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Last updateTue, 18 Sep 2018 1pm

Despite the skyrocketing teen use of e-cigarettes, a proposal to make California the nation’s first state to ban flavored tobacco is struggling in the Legislature—and health advocates blame the political potency of the tobacco industry.

With negotiations under way behind the scenes, vaping interests hope to at least weaken the legislation, if not turn it in the industry’s favor.

On the Assembly side, all tobacco-related bills were effectively snuffed out when a key committee opted not to hear them. The committee’s chairman, Merced Democrat Adam Gray, declined to be interviewed. In an email, he wrote that “the authors of the various proposals and the committee are working together to develop a comprehensive proposal that addresses the issue from all sides. We will develop a thoughtful package of reforms and move legislation forward this year.”

In the state Senate, a flavored-tobacco ban has advanced and is heading for a Senate floor vote, but only after it was amended to exempt hookah products and products patented before 2000. Even if it passes the Senate, its future in the Assembly is doubtful.

“What you are seeing there is the influence of big money,” said Kati Phillips of California Common Cause, a government watchdog. “When you can afford to have direct access to lawmakers, they tend to listen to you.”

Tobacco money is nothing new in Sacramento, but now San Francisco-based Juul Labs, the largest electronic-cigarette maker, is also moving thousands of dollars to elected officials—particularly targeting members of the Assembly’s Governmental Organization Committee, which Gray chairs.

Electronic cigarettes—known as e-cigarettes or vape pens—heat, for purposes of inhaling, a liquid that typically contains nicotine.

Health advocates say California needs to ban flavored tobacco, because these products, with flavors such as cotton candy, mango and green apple, lure teenagers and young adults into using e-cigarettes, or vaping. Manufacturers and other opponents of a ban insist the products are not targeted to or intended for young people, and that flavored e-cigarettes help long-time smokers quit traditional cigarettes.

It’s unclear exactly what compromise might emerge from negotiations. Gray mentioned alternatives in his email, suggesting “retailer penalties for selling to kids, penalties for youth in possession, advertising restrictions, age-verified online sales, track and trace systems, regulated packaging, and flavors are all areas where we need to take a good look at how current law is failing. There is no single solution to this problem.”

Gray’s committee “has a long and sordid history of bottling up tobacco bills,” countered Tim Gibbs, senior director of government relations for the American Cancer Society Cancer Action Network. “That’s often where good tobacco bills go to die. There is no mystery why the tobacco companies disproportionately target their campaign contributions to that committee.”

Gibbs said no one has invited the network, the American Heart Association or the American Lung Association to be a part of negotiations to create a package of tobacco bills.

“It’s telling that the deadlines were missed and that they haven’t invited public-health stakeholders to any broader negotiation,” he said. “I would go further and say that it’s a farce, a charade to try to avoid the real issue—to avoid doing anything to hurt the tobacco companies’ bottom line.”

Health advocates reject the idea of criminalizing youth possession, but say they welcome stricter penalties on retailers who sell vaping products to kids. Still, they maintain, that’s not enough.

“It’s a way to pretend that something was done without actually doing anything,” Gibbs said. “We are all in favor of stepping up enforcement and making sure retailers are not selling tobacco products to minors. However, it’s not sufficient. Prohibiting the sale of flavored tobacco products is the most important thing we can do to halt the use of teenage e-cigarette use.”

The Cancer Action Network has created a tracker of elected officials who accept tobacco money, and those who refuse. Of the 21 members of Gray’s committee, 11 didn’t receive tobacco money.

Another possibility: The vaping industry might agree to weaker state restriction if the Legislature simultaneously pre-empts stricter local bans. It’s the same strategy the soda industry used last year, when it escaped city soda taxes by convincing the Legislature to pass a statewide prohibition on local soda taxes.

So far, at least 26 counties and cities have restricted flavored tobacco in some fashion, after Hayward became the first by prohibiting its sale within 500 feet of schools. San Francisco banned its sale entirely—and city voters then overwhelmingly rejected a ballot initiative to overturn the ban. Campaign mailers and TV commercials advocating the overturn were required to acknowledge the source of funding behind the campaign to cancel the ban.

“The local campaigns can backfire, because the more they do, the more you know it’s paid for by the tobacco industry. And it turns voters off at the local level,” said Larry Tramutola, a campaign consultant who defended the ban. “More money spent at the Sacramento level, who cares? It’s just more money for politicians.”

