirely irrelevant to this bill, as adult smoking habits are not the target here. We are trying to prevent youngsters from taking up the habit in the first place. You may hear that these are not tobacco products and should be not be associated with tobacco, but they are related. In August 2017, the FDA ruled that for practical and regulatory purposes, these products should be treated as tobacco products. After all, it mimics traditional smoking: they often look like a cigarette, glow like one, and produce smoke. It's just another kind of smoking. However, they are available in all the flavors and aromas of chocolate chip cookies, apple pie, or cotton candy. You may hear that these products are harmless because they don't always contain Nicotine. That is unproven. There are currently no requirements to verify or regulate labelling and marketing of this E-juice. A 2016 study in North Dakota found that 51 percent of the samples tested contained higher levels of nicotine than was reported on the labels, sometimes up to 173 percent more than was labelled. Even this little bottle here, which I bought at the Gas N Go for $1 (no tax), says "Zero Nicotine" but on the side in fine print it reads "may contain trace levels" of nicotine. In that same North Dakota study, 43 percent of E- liquid containers labelled as having no nicotine actually had significant levels of nicotine present. We should be skeptical of nicotine labelling of these products. You may hear that everyone wants to keep these products out of youths' hands, but it is in their hands, and readily so. Most vendors are legitimately making that effort. But some are not. If this industry is truly supportive of restricting youth access to E-Cigarette products and nicotine, there should be no opposition to this bill. In closing, this bill is about closing a loophole. It is about giving our state agencies the tools to monitor and enforce these restrictions. The urgency is growing. Senate Bill 15 would have us approach e- cigarettes with severe caution on behalf of young Alaskans. Thank you for allowing us to place the issue on the table. [The presenter played a silent video depicting vape products while making his presentation]. 3:13:19 PM Representative Kawasaki wondered about the comments that teens introduced to vaping were more likely to develop a habit. He was unsure to what extent that kids would develop an addiction to vaping. He wondered whether scientific evidence existed that proved the statement. Mr. Lamkin indicated there was a "growing body of evidence that vaping was a "gateway activity." He added that nicotine was proven to be addictive and frequently engaging in an activity that delivered nicotine developed into a habit. Vice-Chair Gara supported the bill. He had a question for Legislative Legal Services. Vice-Chair Gara referred to page 2 of the bill regarding punishment for possession of the product. He asked about the fine and wanted to determine the level of criminality of the fine. He indicated that fines were considered "quasi-criminal." He wondered what the levels of fines and violations were. He wanted to ensure the fine for a 19 year -old in possession of e-cigarettes was a very low-level offense. HILARY MARTIN, LEGISLATIVE LEGAL SERVICES, JUNEAU (via teleconference), reported that a violation was defined as a non-criminal offense, therefore a fine was only a penalty. She detailed that under AS 12.53.050 a default fine for a violation was $500. The court ruled that the fine could not be so high that it signified criminality. 3:17:29 PM Vice-Chair Gara asked if either a violation or a fine would end up on someone's court record. Ms. Hillary believed violations would show up on someone's record and were posted on Court View. She restated that a fine was only penalty. Vice-Chair Gara asked whether there was anything lower than a violation that would not appear on records. Ms. Martin responded that a violation was the lowest penalty. Vice-Chair Gara asked if the type of violation would be listed in the records. Ms. Martin thought that the violation referenced the statute that was violated. Mr. Lamkin noted that the provisions in the bill were the existing statute for cigarettes and tobacco. The bill inserted e-cigarettes into existing statute. Vice-Chair Gara understood the bill. Representative Wilson was having difficulty with non- nicotine products and the potential for a violation. She asked whether there were products that did not contain nicotine that were included in the bill. Mr. Lamkin answered that it was uncertain whether the products were truly nicotine free. Products that were labeled nicotine free were found to contain nicotine when tested. In addition, current research was discovering the "dubious" effects of other chemicals contained in the e-cigarette "juice." He noted that all juice contained Propylene Glycol, which was an anti-freeze chemical. He believed that our bodies were designed to "just breathe air" and did not believe the products were safe regardless of nicotine contents. 