CITY OF PACIFICA
COUNCIL AGENDA SUMMARY REPORT
1/24/2022
1 SUBJECT:
Introduction of an Ordinance of the City Council of the City of Pacifica adding Chapter 32, “Sale or Distribution of Electronic Cigarettes” and Chapter 33, “Sales of Flavored Tobacco Products and Pharmacy Sales of Tobacco Products Prohibited” and amending Section 5-31.03, “Limits on Tobacco Retailer Licenses” within Chapter 31 of Title 5, “Public Welfare, Morals, and Conduct” of the Pacifica Municipal Code to Ban the Sale and Distribution of Flavored Tobacco Products, the Sale and Distribution of Electronic Cigarettes and to Prohibit the Sale of Tobacco Products at Pharmacies in the City of Pacifica
RECOMMENDED ACTION:
Move to waive the first reading of and introduce by title an ordinance of the City Council of the City of Pacifica adding Chapter 32, “Sale or Distribution of Electronic Cigarettes” and Chapter 33, “Sales of Flavored Tobacco Products and Pharmacy Sales of Tobacco Products Prohibited” and amending Section 5-31.03, “Limits on Tobacco Retailer Licenses” within Chapter 31 of Title 5, “Public Welfare, Morals, and Conduct” of the Pacifica Municipal Code to Ban the Sale and Distribution of Flavored Tobacco Products, the Sale and Distribution of Electronic Cigarettes and to Prohibit the Sale of Tobacco Products at Pharmacies in the City of Pacifica 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 electronic cigarettes (E-Cigarettes). At the time of the presentation, Senate Bill (SB) 793 was in the legislative process. 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 Pacifica City Council 2 January 24, 2022
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.”
On September 27, 2021, staff presented to City Council a report on the consideration of development of an ordinance prohibiting the sale of flavored tobacco products and E-cigarettes.
Staff requested direction regarding the City Council’s desire to proceed with an ordinance, and if so, what specific elements they wanted included in the ordinance. City Council directed staff to return with an ordinance containing the following:
1) Prohibition on the sale of flavored tobacco with an exemption for adult only business to sell hookah related tobacco products
2) Prohibition on the sale of E-cigarettes
3) Prohibition on the sale of all tobacco products at pharmacies
DISCUSSION
Tobacco use remains the leading cause of preventable death in the United Sates, killing more than 480,000 people each year.
1 It causes or contributes to many forms of cancer, as well as heart and respiratory diseases, among other heath disorders. Tobacco use remains a public health crisis of the first order, in terms of the human suffering and loss of life it causes, the financial costs it imposes on society and the burdens it places on our health care system.
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.
1 U.S. Department of Health and Human Services. The Health Consequences of Smoking-50 Years of Progress: A Report of the Surgeon General. Atlanta: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2014.
Pacifica City Council 3 January 24, 2022
• According to the Federal Food and Drug Administration’s (FDA) 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 month preceding the survey.
• At least two-thirds of youth tobacco users report using tobacco products “because they come in flavors I like.”
Flavored tobacco products promote youth initiation of tobacco use and help young occasional smokers to become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke and thereby increasing the appeal of tobacco products. As tobacco companies well know, menthol, in particular, cools and numbs the throat to reduce throat irritation and make the smoke feel smoother, making menthol cigarettes an appealing option for youth who are initiating tobacco use. Tobacco companies have used flavorings such as mint and wintergreen in smokeless tobacco products as part of a "graduation strategy" to encourage new users to start with tobacco products with lower levels of nicotine and progress to products with higher levels of nicotine. It is therefore unsurprising that young people are much more likely to use menthol-, candy- and fruit-flavored tobacco products than adults, including not just cigarettes but also cigars and cigarillos.
