SB 648: In the Corridors of Confusion

Balcony around the Capitol rotunda, Sacramento

August 6th, 2014: A Deceptively Quiet Morning

It was a deceptively quiet-seeming morning in the capitol building Wednesday as we headed for the Appropriations Committee hearing of SB 648: no crowds, no tours, no waiting in line to go through security, where they took my husband’s unregulated mods in stride (“Electronic cigarettes, right?”) but stopped and puzzled at my digital recorder and the pocket-sized kitchen scale in my handbag.

The elevator to the fourth floor wasn’t even crowded, and it was almost 9 a.m. I was beginning to wonder whether the legislature was really back in session, but no, the Appropriations Committee had a very full agenda.

How full, I realized when I saw the crowds outside Room 4202. The harassed-looking attendants weren’t letting anyone in but staff. I spotted a sign-up sheet on the corkboard by the door (mainly because someone else pushed her way to the front so she could take a picture of it with her phone) and saw that Ellen Corbett was fourth on the list. “Fifth, really,” the young staffer explained, “Because now Leno is first.”

The aide suggested we sit in the gallery, which was still open. “Exactly one flight up,” he said. But one flight up we found signs pointing to the Senate Gallery and the Assembly Gallery–no sign of a gallery for Room 4202. The capitol building, as had been pointed out to me before, is a maze. These are not the corridors of power: they are the corridors of confusion.

We had to go two flights up, and there at last we found a room full of seats above the ones we were accustomed to from previous visits. They were already filling up with people wearing matching T-shirts and carrying signs. It was all an awkward distance from where we would need to be when the time came to state our support for SB 648. We would have to go out the door, across the hall, back down those two flights of stairs, and down the length of Room 4202 before we could say anything–though admittedly it seemed likely to be a while before we would need to.

So despite all of the effort it had taken us to locate the gallery, we turned around and went back to the fourth floor–where we found Jan just arriving. By this time the hallway was nearly blocked by people who wanted to contribute their opinion on SB 52, the California DISCLOSE Act. (It’s an important bill and I’m not surprised it attracted crowds and demonstrations, but with everything else going on, I hadn’t been following it and wasn’t expecting to be sharing a room with it.)

There was no way we were going to get into the room until the committee had finished addressing SB 52, so we decided to walk back down the hall and sit down near the elevators, and watch the live video feed on my computer. The Wi-Fi wasn’t up to streaming very effectively, and I hadn’t packed any headphones, but we could see the video index well enough and keep track of who was up. There’s a screen in the hall outside Room 4202, but people were already standing in front of it, to the point of creating a fire hazard, and the crowd had overloaded the air conditioning to the point that the air had become at least as stifling as it was outside.

The records on SB 52 say it was referred to the Appropriations suspense file; a second hearing is set for next week. All we observed was that eventually crowds of people in T-shirts began emerging from Room 4202. The room was still very crowded, but by the time Senator Jackson (originally first in line) had finished, we were able to go in and sit down.

We still had to wait through extensive arguments and questioning regarding Martin’s Beach (SB 968), a place of which I had never heard, though apparently it’s been in the news a good deal. There were a few amusing moments in this drawn-out dispute, such as the witness who remarked that Vinod Khosla wouldn’t be a billionaire if he made business decisions like paying more to provide beach facilities (and liability insurance for them) than he was charging for access to them. I learned something I hadn’t known: that the constitution of the State of California guarantees that all beaches are public. (It’s under Article 10: Water.)

A good number of people left after that bill was finished. Then we had Senator Monning addressing public transit employees, sea otters, and sexual harassment among farm laborers (leading my husband to make a few rude remarks about sheep), and finally, after nearly two hours, Senator Corbett went up to address her first two bills, SB 895 and SB 894, neither of which excited much controversy.

And so we came at last to the discussion of SB 648, by which time, as you can imagine, the thoughts that had been clear in my mind when I’d read the opposition’s analysis of the bill that morning had been considerably muddled.

