Loading...
Ordinance 1970 (Flavored Tobacco Product Ban Ordinance)CLERK’S CERTIFICATE I, LINDSAY LARA, City Clerk of the City of San Rafael, and Ex-Officio Clerk of the Council of said City, do hereby certify that the foregoing ORDINANCE NO. 1970 AN ORDINANCE OF THE SAN RAFAEL CITY COUNCIL AMENDING CHAPTER 8.15 OF THE SAN RAFAEL MUNICIPAL CODE, ENTITLED “TOBACCO RETAIL SALES, ADVERTISING AND PROMOTION” TO REGULATE SALES OF FLAVORED TOBACCO PRODUCTS AND SALE OF TOBACCO PRODUCTS AT PHARMACIES is a true and correct copy of an Ordinance of said City, and was introduced at a REGULAR meeting of the City Council of the City of San Rafael, held on the 20th day of May 2019; a SUMMARY of Ordinance No. 1970 was published as required by City Charter in the MARIN INDEPENDENT JOURNAL, a newspaper published in the City of San Rafael, and passed and adopted as an Ordinance of said City at a REGULAR meeting of the City Council of said City, held on the 17th day of June 2019, by the following vote, to wit: AYES: COUNCILMEMBERS: Bushey, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: Colin ABSENT: COUNCILMEMBERS: None WITNESS my hand and the official Seal of the City of San Rafael this 18th day of June 2019 LINDSAY LARA City Clerk 1 ORDINANCE NO. 1970 AN ORDINANCE OF THE SAN RAFAEL CITY COUNCIL AMENDING CHAPTER 8.15 OF THE SAN RAFAEL MUNICIPAL CODE, ENTITLED “TOBACCO RETAIL SALES, ADVERTISING AND PROMOTION” TO REGULATE SALES OF FLAVORED TOBACCO PRODUCTS AND SALE OF TOBACCO PRODUCTS AT PHARMACIES THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: DIVISION 1. FINDINGS. WHEREAS, tobacco use remains the leading cause of preventable death in the United States, killing more than four hundred eighty thousand people each year. It causes or contributes to many forms of cancer, as well as heart and respiratory diseases, among other health 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, 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; and WHEREAS, the Centers for Disease Control (CDC) and the Food and Drug Administration (FDA) analyzed data from the 2016 National Youth Tobacco Survey to assess reasons youth use e-cigarettes. Among those who had ever used an e-cigarette, the most commonly selected reasons for use were: use by "friend or family member" (39.0%); availability of "flavors such as mint, candy, fruit, or chocolate" (31.0%); and the belief that "they are less harmful than other forms of tobacco such as cigarettes" (17.1%); and WHEREAS, the 2016 National Youth Tobacco Survey also found that during the one-year period between 2017 and 2018, among high school students who currently used e-cigarettes, use of flavored e-cigarettes increased as well. 68% more high school students used flavored e- cigarettes. Use of any flavored e-cigarette went up among current users from 60.9 percent to 67.8 percent, and menthol use increased from 42.3 percent to 51.2 percent among all current e- cigarette users—including those using multiple products—and from 21.4 percent to 38.1 percent among exclusive e-cigarette users. Additionally, kids whose first tobacco product was flavored are more likely to become current tobacco users than those whose first product was tobacco- flavored; and WHEREAS, the National Cancer Institute (NCI), and FDA released findings from the 2018 National Youth Tobacco Survey showing alarming increases in current use of any tobacco product among both middle and high school students between 2017 and 2018, primarily because of an increase in e-cigarette use. No significant changes occurred in current use of combustible tobacco products, such as cigarettes and cigars, during this period. The increases 2 in current use of any tobacco product and e-cigarettes have reversed a decline observed in recent years; and WHEREAS, as stated in the FDA’s March 2019 draft guidance for industry regarding their Modifications to Compliance Policy for Certain Deemed Tobacco Products, the FDA conducted undercover enforcement efforts with respect to brick-and-mortar and online stores during the Summer of 2018 which resulted in the issuance of more than 1,300 warning letters and civil money penalty (CMP) complaints to retailers who illegally sold flavored tobacco products to minors. Additionally, according to data from the 2018 NYTS, 14.8 percent of U.S. middle and high school e-cigarette users under 18 years of age reported obtaining e-cigarettes in the past 30 days from a vape shop or other store that sells e-cigarettes and 8.4 percent reported obtaining them from a gas station or convenience store; and WHEREAS, according to the latest California Healthy Kids Survey the Electronic Cigarette Use Prevalence and Patterns has increased significantly from 2015-16 to 2017-18. In 2018 at San Rafael City Schools, seventeen percent (17%) of seventh-grade students have reported ever using electronic cigarettes and seventeen percent (17%) of tenth-grade students currently use e-cigarettes. The survey indicated that while current use of combustible tobacco products decreased by seventy-five percent (75%) among ninth grade students from 2015-16 to 2017-18, current electronic cigarette use increased by four hundred percent (400%) among ninth graders during that same period; and WHEREAS, on February 5, 2014, CVS Caremark announced it will stop selling cigarettes and other tobacco products at its more than 7,600 CVS/pharmacy stores across the U.S. by October 1, 2014 consistent with the positions taken by the American Medical Association, American Heart Association, American Cancer Society, American Lung Association and American Pharmacists