Gray insisted the contributions are irrelevant to his actions. “If you want to support my agenda, my voting record, and the things I stand for, I’m happy to receive that support,” he wrote. “But it has zero role in how I represent my district or how I make decisions on public policy.”

Lindsey Freitas, senior director of advocacy in California for the American Lung Association, said more people need to stand up to the tobacco industry. “This is how they get the next generation of people addicted to their products: They entice them with these sweet flavors,” she said.

But Greg Conley, president of the American Vaping Association, credited watermelon-flavored tobacco for getting him to quit traditional cigarettes.

“Vaping products are essential to helping adult smokers quit,” said Conley. “Some members may not want to hear this bill, because it will shut down multiple small businesses in their districts. This bans 90 percent of the nicotine-containing products sold at vape shops.”

If the Senate bill, SB 38, from San Mateo Democratic Sen. Jerry Hill, passes the full Senate by the end of the month, it will go to the Assembly, where it’s likely to land in Gray’s committee. That’s the same committee where a similar ban on tobacco-flavored products, Assembly Bill 739 by Sacramento Democratic Assemblyman Kevin McCarty, stalled without even a vote. McCarty declined to be interviewed about his bill.

So far this year, Governmental Organization committee members have received $23,500 from Juul Labs. Those members have also taken in $89,300 from the R.J. Reynolds Tobacco Company, which makes the popular Newport brand of menthol cigarettes. In addition, the “Valley Solutions Ballot Measure Committee,” an initiative committee Gray controls, took in $25,000 from Philip Morris, a tobacco subsidiary of Altria, last year. Altria also has a stake in Juul Labs.

“Our philosophy,” said Juul spokesman Ted Kwong wrote in an email, “is to support people and organizations to improve the lives of the world’s 1 billion smokers and to combat underage uses. … We keep JUUL products out of the hands of young people.”

Last year the U.S. Surgeon General issued an advisory about youth use of e-cigarettes, calling out Juul for making an e-cigarette that looks like a sleek USB flash drive.

“We must take aggressive steps to protect our children from these highly potent products that risk exposing a new generation of young people to nicotine,” the advisory said.

Last year, use of e-cigarettes among middle and high schoolers soared 78 percent over the year before, according to the federal Centers for Disease Control. The agency reported that more than 1 in 5 students now were using them. The popularity e-cigarettes alone drove a 36 percent annual rise in tobacco use among those students.

Juul contends it has never intended for its products to be used by youth. The company said that in the fall, it stopped selling its flavored product through retailers and now offers them only online, which it says is more secure because of a third-party age verification process.

And it has been working to educate legislators about its youth-prevention efforts, emphasizing that it is focused on adult smokers who are using vaping to quit combustible cigarettes. Juul has been running full-page ads in The Sacramento Bee and prominent ads in Politico’s California newsletter, both read by Sacramento insiders.

The company also said it is being mixed up with other smaller players that make candy-flavored pods, which can be used in Juul’s USB-looking vape pens. Juul makes four flavors: mint, mango, creme and fruit.

“While we do not and will not sell flavors which are clearly targeted to youth, we also understand that flavors that drive adults from cigarettes have the potential to appeal to youth,” said Kwong in an email.

Sen. Hill said in an email that his focus is on the Senate floor vote, and that he remains “committed to protecting children and teens from the health risks of flavored tobacco products.”

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics

Cops have a lot of pull in the California Capitol, and over the decades, that’s added up to this startling reality: The Golden State now goes further than many states in terms of protecting police from public scrutiny.

It’s a stark contrast to the state’s “left coast” image. On abortion rights, gun control and climate change, California has embraced some of the most liberal policies in the nation.

But even with a statehouse controlled entirely by Democrats, California laws are friendlier to law enforcement—and less transparent to the public—than those in Wisconsin and Florida, states with Republican governors and legislatures.

One explanation is that politicians from both parties seek police endorsements to help them sway voters. Polling from last year showed that two-thirds of Californians think their local police are doing a good job controlling crime.

Another is that labor unions representing officers donate generously to elect officials at every level of government. Three major statewide law enforcement groups—the Peace Officers Research Association of California, the California Statewide Law Enforcement Association and the California Correctional Peace Officers Association—together poured $5.7 million into California political campaigns in the last election cycle, including giving $475,000 to the California Democratic Party and $168,500 to the California Republican Party. That doesn’t include the money dozens of local police unions around the state give to politicians.