Senator Ellen Corbett speaks to SB 648

SB 648: A Deceptively Simple Bill

Imagine for a moment that you had never heard of SB 648. Perhaps you actually haven’t: maybe you’re someone who knows me professionally, or a friend from a different part of my life, or a family member, and not part of the vaping community. The bill in its current form is very short, and very simple. It does, as Senator Corbett said, one thing and one thing only: prohibit the sale of e-cigarettes in vending machines. That’s it.

Here is the actual text of the bill.

SECTION 1.

Section 22960 of the Business and Professions Code is amended to read:

22960.

(a) Except as provided in subdivision (b), no cigarette  cigarette, electronic cigarette,  or tobacco product shall be sold, offered for sale, or distributed from a vending machine or appliance, or any other coin or token operated mechanical device designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

(b) (1) Commencing January 1, 1996, cigarette or tobacco product vending machines or appliances  appliances, and, commencing January 1, 2015, electronic cigarette product vending machines or appliances,  may be located at least 15 feet away from the entrance of a premise issued an on-sale public premises license as defined in Section 23039 by the Department of Alcoholic Beverage Control to sell alcoholic beverages.

(2) As used in this subdivision “at least 15 feet away from the entrance” means within the premises of the licensed establishment and not outside those premises.

(c) This section and subdivision (b) of Section 22958 set forth minimum state restrictions on the sale of cigarettes  cigarettes, electronic cigarettes,  or tobacco products from vending machines or devices and do not preempt or otherwise prohibit the adoption of a local standard that further restricts access to and reduces the availability of cigarette cigarette, electronic cigarette,  or tobacco products from vending machines or devices or that imposes a complete ban on the sale of cigarettes  cigarettes, electronic cigarettes,  or tobacco products from vending machines or devices. A local standard that further restricts or imposes a complete ban on the sale of cigarettes  cigarettes, electronic cigarettes,  or tobacco products from vending machines or devices shall control in the event of an inconsistency between this section and a local standard.

(d) For purposes of this section, an electronic cigarette has the meaning set forth in Section 119405 of the Health and Safety Code.

Who could possibly object to that? Well, other than a manufacturer or distributor of e-cigarette vending machines, maybe. But what ordinary citizen with common sense would imagine that public health organizations would line up to oppose this bill?

But they did, and Isadore Hall read them the riot act for it during the Governmental Organization committee meeting.

Our So-Called “Public Health” Organizations: Deceptive, Full Stop

Not the least cowed, the opponents of the bill besieged Senator Corbett for weeks between that hearing and this one, lobbying to get the wording changed to say that electronic cigarettes are included in the definition of cigarettes.

Why should this matter? The official analysis of SB 648 says:

Trojan Horse? Opponents, led by the American Heart and Stroke Associations and the American Cancer Society, argue the bill, while laudable in its original policy aim, has been coopted by an effort to establish e-cigarettes as distinct and separate from cigarettes and tobacco products. Opponents argue the bill provides a dangerous precedent for systematic exemption of e-cigarettes from public smoke-free laws.

This, of course, is preposterous. Dozens of cities in California–and elsewhere–have managed to include electronic cigarettes in their public smoking bans without a need to change the definition of “cigarette” to include vapor products. Oakley is one of them: the city made a point of sticking to the definition of e-cigarette used in the health code; what they changed was their definition of smoking.

Even the FDA, which has proposed what might be the death knell of the vapor product industry as we know it today in its Deeming Regulations, is not proposing to regulate electronic cigarettes as cigarettes. Instead, the FDA is making a claim that because vapor products (usually) use nicotine, they are legally tobacco products, just as Nicorette gum and Nicoderm patches are legally tobacco products, even though you will not find any tobacco leaves in either of them.

So there is no federal precedent and nothing at all to stop cities or counties from restricting the use or sale of electronic cigarettes or vapor products without making a single change to the definition currently within California law, as frustrated vapers across the state can attest. Therefore the American Cancer Society et al. must have a reason for opposing the current form of SB 648 that they are not admitting to the committee or the public.

