From: Hayley Hodges <
Sent: Monday, September 12, 2022 3: 41 PM
To: CityClerk < CityClerk@chulavistaca. gov>
Cc: Jaime Rojas <
Subject: Public Comment - Flavored Tobacco Ordinance
Good afternoon City Clerk,
Attached is a letter regarding the discussion on the flavored tobacco ordinance that will be discussion on behalf of the National Association of Tobacco Outlets as well as an excel sheet of data.
Thank you!
Hayley Hodges
National Association of Tobacco Outlets ( NATO)
Warning:
External
Email
WrittenCommunications
Item8.2 - Hodges - Received9/12/2022
National Association of Tobacco Outlets, Inc., 17595 Kenwood Trail, Minneapolis, MN 55044 952-683-9270 www. natocentral. org
September12, 2022
Mayor Mary Casillas Salas
Members of the Chula Vista City Council
RE: Proposed Flavored Tobacco Products Ban
Dear Mayor Salasand Members of the City Council:
As the Executive Director of the National Association of Tobacco Outlets (NATO), a national retail trade association that represents more than 60,000 retail stores throughout the country including numerous Chula Vista retail stores, I am writing to submit our comments and concernsregarding the proposedordinanceon your September13, 2022, agendathat would banthe saleof all flavored tobacco products, including the sale of menthol cigarettes, mint and wintergreen smokelesstobacco products, flavored cigars and flavored pipe tobacco. This ban would include products that havebeendetermined by the U.S. Food and Drug Administration to be “appropriate for the protection of the public health.” We would ask that the Chula Vista City Council not adopt this ordinance for the reasonsexplained below.
Chula Vista Should Focus on Youth Use of Alcohol and Marijuana According to the 2018-2019 California Health Kids Survey, the most recent available, for the SweetwaterUnion High School District, only 6% of 11th gradershad ever smokeda cigarette andonly 2% had ever tried smokelesstobacco, while only 1% of 11thgraders reported using either cigarettes or smokelesstobacco in the prior 30-day period. With no significant youth useof traditional tobacco products, there is no justification for an across-the-board prohibition of every kind of flavored tobacco product that adults who are 21 and older chooseto purchase.
This samesurvey found that 12% of 11thgradershad used alcohol in the most recent 30-day period, 5% were binge drinkers, and 12% had used marijuana. Chula Vista has a much more significant problem with youth drinking alcohol and smoking marijuana; a reasonablepersoncan inquire why the Chula Vista City Council is not considering a ban on all flavored alcohol products and additional regulations to respond to the high marijuana use rates? Given the Council’s responsibility to protect the public health, the absenceof any action on underagedrinking and marijuana useis concerning.
It is not as if flavored alcohol products are uncommon; there are numerous alcohol flavors, such as cinnamon, whipped cream, chocolate, and cake, which are more youth-oriented than the traditional flavors of tobacco products, such asmenthol, mint, or wintergreen, which would be bannedunder this proposal.
WrittenCommunications
Item8.2 - Hodges - Received9/12/2022
National Association of Tobacco Outlets, Inc., 17595 Kenwood Trail, Minneapolis, MN 55044 952-683-9270 www. natocentral. org
If the underlying reasonfor the bansis youth usageof electronic cigarette products, which the Survey found 8% of 11thgraders had used in the previous 30 days ( still one-third lower than alcohol or marijuana use,) the Council should focus its regulatory efforts on youth-oriented electronic cigarette vaping products and not, at the same time, all other traditional tobacco products that legal age adults choose to buy and use.
When considering restrictions on electronic cigarette products, it is important to understand that the Centers for DiseaseControl found that e-cigarette use nationally among high schoolers dropped about 60% from 2019 (which the most recent available Sweetwater Union survey covers) to 2021. See E- Cigarette Use Among Middle and High School Students — National Youth Tobacco Survey, United States, 2021, US Department of Health and Human Services, Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Report, October 1, 2021, Vol. 70, No. 39. The empirical data showing very low underage use rates of traditional products by local high schoolers and the national trend of a 60% drop in e-cigarette use does not support depriving all 21 and over adults their freedom to chooseflavored tobacco products they prefer.
It is also important to understand the facts about the public’s use of and opinions about tobacco products. A Gallup poll issuedin August 2022 noted that combustible cigarette smoking (both tobacco and menthol flavored) was at an historic low of 11% of the adult population, down from 16% (over a 30% drop) from 2021. Cigarette smoking, which everyone believes is on the higher end of the risk continuum, is rapidly fading out as newer, lower risk products, including electronic cigarettes and modern oral tobacco products, become more common. Many of these products have been found by the FDA to be “appropriate for the protection of the public health” and several of them have flavors that would be banned under the proposed ordinance. It is perhapsfor this reasonthat the sameGallup poll found that only 42% of respondents, Democrats and Republicans alike, support banning menthol cigarettes. By contrast, a July 2022 Gallup poll found that 50% of adults think marijuana use has a negative effect on society.