Research also shows that use of menthol cigarettes has perpetuated disparities among different groups. According to the 2018 National Survey of Drug Use and Health (NSDUH): 85% of African American smokers, 50% of Hispanic smokers and 47% of Asian American smokers use menthol cigarettes, compared to 29% of White smokers; 51% of lesbian/gay and 46% of bisexual smokers use menthol cigarettes, compared to 39% of heterosexual smokers; 45% of smokers with severe psychological distress use menthol cigarettes compared to 39% of smokers with no past month serious psychological distress; 47% of smokers living in poverty use menthol cigarettes, compared to 36% of smokers with an income exceeding twice the Federal Poverty Threshold; and 60% of pregnant smokers use menthol cigarettes. 2 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 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 Pacifica City Council 4 January 24, 2022
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.
Youth and E-Cigarettes
Electronic smoking device (or “E-cigarette, vape, vape pen, e-hookah, etc.”) usage by youth, however, has been rising as these products become more and more prevalent. Usage by high school students increased 78% between 2017-2018 with 1 in 5 high school students currently using and 1 in 20 middle school students currently using the products. 3 The devices were
available in the U.S. marketplace in the mid-2000s4 and by 2014, the products were the most commonly used tobacco product among middle school and high school students. 5 The Centers
for Disease Control and Prevention also has reported a more than 800% increase in E-cigarette use among middle school and high school students between 2011 and 2015.
According to a 2021 FDA survey, more than 2 million U.S. youth currently use E-cigarettes (11.3% of high school students and 2.8% of middle school students). 6 Among those youth,
about 2 in 5 of them use E-cigarettes frequently while about 1 in 4 use E-cigarettes daily. These survey results show high rates of frequent and daily use which suggests many teens have a strong dependence on nicotine. Of those youth that indicated E-cigarette use in the survey, nearly 85% of them used flavored E-cigarettes.
Almost 17.7 million (7 in 10) youths were exposed to advertisements for E-cigarettes in retail stores in 2016, while about 2 in 5 had exposure on the Internet or on television, and almost 1 in 4 had exposure through magazines and newspapers. E-cigarette advertising has an association with e-cigarette use among youths. The advertising themes and strategies used are similar to traditional cigarette advertising tactics that have been found to appeal to youths. 7 A 2018 National Academy of Sciences, Engineering, and Medicine report found moderate evidence that E-cigarette use increases the frequency and intensity of smoking cigarettes in the future.
8 This is significant because any use of E-cigarettes by young people, according to the U.S. Surgeon General, is not safe even if the young people do not move on to future cigarette smoking.
9 2 Delnevo, CD, et al., “Banning Menthol Cigarettes: A Social Justice Issue Long Overdue,” Nicotine & Tobacco Research, 22(10): 1673-1675, 2020. 3 Cullen KA, Ambrose BK, Gentzke AS, Apelberg BJ, Jamal A, King BA. Notes from the Field: Use of Electronic Cigarettes and Any Tobacco Product Among Middle and High School Students - United States, 2011-2018. 4 US Department of Health and Human Services. E-cigarette use among youth and young adults: a report of the Surgeon General. Atlanta, GA: US Department of Health and Human Services, CDC, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health; 2016. 5 Arrazola RA, Singh T, Corey CG, et al. Tobacco use among middle and high school students-United States, 2011- 2014. MMWR Morb Mortal Wkly Rep 2015.
6 FDA and Centers for Disease Control and Prevention (CDC) released findings from the 2021 National Youth Pacifica City Council 5 January 24, 2022
Tobacco Survey (NYTS).
7 Marynak K, Gentzke A, Wang TW, Neff L, King BA. Exposure to Electronic Cigarette Advertising Among Middle and High School Students - United States, 2014-2016. MMWR Morb Mortal Wkly Rep 2018. 8 Moritz, T. (2019, March 18). Vaping: It’s All Smoke and Mirrors. 9 US Department of Health and Human Services. E-cigarette use among youth and young adults: a report of the Surgeon General. Atlanta, GA: US Department of Health and Human Services, CDC, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health; 2016.
Proposed Ordinance
In accordance with the Council’s direction, staff has prepared an ordinance to add Chapter 32 (Sale or Distribution of Electronic Cigarettes) and Chapter 33 (Sales of Flavored Tobacco Products and Pharmacy Sales of Tobacco Products Prohibited) to Title 5 “Public Welfare, Morals, and Conduct” to the Pacifica Municipal Code.
