CITY OF PACIFICA
COUNCIL AGENDA SUMMARY REPORT
9/27/2021
1 SUBJECT:
Consideration of Development of an Ordinance Prohibiting the Sale of Flavored Tobacco Products and Electronic Cigarettes (“E-Cigarettes”).
RECOMMENDED ACTION:
Accept the report and provide direction to the City Manager regarding developing an ordinance prohibiting the sale of flavored tobacco products.
STAFF CONTACT:
Daniel Steidle, Chief of Police
650-738-7314
[email protected]
BACKGROUND/DISCUSSION:
Concerns regarding health problems caused by smoking and second-hand smoke and the attractiveness of flavored tobacco products to minors has created public health policy discussions at the local, state and national level. In response, some local jurisdictions have adopted ordinances prohibiting the sale of flavored tobacco products.
At the request of Councilmembers Bier and O’Neill, staff presented this topic to City Council on January 13, 2020 seeking direction regarding whether to develop an ordinance prohibiting the sale of flavored tobacco products and E-Cigarettes. At the time of the presentation, SB793 was in the process of legislation. SB793 provides that a tobacco retailer, or any of the tobacco retailer’s agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer. An exemption to this bill allows for the sale of hookah products, if the business is properly licensed and does not allow patrons under 21 years of age to enter the business. Direction from City Council was to wait for the outcome on SB793 before determining whether to adopt a local ordinance.
On August 28, 2020, SB793 was signed into law by Governor Newsom. However, on August 31, 2020, implementation of the new law was halted when a referendum was filed with the California Secretary of State to repeal the new law. As of December 2020, the referendum had received the required number of voter signatures to place the item on the November 2022 state ballot. In the November 2022 state election, the voters of the State of California will decide whether to enact or repeal SB793.
With the delay and potential repeal of SB793, City Council listed as one of 17 priorities adopted on April 17, 2021 to “Present an ordinance to City Council for consideration regulating the sale of flavored tobacco in Pacifica.”
This report to Council provides information regarding this issue for City Council consideration.
The City Manager is seeking direction from the Council whether the Council would like to consider at this time a draft ordinance prohibiting the sale of flavored tobacco products in Pacifica City Council 2 September 27, 2021
Pacifica. This report provides information about this health issue, what other jurisdictions have done, legal costs to develop a draft ordinance, and other information relevant to the Council’s consideration of this topic.
Definitions in City’s Municipal Code
Discussion of a potential ordinance regarding flavored tobacco and E-Cigarette products requires definition of certain terms, including a definition of flavored tobacco products. As a baseline for a full discussion on the subject, below are some relevant definitions which currently exist in Chapter 15 of Title 4 (Smoking Prohibitions) and Chapter 31 of Title 5 (Tobacco Retailing) of the Pacifica Municipal Code relating to Tobacco:
Electronic Smoking Device
"Electronic smoking device" means an electronic and/or battery operated device, which can provide an inhalable dose of nicotine, cannabis, whether recreational or medicinal, or other vaporized liquids to the person inhaling the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for the use in the mitigation, treatment, or prevention of disease.
Tobacco or nicotine product:
"Tobacco or nicotine product" means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, or any other preparation of tobacco; and any electronic cigarette or other electronic device used to generate smoke; and any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.
Tobacco Retailer:
“Tobacco Retailer” means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia, or who distributes free or low cost samples of tobacco products or tobacco paraphernalia. “Tobacco retailing" shall mean the doing of any of these things.
This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.
The following definitions are not in the City’s Municipal Code but are codified in Chapter 4.99 of Title 4 of the San Mateo County Code of Ordinances relating to regulation of flavored tobacco and may be helpful in the discussion of the development of an ordinance:
Flavored tobacco product: Any tobacco product that contains a constituent that imparts a characterizing flavor.
Constituent: Any ingredient, substance, chemical or compound, other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a tobacco product during the processing, manufacture, or packaging of the tobacco product.
Characterizing Flavor: A distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the Pacifica City Council 3 September 27, 2021
tobacco product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition that constitutes a characterizing flavor.
While the foregoing definitions are not determinative of what definitions may be used in any possible ordinance, they provide a basic understanding of what the relevant terms may mean.
Youth and Flavored Tobacco
Flavored tobacco products have been the subject of negative publicity as they are known to be attractive to minors. According to Tobacco Free Kids, a non-profit organization that works to reduce youth access to tobacco and reduce tobacco related deaths:
• Tobacco industry documents show that the tobacco companies have a long history of developing and marketing flavored tobacco products as “starter” products that attract kids.
