City of Piedmont
COUNCIL AGENDA REPORT
DATE: September 6, 2022
TO: Mayor and Council
FROM: Sara Lillevand, City Administrator
SUBJECT: Introduction and First Reading of Ordinance 765 N.S - Amending Article II of Chapter 12 of the Piedmont City Code to Prohibit the Sale of Flavored Tobacco Products
RECOMMENDATION
Introduce and conduct a first reading of Ordinance 765 N.S. - Amending Article II of Chapter 12 of the Piedmont City Code to Prohibit the Sale of Flavored Tobacco Products.
BACKGROUND
Over the last two years, several neighboring jurisdictions have approved bans on flavored tobacco. The purpose of these bans is to combat significant increases in youth tobacco and nicotine use attributed to the availability of flavored tobacco products such as e-cigarettes and vaping products.
While at the time of this writing, only one retail establishment exists within the City which sells tobacco products, establishing a ban on flavored tobacco aligns our community with the health efforts of other cities throughout the region and Alameda County. In addition, adoption of a ban on flavored tobacco establishes the City policy in this area should future retail establishments be developed.
The Surgeon General has declared e-cigarette use among youth an epidemic. While youth use of combustible cigarettes has decreased dramatically, e-cigarette use – or “vaping” – among middle and high school students nationally increased by 78 percent between 2017 and 2018, with over
3.6 million youth using e-cigarettes in 2018. 1
In addition, in the 2019-2020 California Healthy
Kids Survey, 13% of 9th grade, 16% of 10th grade, 24% of 11th grade, and 34% of 12th grade Piedmont students reported they had used vape products 4 or more times. 2 In 2020 the California state legislature sought to ban flavored tobacco statewide with the passage of SB 793. The law did not go into effect because a referendum of the law qualified for the 1 Cullen KA, Ambrose BK, Gentzke AS, Apelberg BJ, Jamal A, King BA. Use of Electronic Cigarettes and Any Tobacco Product Among Middle and High School Students – United States, 2011-2018. MMWR Morb Mortal Wkly Rep. 2018;67(45):1276-1277
2 Piedmont City Unified School District. California Healthy Kids Survey, 2019-2020: Main Report. San Francisco:
WestEd Health and Justice Program for the California Department of Education. upcoming November 2022 ballot. Proposition 31, which is a referendum on SB 793, will be on the November 2022 ballot. Many cities throughout the state have chosen to move forward with their own bans despite the possibility of a state-wide ban. If Proposition 31 is voted in, the more restrictive provisions of either the state law or local ordinance take precedent. If Proposition 31 is not voter approved, the City of Piedmont’s ordinance would govern flavored tobacco sales. The proposed ordinance and Proposition 31 generally align with respect to the ban on flavored tobacco. Staff intends to recommend the fine amount of $250, which would be consistent with the proposed amount in Proposition 31, with the intent for fines to be levied against businesses who violate the provisions of the proposed ordinance.
The City of Piedmont has taken this issue seriously, as demonstrated in the past by the Council’s approval to enter into a memorandum of understanding with the State of California Tobacco Grant to fund the Juvenile Officer position within the Piedmont Police Department. The City of Piedmont has secured grant funding which was used, in part, to procure vape sensors which were installed in Piedmont Unified School District (District) facilities. In its most recent grant application to the State of California Tobacco Grant program, the City of Piedmont has requested grant funds to purchase additional vape detectors to install in new District facilities or other areas deemed necessary by District staff.
City staff worked with representatives from the Tobacco Control Program within the Alameda County Health Care Services Agency in the development of the proposed changes to the ordinance.
Potential Amendments to City Code Chapter 12
Recommended changes to City Code Chapter 12 necessary for a ban on the sale of flavored tobacco are reflected in Attachment 1.
If the City Council moves forward with a Flavored Tobacco ban, the following changes will be needed to Code Chapter 12:
• Sec. 12.25 definitions added.
• Sec. 12.29 to be revised from “Penalties and Enforcement” to “Flavored Tobacco Product Sales Prohibited”. A new section to Chapter 12 will be required specifically outlining the ban on sale or offer for sale of Flavored Tobacco Products. • Sec. 12.30 “Penalties and Enforcement” to be added. The Penalties and Enforcement section will need to be moved from the prior 12.29 section to the newly created 12.30 section.