3:22:49 PM Representative Wilson asked why the issue was not left up to parental choice. Mr. Lamkin maintained that the question applied to any number of issues related to parental involvement. He informed committee members that a provision in the bill allowed parents to "make the accommodation" if the Food and Drug Administration (FDA) approved the products for smoking cessation, which it had not. Representative Wilson asked if the product was approved as a cessation product by the FDA, it would not fall under the bill and under such circumstances could a parent provide the product to their children. Mr. Lamkin answered in the affirmative and added that the products had to be used only as a cessation product for the child. 3:24:26 PM Representative Grenn asked how many states had "closed the loophole." Mr. Lamkin responded that approximately 20 states had adopted the regulations. Representative Grenn asked who regulated e-cigarette liquid. Mr. Lamkin answered that the FDA was just beginning to regulate the industry. Representative Grenn asked whether the hope was that a detailed ingredient list would be published. Mr. Lamkin answered in the affirmative. He heard antidotes that generic 55-gallon drums of juice could be purchased from China and an individual could concoct their own potion at home. Representative Grenn referred to Page 2, Section 2. He wanted to better understand the section that allowed a child under 19 to obtain an e-cigarette as a cessation device from a pharmacist without a prescription. Mr. Lamkin reiterated the answer he gave to Representative Wilson. He restated that the product had to be approved by the FDA as a cessation device, was marketed as a cessation device, and was either prescribed by a health care professional, or by the Department of Health and Social Services (DHSS), or provided by the parents or a pharmacist. Representative Grenn asked whether e-cigarettes were an FDA approved cessation device. Mr. Lamkin asserted that in no way the products were approved as a cessation devise by the FDA. 3:28:15 PM Representative Tilton asked whether someone under the age of 19 who was in possession of e-cigarettes was a violation and the highest charge one would receive. Mr. Lamkin stressed that the real target of the bill were the vendors and the bill was not about giving teenagers tickets. Representative Tilton relayed a story from personal experience. She asked if he had seen the devices that dispensed vitamins in a type of vaping devise. Mr. Lamkin answered in the negative. He suggested that manufacturers would find creative ways to market the devices. Representative Tilton confirmed that the devices were available with vitamins. 3:32:08 PM Representative Kawasaki ascertained that currently a business that did not sell tobacco products could sell e- cigarettes. Mr. Lamkin responded that the bill provided endorsements that enabled vendors to sell only e-cigarettes or only tobacco products or both. Representative Kawasaki surmised that a business could obtain an e-cigarette endorsement and not sell any products containing nicotine and would be licensed separately than a vaping shop that would sell both. Mr. Lamkin replied that "nicotine products" was the "distinction" in the bill. He delineated that all the vaping "hardware" was considered a nicotine product. Representative Kawasaki asked whether businesses that were currently selling the vaping equipment and juices that did not contain nicotine and no other tobacco products would need an endorsement to continue selling vaping products under the bill. Mr. Lamkin clarified that the bill offered 2 separate endorsements; one was for tobacco products and the other was for e-cigarettes and its components; pens and juice regardless of whether the juice contained nicotine. 3:35:20 PM Representative Kawasaki asked whether underage youth could legally purchase a bong in a vape shop. Mr. Lamkin believed bongs were associated with the consumption of marijuana and was not the subject of SB 15. Representative Kawasaki asked whether a youth could purchase a tobacco pipe. Mr. Lamkin replied that pipes were treated like tobacco products and purchases were restricted to individuals under 19 years of age and reiterated that it was similar to purchasing vaping hardware which would be restricted to youth under 19 years old. Representative Guttenberg reiterated similar questions as the previous inquiry regarding the vaping hardware. Mr. Lamkin restated that the all the products associated with vaping was covered under the bill and restricted from purchase for youth under the age of 19. Representative Guttenberg assumed the devices were preloaded. Mr. Lamkin responded that not all devises were pre-loaded; the components were modular. Therefore, the hardware was regulated. 3:38:47 PM Co-Chair Seaton OPENED public testimony. 