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Item 14 - Introduce an Ordinance prohibiting the sale of Flavored Tobacco and Electronic Cigarette Products
Item 14 GtT Y Ofi rn O Council AgendaReport CIS O Department Name: Administration Cost Center: 1001 For Agenda of: January 21, 2020 Placement: Business Item Estimated Time: 45 minutes FROM: Greg Hermann, Deputy City Manager Prepared By: Ryan Betz, Assistant to the City Manager Georgina Bailey, Management Fellow SUBJECT: CONSIDERATION OF A PROHIBITION ON THE SALE OF FLAVORED TOBACCO AND/OR ELECTRONIC CIGARETTE PRODUCTS RECOMMENDATION 1. Receive a report on the federal, state and regional approaches prohibiting the sale of flavored tobacco and/or electronic cigarette products; and 2. Review and provide direction on an introduced Ordinance (Attachment A) prohibiting the sale of electronic cigarette products that have not received premarket review by the U.S. Food and Drug Administration. REPORT -IN -BRIEF Over the past year, the City of San Luis Obispo (City) has monitored the issue of prohibiting the sale of flavored tobacco products and electronic cigarettes (e-cigarettes) at the federal, state and local level. Since the emergence of e-cigarette products in 2007, it has become the predominant method for using tobacco products amongst youth'. Currently, the U.S. Food and Drug Administration (FDA), which reviews and regulates tobacco products, has not conducted any premarket review of e-cigarette products. Due to the popularity of flavored e-cigarette products with the youth, and absence of a review by the FDA, a number of California cities and counties have prohibited the sale of flavored tobacco products, including e-cigarette products, while allowing the sale of non -flavored e-cigarette products to continue. Recently, several cities and counties have prohibited the sale of all e-cigarette products, including flavored and non -flavored products, to further limit the access of these products to the youth. In June 2019, San Francisco was the first major city in the country to prohibit the sale of all e-cigarette products, followed by the cities of Richmond, Livermore, Morro Bay and Arroyo Grande. ' This conclusion is arrived at directly in the Truth Initiative's Fact Sheet "E-cigarettes: Facts, stats and regulations" which is also supported by the U.S Department of Health & Human Services in their reports "Adolescents and Tobacco: Trends" Packet Page 293 Item 14 DISCUSSION Background In response to concerns expressed by community members, the City Council at its November 27, 2018 meeting, directed staff to analyze issues related to prohibiting or limiting the sale of flavored tobacco and e-cigarettes products within the City. Specifically, the City Council expressed concerns regarding the popularity and effects of flavored e-cigarettes products (also known as vaping, that deliver nicotine through a liquid) on the youth in the community. In response, staff prepared a City Council memo (Attachment b) that analyzed the various policy issues as well as potential options to prohibit the sale flavored tobacco products and e-cigarettes in the City. On October 1, 2019, the City Council directed staff, after additional public concerns were expressed on this topic, to return for additional discussion and direction. Flavored Tobacco Products and E-cigarettes Flavored tobacco is a tobacco product that imparts a characterizing flavor other than the taste or aroma of tobacco, including but not limited to menthol, mint, wintergreen, fruits, candies, herbs or spices. These products include, but are not limited to, flavored cigarettes, cigarillos and cigars, hookah, smokeless tobacco, and flavored components and accessories (such as e juice which is used with e-cigarettes). E-cigarette products include an electronic device, typically battery operated, that heat a liquid to deliver an inhaled dose of nicotine or other substances. The liquid (commonly referred to as e juice) can be tobacco and/or other flavors. Though flavored tobacco has been in the market for some time, e-cigarettes products were introduced more recently in 2007. Since that time, they have been the most commonly used tobacco product amongst youth in the United States2. According to the California Department of Public Health, the shapes and sizes of the devices can vary and include colorful vape pens, modified tank systems, and new pod devices that can look like the USB flash drives for computers, cell phones, credit card holders, and highlighters'. E-cigarettes can deliver a significant amount of concentrated nicotine to its user, and the long- term effects of vaping have still yet to be fully explored. These products, particularly the flavored variety, are popular among younger users. According to a February 2019 National Institutes of Health report, over 17.6% of 8th graders, 32.3% of loth graders and 37.3% of 12th graders reported trying e-cigarettes nationwide4. In California, according to the 2017-18 California Healthy Kids Survey, more than 30% of high school students used e-cigarettes, with 10% of students saying they regularly use the products. That was a 6.4% increase from the year before. In comparison, traditional cigarette smoking among high school students reached a historic low and decreased from 4.3% in 2015-16 to 2.0% in 2017-18. 