The proposed ordinance would provide the following:
1) Prohibition on the sale and distribution of all flavored tobacco products within the City.
There is an exemption for licensed tobacco retailers that are adult only (21 years and over) licensed retailers to sell flavored tobacco products for use with a hookah pipe or hookah Products.
2) Prohibition on the sale and distribution of E-cigarettes within the City. 3) Prohibition on the sale of all tobacco products at pharmacies within the City. This includes all businesses where pharmacies are located, regardless of whether the business sells other products in addition to prescription medication.
Per existing Pacifica Municipal Code section 5-31.02, tobacco retailers are required to possess a tobacco retail license from the City. Licenses are valid for a period of one year. In the proposed ordinance, prohibition on the sale of flavored tobacco products, E-cigarettes, and tobacco products at pharmacies would take effect upon next renewal of the permittee's tobacco retail license after the adoption of the ordinance.
The proposed ordinance would also make conforming changes to Section 5-31.03 of the Pacifica Municipal Code to indicate that no license may issue to authorize tobacco retailing at a pharmacy, as that term is defined.
Notices were sent to licensed tobacco retailers informing them of the elements of this proposed ordinance.
ALTERNATIVE ACTION:
If not introduced as presented, Council may choose to introduce this ordinance with amendments or decline to introduce this ordinance and provide staff with further direction 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 costs for bringing this ordinance to adoption is $6,000 - $10,000.
Pacifica City Council 6 January 24, 2022
Personnel costs relating to enforcement of this ordinance are expected to be minimal.
ORIGINATED BY:
Police
ATTACHMENT LIST:
Attachment A- 09-27-21 Staff Report(PDF)
Pacifica City Council 7 January 24, 2022
ORDINANCE NO. (ID # 4855)
ORDINANCE NO. XXXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PACIFICA ADDING CHAPTER 32, “SALE OR DISTRIBUTION OF ELECTRONIC CIGARETTES” AND CHAPTER 33, “SALES OF FLAVORED TOBACCO PRODUCTS AND PHARMACY SALES OF TOBACCO PRODUCTS PROHIBITED” AND AMENDING SECTION 5-31.03, “LIMITS ON TOBACCO RETAILER LICENSES” WITHIN CHAPTER 31 OF TITLE 5 “PUBLIC WELFARE, MORALS, AND CONDUCT” OF THE PACIFICA MUNICIPAL
CODE TO BAN THE SALE AND DISTRIBUTION OF FLAVORED TOBACCO
PRODUCTS, THE SALE AND DISTRIBUTION OF ELECTRONIC CIGARETTES AND TO
PROHIBIT THE SALE OF TOBACCO PRODUCTS AT PHARMACIES IN THE CITY OF
PACIFICA
WHEREAS, tobacco use remains the leading cause of preventable death in the United Sates, killing more than 480,000 people each year.1 It causes or contributes to many forms of cancer, as well as heart and respiratory diseases, among other heath disorders. Tobacco use remains a public health crisis of the first order, in terms of the human suffering and loss of life it causes, the financial costs it imposes on society and the burdens it places on our health care system; and
WHEREAS, according to the Federal Food and Drug Administration (“FDA”), nearly 80% of youth ages 12-17 and nearly 75% of young adults ages 18-25 who were currently tobacco users in 2014 reported that the first tobacco product they ever used was flavored;2 and
WHEREAS, each day, about 2,500 children in the United States try their first cigarette; and another 400 children under 18 years of age become new regular, daily smokers. 81% of youth who have ever used a tobacco product report that the first tobacco product they used was flavored.3 Flavored tobacco products promote youth initiation of tobacco use and help young occasional smokers to become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke and thereby increasing the appeal of tobacco products. As tobacco companies well know, menthol, in particular, cools and numbs the throat to reduce throat irritation and make the smoke feel smoother, making menthol cigarettes an appealing option for youth who are initiating tobacco use. Tobacco companies have used flavorings such as mint and wintergreen in smokeless tobacco products as part of a "graduation strategy" to encourage new users to start with tobacco products with lower levels of nicotine and progress to products with higher levels of nicotine.