As cities across the nation were roiled by police killings in recent years, the Legislature quietly killed proposals to create more police accountability. Now, as California’s capital city responds to the killing of Stephon Clark—the unarmed black man shot on March 18 by Sacramento police, who seemingly mistook the cellphone he held for a gun—some of those failed bills are being re-introduced.

California police shot 162 people dead last year, according to a tally by The Washington Post—which means the state has 16 percent of the nation’s killings by police, but only 12 percent of its population. Activists with the Black Lives Matter movement say legislation now proposed in California is “many years behind” and that Democrats in the Legislature have not been responsive to black communities on police issues.

“What happens is that the police unions (and) the police lobbyists come out in full force and then legislators who are afraid of their campaign coffers being interrupted side with law enforcement,” said Cat Brooks, founder of the Anti Police-Terror Project based in Oakland.

Police unions see it differently: Reactionary legislators propose unworkable bills, and then law enforcement helps them understand why the bills are bad ideas.

“We have been fortunate to have common sense prevail at the end, as opposed to the stuff that’s proposed at the beginning,” said Tom Saggau, a spokesman for the Los Angeles Police Protective League, a labor union.

When it comes to making campaign contributions, police are like most interest groups that work to influence public policy, said Brian Marvel, president of Peace Officers Research Association of California, an advocacy group.

“That’s politics in America,” he said.

Though the money helps, Marvel said, it is not the only reason police have influence in Sacramento: “Public safety resonates across both sides. People want to be safe in their home; people want to be safe to walk down the street; people respect law enforcement.”

Here are three ways in which California law protects police more than some states do—and one proposed law that would give it the nation’s toughest standard to justify police using deadly force.


California keeps police misconduct records secret

In most states, the public has at least some access to records that detail misconduct by police officers. Not so in California.

The Golden State is among 23 states that do not make discipline of police officers available through a public-records request—and one of just three states with laws specifically making police personnel records confidential, according to an investigation by New York public radio WNYC.

The secrecy—which dates back to a law Gov. Jerry Brown signed in 1978—makes it nearly impossible for Californians to know if the police who patrol their streets have ever been disciplined for excessive use of force.

“Law enforcement is the only public-employee group for which we have no access to the records. (With) every other employment category, you pretty much have full access under the Public Records Act,” said state Sen. Nancy Skinner, a Berkeley Democrat. “Good policing requires community trust.”

Her Senate Bill 1421 would make officers’ records public in three situations: when they fire a gun or use force resulting in serious injury or death; when they’ve engaged in sexual assault on the job; or when they’ve been dishonest in investigating a crime, such as by filing false reports or concealing evidence.

Similar legislation failed in 2016, facing stiff opposition from law enforcement groups who argued that it amounted to an invasion of privacy. It’s too soon to say if Skinner’s bill will meet the same fate, but at least one police group says it’s working to find common ground with her.

“We are trying to find how we can release some information once it’s gone through its administrative process or the courts,” said Marvel, a San Diego police officer who is president of the Peace Officers Research Association. “I think we can agree on a system of transparency that allows the community to have faith in their police department.”

Other law enforcement groups say there’s no need to open personnel records. Gary Ingemunson, an attorney for the LA police union, called Skinner’s proposal “a can of worms.” He said existing procedures—through the courts and citizen-review boards—provide sufficient accountability.

“Why are we opening it up? So the newspapers can have a field day?” Ingemunson said. “What’s really important is that the people who need to know have a way to find out. … It’s already as open as it needs to be, in our view.”


California lets local law enforcement police themselves

When police kill, it’s generally up to the local district attorney’s office to determine if it’s a crime. But sometimes they rely on investigations conducted by the cop’s own department, and research has shown that prosecutors rarely file criminal charges against officers involved in on-the-job shootings.

Police say that’s because the vast majority of their shootings are legally justified, done only when officers perceive an imminent threat. Critics say it’s because cops and prosecutors, who work together closely and spend money to help each other win elections, are too cozy.

Four other states require that a state agency—instead of local prosecutors—conduct the investigation when police conduct results in death. Wisconsin passed such a law in 2014 after a man whose son was killed by police used a $1.75 million settlement to lobby for the change.

In California, lawmakers have rejected the idea twice. But Sacramento Democratic Assemblyman Kevin McCarty—spurred on by the recent announcement that Sacramento police asked the state Attorney General to investigate the death of Stephon Clark—plans to re-introduce a bill requiring the state Justice Department to investigate deaths and serious injury caused by police.