2 Op.cit. fn.l 3 As defined by the California Department of Public Health "Vaping Associated Lung InjM (EVALI)" 4 As identified in February 2019 by the National Institute on Drug Abuse in an article "Vaping Rises Among Teens" with a graphic that outlines these statistics. 5 As reported by the 2017-18 California Student Tobacco Survey and the California Healthy Kids Survey both demonstrate the state trends of high school students e-cigarette usage as is reported in a CBS Los Angeles report "Survey Cigarette Use Down But Vaping on Rise Among Local High School Students" Packet Page 294 Item 14 The widespread use of e-cigarettes by youth may have significant public health consequences. The U.S. Surgeon General has stated: "Tobacco use among youth and young adults in any form, including e-cigarettes, is not safe. In recent years, e-cigarette use by youth and young adults has increased at an alarming rate. E-cigarettes are now the most commonly used tobacco product among youth in the United State. E-cigarettes are tobacco products that deliver nicotine. Nicotine is a highly addictive substance, and many of today's youth who are using e-cigarettes could become tomorrow's cigarette smokers. Nicotine exposure can also harm brain development in ways that may affect the health and mental health of our kids."6 City of San Luis Obispo Tobacco Regulations The City has a long history of regulating tobacco and was awarded a grade of `B" for its anti- smoking efforts by the American Lung Association in its 2019 State of Tobacco Control. In 1990, the City was the first city in the world to successfully ban smoking in all public buildings, including bars and restaurants. In 2003, the City established a Tobacco Retail License (TRL) program (Municipal Code Chapter 8.14) to further regulate tobacco sales for tobacco retailers and to discourage violations of the laws which prohibit or regulate the sale or distribution of tobacco products to minors. This is accomplished by both license guidelines and enforcement programs by the San Luis Obispo Police Department. The TRL is required for all retailers selling tobacco products, including e-cigarette products (referenced as electronic smoking devices), is valid for one year and is required to be renewed on annual basis. License compliance monitoring by the Police Department includes compliance checks and the cost of compliance monitoring is incorporated into the license fee which of $736.80. Enforcement includes periodic operations that focus on underage tobacco sales with tobacco retailers. The Police Department collaborates with the County of San Luis Obispo's Tobacco Control Program to ensure compliance with local and state regulations. There was one enforcement operation that occurred in 2019, which yielded one violation. There are approximately forty businesses in the City with current licenses through the TRL program. The TRL program was last amended in 2015 to prohibit the use of e-cigarette products in all places where smoking was currently prohibited and required retailers of e- cigarette products to also obtain a TRL. In addition, the City's Municipal Code section (Chapter 8.18) regulates the sale and distribution of tobacco products including language that forbids the sale of tobacco products to minors. 6From the Office of the Surgeon General of the U.S Department of Health and Human Services in a report "E- Cigarette Use Among Youth and Young Adults A Report of the Surgeon General, 2016" 1 From the American Lung Association's 2019 State of Tobacco Control County Grades Packet Page 295 Item 14 Federal and California and Laws In 2009, the federal government enacted the Family Smoking Prevention and Tobacco Control Act, which authorized the FDA to regulate the manufacture, marketing, and distribution of tobacco products. At this time, no e-cigarette products have been reviewed and approved by the FDA, as required by federal law. The deadline for FDA application reviews of all e-cigarette products is May 2020, though the timeline for the premarket review and testing process is yet to be determined, the FDA has up to a year after the submission to act. A recently passed federal law, taking effect on January 1, 2020, also prohibits the sale of tobacco products to anyone under the age of 21. The federal government also recently announced the prohibition of most flavored e-cigarette cartridges (single use), but would exempt menthol and tobacco flavors, as well as flavored liquid nicotine sold in open tank systems, typically sold at vape shops. Enforcement against companies that were still making or selling e-cigarette cartridges, would begin in February 2020.8 In 2003, California enacted the Cigarette and Tobacco Products Licensing Act to regulate the sale of tobacco and tobacco products. Similar to a business license, the Act requires