It is therefore unsurprising that young people are much more likely to use menthol-, candyand fruit-flavored tobacco products than adults, including not just cigarettes but also cigars 1 U.S. Department of Health and Human Services. The Health Consequences of Smoking—50 Years of Progress: A Report of the Surgeon General. Atlanta: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2014.
2 Villanti, A. C., Johnson, A. L., Ambrose, B. K., Cummings, K. M., Stanton, C. A., Rose, S. W., ... Hyland, A. (2017). Flavored Tobacco Product Use in Youth and Adults: Findings From the First Wave of the PATH Study (2013-2014). American Journal of Preventive Medicine. 3 Ibid.
Pacifica City Council 8 January 24, 2022
and cigarillos. Data from the National Youth Tobacco Survey indicate that more than twofifths of U.S. middle school and high school smokers report using flavored little cigars or flavored cigarettes. Further the Centers for Disease Control and Prevention has reported a more than 800% increase in electronic cigarette use among middle school and high school students between 2011 and 2015. Nicotine solutions, which are consumed via electronic smoking devices such as electronic cigarettes are sold in thousands of flavors that appeal to youth, such as cotton candy and bubble gum; and
WHEREAS, 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 the Federal Food and Drug Administration’s (FDA) 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; and
WHEREAS, Tobacco-Free Kids conducted a 2019 survey of middle and high school students and determined the following based on those survey results:
• 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 month preceding the survey.
• At least two-thirds of youth tobacco users report using tobacco products “because they come in flavors I like”; and
WHEREAS, research also shows that use of menthol cigarettes has perpetuated disparities among other groups. According to the 2018 National Survey of Drug Use and Health (NSDUH): 85% of African American smokers, 50% of Hispanic smokers and 47% of Asian American smokers use menthol cigarettes, compared to 29% of White smokers; 51% of lesbian/gay and 46% of bisexual smokers use menthol cigarettes, compared to 39% of heterosexual smokers; 45% of smokers with severe psychological distress use menthol cigarettes compared to 39% of smokers with no past month serious psychological distress; 47% of smokers living in poverty use menthol cigarettes, compared to 36% of smokers with an income exceeding twice the Federal Poverty Threshold; and 60% of pregnant smokers use menthol cigarettes4; and
4 Delnevo, CD, et al., “Banning Menthol Cigarettes: A Social Justice Issue Long Overdue,” Nicotine & Tobacco Research, 22(10): 1673-1675, 2020.
Pacifica City Council 9 January 24, 2022
WHEREAS, by selling tobacco products, pharmacies reinforce positive social perceptions of smoking, convey tacit approval of tobacco use, and send a message that it is not dangerous to smoke; and
WHEREAS, the Tobacco and Education Research Oversight Committee for California, as well as the American Pharmacists Association, the California Pharmacists Association, and the California Medical Association have called for the adoption of state and local prohibitions of tobacco sales in drug stores and pharmacies; and WHEREAS, electronic smoking device (or electronic cigarette (E-cigarette), vape, vape pen, e-hookah, etc.) usage by youth has been rising. Usage by high school students increased 78% between 2017-2018 with 1 in 5 high school students currently using and 1 in 20 middle school students currently using the products.5 The devices were available in the U.S. marketplace in the mid-2000s6 and by 2014, the products were the most commonly used tobacco product among middle school and high school students;7 and WHEREAS, The Centers for Disease Control and Prevention also has reported a more than 800% increase in E-cigarette use among middle school and high school students between 2011 and 2015; and
WHEREAS, according to a 2021 FDA survey, more than 2 million U.S. youth currently use E-cigarettes (11.3% of high school students and 2.8% of middle school students).8 Among those youth, about 2 in 5 of them use E-cigarettes frequently while about 1 in 4 use E-cigarettes daily. These survey results show high rates of frequent and daily use which suggests many teens have a strong dependence on nicotine. Of those youth that indicated E-cigarette use in survey, nearly 85% of them used flavored Ecigarettes; and WHEREAS, in 2016, it was estimated that 20.5 million (4 in 5) middle and high school students in the U.S. were exposed to advertisements for E-cigarettes from at least one source. This was a significant increase compared to 2014 and 2015 data. Furthermore, almost 17.7 million (7 in 10) youths were exposed to advertisements for E-cigarettes in retail stores in 2016, while about 2 in 5 had exposure on the Internet or on television, and almost 1 in 4 had exposure through magazines and newspapers. E-cigarette advertising has an association with e-cigarette use among youths. The advertising themes and strategies used are similar to traditional cigarette advertising tactics that have been found to appeal to youths;9 and