“It raises a bigger question: why not for all the shootings?” McCarty said. “Having an independent third-party law enforcement agency come and do the investigation can bring about more transparency and more trust in the process.”

McCarty points to a report by the Stanford Criminal Justice Center that describes the Wisconsin law as a model California should follow. But Tanya Faison, a leader of Black Lives Matter in Sacramento, said such a change is far short of a panacea.

“There need to be oversight boards that reflect our community that do the investigations when police officers kill people,” Faison said. “This would move the needle in the right direction, but there is more work to do.”

Police opposed McCarty’s bill last year, saying people who mistrust local law enforcement are unlikely to have more confidence in state-level authorities. And they challenge the assumption that investigators can’t set aside their personal relationships to conduct a fair inquiry.

“What McCarty is saying is that these officers are unprofessional and can’t do their job,” said Marvel. “I don’t buy into that premise.”

California Attorney General Xavier Becerra chimed in with support only after last year’s bill was watered down to a study. Lawmakers then killed it in the Senate Appropriations Committee, where bills can die without a public vote.

Asked this month if he would support McCarty’s effort this year, Becerra was noncommittal. “What you want to make sure is that you have an investigation that withstands the test of transparency, scrutiny and accountability. That can be accomplished in any number of ways,” he said.

Establishing a unit in the state Department of Justice to investigate police shootings would cost between $8.5 million and $10 million a year, according to an analysis of prior legislation. McCarty said he’s exploring whether his proposal can be inserted into this year’s state budget.


California has no power to revoke a cop’s certification

State law says that anyone convicted of a felony cannot serve in law enforcement. Beyond that, though, California’s system for getting rid of bad cops is highly decentralized. The state has more than 600 law-enforcement agencies, and each one can decide if—short of a felony conviction—an officer’s misconduct is a firing offense.

It’s the opposite of how most of the country regulates police, according to research by Roger Goldman, a retired professor at the Saint Louis University School of Law. He said that 45 states have a centralized system for revoking an officer’s professional certification—and most of them do it for less than a felony conviction.

“States like Georgia, Florida and North Carolina are decertifying cops hand over fist, and California is decertifying nobody, other than if convicted of a felony,” Goldman said.

It wasn’t always like this. California used to allow its law-enforcement regulatory agency—known as the Commission on Peace Officer Standards and Training—to yank a cop’s certification. But in 2003, police unions lobbied the Legislature to take away that power, and Gov. Gray Davis signed the bill a month before he was recalled.

The other states with a decentralized system like California’s are Hawaii, New Jersey, Massachusetts and Rhode Island, Goldman said. “What do they have in common? Very blue. Very strong police unions. The (California) Legislature is obviously scared to death of taking on the police unions.”

Though Goldman contends that the lack of such a system makes it easier for bad cops in California to bounce from one department to another, state officials disagree. They argue that police departments here can do a background check on anyone they’re considering hiring and find out if they’ve been fired for misconduct.

“Just because California doesn’t have a process, per se, like other states (to) rescind or cancel a certificate or license, (that) doesn’t mean California takes that lightly,” said Dave Althausen, spokesman for the state regulatory agency.

It has a database that tracks every sworn officer in the state, he said, including when they were hired by a department and under what circumstances they left. If they are convicted of a felony, the law says the agency must note in their file that they are “ineligible to be a peace officer in California.”

But, Althausen acknowledged, there’s no requirement that agencies check the database when hiring a new officer.


And yet: California is now considering the nation’s toughest standards for use of deadly force

In 1989, the U.S. Supreme Court ruled that police use of force is justified whenever a “reasonable officer” in the same circumstance would do the same, setting the legal standard now used in every state. It’s one reason so few cops are convicted of crimes when they kill—jurors must consider whether a reasonable officer perceiving the same threat would make the same split-second decision. If so, the killing is legally justified.

California lawmakers will consider a bill this year that would make California the only state in the nation to set a different standard—one supporters believe will make it easier to hold police accountable. Under AB 931, police could only use deadly force when “necessary” to prevent injury or death in the context of the officer’s entire encounter with a suspect—not just the moment before firing his gun. Killing would only be legally justified if other tactics, such as warnings or de-escalation, were not possible instead.

“We’re not saying that law enforcement officers can never use deadly force,” said Assemblywoman Shirley Weber, a San Diego Democrat carrying the bill with McCarty. “Deadly force can be used, but only when it is completely necessary.”