every person selling cigarettes or tobacco products to the public in California to obtain a license from the California Department of Tax and Fee Administration. Since the California legislature has not fully occupied the field of tobacco sales, California cities are free to implement any tobacco sales regulation or restriction provided they do not involve the collection of taxes or the penal aspects of tobacco sales to minors. As of June 9, 2016, California law prohibits selling, giving, or furnishing tobacco products to individuals under the age of 21, including e-cigarettes. The Family Smoking Prevention and Tobacco Control Act authorizes the City to adopt local regulations prohibiting the sale, distribution, possession, exposure to, access to, and promotion of, or use of tobacco products, but does preempt the City from regulating tobacco product standards, manufacturing, and labeling. Accordingly, federal law grants the FDA authority to regulate all tobacco products and expressly preserves the power of local governments to enact additional or "more stringent" regulations related to or prohibiting tobacco sales. The City's TRL program is consistent with the state Cigarette and Tobacco Products Licensing Act and the federal Smoking Prevention and Tobacco Control Act. The TRL regulations could be extended to include prohibitions on the sale of flavored tobacco and e-cigarettes products. On January 6, 2020, California legislatures introduced Senate Bill 793, which bans the sale of flavored tobacco products, including menthol. If approved, the bill would not ban the sale of non -flavored e- cigarette products. The bill is similar to the one that was introduced last year but was ultimately withdrawn. 8 For a discussion on the current FDA rules and regulations see https://www.marketwatch.com/story/federal- government-bans-popular-e-cigarettes-flavors-to-curb-underage-smoking-2020-01-02 and https://www.marketwatch.com/stoI3/fda-to-ban-fruity-e-ci arg ette-pod-flavors-but-allow-tank-vaping-systems-2019- 12-31 and also https://www.nytimes.com/2019/12/31/health/e-cigarettes-flavor-ban-trump.html Packet Page 296 Item 14 Other Cities/Counties in California Over 55 cities and counties in California have passed restrictions on the sale of flavored tobacco products in an effort to reduce youth tobacco use. Recently, several cities have passed ordinances that limit the ability of tobacco retailers to sell e-cigarette products. San Francisco was the first to do so by placing a temporary moratorium on the sale of these products until they have been reviewed by the FDA. San Francisco's ban on e-cigarettes was subject to a voter referendum that would have overturned the ban; however, voters upheld the ban in November 2019. Similar to San Francisco, several other cities and counties, including Richmond and Livermore have recently banned the sale of e-cigarettes products. Beverly Hills prohibited the sale of all tobacco products, with the exception of cigars at high -end cigar lounges and hotels, in June 2019. Other Cities/County in the Region Several cities in San Luis Obispo County and the City of Santa Maria have recently passed additional tobacco regulations. City of Morro Bay: 1) Created a TRL program. 2) Prohibited the sale of e-cigarettes products, including all flavored and non -flavored products, without the reference to the FDA review process. 3) Prohibited smoking in multi -unit residences, both in the units and common areas. 4) Prohibited the sale of tobacco products by retail establishments that contain a pharmacy. 5) Prohibited the sale of: (a) single cigars that cost less than five dollars (b) any of number of cigars fewer than the number contained in the manufacturer's original consumer packaging (c) any package of cigars containing fewer than five cigars The effective date for prohibiting the sale of e-cigarette products is April 2020. City of Arroyo Grande: 1. Prohibited the sale of e-cigarette products, including all flavored and non -flavored products, until the completion of the FDA review process. 2. Prohibited the possession of all tobacco products and paraphernalia by persons under the age of 21, with a fine of $75 or thirty hours of community service work. The effective date for prohibiting the sale of e-cigarette products is March 2020. City of Santa Maria: 1. Created a TRL program 2. Prohibited the sale of all flavored tobacco products, including those flavored with menthol. The regulations allow the sale of e-cigarette products that are not flavored. The effective date for prohibiting the sale of flavored tobacco products is July 2020. Packet Page 297 Item 14 County of San Luis Obispo (Scheduled for 1/14/2020): • Considering the prohibition on the sale of e-cigarette products, including all flavored and non -flavored products, until the completion of the FDA review process, in all unincorporated areas within the County. The effective date for prohibiting the sale of e-cigarette products is 30 days after final adoption. Summary of Recent Flavored Tobacco and E-cigarette Products Regulations 