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HomeMy WebLinkAboutCM Flavored Tobacco Product Ban Ordinance____________________________________________________________________________________ FOR CITY CLERK ONLY Council Meeting: 05/20/2019 Disposition: Passed ordinance 1970 to print, omitting 8.15.110C, to be effective January 1, 2021 Agenda Item No: 7.a Meeting Date: May 20, 2019 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: City Manager’s Office Prepared by: Ethan Guy, Principal Analyst City Manager Approval: ______________ TOPIC: FLAVORED TOBACCO PRODUCT BAN ORDINANCE SUBJECT: INTRODUCTION OF AN ORDINANCE 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 RECOMMENDATION: Hold a public hearing to consider adoption of an ordinance banning the sale of Flavored Tobacco Products and prohibiting the sale of Tobacco Products at Pharmacies in San Rafael and pass the ordinance to print. BACKGROUND: On October 15, 2012, the City Council adopted Ordinance No. 1908 adding Chapter 9.04 to the San Rafael Municipal Code (SRMC) to regulate indoor and outdoor smoking within the City of San Rafael. Among other provisions, that ordinance prohibited smoking on sidewalks, pedestrian areas, and public places such as plazas in the Downtown area, except while actively passing on the way to another destination. As originally enacted, Chapter 9.04 did not apply to electronic cigarettes. On April 18th, 2016, the City Council enacted Ordinance No. 1938 amending Chapter 9.04 to include the following elements: 1. An expanded definition of smoking to include electronic smoking devices; 2. A prohibition on the use of e-cigarettes in public places, but allowing them in private residences; 3. Elimination of the exception that allows smoking while actively passing throughout th e entire Downtown area; and 4. Addition of pedestrian-friendly signage to the Downtown. On April 15th, 2019 Staff presented to City Council an informational report on a potential Flavored Tobacco Ban in San Rafael. As part of this report, Staff included a draft ordinance amending SRMC Chapter 8.15. which regulates “Tobacco Retail Sales, Advertisements and Promotion,” to include a ban SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2 on the sale of flavored tobacco products and a ban on tobacco sales in pharmacies. City Council directed Staff to return with the following: • Consider modifications to the presented draft ordinance to include language providing exemptions for businesses that are primarily tobacco retailers and do not permit individuals under twenty-one (21) years of age on their premises; • Provide additional data on analyzing the effectiveness of flavored tobacco bans and methods for youth access to flavored tobacco. ANALYSIS: Effectiveness of Flavored Tobacco Ban At the April 15th Council Meeting, the Council directed Staff to return with further analysis regarding the effectiveness of flavored tobacco bans at curtailing youth tobacco use. Currently, there are only a few academic studies showing a direct correlation between flavored tobacco bans and youth tobacco use. The limited number of studies is a product of the relative infancy of flavored tobacco bans. Several studies are currently underway; however, their findings have not been released at this time. Of the studies that are available, Staff reviewed the findings from two: • Flavored Tobacco Product Use among Youth and Young Adults: What if Flavors Didn’t Exist?1 Conducted by the University of Texas School of Public Health, this study analyzed two surveys of 2,483 youth and 4,326 young adults which asked respondents e-cigarette-related questions covering a preference for flavored tobacco, and whether they would continue tobacco use if flavored tobacco was not available. Researchers concluded that, “restricting flavors in tobacco products would not eradicate e- cigarette or other tobacco use among young people, but the potential for substantial reductions in the prevalence of young peoples’ e-cigarette and other tobacco use seems high if flavors were removed.” • Influence of Flavored Cigarette Ban on Adolescent Tobacco Use2 As part of a National Institute of Health grant, this paper estimated the association between the U.S. Food and Drug Administration's (FDA) 2009 nationwide ban on flavored cigarettes and youth tobacco use. This ban did not apply to menthol cigarettes or tobacco products besides cigarettes. Using data from the National Youth Tobacco Survey from 1999-2013, the results suggest the 2009 flavored cigarette ban did reduce youth tobacco use. However, the level of the decrease in youth tobacco use was likely hampered due to the availability of menthol cigarettes and other flavored tobacco products. Youth Access to Flavored Tobacco 1 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5536860/ 2 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5401634/ SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3 At the April 15th Council Meeting, Staff was also directed to return with further analysis regarding the main methods youth use to access flavored tobacco products. In the FDA’s March 2019 draft guidance for industry regarding their Modifications to Compliance Policy for Certain Deemed Tobacco Products3, the following key findings were presented: • In the 2016 National Youth Tobacco Survey, the three reasons youth respondents selected for their e-cigarette use: 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%).4 According to data from the 2018 National Youth Tobacco Survey, 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. 6.5 percent of U.S. middle and high school e-cigarette users under age 18 reported obtaining their e-cigarettes in the past 30-days on the Internet. • According to a report cited by the FDA, How Do Adolescents Get Their E-Cigarettes and Other Electronic Vaping Devices?5: “Most youth (78.2%) owned a vaping device. The most common sources were purchasing from a store or online (31.1%), buying from another person (16.3%), or giving someone money to purchase for them (15.0%). The majority (72.8%) had used someone else's vaping device in the past 30 days. Youth who vaped more often, did not own a vaping device, vaped in social situations, and had previously been refused purchase were more likely to frequently borrow others' devices.” • Evidence from Wave 4 (2016-2017) of the Population Assessment of Tobacco Health (PATH) Study revealed that 7.2 percent of youth (age 12 to 17) who have used electronic nicotine delivery systems (ENDS) products more than once in their lifetime reported that they usually get their ENDS products from the Internet. Likewise, a recent survey of 1,729 adolescents aged 15 to 17 found that, among adolescents who purchased their vaping device, 32.2 percent of them obtained the products online. • The FDA conducted undercover enforcement efforts with respect to brick-and-mortar and online stores during the Summer of 2018. These efforts 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.6 These results indicate that age restrictions alone on flavored tobacco products do not act as a significant deterrent to access of these products. As a result of these findings, the FDA has indicated in their draft guidance that they will prioritize enforcement of flavored tobacco products that are offered for sale in the United States. As a part of this prioritized enforcement, the FDA has identified the following types of products due to the greater risk of youth access: • Products sold in locations that minors are able to enter at any time; • Products sold online to minors after issuance of FDA guidance; • Products sold online with no limit on quantity; and 3 https://www.fda.gov/media/121384/download 4 https://www.cdc.gov/mmwr/volumes/67/wr/mm6706a5.htm 5 https://www.ncbi.nlm.nih.gov/pubmed/30068216/ SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4 • Products sold online without independent, third-party age and identity verification. Amendments to San Rafael Municipal Code Chapter 8.15 As recommended in the April 15th Staff Report, the following amendments to San Rafael Municipal Code Chapter 8.15 regulating “Tobacco Retail Sales, Advertisements and Promotion” are included in the attached ordinance, to ban the sale of flavored tobacco products: • Update Section 8.15.005-Definitions. The ordinance would add several new definitions pertaining to flavored tobacco products and would expand the definition of “Tobacco Product” to include products from both tobacco leaf and nicotine. • Add New Section 8.15.110- Prohibition Against Sale or Offer for Sale of Flavored Tobacco Products. The ordinance would add a new section to Chapter 8.15 specifically outlining the ban on sale or offer for sale of Flavored Tobacco Products. • Exemption of Certain Businesses-Section 8.15.110(C). In response to the interest of some Councilmembers in a possible exemption for businesses that serve only adults, staff has also included for the Council’s consideration an exemption from the flavored tobacco ban for those businesses that meet all of following criteria: 1. Do not permit any persons under twenty-one (21) years of age to be present on or enter the premises at any time; and 2. Verify the age of all persons upon entry to the premises; and 3. Generate more than fifty (50) percent of their gross receipts annually from the sale of tobacco products and paraphernalia. At the April 15 Council meeting, several community members commented on the importance of flavored tobacco products to themselves and/or other adults they know in helping reduce or eliminate their reliance on other, more harmful tobacco products. As suggested by the Council comments, an exemption for adult-only businesses would appear to directly and effectively balance the City’s interest in maintaining access to flavored tobacco products for these and other adult users, while at the same time promoting the City’s interest in discouraging the use of and access to tobacco products by persons under 21 years of age in the City. As recommended in the April 15th Staff Report, the following amendments to San Rafael Municipal Code Chapter 8.15 are included in the proposed ordinance, to ban the sale of tobacco products in pharmacies: • Update Section 8.15.005-Definitions. The ordinance would include a definition of a “Pharmacy”. • New Section 8.15.120-Prohibition Against Tobacco Products Sales at Pharmacies. The ordinance would add a new section specifically outlining the ban on sale of Tobacco Products at Pharmacies. Effective Date The proposed ordinance includes an effective date six months after the ordinance is enacted. The purpose of postponing the effective date is to allow retailers to sell their existing inventory. Additionally, a postponed effective date would allow any retailer seeking an exemption from the ban sufficient time to make any necessary changes to their business practices in order to be in compliance with the exemption. SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 5 FISCAL IMPACT: There are multiple ways to view the “Fiscal Impact” of the proposed ordinance. In reviewing the other similar flavored tobacco bans in other Marin jurisdictions, the most common focus is on the cost of enforcement. As discussed in the April 15th Staff Report, enforcement of the TRL program is conducted as part of a Memorandum of Understanding (MOU) with the Marin County Sheriff’s Department. Funds for this enforcement are provided each year with county general fund monies. Any expansion of the TRL ordinance, including a Flavored Tobacco ban, would be enforced through this mechanism at no additional cost to the City. Another aspect of “Fiscal Impact” is in a broader sense of reduced economic burden. A 2009 report titled The Cost of Smoking in California, 2009 estimated the economic burden associated with smoking. The report estimated that in 2009 the economic burden placed on Marin County was nearly $139 million, or $551 per resident $4,814 per smoker, not considering inflation or increases in health care costs (Table 1). Table 1. Cost of Smoking in Marin County, 20097 Amount Per Resident Per Smoker Total $138,354,000 $551 $4,814 Direct Costs $94,700,000 $377 $3,295 Hospital $36,135,000 $144 $1,257 Ambulatory $23,093,000 $92 $803 Nursing Home Care $16,539,000 $66 $575 Prescriptions $12,918,000 $51 $449 Home Health $6,016,000 $24 $209 Lost Productivity $43,653,000 $174 $1,519 Illness $13,474,000 $54 $469 Premature Death $30,179,000 $120 $1,050 In addition, there may be a potential financial impact to retailers in a reduction in sales. These financial impacts would likely be limited only to businesses currently selling flavored tobacco products but would not be considered exempt from the ban once effective, as well as to pharmacies currently selling tobacco products. There would also be a potential loss of sales tax revenue to the City if retailers do not make up the sales with other products. An analysis conducted California Department of Tax and Fee Administration (CDTFA) of Senate Bill 38, a proposed statewide flavored tobacco ban, notes few data sources are available to document consumer responses to banning flavored products statewide, so consumer impacts are highly uncertain. Even with this uncertainty, CDFTA projects an estimated revenue loss in FY2020-2021 of $237 million in excises taxes and $54.5 million in sales taxes statewide.8 Staff reached out to our sales tax consultants HdL who responded that they are unable to break out flavored tobacco product sales from other products sold at convenience stores or other locations. Looking at the overall figures, they estimated “the impacts on your tax revenue loss to be fairly de minimus.” 7 http://tobaccofreeca.com/wp-content/uploads/2016/09/Cost-of-Smoking-2009-final-report-7-14-14.pdf 8 https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201920200SB38 SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 6 In an attempt to determine a rough estimate, staff additionally reviewed the City/County of San Francisco’s Controller’s Office Economic Impact Report on the “Banning the Sale of Flavored Tobacco Products.”9 Extrapolating from San Francisco’s analysis, staff estimates the potential sales tax loss could be in the range of $25,000, if an exemption is included, to $100,000, if there is no exemption. This range represents roughly a quarter of one percent of total sales tax collected by the City. However, several limitations to this analysis should be noted due to the high-degree of uncertainty, as discussed in the CDFTA and San Francisco analyses: • Depending on if an exemption is included, flavored tobacco users may switch from an affected retailer to an exempted retailer or out-of-town & online retailers. If users switch to an exempted retailer then there is likely no net loss in flavored tobacco sales citywide. If users switch to out-of- town and online retailers, then there would be a net loss to local retailers. • As only flavored tobacco products are affected by this ban, existing flavored tobacco users may replace flavored tobacco consumption with non-flavored tobacco products or potentially cessation devices. This switch in tobacco products could minimize a reduction in sales from a flavored tobacco ban as an increase in non-flavored tobacco sales or other products could occur. • By reducing access to flavored tobacco products, tobacco usage will likely also decrease. While this usage reduction would lead to reduced direct tobacco sales, there would also likely be a corresponding societal cost savings associated with lower health care costs. 10 OPTIONS: The City Council has the following options to consider on this matter: 1. Adopt ordinance as written. 2. Adopt ordinance with modifications. 3. Direct staff to return with more information. 4. Take no action. RECOMMENDED ACTION: Conduct a public hearing and pass the ordinance to print. ATTACHMENTS: 1. Ordinance Amending SRMC 8.15- “Tobacco Retail Sales, Advertising and Promotion” 2. Ordinance (Redlined Version) 3. Public Correspondence 9 https://sfcontroller.org/sites/default/files/Documents/Economic%20Analysis/170441_economic_impact_final.pdf 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 1 ORDINANCE NO.________ 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; and WHEREAS, testimony before the City Council indicates that a significant number of adults in the community have found that the use of flavored tobacco products has helped, or is helping, them reduce or eliminate their reliance on other more harmful tobacco products, and the City Council finds that it would promote the public health, safety and welfare to maintain access to such products in the City for these adults, while at the same time decreasing the availability of the products to the City’s youth, by allowing retail sales of flavored tobacco products at certain adults only retail establishments; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: DIVISION 2. AMENDMENT OF MUNICIPAL CODE. 3 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: 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. CF. “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 4 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. 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. FK. "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. GL. "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 5 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 cigarettes or tTobacco 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 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. Applicant is required to comply with all p rovisions of city’s sign ordinance Chapter 14.19. 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. 6 8.15.100 040 - 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 assistance, and all Tobacco Products shall be either in a locked case or in an area not accessible to the public prior to sale. 8.15.110 050 - 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 EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW. PHOTO ID REQUIRED." The letters of said signs shall be at least one inch (1″) high. 8.15.120 100 - Sale to minors prohibited. No person, business, 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 eighteen twenty-one (1821) 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. C. Exemptions. Prohibition Against Sale or Offer for Sale of Flavored Tobacco Products shall not apply to Tobacco Retailers that meet all of the following conditions: 1. Do not permit any persons under twenty-one (21) years of age to be present on or enter the premises at any time; and 7 2. Require the verification of age of all persons upon entry to the premises; and 3. Generate more than fifty (50) percent of gross receipts annually from the sale of tobacco products and paraphernalia. 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 permit may be issued to authorize 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 8 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. 8.15.230 - 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 new 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 f or 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 city 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. 9 2. A Tobacco Retailer's permit shall be suspended if the city 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 city Director of Community Development, or designee, finds that there are grounds for suspension of a permit, the following sanctions shall be imposed: a. Upon a first finding by the city of a violation by a permittee or any agent or employee of a permittee within any twelve (12) month period, the permit shall be suspended for ninety (90) days unless (a) : (1) 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, or tobacco paraphernalia to minors, and, techniques to ensure future compliance with said laws; and (2b) 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 city Director of Community Development, or odesignee, off 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 hundred twenty (120) days. 3. Upon each subsequent finding by the the city 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 public 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. 10 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. 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 and effect six (6) months after its final passage. 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 11 The foregoing Ordinance No.