The Council must also consider the study published online August 17, 2022, in Nicotine and Tobacco Research, funded by the National Institutes of Health, finding “ that local [ flavored tobacco sales restrictions] in the California Bay Area were not associatedwith a change in e-cigarette use one-year post-implementation.” M. S. Dove, et al, Flavored Tobacco Sales Restrictions and Teen E-cigarette Use: Quasi-experimental Evidence From California, https://doi.org/10.1093/ntr/ntac200.
FDA Actions on Flavored Tobacco and Electronic Cigarette/ Vaping Products The U.S. Food and Drug Administration’ s recent regulatory actions have for all intents and purposes already enacted the kind of flavored electronic cigarette ban contained in the proposed ordinance.
However, the FDA regulatory actions go far beyond just banning flavored electronic cigarettes. Due to all of the FDA’s actions as outlined below, I urge the City Council to allow the FDA regulatory processesto continue in lieu of proceeding with a local flavored tobacco ban ordinance.
Ø On April 28, 2022, the FDA issuedproposed regulations banning the sale of menthol cigarettes and all flavored cigars. If enacted, these proposed regulations would apply nationwide and remove hundreds of brands of menthol cigarettes and even more brands of flavored cigars form the marketplace. The comment period on theseregulations recently closed, and the rulemaking WrittenCommunications
Item8.2 - Hodges - Received9/12/2022
National Association of Tobacco Outlets, Inc., 17595 Kenwood Trail, Minneapolis, MN 55044 952-683-9270 www. natocentral. org
processcontinues.
Ø May 14, 2022, was the deadline for manufacturers of tobacco products and electronic cigarette/vaping products that contain synthetic nicotine to file an application with the FDA seekingan order from the agencyto market their synthetic nicotine products. To date, the FDA has not authorized a single electronic cigarette product with synthetic nicotine to be on the market and hasannouncedthat 88,000 such products are now illegal to sell.
Ø The FDA continues to review and act on pre-market tobacco product applications ( PMTAs) that manufacturers had to file with the agencyby September9, 2020, to keep their other tobacco products on the market while the FDA reviewed the applications. To date, PMTA applications covering 8,092,129 electronic cigarette and nicotine vaping products have been submitted to the FDA. The FDA has refused to accept 1,402,226 applications, refused to file 5,091,368 applications, or issued marketing denial orders for 1,234,848 electronic cigarette and nicotine vapor products. These actions add up to denying a total of 7,729,309 electronic cigarette and nicotine vapor products from being sold in the marketplace.
Ø To date, the FDA hasissuedmarketing granted orders allowing only 23 electronic cigarette and vapor products to remain on the market, and not a single one of the 23 products has a characterizing flavor.
Ø In February 2020, the FDA adopted a ban on the sale of all flavored cartridge-basedand pod- based electronic cigarettes, except for tobacco and menthol flavored products. This action removed thousandsof flavored cartridge-basedand pod-basedelectronic vaping products from the market.
With all of thesepast, current, and pending actions being taken by the FDA, we urge the City Council not to adopt a ban on the sale of flavored tobacco and electronic cigarette products.
Voters Want to Decide Whether Flavor Bans Make Sense
California Senate Bill 793, which would ban most flavored tobacco products statewide, has been referred to the November ballot asProposition 31 to let the voters decidewhether to allow the statewide flavor ban bill to go into effect. Voters want their say on flavor bans. We respectfully suggest that deferring action until the voters havespokenin November is in the bestinterestsof Chula Vista andits retailers.
Store Closures and Layoffs May Follow the Enactment of the Ordinance NATO’s convenience store members experienced losses of up to 45% in gasoline sales and 20% or more in grocery, snack, beverage, and tobacco product salesduring the past couple of years during the pandemic. With convenience stores relying on tobacco product sales for approximately 36% of in- store sales, a ban on all flavored tobacco products would eliminate an important product category that is an integral part of a store’s business model. Also, tobacco specialty stores that rely on tobacco product salesfor up to 90% of total saleswill be devastatedby the loss of hundreds of flavored tobacco products. Additionally, retailers have recently found it difficult to attract and retain employees and combined with the effects of inflation, stores payroll costs continue to rise.
WrittenCommunications
Item8.2 - Hodges - Received9/12/2022
National Association of Tobacco Outlets, Inc., 17595 Kenwood Trail, Minneapolis, MN 55044 952-683-9270 www. natocentral. org
If Chula Vista retailers must remove hundredsof products from their shelves, it will be very difficult to competewith retailers in neighboring localities or with illicit sellers who do not care to whom they sell their products. Employee layoffs and even store closuresare real possibilities.