Lawyers with the American Civil Liberties Union, which is backing the bill, say the Supreme Court standard sets a minimum level of protection for civilians confronted by police, and that states can choose to set a higher bar. But Ingemunson, the lawyer for the LA police union questioned that, saying the proposed standard may violate officers’ rights under federal law.

“The theory would be that an officer also has rights, and one might be to be judged by the federal standard, not some state standard,” he said.

Police are frustrated that the bill language has not yet been made public (as of this story’s publication) and say it’s hypocritical of the ACLU to criticize law enforcement for a lack of transparency while working with legislators behind the scenes to draft a bill that would impact their profession. They also warn that the “necessary” standard might discourage police from going into dangerous situations where their help is needed.

“It would be a colossal hindrance to law enforcement in this state,” said Marvel. “It would take away our ability to react efficiently and effectively. Officers will be thinking, ‘Should I really be doing this? Should I run away?’”

Though no other states have a standard like the one California is considering, some police departments have a standard higher than the one set by the Supreme Court in their internal policies. Seth Stoughton, an assistant professor at the University of South Carolina School of Law, researched use-of-force policies in the nation’s 50 largest police departments for a paper published last year. He concluded that Los Angeles has nothing in its policy describing a continuum of the types of force that should be deployed, while Seattle has the most detailed policy, stating, in part, that officers must “use only the force necessary to perform their duties.”

“The Supreme Court case law sets a (low) floor, but not a ceiling on how agencies handle use of force internally,” Stoughton wrote.

Franklin Zimring, a professor at UC Berkeley’s law school, said the California Legislature could best impact police behavior by increasing the amount of civil damages victims may seek in lawsuits over deadly force.

“The major force in controlling, or failing to control, police use of force is the police chief,” Zimring said. “What state law can do is … make excessive use of deadly force expensive enough to motivate police chiefs.”

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Local Issues

With a bill to mandate the independent investigation of officer-involved killings in California stalled in committee, other legislative efforts have revealed lawmakers’ picky appetites for holding law-enforcement communities accountable.

Assemblyman Kevin McCarty’s bill to outsource the investigation of fatal police encounters, AB 86, is being “held under submission.” The term means there’s a stated desire to discuss the bill, but no forward momentum to move it out of committee.

The same fate recently visited Assemblywoman Shirley Weber’s Assembly Bill 619, which would require law-enforcement agencies to report their use-of-force encounters to the California attorney general’s office on an annual basis.

There currently is no official database documenting fatal police encounters, much less one for confrontations that stop short of death. Weber’s bill would greatly expand what is known about when and how force is applied by California’s law-enforcement establishment.

Referencing the viral-video litany that includes such names as Eric Garner, Walter Scott and Freddie Gray, racial-justice advocate Chauncee Smith indicated that lawmakers have before them a grim opportunity.

“While it is quite difficult to discern betterment in such tragedy, if it exists, it may be that it has delivered a proverbial gut check to our society,” Smith, who works for the American Civil Liberties Union of California, told an Assembly committee on May 27.

Yet the guts of lawmakers may not be quite as big as their eyes. The tepid response to Weber’s AB 619 is due, in part, to its $3.3 million price tag.

Finding more support was AB 1289, authored by a former cop himself, Assemblyman Jim Cooper, of Elk Grove. Unanimously approved by the state Assembly, the proposal now moves to the Senate. If passed, the bill would require a study on local community policing and engagement strategies. The bill shifts that authority from the nonpartisan Legislative Analyst’s Office to the Commission on Peace Officer Standards and Training, which sets the minimum standards for becoming a cop.

Taryn Kinney, a spokesperson for Assemblyman Cooper, said it was the LAO that recommended the shift, since POST’s contacts with local law enforcement agencies would make the data-collection process easier.

Lastly, there’s AB 953, also by Weber. It would expand California’s prohibition against racial profiling to include all forms of identity bias, and create an advisory board under the state attorney general’s office to oversee such efforts in 2016.

AB 953 advanced through the Assembly’s appropriations committee on May 28.

“We’ll see if our Assembly actually has the courage to do what the people are asking for,” Weber said during the committee meeting.

Apparently, there was some courage in the Assembly: It passed on June 3, and the bill is now in the Senate’s hands.

A version of this story originally appeared in the Sacramento News & Review.

Published in Politics