E-243 - Thursday, July 4, 2019
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RECENT AURAL PLEASURE:
IN TODAY'S NOONER:
Good morning and happy birthday America! I hope you have a Noonerific safe and fun day, whatever you may be doing.
In the last hour of Nooner-writing, there was a significant earthquake that preliminarily is measured at 6.2 near Ridgecrest, which is east of Bakersfield and was felt in Los Angeles and Las Vegas. There is reported damage near the epicenter but it'll take awhile for media to get to the rural spot near Death Valley along I-395.
We'll wrap that
Let's skip what I ate yesterday and jump to a few big things. I haven't even had time to read any newspaper sites or even Rough and Tumble today after 6.5 hours of writing. So, will stick with some of the big issues of the day.
"I wake up each morning thinking I don't have much to write about and then I end up going down a rabbit hole. Today, we are being beJUULed. "It's not the product that kills people, it's retailers who kill people."
It didn't take long before the pro-vaping community to jump all over me. My friend Nick Birtcil, executive director of the Osteopathic Physicians & Surgeons of California weighed in with his personal thoughts on the bill and experience as a former smoker and vaper. They jumped on him, particularly when I went and ate dim sum to get away from it all.
The Twitter war--which ranged from rational discussion to conspiracy theory--literally lasted well into the night. I went to bed around 10:30 and awoke to "99+" Twitter notifications from the threads, if that's what you call them. They are still coming in and are an organized group. Some rely on the work and perhaps the organizational efforts of the libertarian Heartland Institute. The think tank used to disclose its donors but no longer does but has budget averaging around $5 million according to its IRS 990s.
And I thought the anti-VAXX community was organized and aggressive...
Many of the tweets were against AB 1639 but it was clear that most were thinking it was generally anti-vaping when it was not. The bill does not prohibit the sales of any product to a verified adult 21 years or older. It does, until January 1, 2022, require that sales of flavored electronic cigarettes be made only in a retail location that only allows adults 21 years or older, which is the same law as with licensed cannabis dispensaries.
Tobacco, menthol, and mint flavors are excluded from the sales restrictions. I am told that mint is second only to mango in sales of JUUL pods and they could continue to be sold in an tobacco retailer.
The bill requires that all tobacco retailers use an age verification software or device for the sale of any tobacco product to any person who appears under the age of 27. The definition of "tobacco product" is in existing law in Business and Professions §22950.5(d), and it includes e-cigarettes. There was some misinformation yesterday that AB 1639 redefined e-cigarettes/vapes as tobacco products. That ship sailed in 2016 with SBX2 5 (Leno).
But I of course make mistakes as well when I scramble to learn a new policy area to explain legislative machinations and the associated politics to write about them expeditiously to keep you informed. I also candidly admit my mistakes. Yesterday, my first paragraph was bad. I spent about 5 of the 6.5 hours of writing before 11:30 on this topic and never went back to fix the totally wrong first paragraph. I wrote:
"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.'"
Scott, you are being sloppy. After a full day and evening of learning the topic and talking to proponents and opponents of AB 1639, complete bans of tobacco products, and no limits on tobacco products, I have learned a lot. I would rewrite that graf today:
"Yesterday, AB 1639 (Gray, Cunningham, and Robert Rivas) was gutted-and-amended from a bill relating to tied-house alcohol restrictions to amend Tom Hayden's 1994 'Stop Tobacco Access to Kids Enforcement (STAKE) Act" (SB 1927) to require electronic age verification for tobacco sales and limit the sales of most flavored electronic cigarettes to retailers locations allowing entrance to persons over the age of 21."
Yes, Hayden's STAKE Act for requiring ID checks for those who appeared under the age of 18 passed during my first quarter at UC Davis undergrad. The act has of course been amended since the age for tobacco product purchases has increased to 21 (SBX2 7 Hertzberg of 2006).
I have also errantly have said at various points including my May 1 look at tobacco contributions to members of Assembly G.O. that RJ Reynolds was not in the vape space. I was wrong. They own and operate the VUSE brand, which I learned yesterday. They also have an aggressive advocacy effort including a website, ownitvoiceit.com, dedicated to mobilizing its consumers against efforts to ban flavored tobacco* products, conventional and electronic.
Altria owns the MarkTen brand 35% of JUUL, while the British Imperial Brands owns Blu.
*There was a debate on Twitter yesterday as to whether e-cigarettes are "tobacco," as defined under current law. Electronic cigarettes contain nicotine derived from the plant in the tobacco family of nightshades, without the combustible leaf material that generates the identified carcinogens when burned. Nicotine itself is like caffeine, a stimulant with scientific studies ranging from bad to good health effects. As I wrote above, neither AB 1639 nor existing law restricts the sale of any tobacco related products to adults 21 or over.