2020- County 2019 - San 2019 - Santa introduces Francisco Maria bans ordinance to becomes first the sale of 2020- Federal ban the sale city to ban all flavored law bans the of e-cigarette e-cigarette tobacco sale offlavored products, products, products, e-cigarette effective 30 including effective July pods (except days after online sales 2020 mint/menthol) adoption • • • • • • • • 2019 - City of 2020- 2020- 2020 - City Arroyo Federal law California considers Grande & prohibits the legislatures banning the Morro Bay sale of introduce SB sale of e- ban the sale tobacco 793 which cigarette of e-cigarette products to bans the sale products products, anyone of flavored effective under the tobacco March/April, age of 21, products 2020 effective January 1. The County of San Luis Obispo's Tobacco Control Program is the lead agency in the county in providing community education, prevention services, and technical assistance to a variety of stakeholders on the prevention of tobacco use. The program has been monitoring this issue for some time and has developed a visual to show policy approaches to address youth vaping (Attachment Q. Policy Options Three options are listed below to guide the Council: 1. The City Council could move to adopt an introduced ordinance (Attachment a) prohibiting the sale of e-cigarette products that have not received premarket review by the FDA. This would be consistent with San Francisco, Arroyo Grande adopted ordinances and the County of San Luis Obispo proposed ordinance. The City of Morro Bay's ordinance is similar, though it does not reference the FDA review process, which means that regardless if the FDA approves an e-cigarette product, the sale would be prohibited in Morro Bay. The Ordinance is designed to become effective 90 days after the second reading and thus provides three months for existing retailers to remove these products from their inventories. Packet Page 298 Item 14 2. The City Council could modify the introduced ordinance to prohibit the sale of flavored tobacco, which would allow the sale of non -flavored e-cigarette products to continue. This would be similar to the City of Santa Maria ordinance, which prohibited the sale of flavored tobacco, including menthol. 3. The City Council could also direct staff to conduct additional public engagement efforts, including public workshops, study sessions, and online surveys. This effort would require additional staff resources, which would be requested as part of the 2019-20 Mid -Year Budget and would delay any adoption of an ordinance by approximately six months. Environmental Concerns Due to the design of e-cigarettes, many of the cartridges that contain the `e juice' are single use. In 2015, of the more than 58 million e-cigarettes and refills that were sold in the United States, 19.2 million were designed as single use.9 Though there are few state and national studies in regards to environmental concerns related to e-cigarettes and `e juice', there are emerging electronic cigarette disposal issues at the City's local level.10 Disposal of e-cigarette products, including the cartridge that contains the `e juice', has become a challenge locally for the San Luis Obispo Integrated Waste Management Authority (IWMA). The waste from the products can contain microplastics, metals, nicotine and combustible lithium ion batteries. Because of this, the waste is categorized is sometimes considered hazardous waste. According to IWMA staff, many of their third -party hazardous waste collectors are limiting the amount of e-cigarette waste collection. Sale of Cannabis Vaping Products Cannabis vaping products are recommended to be exempt from the definition of an e-cigarette product, which is consistent with the Morro Bay ordinance. Cannabis vaping products are regulated through the State of California (unlike e-cigarettes products) and are generally subject to additional regulations that prevent diversion to youth." In addition, cannabis is exempt from the definition of "electronic smoking device" for the City's TRL program and instead is governed through the City's regulations for cannabis businesses. Cannabis consumption, including vaping, remains unlawful to be consumed in public as identified in Section 9.10.210. PREVIOUS COUNCIL OR ADVISORY BODY ACTION As was previously discussed, the City Council initially requested that staff explore this item in November 2018 and directed staff to prepare a study session on the topic in October 2019 based on additional concerns expressed from the community. 