• Flavors improve the taste and reduce the harshness of tobacco products, making them more appealing and easier for beginners to try the product and ultimately become addicted.
• Menthol cools and numbs the throat, reducing the harshness of cigarette smoke, thereby making menthol cigarettes more appealing to youth who are initiating tobacco use.
• According to FDA’s Tobacco Product Scientific Advisory Committee (TPSAC), menthol cigarettes increase the number of children who experiment with cigarettes and the number of children who become regular smokers, increasing overall youth smoking. • Flavors can create the false impression that a tobacco product is less harmful than it really is.
In the same publication, Tobacco-Free Kids provided the following statistics that were collected in a 2019 survey of middle and high school students:
• 81% of youth who have ever used tobacco products initiated with a flavored product. • 72.3% of youth tobacco users have used a flavored tobacco product in the past month. • At least two-thirds of youth tobacco users report using tobacco products “because they come in flavors I like.”
Health Issues Relating to Use of E-Cigarettes
Health issues have long been chronicled related to smoking of tobacco products and secondhand smoke, and more recently, smoking using e-cigarette devices (“vaping”).
Health issues related to tobacco E-cigarettes and ingestion of THC by vaping have gained national attention after a string of deaths and hospitalizations involving the use of these Pacifica City Council 4 September 27, 2021
products. The Center for Disease Control (CDC) is currently investigating the cause of these illnesses. Research into the causes of these illnesses has not concluded nor identified definitively a specific cause(s). However, the CDC reports illnesses at a much higher level occur as a result of consuming THC vaping products that are black market purchased than THC products purchased legally. While THC-only vaping products that contain cannabis oils tested at State approved facilities are legal to sell in legal cannabis retail operations, the CDC and FDA recommend that people should not use THC-containing e-cigarette, or vaping products, particularly from informal sources like friends, family, or in-person or online sellers.
A February 2019 publication by the Harvard Medical School stated advocates of vaping have promoted it as a way to help cigarette smokers to quit. The article indicated that although giving up nicotine products altogether might be the ultimate goal, there may be health benefits to a smoker who becomes a long-term vaper instead, though this remains unproven.
While the FDA has stated E-cigarettes are unhealthy, they have recommended smokers who have chosen to vape not return to cigarette smoking, but rather should seek FDA approved smoking cessation medications.
Legislation/Policy
On September 16, 2019, Governor Newsom instructed state regulators to “reduce youth vaping consumption” by finding ways to ban illegal and counterfeit vaping products. The Governor also set aside $20 million for a vaping awareness campaign and instructed state health officials to develop signs warning against the hazards of vaping to be placed at retailers and on advertising for E-cigarettes and accessories. Governor Newsom has stated that he does not have the authority to ban flavored vaping products, but would work with legislators in 2020 to ban them.
The effort to ban flavored vaping products emerged in 2020 and SB793 and was signed into law, but as stated above, is subject to a statewide vote in November 2022.
In November 2019, San Francisco voters defeated Measure C, which would have partially overturned San Francisco’s ordinance related to E-cigarettes and flavored tobacco. In San Francisco, certain e-cigarette sales are prohibited anywhere the sale of tobacco products are prohibited. In addition, flavored tobacco product sales are prohibited (including flavored Ecigarettes). Cannabis vaping products are legal to sell anywhere cannabis sales are permitted.
Beginning in late January 2020, San Francisco suspended the sale of electronic cigarettes, except for those E-cigarettes that have gone through required premarket review by the FDA.
The Family Smoking Prevention and Tobacco Control Act (“Act”), passed by the United States Congress in October 2009, bans cigarettes with flavors other than menthol or tobacco.
Flavored E-cigarettes, e-liquids, cigars, hookah, and chewing tobacco are unregulated.
However, the Act also provides that every “new tobacco product” (defined to include any tobacco product not on the market in the United States as of February 15, 2007), must be authorized by the FDA in a premarket review before it may enter the marketplace in the United States. Where it can be shown that there is a lack of showing that permitting the sale of the product would be appropriate for the protection of the public health, the Act requires that the FDA deny the application for premarket review.
A result of a federal court ruling, E-cigarette manufacturers were required to submit applications to the FDA for product approval by September 9, 2020. The ruling allowed these products to remain on the market with a one-year grace period without being subject to FDA enforcement while applications were being reviewed.
