Bill Text: CA SB1498 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Cannabis and industrial hemp: advertising: civil action.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Passed) 2024-09-28 - Chaptered by Secretary of State. Chapter 899, Statutes of 2024. [SB1498 Detail]

Download: California-2023-SB1498-Amended.html

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Amended  IN  Senate  March 20, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 1498

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Introduced by Senator Ashby

February 16, 2024

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An act to amend Section 3026 of add Section 26152.2 to the Business and Professions Code, relating to healing arts. cannabis.

LEGISLATIVE COUNSEL'S DIGEST

SB 1498, as amended, Ashby. State Board of Optometry. Cannabis: advertising: private right of action.

Existing law, the Control, Regulate and Tax Adult Use of Marijuana Act of 2016 (AUMA), an initiative measure, authorizes a person who obtains a state license under AUMA to engage in commercial adult-use cannabis activity pursuant to that license and applicable local ordinances. Existing law, the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), among other things, consolidates the licensure and regulation of commercial medicinal and adult-use cannabis activities and requires the Department of Cannabis Control to administer its provisions. Under MAUCRSA, the Department of Cannabis Control has sole authority to license and regulate commercial cannabis activity, which MAUCRSA defines to include, among other activities, the sale of cannabis and cannabis products.

Existing law places various advertising and marketing restrictions on licensees, including prohibiting a licensee from publishing or disseminating advertising or marketing that is attractive to children, and from advertising or marketing cannabis or cannabis products in a manner intended to encourage underage consumption or on an advertising sign within 1,000 feet of a daycare center, school, or youth center. Existing law also prohibits a licensee from advertising or marketing on a billboard or similar advertising device located on an interstate highway or on a state highway that crosses the California border.

This bill would authorize a parent or guardian of a minor child to bring and maintain an action to redress a violation of the above-described advertising and marketing restrictions. The bill would require a plaintiff who prevails in an action to be awarded injunctive relief and would authorize a prevailing plaintiff to be awarded reasonable attorney’s fees and costs and civil penalties of not more than $5,000 per violation, as specified. The bill would require civil penalties awarded in an action to be distributed 50% to the plaintiff and 50% to the Treasurer for deposit into the General Fund. The bill would prohibit a defendant from being subject to more than one action in connection with the same, or substantially similar, advertising or marketing, except as provided. The bill would prohibit these provisions from being construed to limit or otherwise alter, in any way, any authority conferred by law upon the Attorney General, the department, or any other state or local officer or agency, as specified.

Existing law, the Optometry Practice Act, establishes the State Board of Optometry in the Department of Consumer Affairs for the licensure and regulation of the practice of optometry. Existing law authorizes the board to adopt a common seal and establish a permanent office or offices.

This bill would, for each additional office established, require the board to notify the appropriate policy committees of the Legislature and update the committees biannually on the continued need for each additional office.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 26152.2 is added to the Business and Professions Code, to read:

26152.2.

 (a) A parent or guardian of a minor child may bring and maintain an action to redress a violation of subdivisions (d), (e), (f), and (g) of Section 26152.

(b) (1) A plaintiff who prevails in an action pursuant to this section shall be awarded injunctive relief.

(2) Subject to subdivision (c), a prevailing plaintiff may also be awarded either or both of the following:

(A) Reasonable attorney’s fees and costs.

(B) Civil penalties of not more than five thousand dollars ($5,000) per violation.

(c) To award either reasonable attorney’s fees and costs or civil penalties, or both, the court shall first find all of the following:

(1) It was clearly established, under the law existing at the time of the defendant’s conduct, that the defendant’s conduct violated the relevant subdivision or subdivisions of Section 26152.

(2) The plaintiff provided the defendant with written notice that the defendant’s conduct violated the relevant subdivision or subdivisions of Section 26152, and gave the defendant a reasonable opportunity to cure the violation, prior to bringing an action pursuant to this section.

(3) The defendant refused to cure the violation.

(4) The defendant lacked a reasonable, good faith basis for refusing to cure the violation.

(d) In determining whether to award reasonable attorney’s fees and costs and civil penalties, and in assessing the amount of any civil penalty, the court shall consider factors the court determines to be relevant, including, but not limited to, the following:

(1) The gravity of the violation.

(2) The defendant’s good faith, or lack thereof.

(3) The defendant’s history of previous violations.

(e) Civil penalties awarded in an action brought pursuant to this section shall be distributed 50 percent to the plaintiff and 50 percent to the Treasurer for deposit into the General Fund.

(f) (1) Except as provided in paragraph (2), a defendant shall not be subject to more than one action pursuant to this section in connection with the same, or substantially similar, advertising or marketing.

(2) This subdivision does not prohibit a subsequent action pursuant to this section to redress a recurring or continuing violation of Section 26152, after the defendant has previously been found to have engaged in the same violation of Section 26152 or a substantially similar violation. Such an action may be brought and maintained if all of the following conditions are satisfied:

(A) The defendant has previously been found, in an action pursuant to this section, to have violated one or more subdivisions of Section 26152.

(B) The defendant subsequently engages in the same advertising or marketing, or substantially similar advertising marketing, that was previously found to violate Section 26152.

(C) The subsequent action is limited to advertising or marketing that occurred after entry of judgment in the prior action.

(g) (1) The causes of action, remedies, and penalties provided by this section are cumulative to each other and to the causes of action, remedies, and penalties available under all other laws of this state.

(2) This section shall not be construed to limit the availability of any cause of action, remedy, or penalty otherwise available under any other law of this state.

(h) (1) This section shall not be construed to limit or otherwise alter, in any way, any authority conferred by law upon the Attorney General, the department, or any other state or local officer or agency.

(2) An action brought pursuant to this section shall not have preclusive effect upon the Attorney General, the department, or any other state or local officer or agency.

SECTION 1.Section 3026 of the Business and Professions Code is amended to read:

3026.

(a)The board may adopt and use a common seal and establish a permanent office or offices.

(b)For each additional office established, the board shall notify the appropriate policy committees of the Legislature and update the committees biannually on the continued need for each additional office.