WHEREAS, a 2018 National Academy of Sciences, Engineering, and Medicine report found moderate evidence that e-cigarette use increases the frequency and intensity 5 Cullen KA, Ambrose BK, Gentzke AS, Apelberg BJ, Jamal A, King BA. Notes from the Field: Use of Electronic Cigarettes and Any Tobacco Product Among Middle and High School Students – United States, 2011-2018. 6 US Department of Health and Human Services. E-cigarette use among youth and young adults: a report of the Surgeon General. Atlanta, GA: US Department of Health and Human Services, CDC, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health; 2016. 7 Arrazola RA, Singh T, Corey CG, et al. Tobacco use among middle and high school students—United States, 2011–2014. 8 FDA and Centers for Disease Control and Prevention (CDC) released findings from the 2021 National Youth Tobacco Survey (NYTS)
9 Marynak K, Gentzke A, Wang TW, Neff L, King BA. Exposure to Electronic Cigarette Advertising Among Middle and High School Students – United States, 2014-2016. MMWR Morb Mortal Wkly Rep 2018.
Pacifica City Council 10 January 24, 2022
of smoking cigarettes in the future.10 According to a report by the Surgeon General, any use of E-cigarettes among young people is not safe even if the young people do not move on to future cigarette smoking;11 and
WHEREAS, on January 13, 2020 and September 27, 2021 staff presented to City Council reports on the consideration of development of an ordinance prohibiting the sales of flavored tobacco products and E-cigarettes; and
WHEREAS, 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”; and WHEREAS, a local prohibition against the sale and distribution of all electronic smoking devices and flavored tobacco is an effective means to reduce the availability of these products to youth, thereby protecting the public health and safety by discouraging tobacco initiation and continued use.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PACIFICA DOES ORDAIN AS FOLLOWS:
Section 1. Recitals. The City Council of the City of Pacifica does hereby find the above referenced recitals are true and correct and material to the adoption of this Ordinance.
Section 2. Added. Chapter 5.32, “Sale and Distribution of Electronic Cigarettes” is hereby added to Title 5, “Public Welfare, Morals, and Conduct” of the Pacifica Municipal Code as follows:
“Sec. 5-32.01 – Definitions
For the purposes of this chapter, the following definitions shall govern unless the context clearly requires otherwise:
a) "Distribute" or "Distribution" means the transfer by any Person other than a common carrier, at any point from the place of manufacture or thereafter to a Person who sells or offers to sell the electronic cigarette or other electronic smoking device.
b) "Electronic Cigarette" has the meaning set forth in Section 30121 of the California Revenue and Taxation Code, as may be amended from time to time.
c) "Person" means any individual, partnership, cooperative association, private corporation, or any other legal entity.
d) "Tobacco Retailer" is defined as set forth in subsection (i) of Section 5-
31.01 of this Code.
10 Moritz, T. (2019, March 18). Vaping: It’s All Smoke and Mirrors. 11 US Department of Health and Human Services. E-cigarette use among youth and young adults: a report of the Surgeon General. Atlanta, GA: US Department of Health and Human Services, CDC, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health; 2016.
Pacifica City Council 11 January 24, 2022
e) “Tobacco Retailer License” “shall mean a Tobacco Retailer that has been issued a License pursuant to
Section 5-31.02 of this Code.
f) "Sell", "Sale" or "to Sell" mean any transaction where, for any consideration, ownership is transferred from one (1) Person or entity to another including, but not limited to any transfer of title or possession for consideration, exchange or barter, in any manner or by any means Sec. 5-32.02 – Sale or Distribution of Electronic Cigarettes Prohibited. a) No Person, Tobacco Retailer, or other legal entity shall Sell or offer for Sale nor Distribute any Electronic Cigarette to a Person within the geographic boundaries of the City.
b) For Tobacco Retailers that have a valid Tobacco Retailer License, the provisions of Section 5-33.02(a) shall take effect upon expiration of the Tobacco Retailer License in effect as of the effective date of this Ordinance.