9 As concluded by U.S National Institutes of Health's National Library of Medicine in their study "Alert: Public Health Implications of Electronic Cigarette Waste" io Ibid which acknowledges, "No studies have yet traced disposal patterns of e-cigarettes, but research in progress suggests that like cigarette butts, spent e-cigarette capsules or replicable nicotine -filled plastic pods are often littered." " As defined by the California Code of Regulations, Title 17 Division 1. Chapter 12. Manufactured Cannabis Safety California Department of Public Health — Cannabis Regulations Packet Page 299 Item 14 POLICY CONTEXT Regulating the sale of flavored tobacco products, e-cigarettes, or both, falls under Chapter 8.14, Health and Safety Tobacco Retailer License, of the City's Municipal Code. The Council adopted Chapter 8.14 in 2003 to ensure tobacco retailers followed proper compliance with the sale and distribution of tobacco products and to minimize the access of tobacco products to the youth. Additional regulation of the sale and distribution of tobacco products falls under Chapter 8.18, including proper signage, sales to minors, self-service sales of tobacco, out of package sales and violations. PUBLIC ENGAGEMENT As was discussed at the October 1, 2019 City Council meeting, staff would not be able to complete significant public engagement on this topic in advance of a public meeting, but that notification of the meeting would be provided to affected retailers and interested parties. As such, staff provided notification of this item to retailers in the City's Tobacco Retail License program and the County of San Luis Obispo's Public Health Agency Tobacco Control Program on January 10, 2020. Public comment can also be provided to the City Council through written correspondence and public comment at the meeting. ENVIRONMENTAL REVIEW The California Environmental Quality Act does not apply to the recommended action in this report, because the action does not constitute a "Project" under CEQA Guidelines Sec. 15378. FISCAL IMPACT Budgeted: No Funding Identified: No Fiscal Analysis: Budget Year: 2019-2020 Funding Sources Total Budget Available Current Funding Request Remaining Balance Annual Ongoing Cost General Fund N/A State Federal Fees Other: Total N/A Packet Page 300 Item 14 The action before Council in itself does not have a fiscal impact. However, depending on the direction given by Council, any required funding would be considered with the 2019-20 Mid - Year Budget. ALTERNATIVES 1. Move to adopt the introduced ordinance (Attachment A) prohibiting the sale of e-cigarette products that have not received premarket review by the FDA. 2. Modify and move to adopt the introduced ordinance to prohibit sale of e-cigarette products not received premarket review by the FDA and flavored tobacco products. 3. Direct staff to conduct additional public engagement. Additional public engagement efforts, including public workshops, study sessions, and online surveys, would require additional staff resources. The additional staff resources would be requested as part of the 2019-20 Mid - Year Budget and would delay any adoption of an ordinance by approximately six months. Attachments: a - Draft Ordinance - Electronic Cigarette Products b - Council Memo on Flavored Tobacco Regulations c - County of San Luis Obispo Tobacco Control Program Policy Approach to Address Youth Vaping d - Exhibit A to Draft Ordinance Packet Page 301 Item 14 ORDINANCE NO. (2020 Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA, AMENDING THE MUNICIPAL CODE HEALTH AND SAFETY (CHAPTER 8.14) TOBACCO RETAILER LICENSE WHEREAS, the City of San Luis Obispo ("City") is empowered to enact legislation to protect the health, safety, and welfare of the public; and WHEREAS, the City established a Tobacco Retail License Program (Ordinance 1440, 2003 Series) to ensure compliance with all federal, state and local laws and to protect minors from the illegal sale of tobacco products; and WHEREAS, the federal government has enacted numerous tobacco related laws that include, but are not limited to the Family Smoking Prevention and Tobacco Control Act ("Tobacco Control Act"), enacted in 2009, that prohibited candy and fruit -flavored cigarettes, largely because these flavored products are marketed to youth and young adults, and younger smokers were more likely than older smokers to have tried these products. Among other things, the Tobacco Control Act authorized the U.S. Food and Drug Administration ("FDA") to set national standards governing the manufacture of tobacco products, to limit levels of harmful components in tobacco products and to require manufacturers to disclose information and research relating to the products' health effects; and WHEREAS, a central requirement of the Tobacco Control Act is premarket review of all new tobacco products. Specifically, every "New Tobacco Product" which is defined by federal law to be any tobacco product not on the market in the United States as of February 15, 2007, must be authorized by the FDA for sale in the United States before it may enter the marketplace; and WHEREAS, a New Tobacco Product may not be marketed until the FDA has found that the product is: (1) appropriate for the protection of the public health upon review of a premarket tobacco application; (2) substantially equivalent to a grandfathered product; or (3) exempt from substantial equivalence requirements; and WHEREAS, in determining whether the marketing of a tobacco product is appropriate for the protection of the public health, the FDA must consider the risks and benefits of the product to the population