3:38:59 PM ALLISON KULAS, EXECUTIVE DIRECTOR, ADVISORY BOARD OF ALCOHOLISM AND DRUG ABUSE, related that in her previous job she worked as a Tobacco Regulatory Science Fellow with the National Academy of Medicine placed in the Food and Drug Administration Center for Tobacco Products. She was not speaking on behalf of the FDA but used the knowledge gained to "protect Alaska's children." She believed that SB 15 was "an important step to prevent youth from tobacco products." Research had proven that nicotine was highly addictive, harmful to teenager's brain development and exposure to nicotine left them more susceptible to nicotine and other substance additions. Nicotine also reduced impulse control and was attributed to mood disorders and deficits in attention and cognition. Nicotine in any form was unsafe for use, yet e-cigarettes were the most commonly used tobacco products. A newly released report discovered that e-cigarettes increased the risk of using combustible cigarettes. She commented that SB 15 was consistent with the current laws that restricted tobacco products. Preventing illegal sales to minors protected the nations youth from the harmful effects of nicotine. Alaska had a proven track record of effective enforcement of businesses with a tobacco endorsement. The bill clarified the business rules and restrictions on the sale of tobacco products by including e-cigarettes in the existing statutes and further protected Alaska's youth. She urged member to vote in favor of the bill. Representative Grenn asked whether evidence existed that tobacco companies were manufacturing e-cigarette products. Ms. Kulas responded that the FDA did not know all the manufacturers of the products. She indicated that some existing tobacco companies were marketing the products along with small businesses. Representative Grenn asked if the marketing of e-cigarette were targeted at youth. Ms. Kulas answered in the affirmative and expounded that the e- cigarette advertising was like cigarette advertising. The FDA had spent ample funding to develop marketing campaigns for youth to counter the advertising exposure. She reported that in October 2017 the FDA developed a digital campaign aimed at e-cigarette youth prevention. 3:43:51 PM Representative Guttenberg wondered whether there were any other products that people ingested without any safety standards because it appeared that e-cigarettes were totally unregulated. He wondered whether any existing standards applied to e-cigarettes and confirmed what was in the products. Ms. Kulas answered that the FDA did not know what ingredients were in the products. The FDA was currently accepting applications that included the liquid product ingredient list and FDA's toxicologists were attempting to identify what was in the product and if the ingredients were safe. She noted that some ingredients when ingested were designated by the FDA as Generally Recognized As Safe (GRAS) but it was unknown if they were harmful when inhaled. 3:45:32 PM KRISTIN COX, GRANT COORDINATOR, TOBACCO PREVENTION AND CONTROL, NATIONAL COUNCIL ON ALCOHOLISM DRUG DEPENDENCE, JUNEAU, supported SB 15. She shared some statistical information. She indicated that flavors attracted children and 81 percent of youth tobacco users chose a flavored product as their first product and 25 percent believed that flavored tobacco products were safer. However, they were unsafe because they initiated youth into cigarette smoking and nicotine addiction. Three recently published studies in medical journals determined that youth that used e- cigarettes were 4 to 7 times more likely to become tobacco smokers. She added that the effect was "unilateral" meaning cigarette smoking was not associated with increased vaping. She concluded that restricting youth access to e-cigarettes would reduce youth smoking and adult addiction rates. 3:47:23 PM BEVERLY WOOLEY, SELF, JUNEAU, was retired but previously served as the Director of the Division of Public Health with the state and the municipality. She related that in the 1990's the state knew that large numbers of retailers were selling tobacco products to children due to lack of accountability. The state instituted enforcement and the number of incidents decreased to 5 percent. She emphasized that SB 15 would establish the same laws that regulated the tobacco industry for e-cigarettes and close the loophole and provide enforcement. She underscored that edibles that were considered healthy were much different when turned into an aerosol or combusted and inhaled into the lungs. She noted a state-wide study where researchers went to some of the "vape" shops and found they were more likely (36 percent of shops) to sell e-cigarettes to children while established retailers only sold the product 5 percent of the time to children. She believed in protecting children. She urged members to move the bill out of committee. 