Getting to Sacramento in time for the June 25th Governmental Organization Committee hearing on SB 648 was a near thing.

Four trips to Sacramento in May, and we arrived early every time. This time, it was a struggle to get out of the house. Two clients had last-minute issues I had to deal with before we could load up the car with lunch and the props for the speeches we were planning if we had to fall back on Plan B.

Winds had been high for days, and I was fighting the car (aerodynamic, but lightweight) as I turned onto Highway 12. Despite being both straight and flat, 12 is a daylight headlight area, a known accident zone. With wind flattening the cornfields, that fact became a lot easier to understand.

We’d only come a few miles past Rio Vista when eastbound traffic came to a complete stop. Westbound traffic simply disappeared. It was impossible to see around the enormous black pickup truck directly in front of me, but after a brief eternity of motionlessness, cars further up the line began to turn around. We didn’t have much time to spare.

I looked at my husband, who had spent the past few days coordinating local vapers in an effort to get people to show up for this last-minute hearing. “I’m going to backtrack to 160 and go up to 5 that way,” I said.

As I pulled into an awkward U-turn, we could see the lights flashing in the distance, though we couldn’t make out the details. An accident of some kind, obviously. On a two-lane road with almost no alternate routes, getting it cleared could take ages. I’d never been all the way up 160, but despite the meandering route, it was only supposed to take a few minutes longer than taking 12 over to Highway 5.

If you are not in a hurry or driving in high winds, the drive up 160 to Sacramento is pleasantly scenic. Well, for the passengers. No matter the speed or the weather conditions, that road takes a driver’s full attention. On one side, a steep drop-off into the deep water channel of the Sacramento River. On the other side, an even steeper drop-off into fields and orchards. The wind, at least, was not as bad face-on as it had been slamming into the side of the car on 12.

There is a spot on the way back south, between Rio Vista and the Antioch Bridge, where a warning sign reads “Winding Levee Roads 5 mi.” I always wonder where the person who posted the sign thinks people have been driving for the previous 50 miles, if not on winding levee roads.

Three or four yellow steel drawbridges later (160 crosses the river a few times, though there is always a parallel road on the opposite bank, just to confuse you), we saw the Sacramento Water Tower and reached Highway 5. Not long after that, I was dropping my husband off in front of the Capitol Building and going in search of parking, which I found a bit further away than usual. (The disadvantage of an afternoon hearing.)

And at not too much past 1:30, I walked into Room 4202 and found a respectable showing of vapers and vendors, plus David Quintana, the hardworking lobbyist employed by NJOY, and his counterpart from VMR, the makers of V2. The GO committee, true to past form, was still trying to collect enough of its members to constitute a quorum.

Some Background on SB 648

When Senator Corbett first introduced SB 648 in February 2013, my husband was still a dual user, smoking tobacco outdoors and using cigalikes–V2s, in fact–indoors. He had not yet discovered vaping as a lifestyle, never mind become an internationally known advocate. (They were not better days.)

The original SB 648 attracted a lot of attention (a better word would be outrage) and though it made it through two State Senate hearings, it appeared for a while that it might be indefinitely postponed before ever coming before the Assembly.

CASAA’s March 2013 call to action on the original bill describes it this way:

If enacted, this bill would:

Ban the use of vapor products wherever smoking is banned. Among those provisions most likely to impact users are those that would: Ban e-cigarette use in virtually all workplaces in California, including in hospitals. Violations would be punishable by fines of $100, $200, and $500. (Section 12)

Ban e-cigarette use inside or within 20 feet of any public building or in a vehicle owned by the state. (Section 4)

Declares that the use of electronic cigarettes “may be a hazard to the health of the general public,” and would include e-cigarettes in all future smoking bans passed in California. (Section 11)

Ban e-cigarette use in railroads and air carriers. (Section 13)

You can watch the hearing below. It’s both moving and frustrating.

The New, Unrecognizable SB 648

Naturally, when we heard SB 648 was back, we worried. But a look at the California Legislative Information page for “Today’s Bill as Amended” was as much confusing as anything. Nearly all of the bill had been struck out. All that remained was a ban on vending machine sales unless said vending machines were located at least 15 feet inside of premises licensed to sell alcoholic beverages.

The only problematic part of the new bill was section (d):

(d) For purposes of this section, a cigarette includes an electronic cigarette, as defined in Section 119405 of the Health and Safety Code.

