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Analysis of California's Senate Bill 5
Analysis of California's Senate Bill 5

Vape Law Legislative Update: Analysis of California’s Senate Bill 5

A bill to regulate vaping in California passed in the state’s Assembly (by a vote of 50-20).  Most popular press articles simply describe the bill, Senate Bill 5 (or “SB-5”), as a bill that would regulate vaping products like tobacco products without actually describing what that entails.  This article provides a more detailed factual overview of what SB-5 proposes to do, as well as some analysis regarding its insufficiencies.  SB-5 is not yet a law – it must still pass the state Senate and be signed by the governor, but these impediments are unlikely to prove fatal to the bill’s forward progress.

(For reference, the full text of SB-5, in its most recent amended form, can be found here.)

Overview of SB-5

SB-5 was introduced by California State Senator Mark Leno (D – San Francisco) on July 16, 2015.  Although SB-5 is extensive, its primary function is to redefine the terms “smoking” and “tobacco products.”  Specifically, Business & Professions Code § 22950.5(c) is amended so that the state’s definition of “smoking” would be amended to read as follows:

“‘Smoking’ means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, whether natural or synthetic, in any manner or form.  ‘Smoking’ includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking.”  (Emphasis added.)

Business & Professions Code § 22950.5(d)(1) will be amended to include within the definition of “tobacco product” “an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah.”  (Note that for purposes of this article, citations to the Business & Professions Code are as that code would be amended following the passage and enactment of SB-5.)

Vape shops would almost certainly be brought, then, within Business & Professions Code § 22962’s definition of a “tobacco store,” which is any store that primarily sells or generates more than 60% of its annual revenue from the sale of “tobacco products.”  (B&P Code § 22962(a)(4)(A)-(B).)  This means that, if and when SB-5 passes and becomes effective, vape shop owners will need to comply with the requirement that tobacco store proprietors apply for and obtain a license.  (B&P Code § 22973.3.)  Fortunately, the application fee ($265 per store location) is not too excessive.  (B&P Code § 22973.3(d).)

Compliance with the licensure requirements, if SB-5 becomes law, is an absolute must.  Section 22980.2 of the Business & Professions Code provides that (a) any person who engages in the sale of tobacco products without a license is guilty of a misdemeanor (including the officers of any corporation that engages in unlicensed sales), and (b) each day of sales after notification that a person must be licensed constitutes a separate violation.  SB-5 is not a law just yet, but if you own a vape shop in California an ounce of preparation is clearly worth a proverbial pound of cure here:  Begin to strategize now about how your business is going to comply with the new regulatory requirements, because the consequences of not doing so, even accidentally, are likely to be severe.

SB-5 would also amend section 1947.5 of the Civil Code to allow landlords to prohibit vaping when they lease apartments.  (The fact that these bans would likely be almost comically unenforceable is apparently not a big concern for the Legislature.)  Additionally, section 7597 of the Government Code would be amended to prohibit vaping within 20 feet from the entrance of a government building, so everyone who likes to hang out at the DMV and vape is probably going to need to find a new hobby.

Additionally, SB-5 would amend section 1596.795 of the Health and Safety Code to prohibit anyone from vaping in a “family day care home” where children are present.  Section 104495(b) would be amended to prohibit vaping within 25 feet of a playground or “tot lot sandbox area.”  (In fact, pursuant to subsection (e) of the same statute, vaping too close to a public playground is an infraction punishable by a $250 fine.)  Section 114371(f) of the Health and Safety Code would be amended to prohibit vaping at farmer’s markets, which is something that anyone who sells their e-juice at farmer’s markets or swap meets should keep in mind.

These are just a few of the major changes proposed in SB-5.  Anyone wanting more information should read the full text of the bill or the various official legislative analyses, which can be found here.

Analysis:

SB-5 is a textbook example of governmental grandstanding.  California’s public schools are among the worst in the nation, perhaps because we do stuff like spending $1.3 billion on iPads in Los Angeles County alone.  Violent crime, environmental degradation, and a lack of affordable housing in major cities are all serious problems.  And instead of focusing exclusively on solving those major problems, the Legislature is tackling the vexing issue of… people who vape at the farmers’ market.  A profile in courage, this is not.

I don’t pretend to be a medical expert, but I do know that the long-term effects of vaping simply aren’t known.  There is evidence that it might be about 95% safer than smoking.  Even if that turns out not to be the case, it is wildly speculative to just assume, absent evidence, that vaping is as dangerous as smoking.

But here’s the thing:  We shouldn’t have to prove that vaping is safe in order to keep it from being regulated and legislated out of existence.  In a free society, the burden of proof should be on the proponent of a law that restricts the behavior of adults.  If the government wants to treat vaping like smoking and regulate it accordingly, it should first have to make the case that vaping is, medically speaking, anything like smoking.  California’s legislators haven’t even bothered to try.

The ramifications of this style of governance extend well beyond vaping.  When we as a society allow our governments to restrict and ban our behaviors without first demanding proof that such restrictions are even beneficial (let alone necessary), we are inviting the sort of overreach that stifles both business activity and personal freedom.

The especially galling thing about SB-5, though, is the fact that it is a regulation that is being pushed for moral – not scientific, rational, or medical – reasons.  The legislators who believe that vaping must be stopped at all costs oppose vaping, at the end of the day, because (a) it kinda looks like smoking and (b) people do it just for fun.  They have a moral issue with the fact that some people just like nicotine, the same way that the prohibitionists of yore thought that it was just plain wrong to have a beer.

SB-5’s moral basis is evidence from the actual statutory text itself:  As amended by the bill, Business & Professions Code § 22950.5(d)(1)(B) would define “tobacco products” to include e-cigarettes and vapes, but section 22950.5(d)(2) specifically excludes from the definition of tobacco product any product that has been approved “for sale as a tobacco cessation product or for other therapeutic purposes.”  If e-juice tasted terrible and vapes – in the exact form they are in now – had been sold as “electronic quit-smoking devices,” the same people who want to ban them now would be hailing them as a public health miracle.  It’s clear that their problem isn’t with vaping, it’s with the idea that people who vape don’t always apologize for it and say they’re only doing it to quit smoking.

Conclusion

At the end of the day, SB-5 isn’t going to be a death blow to vape shops in California, but it will force them to jump through some regulatory hoops.  Business owners in the industry should follow the bill’s progress closely, and be prepared in advance to comply with its requirements.

Jackson Waste
Jackson Waste is owner of Vape Law Blog who is following developments in the vaporizer and electronic cigarette industry. Jackson Waste, is a Fresno-based attorney with the law firm Baker Manock & Jensen, PC. He is a graduate of UC Berkeley and the UC Davis School of Law. In addition to helping business owners solve problems and succeed in a complex legal and regulatory environment, he enjoys maintaining vapelawblog.com and following the San Francisco Giants.
Jackson Waste

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