CITY COUNCIL STAFF REPORT
Meeting Date: January 24, 2022
TO: THE HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBJECT: PUBLIC HEARING AND INTRODUCE ORDINANCE NO. ___ AMENDING CHAPTER 9.45 OF THE PLEASANT HILL MUNICIPAL
CODE TO PROHIBIT THE SALE OF FLAVORED TOBACCO
PRODUCTS AND ELECTRONIC SMOKING DEVICES
SYNOPSIS
On December 20, 2021, the City Council considered the introduction of an ordinance amending Pleasant Hill Municipal Code Chapter 9.45 (“Tobacco Products and Electronic Smoking Devices”) to prohibit the sale of flavored tobacco products and electronic smoking devices. After conducting a public hearing, the City Council directed staff to bring back the proposed ordinance for consideration at a subsequent meeting with the following modifications:
Add exemptions for pipe tobacco and cigars;
Clarify the definition of flavored tobacco products.
The City Council also requested a presentation from the Police Department on flavored tobacco products and electronic smoking devices and directed staff to conduct community business outreach prior to re-introducing the ordinance.
The proposed ordinance with the requested modifications is presented for City Council consideration and adoption.
DISCUSSION
The proposed ordinance, which amends Chapter 9.45 of the Pleasant Hill Municipal Code, would make the following changes:
Amend Sections 9.45.030 (“Definitions”), 9.45.050 (“Smoking prohibition”), 9.45.100 (“Vending machines”), Section 9.45.110 (“Distribution of free samples and coupons), and Section 9.45.120 (“Out-of-package sales”) of Article I (“Regulation of Smoking”)
o Amendments to these sections are intended to provide internally consistent definitions between the City’s general smoking regulations and the proposed flavored tobacco and electronic smoking device regulations. These amendments include the deletion of the term “electronic smoking device retailer” as well as references to “electronic smoking device retailer” and “electronic smoking device paraphernalia,” which would no longer be applicable in light of the proposed provisions prohibiting the sale of flavored tobacco products and electronic smoking devices in the City.
o Further clarifying changes are made to the definition of “characterizing flavor,” which is defined to mean a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product.
Amend Article II (“Restricting the Advertising and Promotion of Tobacco Products, Electronic Smoking Devices and Electronic Smoking Device Paraphernalia to Minors”)
o Modifies and adds definitions to this article and removes references to “electronic smoking devices” and “electronic smoking device paraphernalia” to provide consistency between the City’s restrictions on advertising and promotion of tobacco products and the proposed provisions prohibiting the sale of flavored tobacco products and electronic smoking devices in the City. Amend Sections 9.45.300 (“Retailer license requirement – Generally”), 9.45.310 (“Retailer license – Application procedure”), 9.45.340 (“Retailer license – Display”), and Section 9.45.360 (“Retailer license – Suspension”) of Article III (“Retail Licenses”)
o Amendments to these sections would limit current retail license requirements to the sale or offer for sale of tobacco products. Clarifies that a retailer’s license may be suspended if the chief of police finds that the licensee or his or her employee has violated any law regulating the sale or distribution of tobacco products, electronic smoking devices or electronic smoking paraphernalia. Add Article IV “Sales of Flavored Tobacco Products and Sales of Electronic Smoking Devices Prohibited”
o This new article to Chapter 9.45 of the Pleasant Hill Municipal Code would:
Ban the sale of flavored tobacco products (e.g., menthol generally and flavors connected with non-cigarette tobacco products such as smokeless tobacco and e-cigarettes). Per Council direction, the proposed ordinance includes an exemption for loose leaf tobacco and cigars. The definition of “loose leaf tobacco,” which tracks the language of state law (see Senate Bill 793), is cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including rollyour-own cigarettes. Ban the sale of all electronic smoking devices (e.g., electronic pipe, electronic hookah, or vape pen), including any component, part, or accessory of the electronic smoking device, regardless of nicotine content or flavor of the substance.
Exempt tobacco products approved by the FDA as a tobacco cessation product or for other therapeutic purposes.
Provide an exception for “adult-only” hookah tobacco businesses with valid retailer’s licenses obtained from the City.
The proposed ordinance also contains a six-month enforcement delay in order to provide adequate time to encourage retailers to voluntarily comply with the new restrictions.
FISCAL IMPACT
Negligible. There may be some additional costs associated with enforcement of the new provisions. However, it is anticipated that existing police and/or code enforcement staff could absorb the additional work.
PUBLIC CONTACT
Public contact was made through posting of the City Council agenda on the City’s official notice bulletin board, at the Pleasant Hill Library, and at the Pleasant Hill Police Department. The agenda and staff report are posted on the City’s web page.
At the Council’s direction, in January 2022, staff began an outreach process to local retailers on potential flavored tobacco and electronic smoking device regulations. Staff identified the four businesses in the City that sell exclusively or predominantly tobacco and/or vaping products, and contacted each of those businesses by phone and email. Staff informed these retailers of the City’s proposed vaping ordinance, shared the date and time of the January 24th City Council meeting, and answered their questions about the proposed ordinance.
RECOMMENDED CITY COUNCIL ACTION
Introduce by title only, waive further reading, and approve first reading of proposed ordinance amending Pleasant Hill Municipal Code Chapter 9.45 (“Tobacco Products and Electronic Smoking Devices”) to prohibit the sale of flavored tobacco products and electronic smoking devices.
ALTERNATIVES TO RECOMMENDED ACTION
1. Introduce the proposed ordinance with modifications.
2. Provide further direction to staff regarding the proposed ordinance and continue consideration to a subsequent City Council meeting.
3. Do not introduce the proposed ordinance.
ATTACHMENT(S):
Proposed Ordinance – Redline
Prepared by: Janet E. Coleson, City Attorney
Approved by: June Catalano, City Manager