I don’t think even NJOY and VMR, among the independents, have tried to sell electronic cigarettes or other vapor products from vending machines, inside or outside of bars. It’s possible that some of the Big Tobacco companies that now own e-cigarette brands have experimented with vending e-cigarettes in places that they vend cigarettes. I rarely go into bars, so I haven’t seen cigarette vending machines, never mind e-cigarette vending machines.

No one can argue against a law preventing vending sales of e-cigarettes. It’s just that there doesn’t seem to be a lot of urgency in passing one, either. If AB 1500 was a solution in search of a problem, the current version of SB 648 takes that to a whole new level.

In this case, however, allowing the bill to go ahead would not cause any hardships for vendors or consumers…except for that one line.

Allowing e-cigarettes to be defined as cigarettes–even for one section of one code–sets a dangerous precedent. Electronic cigarettes and vapor products are not cigarettes. Vapers, naturally, do not want them either banned as such or taxed as such. Politicians, I am sure, would love to see them taxed as such; many other groups would love to see them banned as such, mostly from ignorance and FUD.

But any decisions made about vapor products need to address them as themselves, based on their own public health benefits or risks. Even the FDA is not trying to regulate e-cigarettes as cigarettes. The FDA proposes to regulate e-cigarettes as tobacco products. (If that sounds strange to you, given that there is no actual tobacco in vapor products, bear in mind that nicotine replacement therapy products such as Nicorette® gum are also considered tobacco products in U.S. law, because the nicotine in them is derived from tobacco.)

And no tobacco product may be sold in a vending machine, at least not in California. I bought a pack of Nicorette® gum to use as a prop in my presentation, if necessary. There’s a big red warning label on the back that says, among other things, “Not for sale in vending machines or from any source where proof of age cannot be verified.” There is absolutely no need to define something as a cigarette in order to keep it out of vending machines.

The Importance of Definitions

Back in Oakley, where I live, we’d already been talking about the importance of definitions, and in particular the problem presented by the definition of an e-cigarette used in the California Health Code and in Oakley’s proposed ordinance about outdoor smoking and e-cigarette use by minors.

I haven’t had a chance to blog about that for the same reason that I haven’t had a chance to follow up with the Oakley City Council: on the day after the hearing, I got an urgent call from a new client with an emergency, and between work and migraines, I’ve had other demands on my attention. Vaping advocacy does not pay my bills. But I digress.

In any case, I had come up with a draft of a somewhat-better definition of electronic cigarettes to propose to the City of Oakley, and in the flurry of messages going back and forth around our informal group of local vapers and vendors, I put that out there. Some people mentioned a few problems that still remained with it. Someone else pointed out that Greg Conley, now president of the American Vaping Association, had come up with a good definition for e-cigarettes to use in a different bill.

I asked Greg, who said to look it up in Legiscan, which I did. As it was a very good definition, I actually folded it into a proposed amendment that would change part (d) of the bill to say that it was “tobacco products” that included electronic cigarettes and that electronic cigarettes were defined as Greg had defined them:

1. “Electronic cigarette” or “e-cigarette” means any electronic smoking or vapor device that provides a nicotine vapor to the user as the user simulates smoking. This term shall include such devices whether they are manufactured as e-cigarettes, e-cigars, or e-pipes, vapor devices or any other product name; and 2. “Liquid nicotine” means any liquid product composed either in whole or in part of nicotine and manufactured for use with electronic cigarettes.

Returning to the June 25th Hearing

Now, we didn’t need my proposed amendment or Greg’s definition–or we haven’t needed it yet–because a certain hardworking lobbyist got Senator Corbett and the committee chair, Isadore Hall III, to accept a much simpler proposal, one which struck out part (d) altogether and simply added “or electronic cigarettes” wherever cigarettes were mentioned.

We’d heard that certain of the “lung, heart, and cancer” groups had been round to see Senator Corbett after hours to try to get her to remove that amendment and revert to the definition that equated electronic cigarettes with tobacco cigarettes, even though minors would be equally well protected from vending machine sales either way. That certainly suggested that as much as the definition mattered to us–to the mother who uses an nebulizer for her young children’s asthma that does, in fact, resemble a larger, plastic tank-and-drip tip system, rather than one of the inhalers that adults usually carry; to the consumers who don’t want to have to pay 95% tax on their e-liquid; to the vendors who weren’t even in business at the time of the Master Settlement Agreement–these groups who ostensibly have the public good at heart have even more invested in it.