Frankly, they might have several. The Sacramento Bee has published some articles recently pointing out the fact that certain Democrats–including Isadore Hall–have accepted campaign contributions from tobacco companies. Bee reporter Laurel Rosenhall seems to attribute the failure of the bill to the influence of the tobacco industry on the legislature, conveniently overlooking a number of things–some of which SB 52 might make a little more clear, come to think of it. Here are three I can think of off the top of my head:

  1. Isadore Hall probably gets less money from the tobacco industry than any single one of the public health organizations opposing the current form of SB 648, because most of them receive money either from the Master Settlement Agreement or from Proposition 99, or both. Without the continued sale of cigarettes, their funding is threatened.
  2. Although Big Tobacco has made some investments in e-cigarettes, no representatives of Big Tobacco companies have been involved at any stage of SB 648. The lobbyists have been hired by VMR (makers of V2) and NJOY, two of the largest of the independent e-cigarette manufacturers. The stated mission of NJOY is to make tobacco cigarettes obsolete. Neither these companies nor the many small businesses who make up the largest part of the vapor product industry are any friends of Big Tobacco.
  3. The other major source of income for public health organizations is pharmaceutical companies. Not only are the smoking cessation products of companies like Johnson & Johnson and GlaxoSmithKline in direct competition with electronic cigarettes, but profits from other drugs sales will also go down if there are fewer smoking-related illnesses.

So the Bee worries about whether the legislators disclose their sources of funding and possible conflicts of interest, but not, it seems, whether any of the witnesses in support or opposition do. And none of the speakers in opposition worried too much more about getting their facts correct than the reporter from the Bee did–or than they actually worry about public health.

And you didn’t hear it from me, but there may be another reason. Rumor has it certain interests have another bill in the works, one that would tax electronic cigarettes in the same way as tobacco cigarettes–Proposition 99 fees and all. That bill would depend on the precedent that these groups hoped to set with SB 648: establishing an exact equivalency between tobacco cigarettes and e-cigarettes.

If that’s true, it’s certainly not the vapor products industry that’s trying to put a Trojan Horse into this bill.

There’s a legitimate argument for imposing extra taxes on cigarettes: the damage to public health, and the cost to states of paying for the health care of those who don’t have medical coverage, is the justification for the Master Settlement Agreement. But none of the vapor product companies was ever involved in causing that damage; any possible damage to the health of vapers is in the future, and all the research so far points to it being dramatically less than the damage done by tobacco, even to the point of insignificant in comparison to the health issues of non-smokers.

In case I haven’t made myself plain enough: there is no justification but greed for taxing e-cigarettes in the same way tobacco cigarettes are taxed.

Now, I haven’t seen this alleged second bill, though the fact that Minnesota and North Carolina have already introduced taxes on e-cigarettes and other states have tried makes its existence entirely plausible. But it would certainly help explain the intensity with which the witnesses for the opposition opposed it.

This is my bill-killer look: testifying at SB 648

With Friends Like These…

In Assembly hearings, the opposition has a bit of an advantage in speaking last. In this case, we were speaking in support of the bill, so we lost that advantage. The witnesses in support were Jan P. and myself–two private citizens against a horde of supposedly respectable organizations.

Poor Senator Corbett. We are not the supporters she wants. We are not the supporters she deserves. She is much more comfortable with the passionately anti-smoking spokespeople for the American Cancer Society, the American Lung Association, the American Heart and Stroke Association, the California Medical Association, and the rest of that line-up.

And, as I said, that long morning of chasing our tails and sitting through tedious arguments had not honed my wits. I hadn’t even been sure I’d been speaking at all, or I might have prepared some notes. And I should really be sure that I include in my standard introduction the fact that I’m not part of any organization and no one pays me to be there.

I’ve heard that there are those on Reddit or Facebook or one of those places I don’t hang out who refer to me as “The Bill Killer.” That’s just silly. If I had any superpowers regarding legislation, we wouldn’t have an outdoor vaping ban in the city of Oakley. I did, I admit, give an inspired testimony at the Appropriations hearing for AB 1500, but a lot more went into the outcome of that hearing than anything I said or did. I’m happy to contribute and hope to get better at it, but it’s ridiculous to assume that I can do anything that any other member of this community can’t.

