E-244 - Wednesday, July 3, 2019
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RECENT AURAL PLEASURE:
IN TODAY'S NOONER:
Happy pseudo-Friday! Actually, its an odd week. Today is a busy day of committee hearings, members go to parades tomorrow, and then are back for floor session on Friday. Don't think that Friday will just be a quick session to keep per diem payments flowing over the weekend--the controversial housing trailer bill (AB 101/SB 102) is expected to be voted on by both houses tomorrow.
As I wrote in this space yesterday (separate addendum email for Nooner Premium, no support of opposition is reflected in the analysis for the Assembly Budget and Local Government joint informational hearing today, but there is plenty of opposition to the housing element non-compliance financial penalties of up to $300,000 from the same cities that killed/stalled SB 50 (Wiener).
How 'bout those USA women? They will face either The Netherlands or Sweden on Sunday for the finals on Sunday at noon PDT. The two teams are on the pitch at this hour.
Hats off for Senator Scott Wilk (R-Santa Clarita) and Assemblymember Tom Lackey (R-Palmdale). Beginning last month for Men's Health Month, they have been having a friendly competition to see who can shed the most pounds over three months. Wilk introduced the challenge in a Facebook video. Each want to drop twenty, reports the Capitol Morning Report.
After all the noodles, rice, and tortillas I ate last week for my Anthony Bourdain tribute adventure, I should join the challenge, do a Whole 30, and exercise more. My exercise has really been the mile-long walks to and from the Capitol or the slightly longer walk to record the pod.
beJUULed: Yesterday, AB 1639 (Gray, Cunningham, and Robert Rivas) was gutted-and-amended from a bill relating to tied-house restrictions to become the "Stop Tobacco Access to Kids Enforcement (STAKE) Act."
The bill prohibits the sale of "flavored tobacco" (excluding tobacco, mint, and menthol flavors) electronic cigarette products in retail locations that permit the entrance of persons of 21. It requires retailers, online and brick-and-mortar to use "age verification software or an age verification device" to ensure that the customer is over 21. Current law requires just checking identification. ("Device" generally means a swiping system that ensures the bar code is validated, like used by bouncers outside of nightclubs.)
Adam Gray (D-Merced) received $33,800 from JUUL in 2018, 35% of the San Francisco-based company's contributions last year. Thus year so far, he has received $4,700. How did the company funnel so much above the candidate limits to Gray last year? Of course, it was though his controlled ballot measure committee that doesn't have limits and is not required to spend money on active ballot measures. Gray and his ballot measure committee also accepted $29,400 from Altria (parent of Philip Morris), which owns 35% of JUUL. That was announced by the two companies last December.
The other major interest in play is RJ Reynolds. While they are not in the vaping space, their Newport menthol brand was second only to Marlboro in cigarette sales in 2017, according to the Centers for Disease control. This bill does not affect menthol products, traditional or electronic. I have been told by retailers that they are among the most popular among kids.
My local convenience store operator who I like to talk sports with and is always interested in legislative activity is very strict on IDs. The store's small tobacco selection doesn't include any vaping products, but kids do come in to try to buy wrapping papers and menthol cigarettes. Kids come in after school and try to buy for him and he asks for ID. When he says "no," I've seen kids say "Are you really going to make me walk X blocks to Y market? They always sell to me."
Well played, JUULers and menthol purveyors, well played.
On May 1, we looked at how these companies have "invested" in members of the Assembly Governmental Organization Committee ("G.O."). It was clear that the contributions had created a seemingly impenetrable barrier for flavored tobacco bans this session.