______ 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 NOES: Councilmembers ABSENT: Councilmembers 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 _______ day of ____________________, 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: 05/10/2019 I certify (or declare) under the penalty of perjury that the foregoing is true and correct. Dated this 14th day of May, 2019. PROOF OF PUBLICATION (2015.5 C.C.P.) STATE OF CALIFORNIA County of Marin Signature PROOF OF PUBLICATION 0006337983 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 From:Anita Renzetti To:Gary Phillips; Maribeth Bushey; Andrew McCullough; John Gamblin; Kate Colin Cc:Lindsay Lara Subject:please stand strong on the Flavor/Menthol ban Date:Thursday, May 09, 2019 1:31:43 PM Dear San Rafael Councilmembers (and staff): Thank you for your leadership in protecting Marin children and teens from Big Tobacco and the vaping industry. I lost my young husband (my teen stepdaughter’s father) to smoking- related cancer. I applaud how you care about youth when considering public health concerns, since that's so often when addiction starts. While the vaping industry claims that people need candy-flavored techno-toys/vaping products to quit smoking, this is simply a marketing ploy from an industry that wants to hook the next generation on nicotine. Your courageous stance against predatory industries who target the most vulnerable in our communities gives me hope that fewer families will suffer the loss of a beloved family member addicted to nicotine while young. As you move forward with the Flavor/Menthol ban, I respectfully request that all exemptions, including flavored vaping products, be removed. Individual packs of flavored cigarillos target Latinos and Hispanics in our county (source). Your courageous stance against these predatory industries who target the most vulnerable in our communities gives me hope that fewer families will suffer the loss of a beloved family member addicted to nicotine while young. Thank you! Anita (Bischoff) Renzetti San Rafael resident Banning the Sale of Flavored Tobacco Products: Economic Impact Report Office of Economic Analysis Item # 170441 June 13, 2017 Introduction •The proposed legislation amends the San Francisco Health Code to prohibit local tobacco retailers from selling flavored tobacco products, including menthol cigarettes, flavored chewing tobacco, and flavored liquids containing nicotine designed to be used with electronic cigarettes. •The law does not criminalize the possession or use of flavored tobacco, only its sale by retailers within the city. •Unflavored tobacco product sales would not be affected. Tobacco products are considered to be flavored, if they are advertised as having a distinctive flavor. •If passed, the law would go into effect on January 2018. •Retailers in San Francisco are required to possess a permit to sell tobacco. The only penalty for violation of the ban is a potential of the suspension of tobacco sales permit, at the discretion of Director of Public Health. •The Office of Economic Analysis has determined that if enacted, the proposed ban could have a material economic impact on the city’s economy. 2 Controller's Office ●Office of Economic Analysis City and County of San Francisco History of Flavored Tobacco Bans at the Federal, State & Local Levels •Flavored tobacco bans, including both traditional and electronic cigarettes, have become increasingly common across the United States in recent years. •On September 22, 2009, the FDA banned “characterizing flavors” in cigarettes such as an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee. •The ban was authorized by the FDA under the Family Smoking Prevention and Tobacco Control Act, which is a part of a national effort by the FDA to reduce smoking in America. •However, the FDA stopped short of prohibiting menthol in cigarettes or flavoring in other tobacco products such as e-cigarettes, cigars, smokeless tobacco, etc. The FDA law, however, does not prohibit states and localities from banning flavored tobacco products. •On October 28, 2009, New York City banned the sale of most flavored tobacco products, exempting only certain flavors. •On July 1, 2009 Maine banned the sale of flavored cigarettes & cigars in the state. •On October 1, 2008, New Jersey banned the sale of flavored cigarettes but exempted menthol and clove cigarettes. 3 Controller's Office ●Office of Economic Analysis City and County of San Francisco Use of Electronic Smoking Devices and Flavored Tobacco Products •According to a 2016 study* the use of electronic smoking devices (e-cigarettes, e- hookah, hookah pens, vape pens) has dramatically increased over the last few years. Nationally, only 3.7% of adults currently use e-cigarettes but in California the rate is 5.8%. The breakdown of the CA rate by age shows that the prevalence rate is 9.4% for young adults (aged 18-24) whereas the rate is 7.4% for smokers aged 25-44 and 2.6% for smokers aged 45-65. Currently, no data is available at the county level but similar trends are likely observed at the city level. •The report also cited that nationally, e-cigarettes prevalence rate among high schoolers is 13.4% and is considered the most common tobacco product use; whereas the rate for Californian youth (aged 12-17) was reported to be 13.7%. The study also showed that the average (male & female) prevalence rate among 7th, 9th and 11th grader was 8.0%, 13.3% and 15.4%, respectively. * California Tobacco Facts and Figures: Over 25 Years of Tobacco Control in California, California Department of Public Health, California Tobacco Control Program, October 2016. https://archive.cdph.ca.gov/programs/tobacco/Documents/CDPH%20CTCP%20Refresh/Research%20and%20Evaluation/Fac ts%20and%20Figures/2016FactsFigures-Web.pdf 4 Controller's Office ●Office of Economic Analysis City and County of San Francisco Use of Menthol Cigarettes and Other Flavored Tobacco Products •Menthol and other flavoring additives can mask the harshness and taste of tobacco, and thus may particularly appeal to youths and potential new smokers. •According to a 2016 study*, nationally, 70% to 80% of all current middle and high school tobacco users have used at least one flavored tobacco product in the past 30 days. Nationally, about 25% to 30% of cigarette smokers use menthol cigarettes. The study also cited that 34.9% of adult California smokers usually smoke menthol cigarettes. •The overall adult cigarette smoking rate for California was reported to be 11.6%; whereas San Francisco rate was 10.1% which is about 15% lower than the state. No county level rates are currently available for either menthol or e-cigarettes but it is likely that city exhibits similarly 15% lower rate for menthol and e-cigarettes as well. •The study also pointed out the menthol cigarettes are disproportionally smoked by adolescents, African Americans, and individuals who identify themselves as LGBT. Over 55% of African American adults in California usually smoke menthol cigarettes. * California Tobacco Facts and Figures: Over 25 Years of Tobacco Control in California, California Department of Public Health, California Tobacco Control Program, October 2016. https://archive.cdph.ca.gov/programs/tobacco/Documents/CDPH%20CTCP%20Refresh/Research%20and%20Evaluation/Fac ts%20and%20Figures/2016FactsFigures-Web.pdf 5 Controller's Office ●Office of Economic Analysis City and County of San Francisco Population and Number of Potential Teen and Adult Smokers in the City •Based on information from the California Health Information Survey, and the CDC’s Behavioral Risk Factors Surveillance System, and population information from the Census, we estimate the following prevalence of cigarette and electronic cigarette use. •Adults are more than twice as likely to smoke as to use electronic cigarettes, while teens are nearly twice as likely to use electronic cigarettes as to smoke. 6 Controller's Office ●Office of Economic Analysis City and County of San Francisco Teen (Ages 12-17)Adult (Ages 18+) Population 34,309 754,145 Cigarette Smokers (flavored and unflavored)1,548 78,459 Percentage of population 4.5%10.4% Electronic Cigarette Smokers 2,892 37,244 Percentage of population 8.4%4.9% Estimated Sales of Flavored Cigarettes In San Francisco •Based on the prevalence information on the previous page, the OEA has estimated the value of flavored tobacco cigarettes that would be affected by the legislation at approximately $50 million per year, as detailed in the table below. •Much less research has been done on the consumption of electronic cigarettes, and we do not have an estimate of those sales in the city. Controller's Office ●Office of Economic Analysis City and County of San Francisco 7 Teen (Ages 12-17)Adult (Ages 18+) Population 34,309 754,145 Cigarette Smokers (flavored and unflavored)1,548 78,459 Average packs consumed per smoker, annually 212 212 Average price of a pack of cigarettes $8.50 $8.50 Percentage of packs affected by the ban (Menthol)35%35% Total spending on affected cigarettes ($ M)$1.0 $49.5 Number and Composition of Affected Retailers in the City •While we have estimates of the purchases made by San Francisco residents, we do not know how many of those purchases are made at San Francisco retailers who would be subject to the ban, as opposed to out-of-town or online retailers. •Permitted tobacco retailers that sell cigarettes are required to pay the Cigarette Litter Abatement Fee to the City, to offset the City’s cost of cleaning disposed cigarette butts. •In the third quarter of 2016, the last quarter available, 726 local retailers paid the fee. Other permitted retailers, who sell flavored tobacco but do not sell cigarettes, do not pay the fee. •Most of these retailers are small convenience stores or gasoline stations that sell fewer than 20 packs of cigarettes per day. We have no information on how many sell flavored cigarettes that would be subject to the ban, though in general, the California Department of Public Health reports that 35% of cigarettes sold are menthol-flavored, and thus would be covered by the ban. •Because the City does not levy a fee on the sales of electronic cigarettes or nicotine- based liquids, we do not have any information on the sales of those products by San Francisco retailers. 8 Controller's Office ●Office of Economic Analysis City and County of San Francisco Economic Impact Factors and Assessment •The proposed ban on flavored tobacco products can be expected to have three primary effects on the local economy: 1.Reduction in tobacco product use: By reducing access to flavored tobacco products that are particularly appealing to young people, it may reduce the future use of cigarettes and other affected tobacco products. The reduction of cigarette smoking, in particular, would lead to long- term health benefits. In this event, tobacco retailers would be harmed by reduced sales, but consumers, other retailers, and the public sector would benefit from replaced retail sales, improved health, and lower health care costs in the future. 2.Switching from affected to unaffected tobacco products: Because some nicotine products are affected by the proposed ban, while others are not, existing users of flavored tobacco may replace the consumption of flavored tobacco products with unflavored. This switching behavior would likely occur most with cigarettes, since essentially all electronic cigarettes are affected. In this event, there will be essentially no impact on either consumers or retailers, since sales of one type of tobacco product would be replaced by another. 3.Switching from affected retailers to online or out-of-town retailers: Electronic cigarettes, are widely available online, and our research suggests prices are roughly comparable to local retailers. If consumers choose to buy online, there would be a net loss to local retailers and the city’s economy, without any countervailing benefit. •Owing to an absence of detailed data on tobacco consumption in the city, we are unable to estimate the relative importance of these three responses to the legislation. 9 Controller's Office ●Office of Economic Analysis City and County of San Francisco Staff Contact Asim Khan, Ph.D., Principal Economist asim.khan@sfgov.org (415) 554-5369 Ted Egan, Ph.D., Chief Economist ted.egan@sfgov.org (415) 554-5268 10 Controller's Office ●Office of Economic Analysis City and County of San Francisco Compliance Check Inspections of Tobacco Product Retailers Through 3/31/19 - Search Results You searched for: City contains: San Rafael State is CA Decision Date: 01/01/2017 through 01/01/2019 Retailer Name Street Address City State Zip Minor Involved Sale to Minor Product Type Inspection Date Decision Date Inspection Result Link Charges BRUSHLESS & MINUTE MART.1515 2ND ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/21/2017 No Violations Observed N/A IRWIN SHELL 834 IRWIN ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A SAFEWAY STORE 653 700 B ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A 7-ELEVEN STORE 2231-14139 703 B ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A MINI-MARKET STORE 842 B ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A CHEVRON GAS 1320 2ND ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A SMOG PROS - ARCO GAS 1401 2ND ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A WINTON NEWS & LIQUORS 1149 4TH ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A 4TH STREET SHELL 1833 4TH ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A UNITED LIQUORS 1556 4TH ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A CHEVRON EXTRA MILE 440 3RD ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A JASMINE MARKET 307 3RD ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A RITE AID #5957 471 3RD ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A WALGREENS #04625 830 3RD ST SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A COLONIAL LIQUORS 1015 TAMALPAIS AVE SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A SILADA UNION 76 1125 LINCOLN AVE SAN RAFAEL CA 94901 Yes No N/A Not available 4/19/2017 No Violations Observed N/A Associated Constituent Anita Renzetti C-1072711, added on May 17th, 2019 at 9:44 AM Phone Numbers: Email Addresses: Locations:None Conversation: First Name: Anita Last Name: Renzetti Email Address: Phone Number: Subject: A plea for public health and harm Message: Honorable San Rafael Mayor and City Councilmembers (with thanks for Kate Collins for the personalized reply): Thank you so much for your courage in moving forward with a ban on Flavors and Menthol products in San Rafael. I continue to support the proposed ordinance that is posted on your website, as long as the exemption for Adult Only Vape shops is removed. That pretty much covers all the Vape Shops. As I wrote in my last letter, I lost my beloved husband at a young age to cancer- related to nicotine use. I have since worked in the cancer prevention field and the studies do not show that electronic vaping devices help people quit smoking, contrary to their industry claims. Many people get even more addicted to nicotine by using the e-cigarettes, e-hookas, JUULs, etc. which are so appealing to youth and young adults in their twenties. I feel that the proposed exemptions are more about protecting some of the business of the three vape shops rather than protecting the entire community from these addictive products that steal people's health and family members. Please remove the Adult Only Vape Shop exemptions from the proposed ordinance. Thank you again for all that you do in service to protect the public health and safety of our entire community. I sincerely appreciate all the time, energy and effort! Thanks again, Anita Renzetti Inbound form submission from Anita Renzetti to Contact the City Council on May 17th, 2019 at 9:44 AM Thank you for your message. We value your input and strive to respond to any questions or concerns within 2 business days. Thank you, City of San Rafael Automated message sent to Anita Renzetti via City Manager's Office on May 17th, 2019 at 9:44 AM Ms. Renzetti, On behalf of the Mayor and City Council, thank you for your message. Your comments have been forwarded for their review and consideration. Best, [Daniel A. Soto] | City of San Rafael ASSOCIATE MANAGEMENT ANALYST CITY MANAGER’S OFFICE 1400 5th Avenue, Room 203 San Rafael, CA 94901 Office: (415) 485-3064 Mobile: (415) 847-6930 daniel.soto@cityofsanrafael.org [1487714976879_emailsignature.png] Daniel Soto responded to Anita Renzetti via City Manager's Office on May 17th, 2019 at 9:47 AM City of San Rafael Conversation with Anita Renzetti 2530 San Pablo Avenue, Suite J ● Berkeley, California 94702 ● (510) 841-3032 / FAX (510) 841-3071 nonsmokersrights.org ● anr@no-smoke.org Defending your right to breathe smokefree air since 1976 May 16, 2019 Mayor Gary Phillips San Rafael City Council 1400 Fifth Avenue, Room 203 San Rafael, CA 94901 Dear Mayor Phillips and members of the City Council, On behalf of our members in San Rafael, Americans for Nonsmokers’ Rights supports adopting a tobacco retail licensing requirements to prohibit the sale of flavored tobacco products, and to require a minimum pack size and minimum price for tobacco products. Communities around California are prohibiting the sale of flavored tobacco products, including menthol cigarettes and flavored vaping products, in all retailers without exemption, in order to limit the negative public health consequences of tobacco use and to reduce the impact of targeted tobacco industry marketing, especially to youth and low-income communities of color. We strongly discourage the adoption of partial measures such as exempting adult-only vape shops or other tobacco retailers. If flavored vaping products or other flavored products are sold in San Rafael, youth will still easily be able to access them. Likewise, these exemptions are logistically problematic. The City of Oakland has a law that restricts sales to adult-only retailers, which has proven to be very challenging for enforcement to implement, as some retailers are changing their business models or working around loopholes in the definition of “tobacco store” in order to meet the eligibility requirements for the exemption. In spite of years of health progress in California, tobacco use and exposure is still the leading cause of preventable death and disease, and our state is still the large st cigarette market in the U.S. Communities are adopting these laws as part of ongoing efforts to lower tobacco -related disease burdens and rising healthcare costs through better prevention policies and programs. In December 2018, U.S. Surgeon General Jerome Adams issued an “Advisory on E-cigarette Use Among Youth” that declares the country is facing a youth vaping epidemic, citing the Monitoring the Future survey findings that youth vaping of nicotine nearly doubled between 2017-2018 among 12th graders (from 11% to 20.9%) and 10th graders (from 8.2% to 16.1%). The National Youth Tobacco Survey also shows that e-cigarette use (vaping) drastically increased from 2017 to 2018, with 1 in 5 high school students now vaping, and 1 in 20 middle school students vaping. Flavored vaping products, also called electronic smoking devices—especially market-leading JUUL—are heavily marketed to youth and young adults in appealing fruit and candy flavors, often with packaging that mimics popular sweets like gummy worms, Sour Patch Kids, Nerds, and M&Ms, as well as treats like cotton candy, lemonade, and even apple juice. Flavors are the key to attracting kids to JUUL and other tobacco products. Flavors make it easier to inhale the nicotine; the science on this is unequivocal. San Francisco-based JUUL accounts for 75% of all e-cigarette sales in the U.S. and is the driving force behind the nation’s youth vaping epidemic. Tobacco giant Altria (parent company of Philip Morris) has invested nearly $13 billion for a 35% stake in JUUL. Vaping companies like to claim they are not Big Tobacco, but JUUL and the tobacco industry are now one and the same. Tobacco companies, JUUL, and other vaping companies have everything to gain from addicting young people to their products. Research shows that the earlier a person starts using nicotine, the higher the risk of addiction, and the harder it becomes to quit. The use of flavors is strategic because it targets the age group that is most susceptible to nicotine addiction. Research also indicates that youth who begin nicotine use