as a whole, including users and nonusers of the product, and taking into account the increased or decreased likelihood that existing users of tobacco products will stop using tobacco products and the increased or decreased likelihood that those who do not use tobacco products will start using them. Where there is a lack of showing that permitting the sale of a tobacco product would be appropriate for the protection of the public health, the Tobacco Control Act requires that the FDA deny an application for premarket review; and WHEREAS, in July 2013, the FDA published an independent report that concluded that "menthol use is likely associated with increased smoking initiation by youth and young adults," "menthol in cigarettes is likely associated with greater addiction," and "that menthol cigarettes pose a public health risk above that seen with nonmenthol cigarettes;" and O Packet Page 302 Item 14 WHEREAS, there are currently serious public health concerns about the immediate and long-term harm caused by electronic cigarettes/vaping use; and WHEREAS, approximately 1,300 cases of electronic cigarettes/vaping products related lung illnesses have been reported in hospitals, health clinics, and emergency rooms nationwide, with at least 26 confirmed electronic cigarettes/vaping use related deaths; and WHEREAS, the U.S. Surgeon General and the California Department of Public Health (CDPH) have issued health advisories to educate the public about the imminent health risk posed by electronic cigarettes/vaping products; and WHEREAS, teen use of electronic cigarettes/vaping products has grown rapidly in recent years, with a February 2019 National Institutes of Health report finding that over 17.6% of 8th graders, 32.3% of IOth graders, and 37.3% of 12th graders reported trying electronic cigarettes/vaping products last year nationwide; and WHEREAS, electronic cigarettes/vaping products, particularly the flavored products, are popular among younger users, and the packaging and advertising of these products by companies are often attractive to younger users; and WHEREAS, there are over 15,000 electronic cigarettes/vaping flavors available on the market, including youth -orientated flavors such as bubble gum, cotton candy, and fruit punch, among others; and WHEREAS, the City desires to amend its regulations to make them more comprehensive and effective at protecting the community from the harmful effects of electronic cigarette/vaping products, including devices; and NOW, THEREFORE, BE IT ORDAINED by the Council of the City of San Luis Obispo as follows: SECTION 1. Section 8.14.020, subsection A of the San Luis Obispo Municipal Code is hereby amended as reflected in Exhibit A to read as follows: "A. "Electronic smoking device" means an electronic device which can be used to deliver an inhaled dose of nicotine or any other substances (excluding cannabis), including any component, part, or accessory of such a device, whether or not sold separately, including flavored vape juices and liquids used in such devices. `Electronic smoking device" includes any such electronic smoking device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. O Packet Page 303 Item 14 SECTION 2. Section 8.14.030, of the San Luis Obispo Municipal Code is hereby amended as reflected in Exhibit A to read as follows: "The sale or distribution by an establishment of an Electronic Smoking Device is prohibited in the City of San Luis Obispo, including all non -flavored and flavored Electronic Smoking Device products, including mint and menthol where the Electronic Smoking Device: (a) Requires premarket review under 21 U.S.C. § 387j, as may be amended from time to time; and (b) Does not have a premarket review order under 21 U.S.C. 387j(c)(1)(A)(i), as maybe amended from time to time." SECTION 3. Ordinance Number 1613 (2015 Series) is hereby amended and superseded to the extent inconsistent herewith. SECTION 4. Severabilily. If any subdivision, paragraph, sentence, clause, or phrase of this Ordinance is, for any reason, held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity or enforcement of the remaining portions of this Ordinance, or any other provisions of the city' s rules and regulations. It is the city' s express intent that each remaining portion would have been adopted irrespective of the fact that any one or more subdivisions, paragraphs, sentences, clauses, or phrases be declared invalid or unenforceable. SECTION 5. Environmental Review. The proposed ordinance amendment is exempt from environmental review requirements of the California Environmental Quality Act (CEQA) because the adoption of this Ordinance is not a project as defined in CEQA Guidelines Section 15378 because it can be seen with certainty that it will not result in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. SECTION 6. Effective Date. This ordinance shall be in full force and effect ninety (90) days after it passage. O Packet Page 304 Item 14 SECTION 7. A summary of this ordinance, together with the names of Council members voting for and against, shall be