Anyway, I was not inspired on August 6th. I forgot to mention the bit about how no city had so far failed to pass a vaping ban when it was determined to do so. It’s possible that I was not meant to be brilliant, and it probably doesn’t matter one way or another whether I was, but for Senator Corbett’s sake, I wish I had been a better witness.

I thought Jan spoke confidently and sympathetically–I could see committee chair Mike Gatto nodding along with what she was saying about her kids being able to hug her. But she forgot something, too: the part about how she’d used cigarette vending machines as a 17-year-old smoker.

Tim Gibbs, ACSCAN

We stepped down and three witnesses stepped up in our place. Tim Gibbs from the American Cancer Society Cancer Action Network spoke of a “last-minute poison-pill amendment.” Re-read that bill. Do you see any poison pills up there? Go look at the health code definition of an e-cigarette. It suffers some failings–from the point of view of vapers not least of all–but SB 648 does not alter that definition, with which many California cities have been able to work while prohibiting vaping in public places, and which was sufficient to allow the state to prohibit e-cigarette sales to minors.

Gibbs also spoke of a nationwide campaign on the part of the tobacco companies to differentiate e-cigarettes from other tobacco products. I haven’t been following much that Big Tobacco has done; as far as I can tell, Lorillard duplicated early cigarette marketing in its TV ads for BLU, and only distinguished e-cigarettes from cigarettes by saying, in essence, “You can use them anywhere and they don’t smell bad.”

Not only that, but one of the first things RJR did when buying Lorillard was to sell BLU, which seems like a decreasing investment in e-cigarettes, not an increasing investment–one e-cig brand was enough for them. (Why should owning more than one brand of e-cigarettes be more of an anti-trust issue than owning half the nation’s brands of tobacco cigarettes?)

The money that Big Tobacco has invested in e-cigarettes looks like a lot to the small business owners who run most vapor products companies, and to the man on the street who hears “Big Tobacco has invested millions,” but in truth, it’s pocket change compared to what they spend on–and earn from–brands like Camel and Newport.

So no–it’s not Big Tobacco that’s trying to make a distinction between e-cigarettes and tobacco cigarettes. Big Tobacco hasn’t bothered to get directly involved in any of these fights. The organizations arguing for the distinction are SFATA, CASAA, and the AVA. But you are never going to hear a member of the opposition speak of “the vapor products industry” or even “e-cigarette activists.” Because that might make a political distinction between us and Big Tobacco, and they can’t let that happen.

So people like Tim Gibbs talk about “smoking” e-cigarettes (I can’t imagine the horrible smell if you managed to light a V2 or NJOY on fire) and how you can do it “anywhere people congregate.” Which you can’t, thanks not only to all those local ordinances I mentioned but to the fact that any business owner is allowed to make policies for what is and is not acceptable behavior in his or her place of business. That means that restaurant owners are already free to post “No Vaping” signs even if they live in cities that don’t have indoor vaping bans.

But Gibbs, if I remember, was most tongue-tied and abashed in the GO hearing in June. He must have been polishing his speech for weeks, desperate to get some of his own back.

It’s really just as well that my husband was making remarks to me during much of the opposition’s testimony at the hearing. If I’d been paying closer attention at the time, I might have been angry enough to walk back down and interrupt them. I’m sure it’s Not Done to accuse anyone of lying during an Assembly hearing. Besides, once you started, where would you stop?

The young woman (Callie or Kelly; neither her first nor her last name was entirely clear in the video) from the American Heart and American Stroke Association continued in the same vein.

“The tobacco industry is working diligently nationwide and in this building today to further themselves from both cigarettes and tobacco products, and this bill does just that.”

Well, if the tobacco industry was working diligently in the building, I didn’t see them, but I don’t suppose tobacco lobbyists wear signs on their foreheads. I did spot both the V2 and NJOY lobbyists, and I’m sure they were working diligently, but not for the tobacco industry–that would violate their contracts.