The bill is set for a special order hearing on Wednesday, July 10 in Assembly Governmental Organization Committee at 1:30pm in Room 4202. Also on the special order are SB 39 (Hill) and SB 538 (S. Rubio).
SB 39 mirrors tobacco product delivery to that of alcoholic beverage delivery through public or private postal or package delivery services by the signature of an adult age 21.
SB 538 requires e-cigarette companies to submit product information of those sold to the state Department of Public Health and for the agency to publish the information to its website and engage in a public outreach about the site to local schools and PTAs.
Assemblymember Adam Gray (D-Merced) issued a press release stating the following:
"Citing an unprecedented rise in electronic cigarette (e-cigarette) use among middle school and high school students, Assemblymember Adam C. Gray (D-Merced), Chair of the Assembly Governmental Organization Committee, Assemblymember Jordan Cunningham (R-San Luis Obispo), and Assemblymember Robert Rivas (D-Hollister) today announced the introduction of a comprehensive legislative package to combat youth consumption of these nicotine delivery devices. The three-bill package includes AB 1639 (Gray, Cunningham, Rivas), SB 39 (Hill), and SB 538 (Rubio)."
Senator Hill's office told me yesterday that his SB 39 is stand-alone and not part of a package. While there is no official position of the senator from San Mateo on AB 1639, he pulled his SB 38 flavored tobacco ban after hostile amendments that are similar to exemptions in AB 1639.
Also after yesterday's Nooner went out, the American Cancer Society Cancer Action Network sent out an updated press release after the full text available and the organization's tone changed significantly from the Tuesday release following the "package" announcement:
Compare the subject lines of ACSCAN's releases:
The following is the full release from ACSCAN yesterday:
“Assembly Member Adam Gray’s amendments do little to stem the panic teen parents are experiencing as they desperately try to keep their kids away from e-cigarettes and a potential lifetime addiction to tobacco. New data released by the Centers for Disease Control and Prevention (CDC) this year shows e-cigarette use among high schoolers jumped an alarming 78% in the last year, with candy, fruit and menthol flavored tobacco products a key strategy to bait teens into tobacco use—essentially wiping out decades of progress in reducing youth consumption of tobacco.
“These amendments could easily be labeled the ‘Juul Market Share Protection Act.’ It is as if Juul executives wrote them to escape real accountability for the massive epidemic of teenage e-cigarette use that they deliberately helped fuel. Indeed, the amendments mirror the Vapor Technology Association’s “Flavored Tobacco Ban Alternative” that emerged as part of its opposition to earlier legislation introduced this session, which would have helped stopped the rise in youth use of e-cigarettes. Juul is listed as a Platinum Member of the VTA.
“We are concerned 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 and retailers who sell to underage persons – not the kids who are victimized.
“Laws that 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 shifts responsibility away from the tobacco companies that are producing these products designed to prey on kids and the retailers who are selling these products to kids.
“The latest legislative maneuverings at the California State Capitol only reflect the power of the tobacco industry, including Juul Labs, as it pours dirty money into the pockets of politicians. Tobacco giant Altria (formally Philip Morris U.S.A.) has a 35% ownership in Juul. The Federal Drug Administration (FDA) says e-cigarette manufacturer Juul Labs is behind a nationwide youth e-cigarette epidemic:
Recently, a new type of e-cigarette has become increasingly popular among our nation’s youth due to its minimal exhaled aerosol, reduced odor, and small size, making it easy to conceal. One of the most commonly sold USB flash drive shaped e-cigarettes is JUUL, which experienced a 600% surge in sales during 2016-2017, giving it the greatest market share of any e-cigarette in the U.S. by the end of 2017.
A typical JUUL cartridge, or “pod,” contains about as much nicotine as a pack of 20 regular cigarettes. These products also use nicotine salts, which allow particularly high levels of nicotine to be inhaled more easily and with less irritation than the free-base nicotine that has traditionally been used in tobacco products, including e-cigarettes. This is of particular concern for young people, because it could make it easier for them to initiate the use of nicotine through these products and also could make it easier to progress to regular e-cigarette use and nicotine dependence. However, despite these risks, approximately two-thirds of JUUL users aged 15-24 do not know that JUUL always contains nicotine.
Assembly Bill (AB) 739 and Senate Bill (SB) 38, introduced this year, would have restricted the sale of all flavored tobacco products statewide. Neither bill survived the session after Juul Labs launched a major lobbying campaign this year and poured campaign money into the pockets of lawmakers in an attempt to sway votes at the California Capitol. On top of investing in marketing to addict children and adults to its products, Big Tobacco is trying to addict elected officials to its tobacco money. It is reprehensible. We urge lawmakers to oppose this bill and focus instead on meaningful legislation to address the youth e-cigarette epidemic.