with e-cigarettes (vaping) are significantly more likely to progress to cigarette smoking than youth who do not use e-cigarettes. Likewise, youth smokers are more likely to use menthol cigarettes than any other age group. Over half of smokers ages 12-17 use menthols, compared to less than one-third of smokers over age 35. Significantly, more than 80% of African -American smokers smoke menthols. The Food and Drug Administration (FDA) announced that it will consider ending the sale of menthol cigarettes and restricting the sale of flavored vaping products. This is good news, but the reality is that FDA regulations take many years to come to fruition. Likewise, we can expect federal regulations to face years of delay due to interference and legal actio n by the tobacco and vaping industries. In the meantime, San Rafael is in the position to lead the way by adopting strong regulations that can save lives now. Communities should hold tobacco and vaping retailers accountable for being part of the tobacco epidemic by selling these addictive and deadly products in flavors that are appealing to youth and young adults. It is important to take action because the tobacco and vaping industries continue the deceptive and targeted marketing of their products to yo uth and young adults, African-Americans, the LGBTQ community, and low-income communities. When it comes to industry tactics, some things never change. San Rafael should put the health of the community ahead of tobacco industry and retailer profits by ending the sale of flavored tobacco products at all retailers without exception. Thank you for your leadership and desire to make San Rafael the best place to live, work, and visit. Please feel free to contact me at 510-841-3045 if you have any questions, comments, or feedback. Sincerely, Cynthia Hallett, MPH President and CEO Americans for Nonsmokers’ Rights is a national, member-based, not-for-profit organization based in Berkeley, CA that is dedicated to helping nonsmokers breathe smokefree air since 1976. From:Phillip Gardiner To:Gary Phillips; Andrew McCullough; Kate Colin; Maribeth Bushey; John Gamblin; Lindsay Lara Cc:Cassie Ray; Blythe.Young@heart.org; Randy Uang; Tanya Stevenson; Annie Tegen; Amanda Gutzwiller; Bob Gordon; CHS; Carol McGruder; Dr. Val; John Maa Subject:Adopt Citywide Restrictions on the Sale of Menthol and all Other Flavored Tobacco Products, Including Flavored E-Juices in the city of San Rafael Date:Thursday, May 16, 2019 9:19:22 AM Attachments:Menthol Restrictions San Rafael.docx Sacramento CA_ORD 2019-0012 Amend Tobacco Retailers_4-16-19.pdf Council Members, Attached is a letter from the African American Tobacco Control Leadership Council (AATCLC) strongly encouraging you to adopt city-wide restrictions on the sale of menthol and all flavored tobacco products, including flavored e-juices with no adult venue exemptions. We have also attached to Sacramento ordinance that we hope will help you in crafting the San Rafael ordinance. We are counting on you! Best Regards, Phillip Gardiner, Dr. P.H. Co-Chair African American Tobacco Control Leadership Council https://www.savingblacklives.org/ May 16, 2019 To: Mayor Gary O. Phillips, Vice Mayor Andrew Cuyugan McCullough, Councilmember Kate Colin, Councilmember Maribeth Bushey, and Councilmember John Gamblin From: The African American Tobacco Control Leadership Council Re: Adopt Citywide Restrictions on the Sale of Menthol and all Other Flavored Tobacco Products, Including Flavored E-Juices in the city of San Rafael The African American Tobacco Control Leadership Council (AATCLC) strongly encourages the San Rafael City Council to restrict the sale of menthol and all flavored tobacco products, including flavored e-juices citywide, with no adult venue exemptions. We already know that 80% of youth’s 12-17 start smoking using flavored cigarettes (Ambrose et al., 2015). If the City Council truly wants a healthier San Rafael, and we believe that you do, then it is imperative that the sale of menthol and all other flavored tobacco products be restricted and the predatory marketing of these products be recognized as a social injustice issue, an issue that disproportionately impacts poorer communities, marginalized groups, youths and communities of color. Let’s be clear. Adopting a resolution to allow adult only venues to sale menthol and other flavored tobacco products will in no way prevent kids from getting flavored tobacco products, period. While a few retailers will sell flavored tobacco products to youth, still the vast majority of underage smokers get there smokes from an older brother, sister cousin or friend. This is how it has always been done. Restricting flavors sells to adult only venues will not stop youth access at all. Then making the argument that adults should have access to these flavors only perpetuates the social injustice marginalized groups face in dealing with the tobacco industry’s predatory marketing flavored tobacco products.. This is no minor matter. Menthol and flavored tobacco products are driving tobacco-caused deaths and diseases nation-wide. While the use of non-flavored tobacco cigarettes has been decreasing, the use of menthol cigarettes is on the rise, among youth and adults; among Latinos, Blacks, and Whites (Villanti, 2016). Let’s be clear, the majority of women smokers smoke menthol cigarettes; folks from the LGBTQ community disproportionately smoke these products; 47% of Latino smokers prefer menthol cigarettes, with 62% of Puerto Rican smokers using menthol; nearly 80% of Native Hawaiians; a majority of Filipinos; and a majority of smokers with behavioral health issues smoke menthol cigarettes. Frankly, most marginalized groups disproportionately use these “minty” products (CDC, 2010; Fallin, 2015; Forbes, 2013; Delnevo, 2011; Hawaii State Dept. of Health, 2009; Euromonitor, 2008; Hickman, 2015). Moreover, 85% African American adults and 94% of Black youth who smoke are using menthol products (Giovino, 2013). These striking statistics arise from the predatory marketing of these products in the Black Community, where there are more advertisements, more lucrative promotions, and cheaper prices for menthol cigarettes compared to other communities (Henriksen et al., 2011; Seidenberg et al., 2010). These predacious practices for the past 50 years have led to Blacks folks dying disproportionately from heart attacks, lung cancer, strokes and other tobacco related diseases (RSG, 2014). The Council should be aware that menthol, as if to add insult to injury, masks the harsh taste of tobacco and allows for deeper inhalation of toxins and greater amounts of nicotine. Furthermore, the presence of menthol makes cigarettes harder to quit compared to other cigarettes (Ton et al., 2015; Levy et al., 2011). The “cool refreshing taste of menthol” heralded by the tobacco industry is just a guise; ultimately, menthol allows the poisons in cigarettes and cigarillos to “go down into the body” more easily. We all have been reading in the papers about the “JUUL Explosion,” where a little thumb drive looking device is used more than regular cigarettes among youth (CDC, 2018). Frankly, the “JUUL Explosion” is really a “Flavors Explosion” given the fact that there are over 15,000 kid friendly flavors available in the marketplace! ((https://www.flavorshookkids.org/ 2018). The vaporist community would like you to believe that aerosol inhaled by e-cigarette users is only water vapor – nothing could be further from the truth. Here are the facts: 1. E-cigarettes are tobacco products that deliver nicotine, an addictive substance that especially in youth can compromise the brains executive functioning (Report of the Surgeon General, 2014). 2. The propylene glycol and vegetable glycerin that constitute a large portion of the e-juice and the resulting vapor are not FDA approved for inhalation. 3. The 15,000+ flavors available on the market may be Generally Recognized as Safe (GRAS) for ingestion, but they are not GRAS for inhalation. 4. There are as many, if not more, metals in the vapor of e-cigarettes than found in cigarette smoke (Williams et al., 2013). 5. Many of the same toxins and carcinogens found in regular cigarettes, like benzene, formaldehyde, and tobacco specific nitrosamines, can be found in e-cigarette vapor (Goniewicz et al., 2013). And yes, these toxins and carcinogens are at lower levels than in a regular cigarette; while these lower levels may be safer, this does not mean that e- cigarettes are safe! 6. The vapor from e-cigarettes activates platelet formation just like regular cigarettes; such platelet activity leads to arterial blockages (Hom et al., 2016). 7. E-cigarette aerosol consists of ultrafine particles at levels comparable to or higher than cigarettes. These particles can cause cardiovascular and pulmonary disease. In addition, the particle size in e-cigarettes is often smaller, and thus more dangerous, than those generated by cigarettes (Fuoco FC, Buonanno G, Stabile L, Vigo P. 2014). 8. Kids who start with e-cigarettes are more likely to become regular cigarette users, and unfortunately, in many cases dual users (Byrne S et al., 2018). 9. Here is a link to the European Public Health Association: Fact or Fiction on E-cigs: https://eupha.org/repository/advocacy/EUPHA_facts_and_fiction_on_e-cigs.pdf The AATCLC is calling upon the San Rafael City Council to join a growing number of cities and counties around the country that are restricting, jurisdiction-wide, the sales of menthol cigarettes and all other flavored tobacco products, including flavored e-juices. In June 2018, San Francisco voters passed the first ever citywide restriction on the sales of all flavored tobacco products, including menthol cigarettes and flavored e-cigarette juices. This “strongest flavor ban law ever” was rapidly replicated in the City of Richmond the following month. Within weeks, Beverly Hills followed suit, with their own city wide restrictions. Since November the cities of Alameda, Santa Cruz, San Pablo, and Hermosa Beach all have adopted their own citywide. restrictions. And the County of Marin approved a county-wide ban for its unincorporated areas. Just last month, our State Capital, the City of Sacramento restricted the sale of menthol and all flavored tobacco products including flavored e-juices city-wide with no adult exceptions! Even the Food and Drug Administration is finally talking about getting rid of menthol cigarettes and flavors in little cigars and cigarillos and making noise about restricting flavors in e- cigarettes. But even these protestations are calling for menthol, mint and spearmint to remain in e-juices. And we are all aware that there has been legislation introduced in Sacramento to ban flavors state-wide. While these developments are welcomed, we know that the tobacco industry will use all its muscle to slow down and curtail national and state-wide efforts. Hence, it is imperative that cities like San Rafael take the lead and join the growing movement to remove flavored tobacco products, especially menthol cigarettes and flavored e-juices, from the market place by adopting a city-wide ordinance to restrict their sale with no adult venue exemptions. We should also mention that some groups, spurred on by the tobacco industry, have been spreading falsehoods, stating that restricting the sale of menthol and flavored tobacco products, including flavored e-juices will lead to the “criminalization” of particularly young Black men. Nothing could be further from the truth. The proposed ordinance would prohibit the sale of flavored products, it would not prohibit the possession of these products. Hence, this ordinance will not lead to police having any greater interaction with Black youth. Formed in 2008, the African American Tobacco Control Leadership Council is composed of a cadre of dedicated community activists, academics, public health advocates and researchers. Even though based in California, we are national in our scope and reach. We have partnered with community stakeholders, elected officials, and public health agencies, from Chicago and Minneapolis to Berkeley and San Francisco. Our work has shaped the national discussion and direction of tobacco control policy, practices, and priorities, especially as they affect the lives of Black Americans, African immigrant populations and ultimately all smokers. The AATCLC has been at the forefront in elevating the regulation of mentholated and other flavored tobacco products on the national tobacco control agenda, including testifying at the FDA hearings when the agency was first considering the removal of menthol cigarettes from the marketplace. We here at the AATCLC recognize that the Council is under extraordinary pressure from the tobacco industry and the vaporist community to put profits above human life by limiting or curtailing restrictions on flavored tobacco products. Please join your sister cities and stand up to the tobacco industry and their allies – Call for: No Selling of Menthol Cigarettes and All Other Flavored Tobacco Products, including Flavored E-Juices with no adult venue exemptions in the City of San Rafael! Say “No” to the continued predatory marketing of flavored tobacco products to our youth, and say “Yes” to the health and welfare of our kids, who are the most vulnerable. In fact, say “Yes” to the protection for all residents of San Rafael. We are all counting on you! Sincerely, Phillip Gardiner, Dr. P.H. Co-Chair AATCLC www.savingblacklives.org Carol McGruder, Co-Chair AATCLC Valerie Yerger, N.D., Co-Chair AATCLC ORDINANCE NO. 2019-0012 Adopted by the Sacramento City Council April 16, 2019 An Ordinance Amending Various Sections of Chapter 5.138 of the Sacramento City Code, Relating to Tobacco Retailers BE IT ENACTED BY THE COUNCIL OF THE CITY OF SACRAMENTO: SECTION 1. Section 5.138.010 of the Sacramento City Code is amended to read as follows: 5.138.010 Legislative findings. A. State law prohibits the sale or furnishing of cigarettes, tobacco products and smoking paraphernalia to persons under 21 years of age except active duty military personnel who are 18 years of age or older (California Penal Code § 308). B. State law requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under 21 years of age (California Business & Professions Code § 22956) and provides procedures for using persons under 21 years of age to conduct onsite compliance checks of tobacco retailers (California Business & Professions Code § 22952). C. State law requires that tobacco retailers post a conspicuous notice at each point of sale stating that selling tobacco products to anyone under 21 years of age is illegal (California Business & Professions Code § 22952, California Penal Code § 308). D. State law prohibits the sale or display of cigarettes through a self-service display and prohibits public access to cigarettes without the assistance of a clerk (California Business & Professions Code § 22962). E. State law prohibits the sale of “bidis” (a type of hand-rolled filterless cigarette) except at those businesses that prohibit the presence of minors (California Penal Code § 308.1). F. State law prohibits the manufacture, distribution, or sale of cigarettes in packages of less than 20 and prohibits the manufacture, distribution, or sale of “roll-your-own” tobacco in packages containing less than six-tenths of an ounce of tobacco (California Penal Code § 308.3). Ordinance 2019-0012 April 16, 2019 Page 1 of 11 G. State law prohibits public school students from smoking or using tobacco products while on campus, while attending school-sponsored activities, or while under the supervision or control of school district employees (California Education Code § 48901(a)). H. Sacramento City Code section 5.140.040 prohibits the sale or distribution of tobacco products from vending machines. I. From 2013 to 2015, an estimated 15% of ninth and eleventh grade students in California reported using electronic smoking devices. J. Over 9% of high school students in California reported buying their own electronic cigarette from a store. K. In 2016, an estimated 82% of tobacco retailers in California sold flavored non-cigarette tobacco products, over 90% of tobacco retailers sold menthol cigarettes, and 80% tobacco retailers near schools sold flavored non-cigarette tobacco products. L. Mentholated and flavored products have been shown to be “starter” products for youth who begin using tobacco and these products help establish tobacco habits that can lead to long-term addiction. M. Between 2004 and 2014, use of non-menthol cigarettes decreased among all populations, but overall use of menthol cigarettes increased among young adults (18 to 25 years of age) and adults (over 26 years of age). N. Unlike cigarette use that has steadily declined among youth, the prevalence of the use of non-cigarette tobacco products has remained statistically unchanged and, in some cases, increased among youth. O. Flavored tobacco has significant public health implications for youth and people of color as a result of targeted industry marketing strategies and product manipulation. P. The density and proximity of tobacco retailers influence smoking behaviors, including the number of cigarettes smoked per day. Q. Adults who smoke have a harder time quitting when density of tobacco retailers is high. R. Policies to reduce tobacco retailer density have been shown to be effective and may reduce or eliminate inequities in the location and distribution of tobacco retailers. S. Neither federal nor California state laws restrict the sale of menthol cigarettes or flavored non-cigarette tobacco products, electronic smoking devices, or the solutions used in these devices. Ordinance 2019-0012 April 16, 2019 Page 2 of 11 T. The city has a substantial interest in promoting compliance with federal, state, and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by persons under 21 years of age; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to persons under 21 years of age; and in protecting youth and underserved populations from the harms of tobacco use. U. California courts in Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, and Prime Gas v. City of Sacramento (2010) 184 Cal.App.4th 697, have affirmed the power of local jurisdictions to regulate business activity in order to discourage violations of law. V. State law authorizes local tobacco retailer licensing laws to provide for the suspension or revocation of the local tobacco retailer license for any violation of a state tobacco control law (California Business & Professions Code § 22971.3). W. A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults. It will, however, allow the city to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco-related laws. SECTION 2. Section 5.138.030 of the Sacramento City Code is amended to read as follows: 5.138.030 Definitions. As used in this chapter, the following words and phrases shall have the meaning given them in this section, unless the context clearly requires otherwise: “Arm’s length transaction” means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this chapter that occurred at the location, is presumed not to be an “arm’s length transaction.” “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, alcohol beverage, herb, or spice. “City manager” means the city manager of the city or his or her designee. Ordinance 2019-0012 April 16, 2019 Page 3 of 11 “Flavored tobacco product” means any tobacco product that imparts a characterizing flavor. “Itinerant tobacco retailing” means engaging in tobacco retailing at other than a fixed location. “License” means a tobacco retailer license issued by the city pursuant to this chapter. “Licensee” means any proprietor holding a license issued by the city pursuant to this chapter. “Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a 10% or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person has, or can have, sole or shared control over the day-to-day operations of a business. “Tobacco product” means: 1. A 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, or snuff; 2. An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah; and 3. Any component, part, or accessory of a tobacco product, whether or not sold separately. 