NJOY especially has taken a lot of heat in the vaping community, thanks in great part to an ill-considered remark their CEO made on the subject of flavors. And while the most active advocates in the vaping community may have started out with V2 or NJOY, very few of them actually use those products anymore. But while it might be easy to lump V2 and NJOY with BLU on account of the similarity of their products, there’s a big and important distinction that the likes of the American Heart Association have no interest whatsoever in making: they are not owned by Big Tobacco. Their interests are opposed to those of Big Tobacco. They want to put Big Tobacco out of business, and vice versa. So it’s just as preposterous to call NJOY lobbyist David Quintana an agent of Big Tobacco as it is to call my husband and me Big Tobacco shills.

“This bill would set a dangerous precedent surrounding the categorization of e-cigarettes, and in the interest of public health, we urge your No vote,” the speaker from the American Heart and American Stroke Association concluded.

Kimberly Amazeen from the American Lung Association went right on speaking about the tobacco industry. She listed states that had to deal with “the industry” coming in “and looking to classify e-cigarettes as something other than a tobacco product.”

This statement conveniently ignores the fact that 1) her favored version of the bill didn’t attempt to define e-cigarettes as tobacco products, but rather as cigarettes, and 2) it wasn’t the tobacco industry making those attempts. (Just to be clear, organizations like SFATA and the AVA would far rather have e-cigarettes regulated as consumer products than as tobacco products, though they aren’t confident they can win that particular argument with the FDA.)

“I’d like to remind this committee that the tobacco companies are convicted racketeers,” Ms. Amazeen went on. Yes, that’s true. But again, it’s not the tobacco companies whose lobbyists persuaded Senator Corbett to change the wording of the bill to the form it’s in now, the form that the Governmental Organization committee accepted. It’s not the tobacco companies who would be hardest hit by the laws that might be built on the precedents that Amazeen and her colleagues want to set.

I’m sure Corbett knows better by now, and I’m betting most of the assemblymembers know it, also. I’m absolutely sure Amazeen knows it. But the public that they’re playing to, the Sacramento Bee readers that Laurel Rosenhall writes for–those people don’t know any better, and the “heart, lung, and cancer people” want to keep it that way.

“This bill,” Amazeen went on after a bit of further peroration about the untrustworthiness of tobacco companies, “We wish it were just about protecting kids–but the specific amendments that were taken in G.O. set a precedent that we will be fighting here in these committees, in these hearings, in the next coming years. There is no reason to vote Yes on this bill. There is a clear distinction.”

Then she took a direct swipe at NJOY. “Very often we find ourselves battling an opponent that doesn’t come out in public and take a support or oppose position. It happens behind closed doors; it happens in the hallways. NJOY was here, was in G.O. taking a support position. They did not support this bill until these specific amendments were taken. These amendments set the precedent for future fights. And we ask you today and appeal to you today to vote with public health. Do not vote with the tobacco industry, and vote No on the bill.”

Honestly, I am beginning to wonder whether being called a spokesperson for the tobacco industry is grounds for a defamation lawsuit. 

And, seriously—if I’d realized I was going to be up against that level of sophistry, I would have prepared something much, much better to say.

I should have expected it, of course. These organizations were humiliated at the G.O. hearing. Not only were they not going to give up on their cause, they were not going to let that pass. If they’d been able to persuade Senator Corbett to reverse the amendment to SB 648, they might not have been so scathing, but from what I heard, the senator essentially barricaded her doors from a desire to stop arguing and just get the bill passed.

Ellen Corbett doesn’t suffer from the ulterior motives of her erstwhile allies, so to her, a bill that keeps e-cigarettes out of the hands of teens is equally good however worded. Appropriations Committee Chair Mike Gatto emphasized that at the beginning of the question period: “At its core, this is a bill to keep kids away from e-cigarettes. I know Senator Corbett. She would never introduce something otherwise.”

She did, however, expect to face the kind of underhanded opposition that she found herself up against, because she was prepared. Her response to questions from the remaining committee members (the Republicans had been quietly filtering out since before the testimony for SB 648 began) was masterful. She clearly had no more patience with the behavior of these so-called public health organizations than Isadore Hall had had in the G.O. hearing.

She first directed people to actually read the bill, and emphasized that it says that there will be no diminishing of any other state, federal, or local law.