ACS CAN was a co-sponsor of both SB 38 and AB 739 to prohibit the sale of all flavored tobacco products. The Governmental Organization (GO) Committee chaired by Assembly Member Gray is a known obstacle to getting tobacco control policies passed. ACS CAN reported earlier this year that GO committee members have taken a total of $23,500 in political contributions from Juul in just the first quarter of this year (along with $89,300 in additional tobacco money from R.J. Reynolds Tobacco Company, which makes the No. 1 selling menthol cigarette in America)."
AB 1639 requires a two-thirds vote of both houses as an urgency bill and is also keyed as a fiscal committee. We're well past the house of origin deadline and AB 1639 is still in its policy committee of the bills house of origin, Assembly Governmental Organization. The policy committee deadline is next Friday. Technically by the rules, the bill needs to pass Senate Health by next Friday.
Of course, the bill requires a two-thirds vote and one of the first things I learned about the California legislative process, with a two-thirds vote, you can do almost anything.
I assume Gray has clearance from Speaker Anthony Rendon to move this bill. I won't get in to JUUL's mysterious sponsorship of the California Democratic Party convention again today, because it's already 11:10, meaning I have 20 minutes to wrap and edit this baby. We'll come back to it. Most Republicans in the Assembly will vote for AB 1639 and Gray likely has enough Democrats who will vote for anything that can go on a mailer next year as "cracking down" on e-cigarette marketing to kids. Will Jim Wood (D-Healdsburg), chair of Assembly Health request the bill in his committee since it clearly has jurisdiction and will Assembly Rules chair Ken Cooley (D-Rancho Cordova) (and speaker Rendon) honor such request? Cooley is also on Assembly G.O., but is not on the list of the committees members for whom I have found tobacco-related contributions.
The truer test is likely in the State Senate. Particularly with the strong ACSCAN "sham" release, I can't imagine Dr. Richard Pan, who chairs the Senate Health Committee that has jurisdiction over the bill likes it. Senate President Pro Tem Toni Atkins (D-San Diego) set a precedent earlier this year allowing full deference to Senate Appropriations chair Anthony Portantino as he shelved SB 50 (Wiener) on housing density earlier this year. Atkins essentially said that it is the chair's prerogative. Will she stand that policy for Dr. Pan's committee chairmanship? Will the pediatrician be replaced if he doesn't play?
From people I talked to on both sides yesterday, there is no compromise, there is no deal. This could be one of the hottest issues in the last month of the legislative session. While I shared my personal bias yesterday as I always feel is important to do, from a Nooner perspective, this will be about telling the story behind the legislative machinations that lie ahead and the political dynamics driving them.
MUCH MORE and CAKEDAY after the jump...
Twelve hours later, President Trump tweeted:
"The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE! We are absolutely moving forward, as we must, because of the importance of the answer to this question"
Like him or not, he threw his cabinet secretary under the bus. Lawyers with the Department of Justice had a conference call with federal judge George Hazel yesterday on the issue and the judge cited the tweet and asked what the official position of the Administration was on pursuing the question for the 2020 Census. The lawyer, in court, told the judge that the only guidance he had was from the President's tweet.
This Daily Beast headline sort of explains it all: "Trump Census Tweet Blindsided DOJ Lawyer: ‘I Am Doing My Absolute Best to Figure Out What’s Going On’"
Can we all just agree that we are in different times? We have federal policy changing via tweet and federal judges reading Twitter. There are some days I really wish I was back in law school, if only for the casual BS sessions with professors in their offices.
The Department of Commerce attorneys have until 2pm EDT tomorrow to explain to the Judge Hazel to explain what the hell is going on.
In summary, whenever the latest podcast drops, I may be right or I may be wrong in what the status is. Don't blame me.
CÁRDENAS: In the LAT, David Zahniser reports that the civil lawsuit by Angela Villela Chavez against Rep. Tony Cárdenas (D-San Fernando Valley) who alleged she was molested at age 16 has been dropped as she blamed her lawyer and agreed to have the case dismissed with prejudice, meaning the allegations can not resurface in another lawsuit.
SWALWELL: The presidential atomic clock is apparently close for Congressman Eric Swalwell (D-Dublin), as reporter Paul Steinhauser tweets that the four-term representative has canceled a two-day swing yesterday and today through New Hampshire. He had been scheduled to appear in a Fourth of July parade today with Delaney, Gabbard, Gillibrand, Klobuchar, and Weld. Eric is going to miss out on the greatest non-debate stage below two-percenters! (Gabbard is at 2% nationally in the CNN poll, while Klobuchar is at 1).