Association that have all publicly opposed tobacco sales in retail outlets with pharmacies; and WHEREAS, the City Council finds that regulation of flavored tobacco products will help combat significant increases in youth tobacco and nicotine use attributed to the availability of flavored tobacco products such as e-cigarettes and vaping products; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: DIVISION 2. AMENDMENT OF MUNICIPAL CODE. Chapter 8.15 of the San Rafael Municipal Code, entitled “Tobacco Retail Sales, Advertising and Promotion” is hereby amended to read in its entirety as follows: Chapter 8.15 - TOBACCO PRODUCT RETAIL SALES, ADVERTISING AND PROMOTION 8.15.005 - Definitions. The following words and phrases, whenever used in this chapter, shall have the meaning defined in this section unless the context clearly requires otherwise: 3 A. "Advertising display sign" means a sign, billboard, poster, freestanding sign, balloon, pennant or banner that is temporarily or permanently placed on or affixed to the ground, the sidewalk, a pole or post, a fence, or a building, or is displayed in the windows or doors of a commercial establishment, and that is used to advertise or promote products. B. "Characterizing Flavor” means 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 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. C. "Constituent” means 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. D. "Distinguishable” means perceivable by either the sense of smell or taste. E. “Flavored Tobacco Product” means any Tobacco Product that contains a Constituent that imparts a Characterizing Flavor. F. “Labeling” means written, printed, pictorial, or graphic matter upon any Tobacco Product or any of its Packaging. G. "Mobile billboard" means any sign, placard, billboard, or other advertisement display upon or affixed to a vehicle which display is used to advertise a product illegal to sell to minors, when the supporting vehicle or trailer is parked within a public right- of-way or on private property and visible to the public for a duration of time and in a manner which clearly indicates that the sign is for advertising products illegal to sell to minors or which carry a specific brand name, logo, or indicia of a product illegal to sell to minors. For the purpose of this chapter, a mobile billboard shall not include any advertisements on the side of a van, truck, or other vehicle which is primarily used for the transportation of goods or products. H. “Packaging” means 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. I. “Person” means any individual person, firm partnership, association, corporation, company, organization, or legal entity of any kind. 4 J. “Pharmacy” means a retail establishment in which the profession of pharmacy by a pharmacist licensed by the State of California in accordance with the Business and Professions Code is practiced and where prescription products are offered for sale. A pharmacy may also offer other retail goods in addition to prescription pharmaceuticals. K. "Promote" or "promotion" means a display of any logo, brand name, character, graphics, colors, designs, or recognizable color or pattern of colors, or any other indicia or product identification with, or similar to, or identifiable with, those used for any particular brand of Tobacco Product. L. "Publicly visible location" means any outdoor location that is visible from any street, sidewalk, or other public thoroughfare, or any location inside a commercial establishment immediately adjacent to a window or door where such location is visible from any street, sidewalk, or other public thoroughfare. M. "Tobacco product" means: 1. Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and snuff and any Flavored Tobacco Product. 2. Any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah. 3. Notwithstanding any provides of subsections (1) an (2) to the contrary, “Tobacco Product” includes any component, part, or accessory intended or reasonably expected to be used with a Tobacco Product, whether or not sold separately. “Tobacco Product” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such approved purpose. N. "Tobacco Retailer" means any store, stand, booth, concession or any other enterprise that engages in the retail sale of Tobacco Products, including but not limited to pharmacies and stores that engage in the retail sale of food; "Tobacco Retailing" shall mean the doing of any of these things. 8.15.010 - Restriction on advertising Tobacco Products. No person shall place or maintain, or cause or allow to be placed or maintained, in any manner, any advertising or promotion of Tobacco Products on an advertising display sign in a publicly visible location within five hundred feet (500') of the perimeter of an elementary or secondary school, high school, public 5 playground or playground area in a public park (e.g., a public park with equipment such as swings and seesaws, baseball diamonds or basketball courts), day care center, public community center or public library. 8.15.020 - Exceptions. The restrictions contained in Section 8.15.010 shall not apply to advertising or promotions for Tobacco Products that are: A. Located inside a commercial establishment, unless such advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from a street, sidewalk or other public thoroughfare. B. On vehicles, other than mobile billboards. C. On any sign located inside or immediately outside a commercial establishment if the sign provides notice that the establishment sells Tobacco Products, so long as the sign does not promote any brand of Tobacco Product. D. On Tobacco Product packaging. Notwithstanding the foregoing, however, the provisions of Chapter 14.19 (“Signs”) of this Code shall apply. 