published at least five (5) days prior to its final passage, in The New Times, a newspaper published and circulated in this City. This ordinance shall go into effect at the expiration of ninety (90) days after its final passage. INTRODUCED on the day of by the Council of the City of San Luis Obispo on the following vote: AYES: NOES: ABSENT: ATTEST: Teresa Purrington City Clerk APPROVED AS TO FORM: J. Christine Dietrick City Attorney 2020, AND FINALLY ADOPTED day of , 2020, on the Mayor Heidi Harmon IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Luis Obispo, California, this day of , 2020. Teresa Purrington City Clerk O Packet Page 305 �1� x o�, Council• 1 • 1 • TO: Mayor and City Council FROM: Greg Hermann, Deputy City Manager VIA: Derek Johnson, City Manager DJ PREPARED BY: Ryan Betz, Assistant to the City Manager SUBJECT: FLAVORED TOBACCO PRODUCT REGULATIONS Item 14 The purpose of this memorandum is to respond to inquiries about the potential to regulate flavored tobacco products in the City. In collaboration with staff from the County of San Luis Obispo's Public Health Department, the following memo summarizes the City's current Tobacco Retailer License (TRL) program, policies and recent actions at the Federal and State level, and work plan options for the Council's consideration. Background On November 27, 2018, the City Council (Council) directed staff to study issues related to banning or limiting the sale of flavored tobacco products within City limits. Specifically, the Council expressed concern regarding the effects of vaping (electronic cigarette that delivers nicotine through a liquid) on minors in the community. The City's TRL program (Muni -code 8.14), which began in 2003 to discourage violations of the laws which prohibit or regulate the sale or distribution of tobacco products to minors, outlines the regulation of tobacco sales for tobacco retailers. This is accomplished by both license guidelines and enforcement programs by the Police Department. Tobacco Retailer Licenses are valid for one year and each tobacco retailer shall apply for the renewal of their tobacco retailer's license prior to its expiration. Enforcement includes periodic sting operations that focus on underage tobacco sales with tobacco retailers. There were two sting operations that occurred during the past ten months, which yielded one violation. The TRL program was last amended in 2015 to prohibit the use of electronic smoking devices in all places where smoking was currently prohibited and required retailers of electronic smoking devices to obtain a TRL. In addition, the City's municipal code regulates the sale and distribution of tobacco products (Muni -code 8.18) including language that forbids the sale of tobacco products to minors. There are approximately forty businesses within the City that have licenses through the TRL program. Federal and State Policies and Recent Actions At the Federal level, the Food and Drug Administration (FDA) recently announced its intention to regulate flavored tobacco products. If passed as proposed, the regulations would restrict the sale of flavored electronic cigarettes (e-cigarettes) to age -restricted, adult -only, in -person stores (e.g., Packet Page 306 Flavored Tobacco Product Regulations IterpaAi tobacco only stores, vape shops), and would ban flavored cigars and menthol -flavored cigarettes. These proposals would not restrict menthol -flavored e-cigarettes. A recent study shows over half of high school students who used e-cigarettes used a menthol- or mint -flavored product.' The FDA's final regulations may also be different than the current outlined proposals, as evidenced by the 2009 federal ruling on cigarettes that was weakened with a menthol product exemption. The intended FDA regulations may also face decreased policy efficacy with the adult -only store exemptions as previously demonstrated within the City of Oakland. When Oakland exempted adult -only stores in their flavored tobacco ban, many retailers modified their store layout or business model to meet the age restriction or "adult -only" requirement. Before their ban, Oakland had 2-5 adult -only tobacco stores, but afterward that number had increased to 45 adult -only stores. As exemplified by the City of Oakland, despite a flavored tobacco ban, the exemption of adult only stores mitigates the impacts of the ban due to ability to easily convert stores to adult -only. This is due to FDA regulations allowing entry of persons over 18 into adult -only stores, though California prohibits the sale of tobacco to persons under 21 years of age. For example, this allows persons over 18, but under 21, to enter adult -only tobacco stores in the City. By law, those stores are not allowed to sell tobacco products to persons under 21, but their presence in the store could lead to underage purchases of tobacco products should the business not properly verify their age is 21 or older. Also, the timeline for the FDA's formal proposal is uncertain, due to Executive Order 13 77 1. This order requires all federal executive agencies to