Sec. 5-32.03 – Enforcement.
a) The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
b) Violations of this chapter are subject to a civil action brought by the City Attorney, punishable by a civil fine payable to the city not less than One Hundred ($100) Dollars and not exceeding One Thousand and no/100ths ($1,000.00) Dollars per violation.
c) Violations of this chapter may, in the discretion of the City Attorney, be prosecuted as infractions or misdemeanors.
d) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter. e) In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the City Attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.
Sec. 5-32.04 – Public Nuisance.
Any violation of this chapter is hereby declared a public nuisance.” Section 3. Added. Chapter 5.33, “Sales of Flavored Tobacco Products and Pharmacy Sales of Tobacco Products Prohibited” is hereby added to Title 5, “Public Welfare, Morals, and Conduct” of the Pacifica Municipal Code as follows:
“Sec. 5-33.01 – Definitions
Pacifica City Council 12 January 24, 2022
For the purposes of this chapter, the following definitions shall govern unless the context clearly requires otherwise:
a) “Adult” shall mean any individual 21 years of age or older. b) “Adult-only retailer” shall mean any retailer or businesses that allows entry only by adults onto the entire premises of the business or retailer, or that require minors to be accompanied by a parent, guardian, or another adult in order to enter the entire premises of the business or the retailer. The definition of an “adult-only retailer” does not include any retailer or business that only prohibits minors from entering certain sections, divisions, or a part of the premises that are marked or otherwise restricted as adult only and allows minors to otherwise enter the remainder of its premises unaccompanied by a parent, guardian or another adult.
c) "Characterizing flavor" shall mean 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 tobacco product.
Characterizing flavors include, but are not limited to, tastes or aroma 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.
d) "Constituent" shall mean 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 packing of the tobacco product. e) "Distinguishable" shall mean perceivable by either the sense of smell or taste.
f) "Distribute" or "Distribution" means the transfer by any Person other than a common carrier, at any point from the place of manufacture or thereafter to a Person who sells or offers to sell the electronic cigarette or other electronic smoking device.
g) "Flavored tobacco product" shall mean any tobacco product that contains a constituent that imparts a characterizing flavor. h) “Hookah Pipe” shall mean a type of water pipe used to smoke flavored tobacco products, with a long flexible tube for drawing aerosol through water.
i) “Hookah Products” shall mean any component of a hookah pipe including, but not limited to, heads, stems, bowls, vases and hoses.
Pacifica City Council 13 January 24, 2022
j) "Labeling" shall mean written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.
k) "Packaging" shall mean a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold, or offered for sale, to a consumer. l) "Person" means any individual, partnership, cooperative association, private corporation, or any other legal entity.
m) "Pharmacy" shall mean any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.
n) "Sell", "Sale" or "to Sell" shall mean any transaction where, for any consideration, ownership is transferred from one (1) Person or entity to another including, but not limited to any transfer of title or possession for consideration, exchange or barter, in any manner or by any means. o) "Tobacco Product" shall have the same definition as set forth in subsection (h) of Section 5-31.01 of this Code.
p) "Tobacco Retailer" shall have the same definition as set forth in subsection (i) of Section 5-31.01 of this Code.
q) “Tobacco Retailer License” shall mean a Tobacco Retailer that has been issued a License pursuant to Section 5-31.02 of this Code.
Sec. 5-33.02 – Sale or Offer for Sale of Flavored Tobacco Products Prohibited. a) No Person, Tobacco Retailer, or other legal entity shall Sell, or offer for Sale nor Distribute, any Flavored Tobacco Product, except as provided in Section 5-33.02(c).
b) There shall be a rebuttable presumption that a Tobacco Product is a Flavored Tobacco Product if a manufacturer or any of the manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the Tobacco Product has or produces a Characterizing Flavor including, but not limited to, text, color, and/or images on the product's Labeling or Packaging that are used to explicitly or implicitly communicate that the Tobacco Product has a Characterizing Flavor.