Biden is at a parade in Independence, Iowa, while Kamala is barbecuing in Council Bluffs. Sanders, whose campaign is in a bit of a scramble, has five different events scheduled around Iowa. Booker is in Council Bluffs, NV. I haven't seen this morning where Warren is.
Eric is apparently running out of gas and last week's debate provided no lift. He thought he could make it through Labor Day and then make a decision about whether to stay in the presidential or run for another term in CA15. It sounded like a reasonable plan. But running for President is exhausting, particularly as a 38 year-old with young children and with responsibilities in Washington.
Further, it takes a lot of money. Just maintaining a committee and legal compliance takes money. Then you have staff, office space, and so much more. Flying around the country is not cheap, particularly because with constantly changing schedules you are paying premium airfare and often into small, more costly markets. As he talks about on the stump, Swalwell is still repaying his student loans, worked as a deputy district attorney before law school, and is not personally wealthy.
While his presidential bid is highlighting a white-on-black police shooting there, Mayor Pete Buttigieg is bringing mostly a positive light to South Bend, which we normally ever think of during college football season. As I have written in this space before, it is rare that a presidential candidate can showcase the congressional district they represent. Sure, Nancy Pelosi can tout San Francisco and leave residents proud. Swalwell, however, makes no in-roads with the residents of Hayward when he proclaims on the stump that he represents one of the most diverse cities in America.
It's a true statement. Hayward is incredibly diverse. However, many residents of the city of 160,000 don't see themselves in the same world as the residents of the San Ramon Valley over the Sunol Grade, where Swalwell lives in Dublin. Therefore, it's not helping Swalwell with his local voters by bragging about the city on the western edge of his district.
It wouldn't be a big issue, except as I've written, it appears that Hayward councilmember Aisha Wahab is in the congressional race whether Swalwell runs for re-election or not. Every day that he's in a parade in New Hampshire, she is working voters in "his" district. This is a deadly graf about the Suffolk/USA Today poll:
"Both the Iowa and national polls show the power of the televised debates to introduce lesser-known candidates to voters, helping them to break out of a big field. Even so, three of those who participated in the debates – New York Mayor Bill de Blasio, Ohio Rep. Tim Ryan and California Rep. Eric Swalwell – failed to attract a single supporter in the Iowa survey."
Swalwell's strategy was to get a foothold in Iowa, where he was born and attended grade school. Iowans aren't looking for that given so many high-profile candidates to choose from. And, his cornerstone policy issue is gun violence, which apparently isn't currently a top priority for caucus-goers.
I don't know if he can recover at home. Wahab is a strong candidate and has been picking up endorsements from electeds, local and state. I don't have time to research previous districts that Hayward was in during previous redistrictings, but I know Stark represented Hayward in the 2001 redistricting and I think before. Stark was first elected to Congress a month before I was born. I am 46.
In the 2010 Census, the CA15 drawn in 2011 had a citizen voting-age population of 22.3% Asian, 7.3% black, and 15.5% Latino. What we know about demographics, it will be more so in the 2020 Census. After decades of representation by white guys and particularly in this political environment, voters in this safe Democratic district may be looking for something different, as we saw in 2018 in NY04 (AOC), MN05 (Omar), and MI15 (Tlaib). The latter two defeated African-Americans, but they were also history-makers in becoming the first Muslim women elected to Congress.
In capturing the largest number of votes to be elected to the Hayward council in 2018, Wahab didn't face the scrutiny she will in challenging an incumbent fellow Democrat. That said, if she can navigate those waters and connect her personal story to the policy issues of the day, she is a formidable challenger to Swalwell. And Swalwell can't criticize too much, as he charted the same path in the election against Stark seven years ago.
Don't get me wrong. I like Eric. I cheered him on when he "retired" the cantankerous Pete Stark. While his challenge of the incumbent was an afront to the Democratic establishment, he made up with then-House Democratic Leader Nancy Pelosi and the DCCC by becoming an active member of the caucus and contributing thereto.
THE WALL: On a 2-1 decision yesterday, a Ninth Circuit Court of Appeals denied a request of the Trump Administration for an emergency stay to block a district court ruling that the redirection of funds among agencies to pay for The Wall violated the constitutional's allocation of purse strings to Congress. Josh Gerstein reports for Politico:
"...Richard Clifton and Michelle Friedland, said in a 75-page order released Wednesday that the attempt to move Defense Department construction funds to the Department of Homeland Security appeared to be a violation of federal law and the Constitution’s delegation to Congress of the power to appropriate funds."
BORN ON THE FOURTH OF JULY: Happy birthday to Swanee Edwards, Alma Hernandez, and the United States of America!
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