8.15.030 - Distribution of promotional items to minors. No person may market, license, distribute, sell, or cause to be marketed, licensed, distributed or sold any item or service to a minor, which bears the brand name, alone or in conjunction with, any other word, logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of Tobacco Product. 8.15.040 - Self-service displays. It is unlawful for any person to sell, permit to be sold, offer for sale, or display for sale, any Tobacco Product by any means of self -service merchandising, including but not limited to self -service display, rack, countertop or shelf, or any means other than vendor-assisted sales. All Tobacco Products shall be offered for sale exclusively by means of vendor assistanc e, and all Tobacco Products shall be either in a locked case or in an area not accessible to the public prior to sale. 6 8.15.050 - Signs. Any person, business, or Tobacco Retailer shall post plainly visible signs at the point of purchase of Tobacco Products which state "THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER TWENTY-ONE YEARS OF AGE IS PROHIBITED BY LAW. PHOTO ID REQUIRED." The letters of said signs shall be at least one inch (1″) high. 8.15.100 - Sale to minors prohibited. No person, busines s, or tobacco retailer shall sell, offer to sell or permit to be sold any tobacco product to an individual without requesting and examining identification establishing the purchaser's age as twenty-one (21) years or greater. 8.15.110 – Prohibition Against Sale or Offer for Sale of Flavored Tobacco Products. A. The sale or offer for sale, by any person or Tobacco Retailer of any Flavored Tobacco Product is prohibited and no person or Tobacco Retailer shall sell, or offer for sale, any Flavored Tobacco Product. 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. 8.15.120 – Prohibition Against Tobacco Products Sales at Pharmacies. No person shall sell Tobacco Products in a pharmacy. 8.15.130 - Tobacco vending machines prohibited. No person, business, or Tobacco Retailer shall locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use on his, her or its premises any vending machine for the purpose of selling or distributing any Tobacco Product. 8.15.200 - Requirement for Tobacco Retailer permit. It is unlawful for any person to act as a Tobacco Retailer without first obtaining and maintaining a valid Tobacco Retailer's permit pursuant to this chapter for each location at which that activity is to occur. No pe rmit may be issued to authorize 7 Tobacco Retailers at other than a fixed location; peripatetic Tobacco Retailing and Tobacco Retailing from vehicles are prohibited. Permits are valid for one year. Each Tobacco Retailer must apply for the Tobacco Retailer's permit or for the renewal of the Tobacco Retailer's permit at the same time the applicant applies for, or renews their city business license. 8.15.210 - Application procedure. A. Application for a Tobacco Retailer's permit shall be submitted in the name of the person or entity proposing to conduct retail sales of Tobacco Products and shall be signed by such person or an authorized agent thereof. All applications shall be submitted to the city and shall contain the fol lowing information: 1. The name, address, telephone and fax numbers of the applicant. 2. The business name, address, telephone and fax numbers of each location for which a tobacco retailer's permit is sought. 3. Such other information as the city deems reasonably necessary for implementation and enforcement of this chapter. B. A fee for the Tobacco Retailer’s permit shall be established by city council in its fee schedule resolution as amended from time to time. The applicant shall pay the fee at the time the application is submitted. The application shall be submitted at the same time as the applicant's initial application for or renewal of a city business license. 8.15.220 - Issuance of permit. A. Upon the receipt of an application for a Tobacco Retailer’s permit, the city shall issue a permit unless the Community Development Director, or designee, determines that evidence demonstrates one of the following bases for denial: 1. The application is incomplete or inaccurate. 2. The application seeks authorization for Tobacco Retailing by a person or at a location for which a suspension is in effect pursuant to Section 8.15.250 of this chapter. 3. The application seeks authorization for Tobacco Retailing that is otherwise unlawful under provisions of state or federal law or the provisions of the San Rafael Municipal Code. 8 8.15.230 - Display of permit. Each permittee shall prominently display the permit at each location where Tobacco Retailing occurs. 8.15.240 - Permits nontransferable. A Tobacco Retailer's permit is nontransferable. In the event a person to whom a permit has been issued changes business location or sells the business referenced in that person's permit, that person must apply for a n ew permit prior to acting as a Tobacco Retailer at the new location. The transferee of the permittee must apply for a permit in the transferee's name before acting as a Tobacco Retailer. Any permit reissued pursuant to this section shall expire on the date the previous permit for the business or person would have otherwise expired. 8.15.250 - Suspension or revocation of permit. A. Grounds for Suspension or Revocation. 