3:50:06 PM JAMIE MORGAN, AMERICAN HEART ASSOCIATION, AMERICAN STROKE ASSOCIATION, JUNEAU, spoke in support of SB 15 for the associations and urged members to move the bill from committee. She reiterated that e-cigarettes were harmful and unregulated. She reported that in the 2016 surgeon general report on e-cigarette use showed that e-cigarette use in children increased the likelihood of cigarette use. She related that the associations supported including e- cigarettes in laws that restricted access to children. 3:51:39 PM JOE DARNELL, MANAGER, YOUTH TOBACCO ENFORCEMENT PROGRAM, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, ANCHORAGE (via teleconference), related that he was the Chief Investigator for Tobacco Enforcement for the state. He spoke in support of the bill. He cited the states statewide vape shop study and reported that in 2016 he encountered a 26 percent sell rate for vaping products versus 5.4 percent for tobacco products; in Anchorage the sell rate was 50 percent. He added that in 2017 the statewide sell rate jumped to 35 percent. He supported the bill and asked for member's support. 3:53:40 PM ALEX MCDONALD, SELF, FAIRBANKS (via teleconference), testified against the bill. He shared that he owned the vape shop Ice Fog Vapor. He declared that he heard much misinformation in the prior testimony. He stated that federal law required him to age verify customers for any vape equipment. He countered that since the previous fall FDA instituted registering and labeling requirements. He emphasized that federal regulations were the norm that considered vape products tobacco products. He noted that compliance checks were carried out for the federal government through a contracted vendor. He opined that "new rules" were not necessary but better enforcement of the existing rules were. He related that the American Cancer Society recommended that long time smokers switch to a less harmful product such as vapor products. He mentioned that the FDA was engaged in studies related to the safety of e- cigarettes. He concluded that everything in the bill was covered under federal tobacco law. Representative Grenn asked whether he knew all the ingredients in the juice. Mr. McDonald answered in the affirmative and maintained that propylene glycol acted as a carrier and was found in asthma inhalers and oxygen tanks and had been used for a long time. He added that vegetable glycerin and food flavorings had also "been around for a long time." Some vape juice did not contain nicotine. He claimed that propylene glycol was added to hospital H Vac systems to keep airborne infections down. Representative Grenn asked why the label read that the product may contain nicotine. Mr. McDonald responded that the labeling was an FDA requirement. Representative Grenn asked why the nicotine labeling would be necessary. Mr. McDonald answered that there was a very low chance of cross contamination. 3:59:53 PM Representative Wilson mentioned the age requirement of 19 for purchasing vape products and asked whether she was correct. Mr. McDonald answered in the affirmative. Representative Kawasaki asked if the bill was more restrictive than federal law. Mr. McDonald thought the bill seemed redundant to federal law, although federal law did not require licensing. He thought SB 15 provided a duplicate service since the federal law required full enforcement authority and compliance checks. He surmised that the legislation was more of a licensing law than one designed to protect children. He purported that the prevalent source for youth tobacco products was "social"; supplied by older friends or family. Representative Kawasaki suggested that the state survey showed that many vape shops were not in compliance with federal laws. He asked for comment. Mr. McDonald felt that it did not make sense to make new laws when the current laws were not enforced. Vice-Chair Gara had been told numerous times that until federal laws were implemented the heating element in e- cigarettes could contain asbestos and other toxic materials. Mr. McDonald replied in the negative. He explained that the heating elements used Kanthal A-1, a resistance heating wire found in toaster ovens and hair dryers and the wicking material was organic cotton. He did not know where it was even possible to purchase asbestos. 4:03:38 PM JENNIFER CHIKOYAK, SELF, ANCHORAGE (via teleconference), spoke in support of the bill. She spoke from the perspective of a parent and shared that she tried to "guide her son into making good choices" and she valued the assistance that tobacco and alcohol laws supplied. She "appreciated the state stepping in and regulating" e- cigarettes like other tobacco products. She favored the state's penalties for tobacco sales to minors and wanted to close the loophole for e-cigarettes. 