4. “Tobacco product” does not include a 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 the product is marketed and sold solely for such an approved purpose. “Tobacco paraphernalia” means any item designed or marketed for the consumption, use, or preparation of a tobacco product. “Tobacco retailer” means any person who sells, offers for sale, exchanges, or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange. “Tobacco retailing” means selling, offering for sale, exchanging, or offering to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange. Ordinance 2019-0012 April 16, 2019 Page 4 of 11 SECTION 3. Section 5.138.040 of the Sacramento City Code is amended to read as follows: 5.138.040 Requirement for tobacco retailer license. A. It shall be unlawful for any person to act as a tobacco retailer without a valid license for each location at which tobacco retailing is to occur. No license will be issued to authorize tobacco retailing at other than a fixed location. No license will be issued for itinerant tobacco retailing or tobacco retailing from vehicles. B. No license shall issue, and no existing license shall be renewed, to authorize tobacco retailing within 1,000 feet of a tobacco retailer already licensed pursuant to this chapter as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of the property line of the parcel on which an existing licensee’s business is located. C. Nothing in this chapter shall be construed to grant any person obtaining a license any status or right other than the right to act as a tobacco retailer at the location in the city identified on the face of the license, subject to compliance with all other applicable laws, regulations, and ordinances. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on indoor smoking made applicable to business establishments by California Labor Code section 6404.5. SECTION 4. Section 5.138.060 of the Sacramento City Code is amended to read as follows: 5.138.060 Issuance and renewal of license. A. Upon the receipt of an application for a license and the applicable license fee, the city manager shall issue a license unless: 1. The application is incomplete or inaccurate; 2. The application seeks authorization for tobacco retailing at an address that appears on a license that is suspended, has been revoked, or is subject to suspension or revocation proceedings for violation of any of the provisions of this chapter; provided, however, this subparagraph shall not constitute a basis for denial of a license if either or both of the following apply: a. The applicant provides the city with documentation demonstrating that the applicant has acquired or is acquiring the premises or business in an arm’s length transaction; b. It has been more than five years since the most recent license for that location was revoked; Ordinance 2019-0012 April 16, 2019 Page 5 of 11 3. The application seeks authorization for tobacco retailing that is unlawful pursuant to this code, or that is unlawful pursuant to any other local, state, or federal law; or 4. The city manager has information that the applicant or his or her agents or employees has violated any local, state or federal tobacco control law at the location for which the license or renewal of the license is sought within the preceding 30-day period. B. A license is valid for one year and must be renewed not later than 30 days prior to the expiration of the license, but no earlier than 60 days prior to the expiration of the license. Unless revoked on an earlier date, all licenses expire one year after the date of issuance. A license may be renewed for additional one-year periods by submitting an application to the city manager and payment of the applicable license fee; provided, however, a license that is suspended, has been revoked, or is subject to suspension or revocation proceedings shall not be renewed. The application and license fee shall be submitted at least 30 days, but not more than 60 days, prior to the expiration of the current valid license. The applicant shall follow all of the procedures and provide all of the information required by section 5.138.050. The city manager shall process the application according to the provisions of this section. C. Notwithstanding section 5.138.040B, a tobacco retailer operating lawfully on the date this subsection C is effective that would otherwise be eligible for a tobacco retailer license for the location for which a license is sought may receive or renew a license for that location so long as all of the following conditions are met: 1. The license is timely obtained and is renewed without lapse or permanent revocation (as opposed to temporary suspension); 2. The tobacco retailer is not closed for business or has not ceased tobacco retailing for more than 60 consecutive days; 3. The tobacco retailer does not substantially change the business premises or business operation for the purpose of increasing the sale or display of tobacco products; and 4. The tobacco retailer retains the right to operate under all other applicable laws. D. When the city manager does not approve a license or renewal of a license, the city manager shall notify the applicant of the specific grounds for the denial in writing. The notice of denial shall be served personally or by mail not later than five calendar days after the date of the denial. If by mail, the notice shall be placed in a sealed envelope, with postage paid, addressed to the applicant at the address as it appears on the application. The giving of notice shall be deemed complete at the time of deposit of the notice in the United States mail without extension of time for any reason. In lieu of mailing, the notice may be served personally by delivering to the person to be served and service shall be deemed complete at the time of such delivery. Personal service to a corporation may be made by delivery of the notice to any person designated in the California Code of Civil Procedure to be served for the corporation with summons and complaint in a civil action. Ordinance 2019-0012 April 16, 2019 Page 6 of 11 SECTION 5. Section 5.138.100 of the Sacramento City Code is amended to read as follows: 5.138.100 License violation. A. It is a violation of a license for a licensee or his or her agents or employees to sell or offer for sale any flavored tobacco product. There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or its agents or employees has made a public statement or claim that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, or images on the product’s labeling or packaging that are used to expressly or impliedly communicate that a tobacco product has a characterizing flavor. B. It is a violation of a license for a licensee or his or her agents or employees to violate any local, state, or federal tobacco-related law. SECTION 6. Section 5.138.110 of the Sacramento City Code is amended to read as follows: 5.138.110 Suspension or revocation of license. A. In addition to any other remedy authorized by law, a license shall be suspended or revoked as provided in this section, if the city manager finds that the licensee or his or her agents or employees has or have violated any of the provisions of this chapter; provided, however, violations by a licensee at one location may not be accumulated against other locations of that same licensee, nor may violations accumulated against a prior licensee at a licensed location be accumulated against a new licensee at the same licensed location. 1. Upon a finding by the city manager of a first license violation within any five-year period, the license shall be suspended for 30 days. 2. Upon a finding by the city manager of a second license violation within any five- year period, the license shall be suspended for 90 days. 3. Upon a finding by the city manager of a third license violation within any five-year period, the license shall be revoked. B. Notwithstanding section 5.138.110A, a license shall be revoked if the city manager finds that either one or both of the following conditions exist: 1. One or more of the bases for denial of a license under section 5.138.060A existed at the time application was made or at any time before the license issued. 2. The information contained in the license application, including supplemental information, if any, is found to be false in any material respect. Ordinance 2019-0012 April 16, 2019 Page 7 of 11 C. In the event the city manager suspends or revokes a license, written notice of the suspension or revocation shall be served upon the licensee within five days of the suspension or revocation in the manner prescribed in section 5.138.060D. The notice shall contain: 1. A brief statement of the specific grounds for such suspension or revocation; 2. A statement that the licensee may appeal the suspension or revocation by submitting an appeal, in writing, in accordance with the provisions of section 5.138.120, to the city manager, within 10 calendar days of the date of service of the notice; and 3. A statement that the failure to appeal the notice of suspension or revocation will constitute a waiver of all right to an administrative appeal hearing, and the suspension or revocation will be final. D. A licensee for whom a license suspension is in effect, or whose license has been revoked, must cease all tobacco retailing and remove all tobacco products and tobacco paraphernalia from public view at the address that appears on the suspended or revoked license. SECTION 7. Section 5.138.120 of the Sacramento City Code is amended to read as follows: 5.138.120 Denial, suspension and revocation—Appeals. A. Any applicant or licensee aggrieved by the decision of the city manager in denying, suspending, or revoking a license, may appeal the decision by submitting a written appeal to the city manager within 10 calendar days from the date of service of the notice of denial, suspension, or revocation. The appeal must be accompanied by an appeal fee set by resolution of the city council. The written appeal shall contain: 1. A brief statement in ordinary and concise language of the specific action protested, together with any material facts claimed to support the contentions of the appellant; 2. A brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed the protested action should be reversed or otherwise set aside; 3. The signatures of all parties named as appellants and their official mailing addresses; and 4. The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal. B. The appeal hearing shall be conducted by a hearing examiner appointed pursuant to section 8.04.070. Ordinance 2019-0012 April 16, 2019 Page 8 of 11 C. Upon receipt of any appeal filed pursuant to this section, the city manager shall transmit the appeal to the secretary of the hearing examiner who shall calendar it for hearing as follows: 1. If the appeal is received by the city manager not later than 15 days prior to the next regular appeal hearing, it shall be calendared for hearing at said meeting. 2. If the appeal is received by the city manager on a date less than 15 days prior to the next appeal hearing, it shall be calendared for the next subsequent appeal hearing. D. Written notice of the time and place of the hearing shall be given at least 10 calendar days prior to the date of the hearing to each appellant by the secretary of the hearing examiner either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at the address shown on the appeal. E. Failure of any person to file a timely appeal in accordance with the provisions of this section shall constitute an irrevocable waiver of the right to an administrative hearing and a final adjudication of the notice and order, or any portion of the notice and order. F. Only those matters or issues specifically raised by the appellant in the appeal notice shall be considered in the hearing of the appeal. G. Any suspension or revocation of a license shall be stayed during the pendency of an appeal which is properly and timely filed pursuant to this section. SECTION 8. Section 5.138.140 of the Sacramento City Code is amended to read as follows: 5.138.140 Conduct of hearing. A. Hearings need not be conducted according to the technical rules relating to evidence and witnesses. California Government Code section 11513, subdivisions (a), (b) and (c), shall apply to hearings under this chapter. B. Oral evidence shall be taken only upon oath or affirmation. C. Irrelevant and unduly repetitious evidence shall be excluded. D. Each party shall have these rights, among others: 1. To call and examine witnesses on any matter relevant to the issues of the hearing; 2. To introduce documentary and physical evidence; Ordinance 2019-0012 April 16, 2019 Page 9 of 11 3. To cross-examine opposing witnesses on any matter relevant to the issues of the hearing; 4. To impeach any witness regardless of which party first called the witness to testify; 5. To rebut the evidence presented against the party; and 6. To represent himself, herself, or itself or to be represented by anyone of his, her, or its choice who is lawfully permitted to do so. E. In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact that may be judicially noticed by the courts of this state or that may appear in any of the official records of the city or any of its departments. SECTION 9. Section 5.138.150 of the Sacramento City Code is amended to read as follows: 5.138.150 Form and contents of decision—Finality of decision. A. If it is shown, by a preponderance of the evidence, that one or more bases exist to deny, suspend, or revoke the license, the hearing examiner shall affirm the city manager’s decision to deny, suspend, or revoke the license. The decision of the hearing examiner shall be in writing and shall contain findings of fact and a determination of the issues presented. B. The decision shall inform the appellant that the decision is a final decision and that the time for judicial review is governed by California Code of Civil Procedure section 1094.6. Copies of the decision shall be delivered to the parties personally or sent by certified mail to the address shown on the appeal. The decision shall be final when signed by the hearing examiner and served as provided in this section. SECTION 10. Section 5.138.160 of the Sacramento City Code is amended to read as follows: 5.138.160 Enforcement. A. In addition to any other remedy, any person violating any provision of this chapter shall be guilty of a misdemeanor for each day such violation continues. B. Any violation of this chapter may be remedied by a civil action brought by the city attorney. The city may recover reasonable attorneys’ fees and costs of suit in any civil action brought by the city attorney to remedy any violation of this chapter. Ordinance 2019-0012 April 16, 2019 Page 10 of 11 C. Any person violating the provisions of this chapter shall also be liable for civil penalties of not less $250 or more than $25,000 for each day the violation continues. D. Violations of this chapter are hereby declared to be public nuisances subject to abatement by the city. E. In addition to criminal sanctions, civil penalties as provided in this section, and other remedies set forth in this chapter, administrative penalties may be imposed pursuant to chapter 1.28 against any person violating any provision of this chapter. Imposition, enforcement, collection and administrative review of administrative penalties imposed shall be conducted pursuant to chapter 1.28. SECTION 11. The effective date of this ordinance is January 1, 2020. Adopted by the City of Sacramento City Council on April 16, 2019, by the following vote: Ayes: Members Ashby, Guerra, Hansen, Harris, Jennings, Schenirer and Mayor Steinberg Noes: Member Carr Abstain: None Absent: Members Warren Attest: _____________________________________ Mindy Cuppy, City Clerk The presence of an electronic signature certifies that the foregoing is a true and correct copy as approved by the Sacramento City Council. Passed for Publication: March 12, 2019 Published: March 15, 2019 Effective: January 1, 2020 Ordinance 2019-0012 April 16, 2019 Page 11 of 11 -----Original Message----- From: Anita Renzetti <> Sent: Friday, May 17, 2019 10:37 AM To: Daniel Soto <> Subject: Subject line revision Dear Daniel: Thanks for the confirmation. I was working on a cell phone with clumsy thumbs so my subject line was not complete when the message was submitted. Please would you revise it to “Respectfully requesting that flavored vaping not be an exception”? Thank you! Anita Renzetti Anita Subject:county wide ban on flavored tobacco products Date:Monday, May 20, 2019 7:49:14 AM Dear City Council Members, I am a resident of San Rafael and the father of a 13 and 15 year old. Thank you for your service to our community. I heard that San Rafael was considering a tobacco flavor ban that excludes vape shops and adult only stores. I understand you have a fiscal responsibility and want to be friendly to businesses, but I don't believe any town or individual needs to make accommodations for Big Tobacco – an industry that has consistently and unapologetically targeted young people for profit – and lied about it. Please do the right thing and support a county-wide ban on flavored tobacco products by voting yes on an ordinance with no exemptions. Sincerely, Chris Fernandez   Subject:SFMMS Opposition to Proposed San Rafael Ordinance Including Adult Venue Exemptions Date:Friday, May 17, 2019 2:56:54 PM Attachments:San Rafael Ordinance - SFMMS Letter.pdf Importance:High Dear San Rafael City Council Members, Attached, please find a letter on behalf of the San Francisco Marin Medical Society outlining our opposition to the proposed San Rafael ordinance as currently written to include adult venue exemptions. We will have representatives from SFMMS in attendance on Monday evening. Sincerely, Erin Henke Erin Henke Associate Executive Director – Membership & Marketing San Francisco Marin Medical Society www.sfmms.org May 17, 2019 Dear San Rafael City Council Members: The San Francisco Marin Medical Society (SFMMS), representing more than 2,000 physicians in Marin and San Francisco counties, strongly opposes the proposed San Rafael ordinance as currently written to include adult venue exemptions. We are guided by policy from both the American Medical Association and the California Medical Association in taking this "oppose unless amended" position. SFMMS has a long standing position in support of a full flavored tobacco products ban without any exemptions. The amendment we are requesting is the elimination of any exemptions regarding the sales of flavored tobacco products for adult venue establishments. The proposed vape shop exemption could undermine the great momentum that was developed in Marin County and the Bay Area during the past 2-3 years while leaving thousands of San Rafael's under 21 population unprotected. We must do all we can to stop the alarming trend of addictive e-cigarette and kid-friendly flavored tobacco products that are reversing decades of progress toward raising a tobacco-free generation. Our youth deserve the chance at a healthy start in their adult lives and to a future that is free from addiction. We all share the responsibility to make sure that they get this chance. Sincerely, Kimberly Newell Green, MD John Maa, MD SFMMS President SFMMS Immediate Past President Subject:Let"s Stop Youth Together From Accessing Flavor Tobacco Products Date:Friday, May 17, 2019 1:30:23 PM Attachments:NATO San Rafael CA Flavored Tobacco Ban.pdf Good Afternoon Mr. Mayor Phillips and Councilmembers: Please find attached a letter from the National Association of Tobacco Outlets opposing the proposed ordinance for a flavor tobacco sales ban in San Rafael. In the past 2 years, San Rafael retailers have been 100% compliant in annual sting operations conducted by the FDA. Retailers are not the problem but part of the solution to stopping youth access to tobacco products by verifying ID's at their stores. Please protect law-abiding San Rafael retailers because passing this ordinance will negatively impact their business by 25%-40%. This will only shift purchasing of tobacco products to neighboring cities (including sales tax dollars) and increase online sales which has limited ID verification, if any. Studies have shown that flavor bans do nothing to reduce youth usage and accessibility of flavored tobacco products. We thank you for your time and we hope that you can protect small business owners who are an integral part of the San Rafael community. Regards, Jaime Rojas -- National Association of Tobacco Outlets Legislative Consultant www.rojascommunications.com 17595 Kenwood Trail, Minneapolis, MN 55044 1-866-869-8888 www.natocentral.org May 20, 2019 Mayor Meghan Gary Phillips Vice Mayor Andrew Cuyugan McCullough San Rafael City Council Members Kate Colin, Maribeth Bushey and John Gamblin San Rafael City Council Room 203 1400 Fifth Avenue San Rafael, CA 94901 RE: Proposed Tobacco Ordinance Dear Mayor Phillips, Vice Mayor Cuyugan McCullough and Council Members Colin, Bushey and Gamblin: As the Executive Director of the National Association of Tobacco Outlets (NATO), a national retail trade association that represents more than 60,000 retail stores throughout the country including numerous San Rafael, California retail store members, I am writing to submit our comments and concerns about potential consideration of proposals that would ban the sale of all flavored tobacco products and flavored electronic cigarettes and nicotine vapor devices in San Rafael. Proposed Ban on Menthol Cigarettes Should Not Be Adopted NATO and its San Rafael retail members urge you to reject efforts to ban the sale of menthol cigarettes. The products should remain legal for adults for the following reasons: • There is no significant difference in risk between mentholated and non-mentholated cigarettes. A 2011 study in the Journal of the National Cancer Institute found that menthol cigarettes do not pose a higher risk of lung cancer than non-mentholated cigarettes. • There is no credible basis to demonstrate that menthol cigarettes cause underage persons to initiate or continue smoking. • Adult smokers will seek out alternative sources of menthol cigarettes in nearby communities. Market research demonstrates that adult tobacco consumers will not only leave San Rafael and Marin County to purchase menthol cigarettes, but to make ancillary purchases of items such as fuel, food and beverages, resulting in San Rafael losing tax revenue. 