Pacifica City Council 14 January 24, 2022
c) Tobacco Retailers that are Adult-Only Retailers that sell Flavored Tobacco Products for use with a Hookah Pipe or Hookah Products shall be exempt from the requirements of section 5-33.02(a). d) For Tobacco Retailers that have a valid Tobacco Retailer License, the provisions of Section 5-33.02(a) shall take effect upon expiration of the Tobacco Retailer License in effect as of the effective date of this Ordinance.
Sec. 5-33.03 – Sale or Offer for Sale of Tobacco Products by a Pharmacy Prohibited.
a) No Pharmacy or Pharmacy employee or agent shall sell or offer for sale any Tobacco Product.
b) No new Tobacco Retailer License may be issued to a Pharmacy after the effective date of this Ordinance.
c) No Tobacco Retailer License may be renewed by a Pharmacy after the effective date of this Ordinance.
d) The provisions of Section 5-33.03(a) shall take effect upon the expiration of the Pharmacy’s Tobacco Retailer License in effect as of the effective date of this Ordinance.
Sec. 5-33.04 – Enforcement.
a) The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
b) Violations of this chapter are subject to a civil action brought by the City Attorney, punishable by a civil fine payable to the City not less than One Hundred ($100) Dollars and not exceeding One Thousand and no/100ths ($1,000.00) Dollars per violation.
c) Violations of this chapter may, in the discretion of the City Attorney, be prosecuted as infractions or misdemeanors.
d) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter. e) In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the City Attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.
Sec. 5-33.05 – Public Nuisance.
Any violation of this ordinance is hereby declared a public nuisance.
Pacifica City Council 15 January 24, 2022
Sec. 5-33.06 – No Conflict with Federal or State Law.
Nothing in this chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law.” Section 4. Amended. Section 5-31.03, “Limits on tobacco retailer licenses” of Chapter 31 “Tobacco Retailing” within Title 5, “Public Welfare, Morals, and Conduct” of the Pacifica Municipal Code is hereby amended by repealing and replacing Section 5-31.03 in its entirety to read as follows:
“Sec. 5-31.03. - Limits on tobacco retailer licenses.
a) No license may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.
b) No license may issue to authorize tobacco retailing at any location that is licensed under State law to serve alcoholic beverages for consumption on the premises (e.g., an "on-sale" license issued by the California Department of Alcoholic Beverage Control) and no license may issue to authorize tobacco retailing at any location offering food or alcoholic beverages for sale for consumption by guests or patrons on the premises. For example, tobacco retailing in bars and restaurants is prohibited. Restaurants that allow on-site consumption of alcoholic beverages that were brought to the premises by patrons shall also not be entitled to a license to engage in tobacco retailing. c) No license may issue to authorize tobacco retailing at a Pharmacy, as that term is defined in Section 5-33.01 of this Code.”
Section 5. Severability. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it should have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentence, clauses or phrases be declared unconstitutional.
Section 6. Publication. The City Clerk is hereby ordered and directed to certify to the passage of this Ordinance by the City Council od the City of Pacifica, California, and cause the same to be published in accordance with State Law.
Section 7. Effective Date. This Ordinance shall be in full force and effect thirty (30) days after its adoption and shall be published and posted as required by law.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Pacifica, California, held on the ______ day of _______ 20_____, by the following vote:
AYES, Councilmembers:
NOES, Councilmembers:
ABSENT, Councilmembers:
ABSTAIN, Councilmembers:
CITY OF PACIFICA
Pacifica City Council 16 January 24, 2022
By:
Mary Bier, Mayor
ATTEST:
Sarah Coffey, City Clerk
APPROVED AS TO FORM:
Michelle M. Kenyon, City Attorney
Pacifica City Council 17 January 24, 2022
* * * * *
(ID # 4855) at 1/24/2022 7:00 PM City Council Regular Meeting