Assemblymember Kevin McCarty's (D-Sacramento) AB 739 clearly wasn't going to even get a hearing in G.O., because of the new rules this year that lets committee chairs rather than only authors pull bills without a hearing. Basically, every policy committee became possible silent graveyards for bills in the Assembly. Previously, bills were killed without a vote only in Rules or Appropriations. That's still true in the Senate, as with SB 50 (Wiener) in Senate Appropriations. Paraphrasing Senate President Pro Tem Toni Atkins (D-San Diego),
McCarty is a co-author with Senator Jerry Hill on SB 38. After that bill was watered down in Senate Appropriations and was likely dead in the Assembly's dirty deeds done not-so-dirt-cheap G.O,., Hill shelved it for the year. Meanwhile, the San Francisco Board of Supervisors adopted an ordinance to ban the sales of e-cigarette devices within the limits of the city and county. The sale of flavored tobacco products, including menthol cigarettes and e-cigarette pods, were banned there by voters in 2018. The new SF ban takes effect January 1, 2020 to give retailers time to sell their remaining stock.
Hill was not happy that his SB 39, which requires a signature of an adult 21 years or older for the purchases by mail of a tobacco product, was characterized as part of a multi-bill package including AB 1639. In his release, he states:
“To my dismay, information was released Tuesday that erroneously described my surviving tobacco legislation, Senate Bill 39, as being part of a multi-bill package introduced this week by a legislative committee. That’s wrong on several counts. SB 39 is a standalone bill, introduced in December, to impose more stringent age verification, packaging and delivery requirements for tobacco products of all kinds sold online and by mail. It is not associated with any committee effort.
“Two months ago, I rejected an industry overture [included for reference below and linked here] to substitute the proposed flavor ban for measures that emphasize enforcement against retailers and underage purchasers, along with other changes that would improve the optics of the problem but did not address its cause. We have a public health crisis caused by a flavor crisis. That’s what we have to address with the strictest measures possible, not the industry’s optics crisis.”
Remember, in the Senate, Governmental Organization does not have jurisdiction over tobacco bills. Such bills only go through Health for a policy hearing. In the Assembly, such bills are double-referred to Health and G.O. Health passes them, G.O. waters them down or doesn't hear them.
You may be asking why AB 1639 is such a victory for JUUL, Altria, and other companies who benefit from the sale of flavored tobacco products and their conveyance devices. Simply put, it kills the leading argument for flavored tobacco and e-cigarette bans and shifts the responsibility to the retailers and kids. On the penalty for kids, the bill provides:
(d) Every person under 21 years of age who purchases, receives, or possesses any tobacco, cigarette, cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking of tobacco, products prepared from tobacco, or any controlled substance shall, upon conviction, be punished or adjudicated as follows:
(1) Persons under 18 years of age are guilty of an infraction and shall be required to:
(A) Upon a finding that a first offense has been committed, complete 4 hours of drug education or counseling or tobacco cessation education or counseling and up to 10 hours of community service over a period not to exceed 60 days.
(B) Upon a finding that a second offense or subsequent offense has been committed, complete 6 hours of drug education or counseling or tobacco cessation education or counseling and up to 20 hours of community service over a period not to exceed 90 days.
(2) Persons at least 18 years of age, but less than 21 years of age are guilty of an infraction and punishable by a fine of not more than one hundred dollars ($100).
Sure, the bill prohibits the companies from marketing of tobacco products to kids, but the companies have already done that (remember Joe Camel?) before and it's not like kids stopped smoking.
After all the discussion of flavored tobacco and local bans targeting the companies, it's now really about retailers and kids who get their hands on tobacco. Under the bill, if hypothetical nineteen-year-old Joey borrows dad's Juul pen and pod left on the kitchen counter to vape as he fishes in Tri-City Park in Placentia with his friends and is caught by the po-po, he is guilty of an infraction with a fine up to $100. If Joey is 17, he gets 4 hours of counseling or drug education. You know, it was so effective in existing K-12 curriculum. Neither dad nor JUUL are responsible.
Well played, JUUL/Altria/RJ Reynolds, well played.
RJ Reynolds, good job protecting menthol. Sorry about your loss in San Francisco. It's not the products that kill people, it's the retailers who kill people.