NATO and its Chula Vista retail membersshareeveryone’s interest in keeping tobacco and electronic smoking devices out of the handsof personsunder 21 years old but banning all theseproducts for 21 and older adults makes no sensefrom a health standpoint or economic point of view. According to the FDA, there have been 26 attempts to induce Chula Vista retailers to sell tobacco products to underage persons; only once did a retailer make the sale, a 96% compliance rate. Why would the City Council want to harm responsible, legitimate retailers and force their 21 and older adult customers to drive to other cities or to buy from illicit sellers?
We urge the Chula Vista City Council not to move forward with the proposed ban on flavored tobacco products and single use electronic cigarettes. Thank you for your consideration.
Sincerely,
Thomas A. Briant
NATO Executive Director
WrittenCommunications
Item8.2 - Hodges - Received9/12/2022
Compliance Check Inspections of Tobacco Product Retailers Through 8/ 31/ 22 - Search Results You searched for:
City contains: chula vista
State is CA
Retailer Name Street Address City State Zip
Minor
Involved
Sale to
Minor
Product
Type Brand Flavor Inspection Date
Decision
Date Inspection Result Link Charges
VAPEAND SMOKE 4360 MAIN ST CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 5/ 24/ 2022 No Violations Observed N/ A PINE PALACE LIQUOR 11 3RD AVE STEC CHULA VISTA CA 91910 Yes No N/ A N/ A Not available 5/ 18/ 2022 No Violations Observed N/ A PURE SMOKE 1037 BROADWAY CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 1/ 19/ 2022 No Violations Observed N/ A AMIGOS SMOKE SHOP & MINI MARKET 1285 BROADWAY # 102 CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 7/ 22/ 2021 No Violations Observed N/ A VAPE AND SMOKE 4360 MAIN ST CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 2/ 19/ 2020 No Violations Observed N/ A VAPE AND SMOKE 4360 MAIN ST CHULA VISTA CA 91911 Yes Yes
ENDS / E-
liquid Other Mint 7/ 31/ 2019 8/ 29/ 2019 Warning Letter Issued 1140. 14( b)( 1)- Sale
to a Minor;
1140. 14( b)(2)( i)-
Failure to verify age
VAPE ELEMENTS 2015 BIRCH RD CHULA VISTA CA 91915 Yes No N/ A N/ A Not available 11/ 1/ 2018 No Violations Observed N/ A APPLE TREESUPERMARKET 1193 BROADWAY CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 3/ 5/ 2018 No Violations Observed N/ A VALERO FOOD MART 873 PALOMAR ST CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 3/ 5/ 2018 No Violations Observed N/ A SUNSET LIQUOR 985 BROADWAY STEL CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 3/ 5/ 2018 No Violations Observed N/ A FOOD 4 LESS #780 660 PALOMAR ST CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 3/ 1/ 2018 No Violations Observed N/ A AMIGOS SMOKE SHOP & MINI MARKET 1285 BROADWAY # 102 CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 3/ 1/ 2018 No Violations Observed N/ A SOUTH BAY LIQUOR 1355 BROADWAY STEL M CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 3/ 1/ 2018 No Violations Observed N/ A 7- ELEVEN 13569 796 BROADWAY CHULA VISTA CA 91910 Yes No N/ A N/ A Not available 2/ 28/ 2018 No Violations Observed N/ A 711 STORE2131 13590D 1097 BROADWAY CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 2/ 28/ 2018 No Violations Observed N/ A 7- ELEVEN STORE #202121604C 899 BROADWAY CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 2/ 28/ 2018 No Violations Observed N/ A NORTGATE MARKET # 27 1058 3RD AVE CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 2/ 28/ 2018 No Violations Observed N/ A 7- ELEVEN STORE #33715A2131 689 PALOMAR ST CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 2/ 28/ 2018 No Violations Observed N/ A WAL- MART STORE # 5305 1150 BROADWAY CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 2/ 28/ 2018 No Violations Observed N/ A L STREET76 898 BROADWAY CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 2/ 28/ 2018 No Violations Observed N/ A PALOMAR ARCO 800 PALOMAR ST CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 2/ 28/ 2018 No Violations Observed N/ A BROADWAY SMOKE SHOP 1067 BROADWAY STE101 CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 2/ 28/ 2018 No Violations Observed N/ A L STREETSHELL 902 BROADWAY CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 2/ 28/ 2018 No Violations Observed N/ A MIRAGE LIQOUR 1096 BROADWAY STE101 CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 2/ 28/ 2018 No Violations Observed N/ A U. S.A. LIQUOR MARKET 947 BROADWAY CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 2/ 28/ 2018 No Violations Observed N/ A VISHIONS SMOKE SHOP 1037 BROADWAY STEF CHULA VISTA CA 91911 Yes No N/ A N/ A Not available 2/ 28/ 2018 No Violations Observed N/ A WrittenCommunications
Item8.2 - Hodges - Received9/12/2022