When these amendments were requested by the G.O. Committee, the first thing I did was I contacted Leg. Counsel to ask them whether they felt that this would be precedent-setting, whether it would change in any way the definition of e-cigarettes or the way we regulate tobacco in the State of California, and I was told ‘No.’ I further checked with other experts on the subject. I’ve asked the opposition for legal analysis to indicate that their point of view is correct with regard to how this may change the law, and they have not been able to provide me legal analysis. They have their other reasons for being in opposition. But I have to look at the black and white print of this bill, and I hope you understand my black-and-white commitment to keeping cigarettes out of the hands of young people–and e-cigarettes, for that matter.

And I think what’s really ironic is, in the future years, if someone comes and tries to pass a bill to prohibit the sale of e-cigarettes in machines, I think it’s going to be even harder. I think there’s going to be more people coming to this Capitol to try to talk members out of voting for a bill like this. So this might be your last chance to support a bill like this.

Federal law is very clear that e-cigarettes, according to the United States Court of Appeals, will be regulated as tobacco products under the Tobacco Act, so the precedent that we’re talking about is already black and white as well. So I know that this is a very emotional battle, and that people are concerned about who’s going to win or lose on this bill, but who’s going to lose if this bill doesn’t pass are young people who will have easy access to vending machines.

[…]

This is why I’m moving this bill forward. Is it comfortable for me to have my friends in opposition to this bill? No. But you know what? There was no way I was going to drop this bill and say “I’m giving up on an opportunity to keep these e-cigarettes out of the hands of children.” How could I do that? How could I do that?

I think that the law is clear. I think that the statements are clear on this bill, and that’s what you’re voting on today: whether kids can buy an e-cigarette with their Snickers bar or their soda pop or not, in the State of California. I ask for your Aye vote.

She did equally well with the other questions directed at her, even Shirley Weber’s questions about how the amendment got to be in the bill, but those solidly in the “public health” camp voted against the bill and most of the committee members weren’t there to vote at all–or refused to vote, like Vice Chair Bigelow. The vote went out on call, meaning both sides had until the end of the meeting to persuade the missing members to vote their way, but we heard late that afternoon that the bill had died in committee.

The official status of the bill reads “Set, first hearing. Failed passage in committee. Reconsideration granted.” Three members voted in favor, two against. The rest refused to vote at all—either from genuine confusion, as in Weber’s case, or for other reasons. The vote to grant reconsideration was unanimous.

So What Next for SB 648?

Frankly, I have no idea. I’m not familiar enough with the legislative process to know what happens when a bill goes into the reconsideration phase. I’m pretty sure it means a delay before anything else happens, though.

And I’m also fairly sure that while this is a defeat—or at least a setback—for Senator Corbett, it’s not exactly a win for the opposition. If they really are planning to bring up a bill extending tobacco taxes to e-cigarettes, they’re going to have to find their necessary precedent somewhere else.

And with the FDA moving ahead with its Deeming Regulations (the comment period closed as I was writing this post), it may soon become more difficult for a state to argue that an e-cigarette is the same thing as a cigarette. Once the FDA produces its final regulations, a number of state laws and local ordinances will have to be updated.

Besides, while ACSCAN, the AHA, and the ALA all urged the Appropriations Committee to vote “No,” what they wanted was not e-cigarettes in vending machines throughout California. They wanted a bill with their wording in it. They seem unlikely to get it from Corbett, who can see through them. That means they have to find another person to sponsor another bill.

As for the vaping community: a year ago, vapers wanted nothing more than to defeat SB 648, because it was an anti-vaping bill, pure and simple. (Though not especially pure, simple, or short.) It’s ironic that we might come around to supporting it. And though we would have benefited if it had been signed into law in its current form, we would have faced more and harder battles. The opposition is better funded and better trained than we are. Advocating is part of Kimberly Amazeen’s job. It isn’t part of mine. I have to take time away from my business to appear at committee hearings.

And there are so many laws and ordinances for vaping advocates to deal with right now. If the failure of SB 648 makes one less trip to the corridors of confusion, that might not be such a bad thing.

Sallie
WordPress fangirl, ghostwriter, linguistic alchemist, podcast consultant, and accidental vapor advocate. Married with 2 cats.

Leave a Comment

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.