17595 Kenwood Trail, Minneapolis, MN 55044 1-866-869-8888 www.natocentral.org • With menthol cigarettes accounting for more than a third of all cigarette sales nationally, San Rafael will lose a significant amount of sales, not because adult consumers stopped smoking, but because they purchased products illicitly or outside San Rafael. • According to a study by the Mackinac Center for Public Policy and the non-partisan Tax Foundation, California already has the 7th highest rate of illicit cigarette sales in the United States. A ban on the sale of menthol cigarettes as has been suggested in San Rafael to comply with existing legal age of purchase laws, making some products more, rather than less accessible to underage persons. • Retail stores will be at higher risk of closing due to further sales declines and the inability to compete with illegal sellers of contraband menthol cigarettes. • Retail jobs will be lost in San Rafael. Proposed Ban on Flavored Electronic Cigarettes/Nicotine Vapor Should Not Be Adopted NATO and its San Rafael retail members urge you to not adopt the ban on the sale of flavored electronic cigarette and nicotine vapor products. The products should remain legal for adults for the following reasons: • On March 14, 2019, the U.S. Food and Drug Administration (FDA) issued both a public statement titled “Statement from FDA Commissioner Scott Gottlieb, M.D. on Advancing New Policies Aimed at Preventing Youth Access To, and Appeal of, Flavored Tobacco Products, Including E-Cigarettes and Cigars” and a Draft Guidance titled “Modifications to Compliance Policy for Certain Deemed Tobacco Products.” These documents are critically important because the FDA is proposing to allow the continued sale of flavored electronic cigarettes and nicotine vapor products, including menthol and mint flavored electronic cigarettes and nicotine vapor products so that adults have a less harmful option than combustible tobacco products. The suggested flavor bans are in direct contradiction to the FDA’s scientific reasoning to allow flavored electronic cigarettes to continue to be sold. • There is no credible basis to suggest that flavored vapor products cause underage persons to initiate or continue use. Based on studies reported in Psychology Today, the major causes for tobacco use among youth are peer pressure and fear of exclusion from social groups, neither of which are solved by this suggested local law. • Nearly all credible scientific experts in the U.S. and around the world recognize that vapor products are vastly safer than combustible cigarettes – and that health outcomes would improve if smokers switched to vapor products. • The proposal will harm rather than benefit public health. Many of the adults who need nicotine will revert back to traditional cigarettes, potentially increasing health risks. • Adults will seek out readily available vapor products on the Internet or in neighboring communities, harming San Rafael retailers and inconveniencing adult consumers with no commensurate benefit. Proposed Ban on Other Flavored Tobacco Products Should Not Be Adopted 17595 Kenwood Trail, Minneapolis, MN 55044 1-866-869-8888 www.natocentral.org NATO and its San Rafael retail members urge you to reject efforts to ban the sale of flavored cigars, smokeless tobacco and pipe tobacco. • Youth usage rates for these products are low. • Scientific experts have determined that the health risks and fatality risk for smokeless tobacco products are comparable to FDA approved nicotine replacement therapies or comparable among users to non-tobacco users. The products have been flavored for over a century and represent harm reduction opportunities if smokers would switch to non- combustible tobacco and nicotine products. • All pipe tobacco is flavored. The average consumer of pipe tobacco is 58 years of age. Tobacco specialty shops that tailor to adult tobacco consumers, primarily selling premium cigars and pipe tobacco to an older clientele would likely be forced to relocate outside Culver City or close their doors. • There is no credible scientific evidence supporting the conclusion that flavored tobacco products cause initiation or continued use of these products among youth. National government surveys demonstrate that minors most frequently access tobacco products illegally not from traditional retailers, but from social sources – friends, family members and even strangers. California is one of only a handful of states that has raised the legal age of purchase of tobacco products to 21. The proposals being mentioned for consideration will neither stop the products from being used in San Rafael, nor youth from illegally accessing the products. For these reasons, and on behalf of all NATO member retailers in San Rafael, I urge you to oppose any efforts to ban flavored tobacco products and electronic cigarettes/nicotine vapor products. Thank you for your time and consideration. Sincerely, Thomas A. Briant NATO Executive Director Subject:Exemptions to proposed flavor ban Date:Monday, May 20, 2019 10:32:38 AM Dear Honorable Mayor Philips and City Councilmembers: I am writing to share information with you about the likely impact of the exemptions you are considering to the proposed ban on retail sale of flavored e-cigarette (“vaping”) and other flavored tobacco products. I am a professor at UCSF and I have conducted research in the field of tobacco use for over two decades. I currently have a grant from the California Tobacco-related Disease Research Program studying the environmental impacts of e-cigarettes and tobacco products. I am also a resident of Corte Madera and the father of two teenage sons. Tobacco-free pharmacies Your decision to adopt an ordinance prohibiting the retail sale of e-cigarette and all other tobacco products in pharmacies in San Rafael will be consistent with best practices in tobacco control policymaking. Pharmacy bans have proven effective for reducing the availability of tobacco, particularly to those who are afflicted with tobacco- related diseases and would benefit greatly from quitting. Pharmacies are part of the healthcare system, and as such should not be engaged in selling health-harming tobacco products. E-cigarettes Your prevention initiative to adopt an ordinance prohibiting the retail sale of all flavored e-cigarette (“vaping”) and other flavored tobacco products in San Rafael would be consistent with best practices in tobacco control policymaking and a major step forward. However, allowing exemptions for “adult only” stores that can be accessed by 18-year-olds would be a MAJOR STEP BACKWARDS, and be seen as a VICTORY FOR THE TOBACCO INDUSTRY. Exceptions for “adult only” stores would undermine the effectiveness of your intended flavor ban, and undermine flavor bans adopted by the Marin County Board of Supervisors and local jurisdictions throughout Marin. Teens can easily obtain fake IDs or find someone 21 or older to buy for them at an “adult only” store. Other flavored tobacco products In addition to the known harmful health effects of e-cigarettes (significantly increased risks of heart disease, heart attack, stroke, lung disease and cancer) other flavored tobacco products including menthol cigarettes, little cigars, cigarillos, chewing tobacco, and hookah (waterpipes) are harmful to health. Allowing an exemption for “adult only” stores would make it possible for these stores to sell these harmful products to young customers who live in San Rafael and other jurisdictions where these products are no longer available. Such stores would almost certainly jump at the opportunity to be the only retail sellers of these products. IQOS - new and hazardous to health In addition, this year we are facing the introduction of IQOS, Philip Morris’s new high-tech heated tobacco system. Most of the IQOS heated cartridges are flavored. “Adult only” stores that currently sell e-cigarette products will undoubtedly be highly motivated to offer these new “alternative” products as well. Because IQOS is sleek and high- tech, it is designed to be attractive to teens and young adults. IQOS: Tobacco Meets Technology https://www.pmi.com/smoke-free-products/iqos-our-tobacco-heating-system FDA Authorizes the Marketing of IQOS Devices May 17, 2019 https://vapingdaily.com/blog/fda-permits-iqos-sale/ Environmental impact In addition to the health effects of flavored e-cigarette and other tobacco products, all of these products are environmentally hazardous because they become toxic waste. E-cigarette product waste contains environmentally hazardous electronics, heavy metals, plastics, nicotine and other toxins, and unrecyclable lithium ion batteries. The toxic environmental impacts of cigarette butts are well established — they are made of plastic and leach into the environment the 7,000 chemicals they absorb. Plastic wrappers and mouthpieces from little cigars and cigarillos are also an environmental hazard. Summary We are working hard to make Marin County the first county in the United States in which all jurisdictions ban the sale of flavored e-cigarette and other tobacco products. This uniform countywide standard will reduce youth access, prevent addiction, and send a strong message to the tobacco industry. These products all deliver addictive nicotine. There is no benefit to having these products sold in our communities. Today, you have the opportunity to join elected officials in Corte Madera, Larkspur, San Anselmo, Sausalito, Tiberon, Belvedere, Ross, and the County Board of Supervisors to help make all of Marin County free of flavored products that addict youth and young adults. Your leadership will make it possible for community members to go back to Fairfax and Novato, which have already banned the retail sale of flavored e-cigarettes and most flavored tobacco products, to complete their bans by including menthol cigarettes. With that, the entire county will be free of flavored e-cigarettes and all other flavored tobacco products. Moreover, Philip Morris will not have the opportunity to hook Marin’s youth and young adults on IQOS. Thank you for your careful consideration of this issue. Sincerely, Jeremiah Mock, MSc, PhD Associate Professor Institute of Health and Aging Department of Social and Behavioral Sciences University of California, San Francisco Subject:Re: Adopt Citywide Restrictions on the Sale of Menthol and all Other Flavored Tobacco Products, Including Flavored E-Juices in the city of San Rafael Date:Friday, May 17, 2019 10:12:40 AM Attachments:Menthol Restrictions San Rafael.docx Sacramento CA_ORD 2019-0012 Amend Tobacco Retailers_4-16-19.pdf To the City of San Rafael City Council Members: I am writing on behalf of the San Francisco Marin Medical Society, to formally record our opposition to the proposed San Rafael ordinance as currently written to include adult venue exemptions. We are guided by policy from both the American Medical Association and the California Medical Association in taking this "oppose unless amended" position. The San Francisco Marin Medical Society (SFMMS) has a long standing position in support of a full flavored tobacco products ban without any exemptions, as recorded below in the first Letter to the Editor in the Marin IJ below, and elsewhere. I have added our President Dr. Kimberly Newell Green to this communication. The amendment we are requesting is the elimination of any exemptions regarding the sales of flavored tobacco products for adult venue establishments. Thank you to Dr. Gardiner for highlighting this as well in his correspondence. Please do not hesitate to contact us with any questions you may have, and representatives from SFMMS will be in attendance on Monday evening. Sincerely, John Maa MD, FACS Immediate-Past President, San Francisco Marin Medical Society Marin IJ Readers’ Forum for Nov. 27, 2018 Marin IJ Readers’ Forum for Nov. 27, 2018 Sears was right to back flavored tobacco ban In response to recent commentaries by Susan and Brian Telford and D... Sent: Thursday, May 16, 2019 9:19 AM Subject: Adopt Citywide Restrictions on the Sale of Menthol and all Other Flavored Tobacco Products, Including Flavored E-Juices in the city of San Rafael Council Members, Attached is a letter from the African American Tobacco Control Leadership Council (AATCLC) strongly encouraging you to adopt city-wide restrictions on the sale of menthol and all flavored tobacco products, including flavored e-juices with no adult venue exemptions. We have also attached to Sacramento ordinance that we hope will help you in crafting the San Rafael ordinance. We are counting on you! Best Regards, Phillip Gardiner, Dr. P.H. Co-Chair African American Tobacco Control Leadership Council https://www.savingblacklives.org/ May 16, 2019 To: Mayor Gary O. Phillips, Vice Mayor Andrew Cuyugan McCullough, Councilmember Kate Colin, Councilmember Maribeth Bushey, and Councilmember John Gamblin From: The African American Tobacco Control Leadership Council Re: Adopt Citywide Restrictions on the Sale of Menthol and all Other Flavored Tobacco Products, Including Flavored E-Juices in the city of San Rafael The African American Tobacco Control Leadership Council (AATCLC) strongly encourages the San Rafael City Council to restrict the sale of menthol and all flavored tobacco products, including flavored e-juices citywide, with no adult venue exemptions. We already know that 80% of youth’s 12-17 start smoking using flavored cigarettes (Ambrose et al., 2015). If the City Council truly wants a healthier San Rafael, and we believe that you do, then it is imperative that the sale of menthol and all other flavored tobacco products be restricted and the predatory marketing of these products be recognized as a social injustice issue, an issue that disproportionately impacts poorer communities, marginalized groups, youths and communities of color. Let’s be clear. Adopting a resolution to allow adult only venues to sale menthol and other flavored tobacco products will in no way prevent kids from getting flavored tobacco products, period. While a few retailers will sell flavored tobacco products to youth, still the vast majority of underage smokers get there smokes from an older brother, sister cousin or friend. This is how it has always been done. Restricting flavors sells to adult only venues will not stop youth access at all. Then making the argument that adults should have access to these flavors only perpetuates the social injustice marginalized groups face in dealing with the tobacco industry’s predatory marketing flavored tobacco products.. This is no minor matter. Menthol and flavored tobacco products are driving tobacco-caused deaths and diseases nation-wide. While the use of non-flavored tobacco cigarettes has been decreasing, the use of menthol cigarettes is on the rise, among youth and adults; among Latinos, Blacks, and Whites (Villanti, 2016). Let’s be clear, the majority of women smokers smoke menthol cigarettes; folks from the LGBTQ community disproportionately smoke these products; 47% of Latino smokers prefer menthol cigarettes, with 62% of Puerto Rican smokers using menthol; nearly 80% of Native Hawaiians; a majority of Filipinos; and a majority of smokers with behavioral health issues smoke menthol cigarettes. Frankly, most marginalized groups disproportionately use these “minty” products (CDC, 2010; Fallin, 2015; Forbes, 2013; Delnevo, 2011; Hawaii State Dept. of Health, 2009; Euromonitor, 2008; Hickman, 2015). Moreover, 85% African American adults and 94% of Black youth who smoke are using menthol products (Giovino, 2013). These striking statistics arise from the predatory marketing of these products in the Black Community, where there are more advertisements, more lucrative promotions, and cheaper prices for menthol cigarettes compared to other communities (Henriksen et al., 2011; Seidenberg et al., 2010). These predacious practices for the past 50 years have led to Blacks folks dying disproportionately from heart attacks, lung cancer, strokes and other tobacco related diseases (RSG, 2014). The Council should be aware that menthol, as if to add insult to injury, masks the harsh taste of tobacco and allows for deeper inhalation of toxins and greater amounts of nicotine. Furthermore, the presence of menthol makes cigarettes harder to quit compared to other cigarettes (Ton et al., 2015; Levy et al., 2011). The “cool refreshing taste of menthol” heralded by the tobacco industry is just a guise; ultimately, menthol allows the poisons in cigarettes and cigarillos to “go down into the body” more easily. We all have been reading in the papers about the “JUUL Explosion,” where a little thumb drive looking device is used more than regular cigarettes among youth (CDC, 2018). Frankly, the “JUUL Explosion” is really a “Flavors Explosion” given the fact that there are over 15,000 kid friendly flavors available in the marketplace! ((https://www.flavorshookkids.org/ 2018). The vaporist community would like you to believe that aerosol inhaled by e-cigarette users is only water vapor – nothing could be further from the truth. Here are the facts: 1. E-cigarettes are tobacco products that deliver nicotine, an addictive substance that especially in youth can compromise the brains executive functioning (Report of the Surgeon General, 2014). 2. The propylene glycol and vegetable glycerin that constitute a large portion of the e-juice and the resulting vapor are not FDA approved for inhalation. 3. The 15,000+ flavors available on the market may be Generally Recognized as Safe (GRAS) for ingestion, but they are not GRAS for inhalation. 4. There are as many, if not more, metals in the vapor of e-cigarettes than found in cigarette smoke (Williams et al., 2013). 5. Many of the same toxins and carcinogens found in regular cigarettes, like benzene, formaldehyde, and tobacco specific nitrosamines, can be found in e-cigarette vapor (Goniewicz et al., 2013). And yes, these toxins and carcinogens are at lower levels than in a regular cigarette; while these lower levels may be safer, this does not mean that e- cigarettes are safe! 6. The vapor from e-cigarettes activates platelet formation just like regular cigarettes; such platelet activity leads to arterial blockages (Hom et al., 2016). 7. E-cigarette aerosol consists of ultrafine particles at levels comparable to or higher than cigarettes. These particles can cause cardiovascular and pulmonary disease. In addition, the particle size in e-cigarettes is often smaller, and thus more dangerous, than those generated by cigarettes (Fuoco FC, Buonanno G, Stabile L, Vigo P. 2014). 8. Kids who start with e-cigarettes are more likely to become regular cigarette users, and unfortunately, in many cases dual users (Byrne S et al., 2018). 