Governmental Organization Committee chair Isadore Hall III had no patience with this kind of politicking. David Quintana from NJOY introduced himself, explained the situation with the proposed amendment and with the so-far-friendly committee, and said that the thing for us all to do was support the bill as proposed amended. I’m pretty sure none of us thought we would ever be supporting anything that Senator Corbett proposed, ever, but there we were, politely lined up in support, stating our names and, where appropriate, our affiliations. The usher thanked us for being reasonable.

There were three witnesses in opposition. I’d seen the two women sitting together before the hearing started, looking distressed. One was positively red-eyed, in fact. I’d expected the hearing to be recorded, since there’d been video recording in that room when we were in there for AB 1500, and didn’t bring my portable recorder or have my computer open for detailed notes. If I am remembering correctly, one of the women was from an Alameda County anti-tobacco program. She may also have had ties to a national group; I don’t recall. I believe the other was with one of the cancer organizations, but I couldn’t say for sure that it was the American Cancer Society. The man was from the American Heart Association, or at least from a heart association, and he mumbled awkwardly at a distance from the microphone.

Our entire row was stifling (or not bothering to stifle) smirks. I confess I felt a bit sorry for Corbett. To have had to gut her original bill to the degree she had, and now to be on the opposite side of the table from those who were usually her staunchest allies had to be awkward for her. She’d been getting relentless pressure from both directions for months, and by now, I’d gathered, she just wanted to be able to get something passed and salvage a shred or two of dignity.

What were the opponents opposing? The definition. The change to the definition. Though they were not honest in what they claimed. They argued that their problem was that the amendment added e-cigarettes as a new thing, on their own, neither cigarettes nor tobacco products, and this opened the door to all kinds of problems. That the FDA planned to regulate e-cigarettes as tobacco products, and therefore they should be defined as tobacco products in the bill.

Idiots.

If they hadn’t overstepped themselves and gotten greedy by trying to define e-cigarettes as cigarettes, if they’d actually tried defining e-cigarettes as tobacco products in the bill, they would not have had an entire row of vaping advocates sitting behind them smirking while they tried to justify opposing a bill that banned vending machine sales of e-cigarettes.

Yes, there are some activists who are still trying to fight the definition of electronic cigarettes as tobacco products. Short of developing a way to extract nicotine efficiently from a plant other than tobacco, it isn’t happening. That train has left the station. Given what the FDA has already been able to define as a tobacco product, exempting vapor products from the category is unrealistic.

I would have given them “tobacco products,” as long as it also included Greg’s definition of e-cigarettes. (Greg himself wants to fight any state-level definitions of e-cigarettes as tobacco products.) What none of us could tolerate was “cigarettes.” The anti-tobacco, anti-nicotine, anti-e-cig lobbyists went a step too far, and as a result, they were hoist with their own petard.

Assemblymember Hall had less patience with them than I have displayed here. It was a delight to hear him chastising them for opposing the bill, for being willing to come down in favor of selling e-cigarettes in vending machines rather than accept the amendment. Hall rightly recognized that no matter how you phrased that bill, it would accomplish its stated purpose of keeping e-cigarettes out of the hands of children, at least those who might hypothetically have purchased them from vending machines.

Anyone opposing the bill therefore had to have priorities higher than protecting children. That’s a sufficiently awkward position to be in if you are an e-cigarette vendor; it’s an excruciatingly awkward position to be in if you are an alleged public health organization. The amendment forced these people to show that they are motivated by something besides their official mission statements.

The bill passed the committee resoundingly.

But it’s not over yet. The proposed amendments have not appeared on the “Today’s Law as Amended” page. The bill will not have a fixed form until the governor has signed it into law. The current status reads “Committee Action Date: 6/25/14. Committee Motion: Do pass as amended and be re-referred to the Committee on Appropriations. Committee Vote Result: (PASS) »» Ayes: 16; Noes: 0; Abstain: 3.”

Given the relentless onslaught of anti-vaping legislation at the state and local level right now, we need to celebrate every victory. But it’s important to remember that every time we score any kind of win, the other side will be trying to get some of its own back. We need to keep our eye on SB 648, to see whether that proposed amendment actually makes it as far as the Appropriations Committee.