There was not going to be a statewide ban on flavored tobacco products of vaping devices with the investment made by the Assembly G.O. Committee, but the industry knew they had to do something so members could say they did something to combat youth tobacco usage.
The American Cancer Society Cancer Action Network California responds with a release about the bill in my inbox:
“We are pleased that Assemblyman Gray recognizes the problem, and some of the enforcement provisions of AB 1639 may be useful. But we are concerned that the focus on penalties on youth is the wrong approach. We think the burden should be on the tobacco companies that lure kids to a lifetime of addiction – not the kids who are victimized.
Laws which penalize youth possession have been shown to be ineffective and merely shift the focus away from where it should be—cracking down on tobacco companies that target kids. Focusing on youth purchase and retail practices shifts responsibility away from the tobacco companies that are producing these products designed to prey on kids
The best way to address this epidemic is to prohibit the sale of the flavored tobacco products that have driven up youth tobacco use by 78% in the past year alone–essentially wiping out decades of progress in reducing youth consumption of tobacco.”
Anyway, we'll see how this plays out. It's an urgency bill that will need two-thirds vote. It needs that in the Assembly anyway to waive the rules since the bill is still in the house of origin policy committee, Gray's Assembly G.O.
Assuming Gray has the two-thirds vote in the Assembly, the question is whether Jim Wood pulls it to Assembly Health where his committee has jurisdiction or whether its allowed to go straight to the Assembly Floor. He was a co-author of Hill's SB 38. Then the question is whether the bill can pass Senate Health, which is chaired by pediatrician Dr. Richard Pan (D-Sacramento).
Pan voted for Hill's outright ban of flavored tobacco, including menthol, on March 27 on an 8-1 vote. Will he and his fellow Senate Health members hold strong and not allow this "compromise" written in collaboration with the tobacco/vaping industry or will they cave to give legislators something to use to tell their constituents they are strong on youth smoking?
To those who question where AB 1639 came from, compare the text of the bill with the talking points outlined by the Vapor Technology Industry on page 3 of this letter sent to Senator Hill in opposition to his SB 38.
I honestly don't know how this will play out.
Some of you may be wondering why a politically left guy with libertarian tendencies (except on vaccinations) is so hard on tobacco. I'll admit, I have a personal bias and as I always try to, I disclose and share it.
Nooner veterans may recall that one of my many respiratory/immunology hospitalizations was in Denver for 6 months in 1987. When we were medically stable, we were allowed on outings with staff for such things as shopping. Target is a true treasure when hospitalized for so long.
Anyway, on one of those outings, my closest friend Sheryl was in the group and we had to walk through a group of smokers on the shopping trek. Sheryl's lungs were more sensitive than mine (I was more crappy immune system with recurrent infections and she was more anaphylactic for the medical geeks) and the smoke triggered an attack for her and I watched her literally fall to the ground. Even after epinephrine from an accompanying nurse, she was taken by ambulance to the emergency room at University of Colorado Hospital and intubated. (National Jewish doesn't have emergency services.)
I write primarily in the paragraphs above the last to tell a story about the legislative process. I have friends on both sides of the tobacco debate. Are there reasonable debates about whether government should legally recognize that e-cigarettes are less bad than traditional cigarettes? Should the political considerations that black consumers overwhelmingly prefer menthol cigarettes be considered? Should the historic marketing by tobacco companies of menthol brands to black consumers be considered by policymakers?
Am I biased because of personal experience?
Yes to all of the above questions. And, Sheryl is still alive and kicking, living in Denver, and carries an Epi-pen to this day in case a smoker exhales around her.
Thank you for reading. One more on a topic related to time in Denver at National Jewish. My second hospitalization there was in 1989 for three months before I was put on a study for immunoglobulin transfusions that led me to fly back monthly for six months and seemed to help counter the negative effects of high-dose corticosteroids on my immune system. Anyway, during that stay, my closest friend was Donalyn, who has cystic fibrosis (CF). At that time, the average lifespan of CF kids was 13 and she was already ahead of the game at 16.