9. Here is a link to the European Public Health Association: Fact or Fiction on E-cigs: https://eupha.org/repository/advocacy/EUPHA_facts_and_fiction_on_e-cigs.pdf The AATCLC is calling upon the San Rafael City Council to join a growing number of cities and counties around the country that are restricting, jurisdiction-wide, the sales of menthol cigarettes and all other flavored tobacco products, including flavored e-juices. In June 2018, San Francisco voters passed the first ever citywide restriction on the sales of all flavored tobacco products, including menthol cigarettes and flavored e-cigarette juices. This “strongest flavor ban law ever” was rapidly replicated in the City of Richmond the following month. Within weeks, Beverly Hills followed suit, with their own city wide restrictions. Since November the cities of Alameda, Santa Cruz, San Pablo, and Hermosa Beach all have adopted their own citywide. restrictions. And the County of Marin approved a county-wide ban for its unincorporated areas. Just last month, our State Capital, the City of Sacramento restricted the sale of menthol and all flavored tobacco products including flavored e-juices city-wide with no adult exceptions! Even the Food and Drug Administration is finally talking about getting rid of menthol cigarettes and flavors in little cigars and cigarillos and making noise about restricting flavors in e- cigarettes. But even these protestations are calling for menthol, mint and spearmint to remain in e-juices. And we are all aware that there has been legislation introduced in Sacramento to ban flavors state-wide. While these developments are welcomed, we know that the tobacco industry will use all its muscle to slow down and curtail national and state-wide efforts. Hence, it is imperative that cities like San Rafael take the lead and join the growing movement to remove flavored tobacco products, especially menthol cigarettes and flavored e-juices, from the market place by adopting a city-wide ordinance to restrict their sale with no adult venue exemptions. We should also mention that some groups, spurred on by the tobacco industry, have been spreading falsehoods, stating that restricting the sale of menthol and flavored tobacco products, including flavored e-juices will lead to the “criminalization” of particularly young Black men. Nothing could be further from the truth. The proposed ordinance would prohibit the sale of flavored products, it would not prohibit the possession of these products. Hence, this ordinance will not lead to police having any greater interaction with Black youth. Formed in 2008, the African American Tobacco Control Leadership Council is composed of a cadre of dedicated community activists, academics, public health advocates and researchers. Even though based in California, we are national in our scope and reach. We have partnered with community stakeholders, elected officials, and public health agencies, from Chicago and Minneapolis to Berkeley and San Francisco. Our work has shaped the national discussion and direction of tobacco control policy, practices, and priorities, especially as they affect the lives of Black Americans, African immigrant populations and ultimately all smokers. The AATCLC has been at the forefront in elevating the regulation of mentholated and other flavored tobacco products on the national tobacco control agenda, including testifying at the FDA hearings when the agency was first considering the removal of menthol cigarettes from the marketplace. We here at the AATCLC recognize that the Council is under extraordinary pressure from the tobacco industry and the vaporist community to put profits above human life by limiting or curtailing restrictions on flavored tobacco products. Please join your sister cities and stand up to the tobacco industry and their allies – Call for: No Selling of Menthol Cigarettes and All Other Flavored Tobacco Products, including Flavored E-Juices with no adult venue exemptions in the City of San Rafael! Say “No” to the continued predatory marketing of flavored tobacco products to our youth, and say “Yes” to the health and welfare of our kids, who are the most vulnerable. In fact, say “Yes” to the protection for all residents of San Rafael. We are all counting on you! Sincerely, Phillip Gardiner, Dr. P.H. Co-Chair AATCLC www.savingblacklives.org Carol McGruder, Co-Chair AATCLC Valerie Yerger, N.D., Co-Chair AATCLC ORDINANCE NO. 2019-0012 Adopted by the Sacramento City Council April 16, 2019 An Ordinance Amending Various Sections of Chapter 5.138 of the Sacramento City Code, Relating to Tobacco Retailers BE IT ENACTED BY THE COUNCIL OF THE CITY OF SACRAMENTO: SECTION 1. Section 5.138.010 of the Sacramento City Code is amended to read as follows: 5.138.010 Legislative findings. A. State law prohibits the sale or furnishing of cigarettes, tobacco products and smoking paraphernalia to persons under 21 years of age except active duty military personnel who are 18 years of age or older (California Penal Code § 308). B. State law requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under 21 years of age (California Business & Professions Code § 22956) and provides procedures for using persons under 21 years of age to conduct onsite compliance checks of tobacco retailers (California Business & Professions Code § 22952). C. State law requires that tobacco retailers post a conspicuous notice at each point of sale stating that selling tobacco products to anyone under 21 years of age is illegal (California Business & Professions Code § 22952, California Penal Code § 308). D. State law prohibits the sale or display of cigarettes through a self-service display and prohibits public access to cigarettes without the assistance of a clerk (California Business & Professions Code § 22962). E. State law prohibits the sale of “bidis” (a type of hand-rolled filterless cigarette) except at those businesses that prohibit the presence of minors (California Penal Code § 308.1). F. State law prohibits the manufacture, distribution, or sale of cigarettes in packages of less than 20 and prohibits the manufacture, distribution, or sale of “roll-your-own” tobacco in packages containing less than six-tenths of an ounce of tobacco (California Penal Code § 308.3). Ordinance 2019-0012 April 16, 2019 Page 1 of 11 G. State law prohibits public school students from smoking or using tobacco products while on campus, while attending school-sponsored activities, or while under the supervision or control of school district employees (California Education Code § 48901(a)). H. Sacramento City Code section 5.140.040 prohibits the sale or distribution of tobacco products from vending machines. I. From 2013 to 2015, an estimated 15% of ninth and eleventh grade students in California reported using electronic smoking devices. J. Over 9% of high school students in California reported buying their own electronic cigarette from a store. K. In 2016, an estimated 82% of tobacco retailers in California sold flavored non-cigarette tobacco products, over 90% of tobacco retailers sold menthol cigarettes, and 80% tobacco retailers near schools sold flavored non-cigarette tobacco products. L. Mentholated and flavored products have been shown to be “starter” products for youth who begin using tobacco and these products help establish tobacco habits that can lead to long-term addiction. M. Between 2004 and 2014, use of non-menthol cigarettes decreased among all populations, but overall use of menthol cigarettes increased among young adults (18 to 25 years of age) and adults (over 26 years of age). N. Unlike cigarette use that has steadily declined among youth, the prevalence of the use of non-cigarette tobacco products has remained statistically unchanged and, in some cases, increased among youth. O. Flavored tobacco has significant public health implications for youth and people of color as a result of targeted industry marketing strategies and product manipulation. P. The density and proximity of tobacco retailers influence smoking behaviors, including the number of cigarettes smoked per day. Q. Adults who smoke have a harder time quitting when density of tobacco retailers is high. R. Policies to reduce tobacco retailer density have been shown to be effective and may reduce or eliminate inequities in the location and distribution of tobacco retailers. S. Neither federal nor California state laws restrict the sale of menthol cigarettes or flavored non-cigarette tobacco products, electronic smoking devices, or the solutions used in these devices. Ordinance 2019-0012 April 16, 2019 Page 2 of 11 T. The city has a substantial interest in promoting compliance with federal, state, and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by persons under 21 years of age; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to persons under 21 years of age; and in protecting youth and underserved populations from the harms of tobacco use. U. California courts in Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, and Prime Gas v. City of Sacramento (2010) 184 Cal.App.4th 697, have affirmed the power of local jurisdictions to regulate business activity in order to discourage violations of law. V. State law authorizes local tobacco retailer licensing laws to provide for the suspension or revocation of the local tobacco retailer license for any violation of a state tobacco control law (California Business & Professions Code § 22971.3). W. A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults. It will, however, allow the city to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco-related laws. SECTION 2. Section 5.138.030 of the Sacramento City Code is amended to read as follows: 5.138.030 Definitions. As used in this chapter, the following words and phrases shall have the meaning given them in this section, unless the context clearly requires otherwise: “Arm’s length transaction” means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this chapter that occurred at the location, is presumed not to be an “arm’s length transaction.” “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, alcohol beverage, herb, or spice. “City manager” means the city manager of the city or his or her designee. Ordinance 2019-0012 April 16, 2019 Page 3 of 11 “Flavored tobacco product” means any tobacco product that imparts a characterizing flavor. “Itinerant tobacco retailing” means engaging in tobacco retailing at other than a fixed location. “License” means a tobacco retailer license issued by the city pursuant to this chapter. “Licensee” means any proprietor holding a license issued by the city pursuant to this chapter. “Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a 10% or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person has, or can have, sole or shared control over the day-to-day operations of a business. “Tobacco product” means: 1. A 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, or snuff; 2. An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah; and 3. Any component, part, or accessory of a tobacco product, whether or not sold separately. 4. “Tobacco product” does not include a 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 the product is marketed and sold solely for such an approved purpose. “Tobacco paraphernalia” means any item designed or marketed for the consumption, use, or preparation of a tobacco product. “Tobacco retailer” means any person who sells, offers for sale, exchanges, or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange. “Tobacco retailing” means selling, offering for sale, exchanging, or offering to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange. Ordinance 2019-0012 April 16, 2019 Page 4 of 11 SECTION 3. Section 5.138.040 of the Sacramento City Code is amended to read as follows: 5.138.040 Requirement for tobacco retailer license. A. It shall be unlawful for any person to act as a tobacco retailer without a valid license for each location at which tobacco retailing is to occur. No license will be issued to authorize tobacco retailing at other than a fixed location. No license will be issued for itinerant tobacco retailing or tobacco retailing from vehicles. B. No license shall issue, and no existing license shall be renewed, to authorize tobacco retailing within 1,000 feet of a tobacco retailer already licensed pursuant to this chapter as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of the property line of the parcel on which an existing licensee’s business is located. C. Nothing in this chapter shall be construed to grant any person obtaining a license any status or right other than the right to act as a tobacco retailer at the location in the city identified on the face of the license, subject to compliance with all other applicable laws, regulations, and ordinances. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on indoor smoking made applicable to business establishments by California Labor Code section 6404.5. SECTION 4. Section 5.138.060 of the Sacramento City Code is amended to read as follows: 5.138.060 Issuance and renewal of license. A. Upon the receipt of an application for a license and the applicable license fee, the city manager shall issue a license unless: 1. The application is incomplete or inaccurate; 2. The application seeks authorization for tobacco retailing at an address that appears on a license that is suspended, has been revoked, or is subject to suspension or revocation proceedings for violation of any of the provisions of this chapter; provided, however, this subparagraph shall not constitute a basis for denial of a license if either or both of the following apply: a. The applicant provides the city with documentation demonstrating that the applicant has acquired or is acquiring the premises or business in an arm’s length transaction; b. It has been more than five years since the most recent license for that location was revoked; Ordinance 2019-0012 April 16, 2019 Page 5 of 11 3. The application seeks authorization for tobacco retailing that is unlawful pursuant to this code, or that is unlawful pursuant to any other local, state, or federal law; or 4. The city manager has information that the applicant or his or her agents or employees has violated any local, state or federal tobacco control law at the location for which the license or renewal of the license is sought within the preceding 30-day period. B. A license is valid for one year and must be renewed not later than 30 days prior to the expiration of the license, but no earlier than 60 days prior to the expiration of the license. Unless revoked on an earlier date, all licenses expire one year after the date of issuance. A license may be renewed for additional one-year periods by submitting an application to the city manager and payment of the applicable license fee; provided, however, a license that is suspended, has been revoked, or is subject to suspension or revocation proceedings shall not be renewed. The application and license fee shall be submitted at least 30 days, but not more than 60 days, prior to the expiration of the current valid license. The applicant shall follow all of the procedures and provide all of the information required by section 5.138.050. The city manager shall process the application according to the provisions of this section. C. Notwithstanding section 5.138.040B, a tobacco retailer operating lawfully on the date this subsection C is effective that would otherwise be eligible for a tobacco retailer license for the location for which a license is sought may receive or renew a license for that location so long as all of the following conditions are met: 1. The license is timely obtained and is renewed without lapse or permanent revocation (as opposed to temporary suspension); 2. The tobacco retailer is not closed for business or has not ceased tobacco retailing for more than 60 consecutive days; 3. The tobacco retailer does not substantially change the business premises or business operation for the purpose of increasing the sale or display of tobacco products; and 4. The tobacco retailer retains the right to operate under all other applicable laws. D. When the city manager does not approve a license or renewal of a license, the city manager shall notify the applicant of the specific grounds for the denial in writing. The notice of denial shall be served personally or by mail not later than five calendar days after the date of the denial. If by mail, the notice shall be placed in a sealed envelope, with postage paid, addressed to the applicant at the address as it appears on the application. The giving of notice shall be deemed complete at the time of deposit of the notice in the United States mail without extension of time for any reason. In lieu of mailing, the notice may be served personally by delivering to the person to be served and service shall be deemed complete at the time of such delivery. Personal service to a corporation may be made by delivery of the notice to any person designated in the California Code of Civil Procedure to be served for the corporation with summons and complaint in a civil action. Ordinance 2019-0012 April 16, 2019 Page 6 of 11 SECTION 5. Section 5.138.100 of the Sacramento City Code is amended to read as follows: 5.138.100 License violation. A. It is a violation of a license for a licensee or his or her agents or employees to sell or offer for sale any flavored tobacco product. There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or its agents or employees has made a public statement or claim that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, or images on the product’s labeling or packaging that are used to expressly or impliedly communicate that a tobacco product has a characterizing flavor. B. It is a violation of a license for a licensee or his or her agents or employees to violate any local, state, or federal tobacco-related law. SECTION 6. Section 5.138.110 of the Sacramento City Code is amended to read as follows: 5.138.110 Suspension or revocation of license. A. In addition to any other remedy authorized by law, a license shall be suspended or revoked as provided in this section, if the city manager finds that the licensee or his or her agents or employees has or have violated any of the provisions of this chapter; provided, however, violations by a licensee at one location may not be accumulated against other locations of that same licensee, nor may violations accumulated against a prior licensee at a licensed location be accumulated against a new licensee at the same licensed location. 1. Upon a finding by the city manager of a first license violation within any five-year period, the license shall be suspended for 30 days. 2. Upon a finding by the city manager of a second license violation within any five- year period, the license shall be suspended for 90 days. 3. Upon a finding by the city manager of a third license violation within any five-year period, the license shall be revoked. B. Notwithstanding section 5.138.110A, a license shall be revoked if the city manager finds that either one or both of the following conditions exist: 1. One or more of the bases for denial of a license under section 5.138.060A existed at the time application was made or at any time before the license issued. 