1. A Tobacco Retailer's permit shall be revoked if the Director of Community Development, or designee, finds, after not less than 10 days’ notice and opportunity to be heard, that one or more of the bases for denial of a permit under Section 8.15.220 of this chapter exists. The revocation shall be without prejudice to the filing of a new application for a permit following correction of the conditions which required revocation. 2. A Tobacco Retailer's permit shall be suspended if the Director of Community Development, or designee, finds, after not less than 10 days’ notice and opportunity to be heard, that the permittee or his or her agent or employee has violated any federal, state or local law governing the sale, promotion, advertisement or display of Tobacco Products. B. Suspension of Permit. 1. If the Director of Community Development, or designee, finds that there are grounds for suspension of a permit, the permit shall be suspended for ninety (90) days unless (a) the permittee submits a training plan within a reasonable time established by the city, in form and content acceptable to the city, for the training of all sales employees in the laws pertaining to the sale, advertisement, and display of Tobacco Products to minors, and, techniques to ensure future compliance with said laws; and (b) the permittee files with the city, within such time as is reasonably established by the city, satisfactory evidence that the training described in the training plan has been completed. 2. Upon the second finding by the Director of Community Development, or designee, of a violation by a permittee or by any agent or employee of a permittee 9 within any twelve (12) month period, the permit shall be suspended for one hundred twenty (120) days. 3. Upon each subsequent finding by the Director of Community Development, or designee, of a violation by a permittee or by any agent or employee of a permittee within any twelve (12) month period, the permit shall be suspended for one year. C. Appeal of Suspension and/or Revocation. The decision is appealable pursuant to the provisions of Chapter 14.28 of the San Rafael Municipal Code. 8.15.260 - Penalties for violations. A violation of any provision of this chapter is hereby declared a pub lic nuisance and shall be punishable as provided for in Chapters 1.42, 1.44 and 1.46 of this code. These remedies shall be in addition to all other legal remedies, criminal or civil, which may be pursued by the city to address any violation of this chapter. 8.15.270 – 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. 8.15.280 – Not applicable to cannabis businesses. Notwithstanding anything in this chapter to the contrary, this chapter shall not be applicable to any matter regulated by Chapter 10.96 of this code entitled “Cannabis Business”. DIVISION 3. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA). The City Council finds that adoption of this Ordinance is exempt from the California Environmental Quality Act ("CEQA") pursuant to section 15061(b)(3) of the State CEQA Guidelines because it can be seen with certainty that there is no possibility that the adoption of this Ordinance or its implementation would have a significant effect on the environment (14 Cal. Code Regs. Section 15061(b)(3)). DIVISION 4. 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 Ordi- nance. The Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. 10 DIVISION 5. EFFECTIVE DATE; PUBLICATION. This Ordinance shall be published once, in full or in summary form, before its final passage, in a newspaper of general circulation, published, and circulated in the City of San Rafael, and shall be in full force as of January 1, 2021. If published in summary form, the summary shall also be published within fifteen (15) days after the adoption, together with the names of those Councilmembers voting for or against same, in a newspaper of general circulation published and circulated in the City of San Rafael, County of Marin, State of California. ______________________ GARY O. PHILLIPS, Mayor ATTEST: LINDSAY LARA, City Clerk The foregoing Ordinance No. 1970 was read and introduced at a Regular Meeting of the City Council of the City of San Rafael, held on the 20th day of May 2019 and ordered passed to print by the following vote, to wit: AYES: COUNCILMEMBERS: Bushey, Gamblin & Mayor Phillips NOES: COUNCILMEMBERS: Colin & McCullough ABSENT: COUNCILMEMBERS: None and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the 3rd day of June 2019. LINDSAY LARA, City Clerk Legal No. Marin Independent Journal 4000 Civic Center Drive, Suite 301 San Rafael, CA 94903 415-382-7335 legals@marinij.com I am a citizen of the United States and a resident of the County aforesaid: I am over the age of eighteen years, and not a party to or interested in the above matter. I am the principal clerk of the printer of the MARIN INDEPENDENT JOURNAL, a newspaper of general circulation, printed and published daily in the County of Marin, and which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of Marin, State of California, under date of FEBRUARY 7, 1955, CASE NUMBER 25566; that the notice, of which the annexed is a printed copy (set in type not smaller than nonpareil), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to-wit: 06/07/2019 I certify (or declare) under the penalty of perjury that the foregoing is true and correct. Dated this 7th day of June, 2019. PROOF OF PUBLICATION (2015.5 C.C.P.) STATE OF CALIFORNIA County of Marin Signature PROOF OF PUBLICATION 0006351712 2070419 CITY OF SAN RAFAEL CITY OF SAN RAFAEL CITY CLERK, ROOM 209 1400 FIFTH AVENUE, SAN RAFAEL, CA 94901 SAN RAFAEL, CA 94915-1560 r.BP7-11/10/16 1