I think of all of the CF friends I lost at Donalyn as the lone subscriber every day--all of my passwords have CF in them somewhere. Good luck guessing the usually 9 other letters, case, and symbols. Thank god for muscle memory.
Thirty years later, Donalyn is still alive and still my friend. To beat the odds and live with the non-curable genetic disease CF that affects multiple organs, Donalyn has had a double-lung transplant and a subsequent kidney transplant associated with medication following the lung transplant. Last night, her story was highlighted by the local St. Louis news, recorded before her current hospital stay. I'm down as an organ donor and have talked to my family about it and I hope you will too.
Good news, as I'm doing final edits, Donalyn just messaged me that she's getting out today and will be home for the Fourth of July with her husband and two beautiful adopted daughters.
Meanwhile, there are other topics out there today. Let's take a look after the jump.
MORE and CAKEDAY after the jump...
STEM CELLS: For Capitol Weekly, David Jensen reports that California's Center for Regenerative Medicine known as the state's stem cell agency is out of cash for future grants:
"The $3 billion California stem cell agency on Monday served up the bad news with only a smattering of sugar coating.
No more applications for research funding are being accepted. The cash is running out, perhaps as early as the end of August.
In a posting on its blog, The Stem Cellar, the agency declared, “It’s never easy to tell someone that they are too late, that they missed the deadline. It’s particularly hard when you know that the person you are telling that to has spent years working on a project and now needs money to take it to the next level. But in science, as in life, it’s always better to tell people what they need to know rather than what they would like to hear.”
The agency was created after the approval by voters of $3 billion in general obligation bonds in 2004. This followed on-and-off federal administrative bans of the use of funding for research with fetal tissue, which has opposition because it is often derived from abortions. That federal fight continues 15 years later.
The original thought was that technology-transfer of the research would make the agency self-sustaining. That has not materialized. Some believe that the research just takes longer than 14 years to prove and get necessarily FDA approval. Others say that there's not enough conclusive medical evidence to make it worthy for the public investment.
While voters approved the initial $3 billion, there is a fear that voters may not be persuaded again, particularly with the delay or lack of proof of measurable accomplishments from funded research grants. The alternative of revenue bonds, which require legislative but not political approval also does not seem to be palatable by many legislators after focusing on the last few budgets of eliminating a "wall of debt."
PG&E: Speaking of bondage, Pacific Gas & Electric is shopping a plan with legislators to have "equity contribution bonds" issued by the state with a promise to repay them annually first instead of paying dividends to shareholders, write Dale Kasler and Bryan Anderson in the Bee. While shopped as putting ratepayers ahead of shareholders, the repayments of course come out of the "reasonable profit" share of consumer-paid rates. That's also where campaign contributions come from, a topic we hit on the "What a Week" pod recorded yesterday to be released in the next couple of days.
POLICE TRANSPARENCY: The fight by the office of Attorney General Xavier Becerra to block disclosure of local police records it possesses continues at it appeals the San Francisco judge's ruling ordering him to do so, reports Alex Emslie for KQED.
"The case began early in the year with complaints filed by the First Amendment Coalition and KQED against the attorney general in San Francisco court, arguing that the office should provide all the responsive files it possesses."
The gist of the case is that the plaintiff First Amendment Coalition (FAC) argues that SB 1421 (Skinner) applies to records of all agencies while the AG argues that it applies only in employing agencies. Thus, in a case reviewed by the AG's office like the shooting of Stephon Clark in Sacramento, FAC believes that both Sac PD and the AG need to disclose the records, while the AG argues that only the employing agency, Sac PD, has such duty.
There is more out there, but getting up at 5 this morning was not early enough given the time spent reading and research issues related to AB 1639, which was in print this morning. I'll be back on the keyboard tomorrow.
#CAKEDAY: Happy birthday to former Assemblymembers Rich Gordon and Lloyd Levine, as well as Henry Lo!
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