Pacifica City Council 5 September 27, 2021
On September, 9, 2021, the FDA announced it had processed 93% of the applications received, and had issued marketing denial orders for more than 946,000 flavored vaping products because their applications "lacked sufficient evidence that they have a benefit to adult smokers sufficient to overcome the public health threat posed by the well-documented, alarming levels of youth use of such products." A decision has not been made on the applications from Juul, the largest E-cigarette manufacturer. The FDA has advised they are processing the remaining applications, many of which are in the final stages of review.
San Mateo County Ordinances
The following San Mateo County jurisdictions prohibit the sales of flavored tobacco products:
1. Burlingame
2. East Palo Alto (Prohibits sale of all E-cigarettes)
3. Half Moon Bay
4. Menlo Park (Prohibits sale of all E-cigarettes)
5. Portola Valley
6. San Carlos
7. San Mateo (Prohibits sale of all E-cigarettes)
8. South San Francisco (Only 21+ years stores are allowed to sell e-cigarettes and flavored tobacco products)
9. Unincorporated San Mateo County (Prohibits sale of all E-cigarettes) Legal Considerations
Under the California Constitution, a "county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Cal Const art XI, §7). Additionally, cities are authorized by State law to enact local tobacco retail licensing ordinances and allows for the suspension or revocation of a license for a violation of any state tobacco control law. (Cal. Bus. & Prof. Code § 22971.3). As a result of the foregoing authority, a number of cities and counties in California have exercised their local legislative power to regulate businesses that sell flavored tobacco and E-cigarette products to address the significant health and safety concerns which arise from use of flavored tobacco and E-cigarettes.
While many cities and counties have adopted ordinances regulating sales of flavored tobacco and/or E-cigarettes, there have been some legal challenges to certain ordinances. As discussed above, the City and County of San Francisco received a referendum challenge, Measure C, which would have partially overturned San Francisco’s ordinance related to Ecigarettes and flavored tobacco. Measure C was primarily funded by JUUL but prior to the November, 2019 election, JUUL decided to pull funding for the Measure and it failed.
Additionally, the City of Livermore received a similar referendum challenge. Although the referendum had qualified for the March 3, 2020 ballot, the referendum backed by JUUL was withdrawn in October, 2019. JUUL has indicated that these withdrawals are due to a change in Pacifica City Council 6 September 27, 2021
new leadership causing the company to review its policies. Additionally, various tobacco retailers have sued cities that have adopted ordinances regulating flavored tobacco, including the City of Palo Alto, based on various causes of action including alleged violations of the U.S. and California Constitutions. It does not appear that any litigation to date has been successful in overturning these ordinances. However, in order to further reduce the risk of potential litigation exposure, any such ordinance regulating flavored tobacco or E-cigarettes will need to be carefully crafted with findings supporting the health and safety risks of these products.
Conclusion
Marketing flavored tobacco products towards minors and consumption of flavored tobacco products by minors has sparked many communities to adopt local ordinances prohibiting the sales of these products. The information provided in this staff report is intended to guide the Council’s consideration of whether the City should develop an ordinance restricting the sales of certain flavored tobacco products. If the Council is interested in directing the City Manager to return with a draft ordinance prior to a state or federal action, then the following variables need to be clarified:
1. Should the ordinance be focused only on the prohibition of flavored tobacco sales (All flavored tobacco and flavored E-cigarette products)?
2. Should the ordinance prohibit all E-cigarette sales, both flavored and unflavored? Alternatively, should the ordinance prohibit E-cigarette sales except in only 21+ stores?
3. Should the ordinance prohibit cannabis “E-cigarette” products?
4. Other variables?
ALTERNATIVE ACTION:
Request further research/information from staff prior to providing direction regarding a potential ordinance. Council may also desire to accept the report and request no further action from staff.
RELATION TO CITY COUNCIL GOALS AND WORK PLAN:
Consideration of a prohibition on the sale of flavored tobacco products and E-cigarettes in Pacifica resonates with the City Council Goal of “A Healthy and Compassionate Community.” FISCAL IMPACT:
The City Attorney’s Office estimates that legal costs relating to preparation of an ordinance would vary depending on the variables identified by Council and range from $6,000 (if Council directs staff to prepare an ordinance to only prohibit flavored tobacco) up to $10,000 (if Council directs staff to also include in the ordinance a prohibition of cannabis e-cigarette products) ORIGINATED BY:
Police
ATTACHMENT LIST:
None (TXT)