FISCAL IMPACT
There will be minimal fiscal impact if the City Council approves the amendment to the City Code and bans products sales of flavored tobacco. The police department’s Juvenile Officer maintains regulatory responsibility of tobacco related laws and ordinances. Given the low number of retail establishments, enforcement of the new provisions will be able to be incorporated in the Juvenile Officer’s duties.
Agenda Report Page 2
By: Jeremy Bowers, Chief of Police
ATTACHMENTS
A: Ordinance 765 N.S. Amending Article II of Chapter 12 of the Piedmont City Code to Prohibit the Sale of Flavored Tobacco Products
Agenda Report Page 3
ORDINANCE NO. 765 N.S.
AN ORDINANCE AMENDING ARTICLE II OF CHAPTER 12 OF THE PIEDMONT
MUNICIPAL CODE TO PROHIBIT THE SALE OF FLAVORED TOBACCO
PRODUCTS
The City Council of the City of Piedmont hereby ordains as follows:
SECTION 1. INTENT
By adopting this ordinance, the Piedmont City Council intends to prohibit the sale of flavored tobacco products within Piedmont due to the detrimental effects flavored tobacco has on the health of adults and children.
SECTION 2. FINDINGS
The Surgeon General has declared e-cigarette use among youth an epidemic. While youth use of combustible cigarettes has decreased dramatically, e-cigarette use, also known as “vaping”, has significantly increased. 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. Studies show that among middle and high school students nationally, vaping has increased by 78 percent between 2017 and 2018, with over 3.6 million youth using e-cigarettes in 2018. In the 2019-2020 California Healthy Kids Survey, 13% of 9th grade, 16% of 10th grade, 24% of 11th grade, and 34% of 12th grade Piedmont students reported they had used vaping products 4 or more times; According to the Federal Food and Drug Administration, 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. 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. Tobacco companies have used flavorings in vaping 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.
Based upon the facts stated above, the City Council finds that a local prohibition against the sale of 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.
SECTION 3. AMENDMENT OF EXISTING SECTION 12.25
The following definitions are added to Section 12.25 of the City Code. The City Clerk is instructed to insert these definitions into the section alphabetically and renumber the subsections accordingly.
Attachment A Agenda Report Page 4
““Characterizing Flavor” means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a Tobacco Product or any byproduct produced by the Tobacco Product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice; provided, however, that 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.” ““Flavored Tobacco Product” means any Tobacco Product that imparts a Characterizing Flavor.””
““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.”
““Tobacco Retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of Tobacco Products or Tobacco Paraphernalia sold, offered for sale, exchanged, or offered for exchange.”
SECTION 4. AMENDMENT OF EXISTING SECTION 12.29
Section 12.29 of the City Code is renumbered to Section 12.30 and amended in its entirety to read as follows:
“Violations of Sections 12.26 through 12.29 of this Article shall be an infraction. The City Council shall set the fine for violations from time to time by resolution.” SECTION 5. PROHIBITION OF THE SALE OF FLAVORED TOBACCO
A new section, numbered 12.29 is added to the Piedmont City Code as follows:
“No person, business, tobacco retailer, or any other legal entity, shall sell or offer for sale, or possess with intent to sell or offer for sale, any flavored tobacco product. (a) Presumptions for flavored tobacco products. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:
(1) Made a public statement or claim that the tobacco product imparts a Characterizing Flavor.
(2) Used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a Characterizing Flavor, including, Attachment A Agenda Report Page 5
but not limited to, use of descriptive terms such as “sweet” or “spicy” that imply a Characterizing Flavor; or
(3) Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a Characterizing Flavor.” SECTION 6. CODIFICATION
The City Clerk is directed to codify this ordinance in a manner which reflects the legislative intent of the City Council.
SECTION 7. 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 8. POSTING AND EFFECTIVE DATE
This Ordinance shall be posted at City Hall after its second reading by the City Council for at least 30 days and shall become effective 30 days after the second reading.
SECTION 9. CALIFORNIA ENVIRONMENTAL QUALITY ACT
Adoption of this Ordinance prohibiting the sale of flavored tobacco products is not subject to review under the California Environmental Quality Act (CEQA) pursuant to Public Resources Code Section 21000, et seq. and the CEQA Guidelines (14 Cal. Code Regs. §§ 15000 et. seq.), including without limitation, Public Resources Code section 21065 and California Code of Regulations 15378 for the following reasons: the action is exempt under the “common sense” exception (14 Cal. Code Regs. § 15061(b)(3)) because it can be seen with certainty that there is no possibility that this action may have a significant effect on the environment.
[END OF ORDINANCE]
Attachment A Agenda Report Page 6