2. The information contained in the license application, including supplemental information, if any, is found to be false in any material respect. Ordinance 2019-0012 April 16, 2019 Page 7 of 11 C. In the event the city manager suspends or revokes a license, written notice of the suspension or revocation shall be served upon the licensee within five days of the suspension or revocation in the manner prescribed in section 5.138.060D. The notice shall contain: 1. A brief statement of the specific grounds for such suspension or revocation; 2. A statement that the licensee may appeal the suspension or revocation by submitting an appeal, in writing, in accordance with the provisions of section 5.138.120, to the city manager, within 10 calendar days of the date of service of the notice; and 3. A statement that the failure to appeal the notice of suspension or revocation will constitute a waiver of all right to an administrative appeal hearing, and the suspension or revocation will be final. D. A licensee for whom a license suspension is in effect, or whose license has been revoked, must cease all tobacco retailing and remove all tobacco products and tobacco paraphernalia from public view at the address that appears on the suspended or revoked license. SECTION 7. Section 5.138.120 of the Sacramento City Code is amended to read as follows: 5.138.120 Denial, suspension and revocation—Appeals. A. Any applicant or licensee aggrieved by the decision of the city manager in denying, suspending, or revoking a license, may appeal the decision by submitting a written appeal to the city manager within 10 calendar days from the date of service of the notice of denial, suspension, or revocation. The appeal must be accompanied by an appeal fee set by resolution of the city council. The written appeal shall contain: 1. A brief statement in ordinary and concise language of the specific action protested, together with any material facts claimed to support the contentions of the appellant; 2. A brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed the protested action should be reversed or otherwise set aside; 3. The signatures of all parties named as appellants and their official mailing addresses; and 4. The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal. B. The appeal hearing shall be conducted by a hearing examiner appointed pursuant to section 8.04.070. Ordinance 2019-0012 April 16, 2019 Page 8 of 11 C. Upon receipt of any appeal filed pursuant to this section, the city manager shall transmit the appeal to the secretary of the hearing examiner who shall calendar it for hearing as follows: 1. If the appeal is received by the city manager not later than 15 days prior to the next regular appeal hearing, it shall be calendared for hearing at said meeting. 2. If the appeal is received by the city manager on a date less than 15 days prior to the next appeal hearing, it shall be calendared for the next subsequent appeal hearing. D. Written notice of the time and place of the hearing shall be given at least 10 calendar days prior to the date of the hearing to each appellant by the secretary of the hearing examiner either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at the address shown on the appeal. E. Failure of any person to file a timely appeal in accordance with the provisions of this section shall constitute an irrevocable waiver of the right to an administrative hearing and a final adjudication of the notice and order, or any portion of the notice and order. F. Only those matters or issues specifically raised by the appellant in the appeal notice shall be considered in the hearing of the appeal. G. Any suspension or revocation of a license shall be stayed during the pendency of an appeal which is properly and timely filed pursuant to this section. SECTION 8. Section 5.138.140 of the Sacramento City Code is amended to read as follows: 5.138.140 Conduct of hearing. A. Hearings need not be conducted according to the technical rules relating to evidence and witnesses. California Government Code section 11513, subdivisions (a), (b) and (c), shall apply to hearings under this chapter. B. Oral evidence shall be taken only upon oath or affirmation. C. Irrelevant and unduly repetitious evidence shall be excluded. D. Each party shall have these rights, among others: 1. To call and examine witnesses on any matter relevant to the issues of the hearing; 2. To introduce documentary and physical evidence; Ordinance 2019-0012 April 16, 2019 Page 9 of 11 3. To cross-examine opposing witnesses on any matter relevant to the issues of the hearing; 4. To impeach any witness regardless of which party first called the witness to testify; 5. To rebut the evidence presented against the party; and 6. To represent himself, herself, or itself or to be represented by anyone of his, her, or its choice who is lawfully permitted to do so. E. In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact that may be judicially noticed by the courts of this state or that may appear in any of the official records of the city or any of its departments. SECTION 9. Section 5.138.150 of the Sacramento City Code is amended to read as follows: 5.138.150 Form and contents of decision—Finality of decision. A. If it is shown, by a preponderance of the evidence, that one or more bases exist to deny, suspend, or revoke the license, the hearing examiner shall affirm the city manager’s decision to deny, suspend, or revoke the license. The decision of the hearing examiner shall be in writing and shall contain findings of fact and a determination of the issues presented. B. The decision shall inform the appellant that the decision is a final decision and that the time for judicial review is governed by California Code of Civil Procedure section 1094.6. Copies of the decision shall be delivered to the parties personally or sent by certified mail to the address shown on the appeal. The decision shall be final when signed by the hearing examiner and served as provided in this section. SECTION 10. Section 5.138.160 of the Sacramento City Code is amended to read as follows: 5.138.160 Enforcement. A. In addition to any other remedy, any person violating any provision of this chapter shall be guilty of a misdemeanor for each day such violation continues. B. Any violation of this chapter may be remedied by a civil action brought by the city attorney. The city may recover reasonable attorneys’ fees and costs of suit in any civil action brought by the city attorney to remedy any violation of this chapter. Ordinance 2019-0012 April 16, 2019 Page 10 of 11 C. Any person violating the provisions of this chapter shall also be liable for civil penalties of not less $250 or more than $25,000 for each day the violation continues. D. Violations of this chapter are hereby declared to be public nuisances subject to abatement by the city. E. In addition to criminal sanctions, civil penalties as provided in this section, and other remedies set forth in this chapter, administrative penalties may be imposed pursuant to chapter 1.28 against any person violating any provision of this chapter. Imposition, enforcement, collection and administrative review of administrative penalties imposed shall be conducted pursuant to chapter 1.28. SECTION 11. The effective date of this ordinance is January 1, 2020. Adopted by the City of Sacramento City Council on April 16, 2019, by the following vote: Ayes: Members Ashby, Guerra, Hansen, Harris, Jennings, Schenirer and Mayor Steinberg Noes: Member Carr Abstain: None Absent: Members Warren Attest: _____________________________________ Mindy Cuppy, City Clerk The presence of an electronic signature certifies that the foregoing is a true and correct copy as approved by the Sacramento City Council. Passed for Publication: March 12, 2019 Published: March 15, 2019 Effective: January 1, 2020 Ordinance 2019-0012 April 16, 2019 Page 11 of 11 From:Kelsey Fernandez To:Gary Phillips; Andrew McCullough; Kate Colin; Maribeth Bushey; John Gamblin Cc:Lindsay Lara; Jim Schutz Subject:Proposed Tobacco Flavor Ban Date:Friday, May 17, 2019 12:48:10 PM Dear Honorable Mayor and City Council Members, I am writing to you as a Marin resident, a parent, and Project Coordinator for Marin Healthy Youth Partnerships. I would like to add my name to the long list of individuals and organizations who are asking you to consider the public health benefits of supporting a flavor ban for both tobacco and vaping products – with no exemptions. The Marin County Board of Supervisors and local jurisdictions are standing up to the tobacco industry and I'm hoping San Rafael will consider standing with them. Big Tobacco strategically markets to kids through flavored products – knowing that their actions will result in premature death for many young people that get addicted to nicotine as a result of using their products as teens and tweens. In 2014 the CDC estimated nearly 450,000 youth under 18 in California alone will ultimately die prematurely from smoking. While the ban may pose a minor inconvenience for adults who use these products, customers 21 and over will continue to have other ways of access. If they want it, or need it, they can get it without the presence of a local vape shop. We are being asked to consider what level of inconvenience we as adults are willing to endure for the health and safety of young people that live in our community. Thank you for your service and thoughtful consideration of this issue. Sincerely, Kelsey Fernandez -- www.thecoalitionconnection.com ᐧ Subject:Citywide Flavored Tobacco Policy Best Protects Youth Date:Friday, May 17, 2019 5:10:53 PM Attachments:Citywide Policy on Flavored Tobacco.pdf Dear Mayor Phillips, Vice Mayor McCullough, Councilmembers Colin, Bushey, and Gamblin, City Clerk Lara, and City Manager Schutz: As the tobacco prevention director for Breathe California's Golden Gate region, I would like to submit this letter asking the council for citywide coverage in its flavored tobacco policy, and not to have adult venue exemptions. Please let me know if you have any questions at all. Thank you so much! Sincerely, Randy Uang Randy Uang Director of Tobacco Prevention and Control Services BREATHE CALIFORNIA Golden Gate Public Health Partnership As of February 8th we have relocated our central office to San Jose while continuing our work inareas that we currently serve. Breathe California is dedicated to fighting lung disease, advocating for clean air and promoting publichealth in our local communities.   BOARD OF DIRECTORS Chairperson Rohan Shamapant Treasurer Eve Brothers, MBA, CTP, CPA Secretary Joshua Lipp, JD Brian Daniel, RCP, RRT Alex Ding, MD Terri Hague Greg McQuaid George Su, MD Neil Trivedi President & CEO Tanya Stevenson, EdD, MPH ENDOWMENT TRUSTEES Andrea G. Cope, CPA Robert P. Lawrence Eve Brothers, MBA, CTP, CPA Jason B. Stewart, CIMA 1469 Park Avenue San Jose, CA 95126 Phone: (650) 994-5868 Email: info@ggbreathe.org Web: www.ggbreathe.org Since 1908, Breathe California has fought for clean air, healthy lungs and the elimination of lung disease in the San Francisco Bay Area. A member of the Breathe America ™ Alliance May 17, 2019 San Rafael City Council 1400 Fifth Avenue San Rafael, CA 94901 Citywide Flavored Tobacco Policy Without Vape Shop Exemptions Dear Mayor Phillips, Vice Mayor McCullough, and Councilmembers Colin, Bushey, and Gamblin: Breathe California, Golden Gate Public Health Partnership’s mission is to fight lung disease. We are part of the Smoke-Free Marin Coalition, and our Golden Gate region includes Marin County, other parts of the Bay Area, and the north coast. We are writing to ask that the council pursue a citywide policy on flavored tobacco, with no adult store exemptions. Tobacco-related diseases have a devastating economic impact: annual costs in Marin County due to impacts on health and productivity are approximately $138 million. These impacts of tobacco hurt the economy and strain local health systems. Yet tobacco companies target youth specifically to start tobacco use, in this case through products that appeal specifically to youth. I once personally talked with a 6th grade student who told me that his older brother smoked grape cigars, and he said he “want[ed] to try them” because they smelled so good. Even if older people are the ones purchasing tobacco products, if they are flavored like “berry fusion” and “banana smash”, “cotton candy” or “gummy bear”, the flavors make it more likely that younger family members will want to try them. These young people then become addicted, and grow up into adults who are addicted. Citywide policies, without extra exemptions, would allow stores to continue to sell any of the very many kinds of unflavored tobacco products. It would give a level playing field for stores, more directly address the economic impacts of tobacco use, and most important, more strongly protect youth health. Thank you so much for keeping in mind the special ways that tobacco companies seek to lure children to start a lifetime of tobacco use. Sincerely, Randy Uang Director of Tobacco Prevention & Control Services Breathe California, Golden Gate Public Health Partnership UNIVERSITY OF CALIFORNIA SAN FRANCISCO BERKELEY • DAVIS • IRVINE • LOS ANGELES • MERCED • RIVERSIDE • SAN DIEGO • SAN FRANCISCO SANTA BARBARA • SANTA CRUZ STANTON A. GLANTZ, PhD 530 Parnassus Suite 366 Professor of Medicine (Cardiology) San Francisco, CA 94143-1390 Truth Initiative Distinguished Professor of Tobacco Control Phone: (415) 476-3893 Director, Center for Tobacco Control Research and Education Fax: (415) 514-9345 Stanton.Glantz@ucsf.edu May 19, 2019 Mayor Gary Phillips Councilmembers City of San Rafael RE: Tobacco ordinance Dear Mayor Philips and City Councilmembers: I am writing to urge you to pass a comprehensive ban on the sale of flavored tobacco products, similar to the one enacted in San Francisco. In particular, I urge you not to exempt “adult only” venues. Such an exemption would represent a retreat from increasingly strong ordinances in this area. In addition, such exemptions complicate and raise the cost of implementation and enforcement. I am Professor of Medicine at UCSF and the director of the UCSF Center for Tobacco Control Research and Education. I am also principal investigator on a $20 million Tobacco Center of Regulatory Science grant funded by the U.S. Food and Drug Administration and the National Institutes of Health that, among other things, has conducted extensive research on the effects of flavored tobacco products and the economics of tobacco regulation. I have testified in many public hearings on tobacco issues at the local, state, national, and international levels. I have authored over 400 scientific papers and several books on the health effects of tobacco use and tobacco industry practices. I read the analysis of the ordinance prepared by your staff and saw that it estimated a drop in sales tax revenue if you prohibit the sale of all flavored tobacco products. This claim is similar to claims made in decades ago that making restaurants and bars smokefree would curt tax revenues. I did the first studies of this question and found these claims to be incorrect. Then, as now, opponents of a comprehensive smokefree ordinance argued people would take their business to surrounding communities. That did not happen. Likewise, to the extent that youth and others reduce their purchases of flavored e-cigarettes and other tobacco products they will not bury the money; they will spend it on something else. In addition, allowing exemptions for “adult only” stores that can be accessed by 18-year- olds would be a major step backwards, and be seen as a victory for the tobacco industry. 2 It would also be inconsistent with the state law that prohibits sales of tobacco products to people under 21. Exceptions for “adult only” stores would also undermine the effectiveness of your intended flavor ban, and undermine flavor bans adopted by the Marin County Board of Supervisors and other local jurisdictions throughout Marin, including Sausalito, Corte Madera, Larkspur, and San Anselmo. Such an exception is, for all practical purposes, useless. According to a colleague who lives in San Rafael, the sign outside one store says, “Adults only. Must be 18 to enter. Must be 21 to purchase tobacco products. Be prepared to show valid I.D.” The other store’s sign says, “Attention, if you look under 30 years of age please have your government issued I.D. ready!!” Both stores allow 18 and over to enter their stores. While e-cigarettes are promoted as “healthier” alternatives to cigarettes, it is important to understand that the more we learn about the health effects of e-cigarettes (“vaping”) the more dangerous they appear, approaching that of cigarettes. Studies published in recent months have linked use of e-cigarettes to heart attacks, cardiovascular disease, stroke, and lung disease (there are links to summaries of some of these studies appended to this letter.) There is also emerging evidence showing that e-cigarette use causes genetic changes linked to cancer. These risks are higher for people who use e-cigarettes and cigarettes at the same time (known as “dual use’), which is the most common use pattern. It is also well-established that flavors are key to attracting youth to e-cigarettes and other tobacco products and that those who start using e-cigarettes are more likely to shift into “dual use” (highly risky use of e-cigarettes and cigarettes) or eventually become tobacco smokers. Finally, nicotine is a highly addictive substance and most adults have great difficultly quitting nicotine use. Nicotine is a known neurotoxin and particularly harmful to the nervous systems of fetuses, children, and adolescents. The California Tobacco Control Program’s new message is “Nicotine = Brain Poison.” In addition, while not causing cancer, nicotine promotes tumor growth, something important for adults. You will likely hear claims that it is important to keep flavored e-cigarettes available to help adults quit smoking. There are two problems with this argument. First, while there is no question that some people do quit cigarettes using e-cigarettes, for most smokers using e- cigarettes makes it less likely that they will quit smoking. (Moreover, to the extent that e- cigarettes confer substantial risk of heart and lung disease, those few people who do “switch” may not be all that much better off.) Second, while there is strong and consistent evidence that flavors hook kids, there is not a comparable body of evidence support that flavors are needed for adults. It is also important to understand that you are being asked by public health experts in Marin and throughout the Bay Area, and by many community members in San Rafael and throughout Marin to ban the sale of flavored e-cigarette and other flavored tobacco products, including flavored little cigars and cigarillos, because the FDA has failed to meet its legal responsibilities. Last Wednesday in a lawsuit against the FDA brought by the American Academy of Pediatrics, the Campaign for Tobacco Free Kids, the Truth Initiative, and a broad coalition of health groups, a federal judge ruled that the FDA had illegally failed to regulate e-cigarettes. 