4:04:59 PM BETTY MACTAVISH, SELF, KODIAK (via teleconference), spoke in favor of the bill. She shared that she was a retired school teacher and was currently a substitute teacher. She stated that e-cigarette use among youth was increasing and characterized e-cigarettes as an "addictive tool" for the tobacco industry rather than a "quit" tool. She observed that youth who would not use conventional tobacco products were attracted to vaping, and she characterized vaping as "the new cool thing to do." She noted that toxic aerosols and chemicals were "hidden" in flavored vape juiced. She supported protecting the state's youth through passage of the bill. 4:07:12 PM MARGE STONEKING, AMERICAN LUNG ASSOCIATION, ANCHORAGE (via teleconference), spoke in support of the bill. She relayed that almost all e-cigarette contained nicotine and chemicals and toxins that were unsafe to inhale. The FDA delayed review of ingredients and any potential harmful effects of e-cigarettes until 2022 leaving unregulated products. She thought members were aware of the harmful effects of nicotine on youth's brain development and functioning and the increase in teen use. She reported that the FDA had performed some product testing but there were thousands of ingredients that varied from product to product. The testing had discovered that "ultra-fine" particles were inhaled deep into the lungs like diacetyl, which was a flavorant linked to lung disease, volatile organic compounds, and heavy metals. She argued that whether the product contained nicotine or not there were inherent risks in the use of the products. The bill would hold vendors accountable. She felt that the bill would also assist in changing the public perception that the products were safe. 4:10:41 PM PAMELA HOWARD, KENAI PENINSULA BOROUGH SCHOOL DISTRICT, SOLDOTNA (via teleconference), spoke in support of SB 15. She had been a school nurse for over 30 years and taught students about the harmful effects of vaping. She reported that in her school district principles saw a significant increase in students use of vaping products. The bill addressed students carrying devices. She believed that the students carrying the devices showed intent to use the devise and possession should be prohibited. She had not seen vitamin e-cigarette products. She spoke of the importance of educating students on the health risks of using the products. 4:13:37 PM KATIE STEFFENS, SELF, ANCHORAGE (via teleconference), spoke in support of the bill. She related that e-cigarette use contributed to harmful brain development and addiction in youth. She spoke about the other aerosol ingredients that were smaller in particulate composition and the associated risks of inhaling those particulates. She reported that the Philip Morris tobacco company was promoting a "smoke free future" by supporting the use of vape products. She felt that vaping would become a future trend making the bill timelier. She urged for passage of the bill. 4:15:32 PM JOSHUA SILAS, SELF, SOLDOTNA (via teleconference), spoke in opposition SB 15. He worked at Mapes Vapes vape shop. He agreed that the bill was redundant and was a waste of time and state government resources. He purported that the FDA had addressed regulating vaping products and carried out enforcement. Alaskan vape shops were compliant with the federal regulations. His shop was committed to offering a healthy alternative to smoking and helped 554 adults quit smoking in the last 26 months. He wondered what the cost of enforcement was to the state. He believed that "there was no reason" to move forward with the bill. 4:18:16 PM Co-Chair Foster CLOSED public testimony on SB 15. 4:18:49 PM Co-Chair Foster asked whether Mr. Darnell had heard the testimony of Mr. McDonald regarding the redundancy of the Alaska law and if he had any comments. Mr. Darnell reported that he heard criticism that the state did the requirement check study but did not carry out enforcement. He noted that the state did not currently have enforcement authority. He reported that the study was performed as a baseline to determine what was necessary when enforcement became law. He declared that he did not know of any FDA compliance checks that had been conducted in vape shops. He had only heard of them being carried out in convenience stores. He informed committee members that the fiscal note would be zero and the compliance checks could be done without any additional costs to the state. He had had numerous complaints from parents about where their children had been able to obtain vape products. He knew of vape shops that operated legally but others knowingly broke the law. He relayed anecdotal evidence that when he went into a tobacco only shop that was not smoke free and was subjected to tobacco smoke he had some nasal discomfort and his clothes smelled but when he went into a vape shop for 15 or 20 minutes and people were vaping it left him with a burning sensation in his chest. Co-Chair Foster indicated that amendments were due by tomorrow at 5:00 pm. SB 15 was HEARD and HELD in committee for further consideration. Co-Chair Foster indicated that SB 155 would be moved to tomorrow morning's meeting at 9:00 am.