3 Public health officials in Marin County are following best practices in tobacco control policymaking by pursing a goal to eliminate the retail sale of favored e-cigarettes, menthol cigarettes, and other flavored tobacco products in all jurisdictions throughout Marin County. Communities in Marin will have a much greater likelihood of succeeding when every jurisdiction bans the retail sale of flavored products in all locations, with no exemptions. Exemptions for “adult only” stores will create a hole in the countywide strategy called for by the grand jury in their recent report. It will also undermine the effectiveness of your own intended policy because youth can easily obtain fake IDs or ask adults to purchase in stores for them. San Rafael has a long and commendable history of adopting best practices in tobacco control policymaking, particularly being a leader in the area of prevention of secondhand smoke exposure, as evidenced by the smoke-free downtown. The proposed ban on the sale of tobacco products in pharmacies is an important step forward. A complete ban of the retail sale of all flavored e-cigarettes, menthol cigarettes, and other flavored tobacco products in San Rafael would represent another great step forward in concert with your neighbors in Sausalito, Corte Madera, Larkspur, and San Anselmo that have already adopted comprehensive flavor bans and Tiberon, Belvedere, and Ross that do not allow tobacco sales at all. Any exemption for “adult only” stores will be seen as a victory for the tobacco industry and therefore a step backward. I hope this information is useful in informing your policymaking process. Please feel free to contact me should you need any further clarification or information. Best wishes, Stanton A. Glantz, PhD Professor of Medicine Truth Initiative Distinguished Professor of Tobacco Control Director, Center for Tobacco Control Research and Education LINKS TO SOME OF THE SUPPORTING SCIENCE Evidence on how e-cigs cause lung and heart disease and, now, cancer, presented at SRNT meeting https://tobacco.ucsf.edu/evidence-how-e-cigs-cause-lung-and-heart-disease-and-now- cancer-presented-srnt-meeting Three more epidemiological studies find that e-cigarette use increases lung disease https://tobacco.ucsf.edu/three-more-epidemiological-studies-find-e-cigarette-use- increases-lung-disease 4 Fourth paper links ecigs to heart attacks and stroke https://tobacco.ucsf.edu/fourth-paper-links-ecigs-heart-attacks-and-stroke Another study links e-cig use to cardiovascular disease, shows dual use riskier than just smoking https://tobacco.ucsf.edu/another-study-links-e-cig-use-cardiovascular-disease-shows-dual- use-riskier-just-smoking More evidence that e-cig flavors hurt kids with no “benefit” to adults https://tobacco.ucsf.edu/more-evidence-e-cig-flavors-hurt-kids-no- %E2%80%9Cbenefit%E2%80%9D-adults Juul ads are breaking the law by making unauthorized cessation and therapeutic claims https://tobacco.ucsf.edu/juul-ads-are-breaking-law-making-unauthorized-cessation-and- therapeutic-claims Associated Constituent Marcie Leach C-1018491, added on July 25th, 2016 at 10:33 AM Phone Numbers:+ Email Addresses: Locations: Conversation: First Name: Marcie Last Name: Leach Email Address: Phone Number: Subject: Flavored tobacco ban Message: Is it possible to weigh in for the flavored tobacco ban without attending the meeting? Not only does my granddaughter tell me about her classmates who are using it (not she, of course) but I have read literature and seen ads on tv that say it is as bad, maybe even worse, than smoking cigarettes. Let’s not lose another generation to cancer, heart disease and other related ills. A: LOCATION San Rafael CA 94901-1656 Inbound form submission from Marcie Leach to Contact the City Council on May 18th, 2019 at 3:32 PM Thank you for your message. We value your input and strive to respond to any questions or concerns within 2 business days. Thank you, City of San Rafael Automated message sent to Marcie Leach via City Manager's Office on May 18th, 2019 at 3:32 PM City of San Rafael Conversation with Marcie Leach Associated Constituent Susan Marrinson C-1072875, added on May 20th, 2019 at 4:47 PM Phone Numbers:None Email Addresses: Locations:None Conversation: First Name: Susan Last Name: Marrinson Email Address: Phone Number: Subject: Flavor tobacco ban Message: I urge the council to please pass a no exemptions ban on flavor tobacco/vapes tonight. Thank you! A: LOCATION San Rafael CA 94901-1436 Inbound form submission from Susan Marrinson to Contact the City Council on May 20th, 2019 at 4:47 PM Thank you for your message. We value your input and strive to respond to any questions or concerns within 2 business days. Thank you, City of San Rafael Automated message sent to Susan Marrinson via City Manager's Office on May 20th, 2019 at 4:47 PM Hello Susan, Thank you for your comment. We have passed along your message to our City Council and will be included in their packet as well. Best, Lidia Que-Macedo Lidia Que-Macedo responded to Susan Marrinson via City Manager's Office on May 20th, 2019 at 4:49 PM City of San Rafael Conversation with Susan Marrinson From:Jennifer Myers To:Gary Phillips; Maribeth Bushey; Kate Colin; John Gamblin; Andrew McCullough; Rob Epstein; Lindsay Lara Subject:Please Vote Against Flavored Vapes Date:Monday, May 20, 2019 2:36:49 PM Hello, The vaping epidemic among kids is real - and flavored vapes are a common way that kids get addicted. Please vote against any exception that allows flavored vapes to be sold in San Rafael. If you're questioning your vote on this, please ask any assistant principal or principal at our middle and high schools to show you the drawers full of vaped devices that are confiscated from students on a daily basis. We're concerned SR parents. Best, Jennifer Myers and Steven Juliani From:Mock, Jeremiah To:Kate Colin Cc:Gary Phillips; Andrew McCullough; Maribeth Bushey; John Gamblin; Lindsay Lara; Jim Schutz Subject:Re: Exemptions to proposed flavor ban Date:Monday, May 20, 2019 11:34:17 AM Dear Councilmembers Colin, Thank you for your reply. I can understand the difficulty finding clear and reliable health information. There are no proven medical benefits of electronic products that deliver nicotine or tobacco products. The FDA has not certified any e-cigarette (“vaping”) products as proven for aiding smoking cessation (quitting). The latest research shows that e-cigarette products are in fact more harmful than previously assumed. Please see the links below. Unfortunately, the FDA failed to regulate these products when they were proposed for introduction. For this reason, we have an epidemic in youth and young adult’s “vaping” meaning breathing aerosolized chemicals into their lungs. Lungs are designed only to breath clean air. Breathing anything else creates a health hazard. Federal Judge Rules FDA Acted Illegally in Delaying Required Review of E-Cigarettes, Cigars https://truthinitiative.org/news/federal-judge-rules-fda-acted-illegally-delaying-required-review-e-cigarettes-cigars Online sales are a real problem. Of course, I provide information to State legislators. However, JUUL Labs (which is partially owned by Altria/Philip Morris and has a market capital larger than that of Ford Motor Company) and other tobacco industry groups are lobbying heavily against SB 38. Locally in Marin, we cannot control what the State Legislature will do. But we can create our own policies. As you know, State and Federal polices often follow local policy. If San Rafael were to give an exemption to “adult only” stores, JUUL Labs and the rest of the tobacco industry will use this as evidence at the state level that even in progressive Marin County, which has a well-known record of strong tobacco control, the City Council of the the County seat wants to allow for the sale of flavored products. This is why an exemption will be seen by JUUL Labs and the rest of the tobacco industry as a victory. Soon, because of another FDA failure to regulate, Philip Morris will introduce flavored IQOS in the US market. It is important to prevent them from introducing IQOS in any store in Marin. Below are some summaries on the detrimental health effects of e-cigarette (“vaping”) use. I hope they are helpful. I want to help people who are addicted to nicotine to quit, not continue being addicted customers of the tobacco industry using new devices and in doing so damaging their health and finances, exposing others to harmful chemicals, and damaging the environment. I also want to prevent teens from starting a life of nicotine addiction. Please feel free to contact me should you have any additional questions or require further information. I am happy to reply to you. Thank you again for your reply. Sincerely, Jeremiah Mock More evidence that e-cig flavors hurt kids with no “benefit” to adults https://tobacco.ucsf.edu/more-evidence-e-cig-flavors-hurt-kids-no-%E2%80%9Cbenefit%E2%80%9D-adults Evidence on how e-cigs cause lung and heart disease and, now, cancer, presented at SRNT meeting https://tobacco.ucsf.edu/evidence-how-e-cigs-cause-lung-and-heart-disease-and-now-cancer-presented-srnt-meeting Three more epidemiological studies find that e-cigarette use increases lung disease https://tobacco.ucsf.edu/three-more-epidemiological-studies-find-e-cigarette-use-increases-lung-disease Fourth paper links ecigs to heart attacks and stroke https://tobacco.ucsf.edu/fourth-paper-links-ecigs-heart-attacks-and-stroke Another study links e-cig use to cardiovascular disease, shows dual use riskier than just smoking https://tobacco.ucsf.edu/another-study-links-e-cig-use-cardiovascular-disease-shows-dual-use-riskier-just-smoking IQOS emissions create risks of immunosuppression and pulmonary toxicity, so FDA should not accept PMI reduced risk claim https://tobacco.ucsf.edu/iqos-emissions-create-risks-immunosuppression-and-pulmonary-toxicity-so-fda-should-not-accept-pmi-reduced-risk-claim Juul ads are breaking the law by making unauthorized cessation and therapeutic claims https://tobacco.ucsf.edu/juul-ads-are-breaking-law-making-unauthorized-cessation-and-therapeutic-claims On May 20, 2019, at 10:53 AM, Kate Colin <Kate.Colin@cityofsanrafael.org> wrote: Thank you Mr. Mock for taking the time to write to the Council about this issue. I have received many emails about the medical aspects of tobacco of which I'm not an expert so appreciate the insight. Our staff report includes data that shows the outsize role of online retail environment and youth access which, of course, San Rafael cannot regulate. So I hope that you and the other advocates are working with our State legislators on SB 38 which would be a state-wide ban as that might be the most appropriate way to address enacting a complete ban. Thanks again for your email. Kate Colin Councilmember, City of San Rafael Connect with me! cell <Outlook-dcdblwip.png> From: Mock, Jeremiah < Sent: Monday, May 20, 2019 10:32 AM To: Gary Phillips; Andrew McCullough; Kate Colin; Maribeth Bushey; John Gamblin Cc: Lindsay Lara; Jim Schutz; Matt Willis; Bob Curry; Subject: Exemptions to proposed flavor ban Dear Honorable Mayor Philips and City Councilmembers: I am writing to share information with you about the likely impact of the exemptions you are considering to the proposed ban on retail sale of flavored e-cigarette (“vaping”) and other flavored tobacco products. I am a professor at UCSF and I have conducted research in the field of tobacco use for over two decades. I currently have a grant from the California Tobacco-related Disease Research Program studying the environmental impacts of e-cigarettes and tobacco products. I am also a resident of Corte Madera and the father of two teenage sons. Tobacco-free pharmacies Your decision to adopt an ordinance prohibiting the retail sale of e-cigarette and all other tobacco products in pharmacies in San Rafael will be consistent with best practices in tobacco control policymaking. Pharmacy bans have proven effective for reducing the availability of tobacco, particularly to those who are afflicted with tobacco-related diseases and would benefit greatly from quitting. Pharmacies are part of the healthcare system, and as such should not be engaged in selling health-harming tobacco products. E-cigarettes Your prevention initiative to adopt an ordinance prohibiting the retail sale of all flavored e-cigarette (“vaping”) and other flavored tobacco products in San Rafael would be consistent with best practices in tobacco control policymaking and a major step forward. However, allowing exemptions for “adult only” stores that can be accessed by 18-year-olds would be a MAJOR STEP BACKWARDS, and be seen as a VICTORY FOR THE TOBACCO INDUSTRY. Exceptions for “adult only” stores would undermine the effectiveness of your intended flavor ban, and undermine flavor bans adopted by the Marin County Board of Supervisors and local jurisdictions throughout Marin. Teens can easily obtain fake IDs or find someone 21 or older to buy for them at an “adult only” store. Other flavored tobacco products In addition to the known harmful health effects of e-cigarettes (significantly increased risks of heart disease, heart attack, stroke, lung disease and cancer) other flavored tobacco products including menthol cigarettes, little cigars, cigarillos, chewing tobacco, and hookah (waterpipes) are harmful to health. Allowing an exemption for “adult only” stores would make it possible for these stores to sell these harmful products to young customers who live in San Rafael and other jurisdictions where these products are no longer available. Such stores would almost certainly jump at the opportunity to be the only retail sellers of these products. IQOS - new and hazardous to health In addition, this year we are facing the introduction of IQOS, Philip Morris’s new high-tech heated tobacco system. Most of the IQOS heated cartridges are flavored. “Adult only” stores that currently sell e-cigarette products will undoubtedly be highly motivated to offer these new “alternative” products as well. Because IQOS is sleek and high-tech, it is designed to be attractive to teens and young adults. IQOS: Tobacco Meets Technology https://www.pmi.com/smoke-free-products/iqos-our-tobacco-heating-system FDA Authorizes the Marketing of IQOS Devices May 17, 2019 https://vapingdaily.com/blog/fda-permits-iqos-sale/ Environmental impact In addition to the health effects of flavored e-cigarette and other tobacco products, all of these products are environmentally hazardous because they become toxic waste. E-cigarette product waste contains environmentally hazardous electronics, heavy metals, plastics, nicotine and other toxins, and unrecyclable lithium ion batteries. The toxic environmental impacts of cigarette butts are well established — they are made of plastic and leach into the environment the 7,000 chemicals they absorb. Plastic wrappers and mouthpieces from little cigars and cigarillos are also an environmental hazard. Summary We are working hard to make Marin County the first county in the United States in which all jurisdictions ban the sale of flavored e-cigarette and other tobacco products. This uniform countywide standard will reduce youth access, prevent addiction, and send a strong message to the tobacco industry. These products all deliver addictive nicotine. There is no benefit to having these products sold in our communities. Today, you have the opportunity to join elected officials in Corte Madera, Larkspur, San Anselmo, Sausalito, Tiberon, Belvedere, Ross, and the County Board of Supervisors to help make all of Marin County free of flavored products that addict youth and young adults. Your leadership will make it possible for community members to go back to Fairfax and Novato, which have already banned the retail sale of flavored e-cigarettes and most flavored tobacco products, to complete their bans by including menthol cigarettes. With that, the entire county will be free of flavored e-cigarettes and all other flavored tobacco products. Moreover, Philip Morris will not have the opportunity to hook Marin’s youth and young adults on IQOS. Thank you for your careful consideration of this issue. Sincerely, Jeremiah Mock, MSc, PhD Associate Professor Institute of Health and Aging Department of Social and Behavioral Sciences University of California, San Francisco From:Kira Swaim To:Gary Phillips; Andrew McCullough; Kate Colin; Maribeth Bushey; John Gamblin Cc:Lindsay Lara; Jim Schutz Subject:Flavored Tobacco Ban with No Exemptions - This Evening Date:Monday, May 20, 2019 12:02:55 PM Dear Honorable Mayor and City Council Members, Thank you for reading my letter and for your service to the residents of San Rafael. I am on the Management Team for Children for Change, a youth driven and youth led community group. In my role, I work closely with students at Davidson Middle School. One of the issues they have focused on this past year is how they can help their peers and community turn around the vaping epidemic among local youth. Many of the students at Davidson spoke to the Board of Supervisors in support of a tobacco flavor ban – which passed unanimously. While many of them cannot attend your council meeting this evening, please know that it is their hope and expectation that their community leaders will support a county-wide ban (with no exemptions) that protects young people from a tobacco industry that has targeted tweens and teens with flavored products. Thank you for your service and thoughtful consideration of this issue. Sincerely, Kira Swaim Kira Swaim || Owner, Tam Realty || Leading San Anselmo Team || Top 10 in Marin || 415.209.4750 || kira@tamrealty.com|| www.tamrealty.com AVAILABLE NOW! Sought after Christmas Tree Hill in Corte Madera. www.406redwoodave.com Spacious, sun drenched 4 bedroom Novato home. www.2nogales.com COMING SOON! Charming 3 bedroom San Anselmo home with pleasant backyard & bonus room. Seminary San Anselmo home with mesmerizing views & lots of light. 5 full bedrooms. An entertainers dream. One level Fairfax 3 bedroom with mid century modern style and great location. IN CONTRACT Dwell like San Anselmo with concrete radiant floors & private outdoor kitchen/pizza oven. www.60elcerrito.com Associated Constituent Marcie Leach C-1018491, added on July 25th, 2016 at 10:33 AM Phone Numbers:+ Email Addresses: Locations: Conversation: First Name: Marcie Last Name: Leach Email Address: Phone Number: Subject: Flavored tobacco ban Message: Is it possible to weigh in for the flavored tobacco ban without attending the meeting? Not only does my granddaughter tell me about her classmates who are using it (not she, of course) but I have read literature and seen ads on tv that say it is as bad, maybe even worse, than smoking cigarettes. Let’s not lose another generation to cancer, heart disease and other related ills. A: LOCATION San Rafael CA 94901-1656 Inbound form submission from Marcie Leach to Contact the City Council on May 18th, 2019 at 3:32 PM Thank you for your message. We value your input and strive to respond to any questions or concerns within 2 business days. Thank you, City of San Rafael Automated message sent to Marcie Leach via City Manager's Office on May 18th, 2019 at 3:32 PM City of San Rafael Conversation with Marcie Leach From:Marian Engelland To:Lindsay Lara Subject:my opinion regarding flavored vapes in San Rafael Date:Monday, May 20, 2019 2:26:21 PM Dear Ms. Lara, I am a San Rafael resident, mother of 4 daughters at Sun Valley and Davidson Schools (9-13 years old), writing to express my grave concern regarding the sale of flavored vapes in San Rafael. I am strongly opposed to any and all sales of flavored vapes. Flavored vapes are harmful to young people, and lead to stronger addictions. Whatever perceived benefits flavored vapes bring to adults are greatly outweighed by the detrimental effects to the young people of San Rafael. We do NOT need or want these to be in proximity to our youth and their families. Please vote “NO” to all favored vapes sales, and do all you can to protect San Rafael citizens, both young and old. Please have NO EXEMPTIONS in San Rafael. Sincerely, Marian Engelland San Rafael, CA 94901 From:MATTHEW WINTON To:John Gamblin; Maribeth Bushey; Kate Colin; Andrew McCullough; Gary Phillips Cc:Lindsay Lara; Jim Schutz Subject:Ban on flavored tobacco and vaping products Date:Monday, May 20, 2019 12:11:53 PM Dear Members of the San Rafael City Council, My daughter is a student at Davidson Middle School in San Rafael. As a member of the Children 4 Change Club, she and her classmates have spent much of their year advocating for a ban on flavored vaping products. They chose this work because they are very concerned about the impact of vaping on our young people. They have witnessed first-hand their classmates vaping at school because it is so easy to conceal and smells like candy or perfume. They have witnessed classmates with addiction and withdrawal symptoms. This should be an easy decision for our city council. Please do the right thing, protect our young people, and ban flavored tobacco and vaping products – with no exemptions. Sincerely, Matt Winton San Rafael, CA 94901 From:Marian Engelland To:Lindsay Lara Subject:my opinion regarding flavored vapes in San Rafael Date:Monday, May 20, 2019 2:26:21 PM Dear Ms. Lara, I am a San Rafael resident, mother of 4 daughters at Sun Valley and Davidson Schools (9-13 years old), writing to express my grave concern regarding the sale of flavored vapes in San Rafael. I am strongly opposed to any and all sales of flavored vapes. Flavored vapes are harmful to young people, and lead to stronger addictions. Whatever perceived benefits flavored vapes bring to adults are greatly outweighed by the detrimental effects to the young people of San Rafael. We do NOT need or want these to be in proximity to our youth and their families. Please vote “NO” to all favored vapes sales, and do all you can to protect San Rafael citizens, both young and old. Please have NO EXEMPTIONS in San Rafael. Sincerely, Marian Engelland San Rafael, CA 94901 From:Michelene Moayedi To:Gary Phillips; Maribeth Bushey; Kate Colin; John Gamblin; Andrew McCullough; Rob Epstein; Lindsay Lara Subject:Sale of Flavored Vapes - Please vote NO Date:Monday, May 20, 2019 3:38:37 PM Hello City Council Members, I have just learned of the vote tonight about sale of flavored vapes in San Rafael. I am writing to express that I hope you will vote for a full ban on flavored vape products with no exemptions. Vaping is a severe problem in our community and among our youth. Proponents may argue it is for adults only but we all know why the tobacco companies made flavors that appeal to kids. Please do not allow flavored vapes to be sold ANYWHERE in San Rafael. Thank you. Regards, Michelene Moayedi Executive Director, HeadsUp www.headsupsr.org