revoke two rules for every new rule it promulgates, and also requires neutral economic costs without considering the economic benefits of the agency's proposed action. Moreover, federal decisions regarding tobacco have historically taken several years to implement due to tobacco industry advocacy and the potential litigation. This was the case for the 2006 Department of Justice mandate demanding apology advertisements from the tobacco industry, which did not come to fruition until November 2017. At the State level, Senate Bill (SB) 38 and Assembly Bill (AB) 131 were introduced at the beginning of December 2018. Both bills propose to restrict flavored tobacco products to decrease youth access to nicotine. SB 38 would prohibit the sale or offering of any flavored tobacco product, including menthol cigarettes. The bill defines "characterizing flavor" to mean any distinguishable taste or aroma outside of the traditional taste or aroma of tobacco. The bill also states that this proposed legislation should not preempt local flavored tobacco product bans. Currently, SB 38 has passed the Senate Committee on Health and was re -referred to the Senate Appropriations Committee, set for a hearing on April 22, 2019. AB 131 would prohibit electronic smoking device manufacturers from advertising or promoting the products in ways that appeal to minors: prohibitions would include cartoons or characters popular among children, imitation of candy packaging, or using the words "candy" or "candies." The law would apply to any electronic smoking device that delivers nicotine or other vaporized liquids.2 Currently, on January 24, 2019, AB 131 was referred to the Assembly Committee on Government Organization and a hearing has not been scheduled. ' Cullen, K.A., Notes from the Field: Use of Electronic Cigarettes and Any Tobacco Product Among Middle and High School Students —United States, 2011-2018. MMWR. Morbidity and Mortality Weekly Report, 2018. 67. 2 American Lung Association. (January 2019). Legislative update January 7, 2019. [Fact sheet]. Retrieved from https:Hcenter4tobaccopolicy. org/wp-content/uploads/2019/01 /Leg-Update-2019-01-07.pdf Packet Page 307 Flavored Tobacco Product Regulations IterpaAi Comparable Cities As of December 2018, at least 28 cities and counties in California have passed policies to restrict or prohibit the sale of flavored tobacco products. Eight of the ten most recent policies are comprehensive bans of flavored tobacco. They include flavored e-cigarettes, menthol flavored tobacco products, flavored little cigars, flavored smokeless tobacco, flavored components and accessories (such as e juice and flavored wraps), and products marketed as flavored. The aforementioned bans come with exemptions, such as excluding adult -only stores, grandfathering existing retailers, or exempting stores more than 1,000 feet away from schools. The two most common exemptions to the 28 bans are a) excluding adult only stores (4 jurisdictions) and b) excluding menthol flavors from the ban (8 jurisdictions). Two cities, Santa Cruz and Santa Maria, both considered comparable cities to San Luis Obispo, are currently pursuing and/or implementing flavored tobacco regulations. On November 27, 2018, Santa Cruz's City Council voted to enact a comprehensive ban of flavored tobacco products. Based on discussions with other cities who reported decreased efficacy with, and retailer complaints over, exempting only certain retailers (i.e. adult only stores), Santa Cruz opted for no exemptions. Santa Cruz did face tobacco retailer opposition to the flavored tobacco ban, with the argument being that vaping helps to transition people away from traditional cigarettes and tobacco products. Based upon discussions with staff from the City of Santa Cruz, no retailers argued that they would be forced to close their doors. Santa Cruz allowed retailers six months to liquidate their existing stock of flavored products, and an additional six months of community education and outreach before their enforcement begins. Meanwhile, the City of Santa Maria is pursuing flavored tobacco restrictions in response to community requests, but it is still in the preliminary stage of the process. Effectiveness of Similar Policies Banning flavored tobacco within a city could reduce youth access and use of tobacco products. Flavored tobacco bans are grounded in the tenant that these products (flavored e-cigarettes, cigarillos, chewing tobacco, e juices, etc.) are most popular tobacco product among youth.3 Youth cite flavors as a primary reason for using tobacco products,4 with 81 % of youth who have used 3 Ambrose BK, Day HR, Rostron B, et al. Flavored Tobacco Product Use Among US Youth Aged 12-17 Years, 2013-2014. Jama. 2015;314(17):1871-1873. Villanti AC, Johnson AL, Ambrose BK, et al. Flavored Tobacco Product Use in Youth and Adults: Findings From the First Wave of the PATH Study (2013-2014). American journal of preventive medicine. 2017. Bonhomme MG, Holder -Hayes E, Ambrose BK, et al. Flavored noncigarette tobacco product use among US adults: 2013-2014. Tobacco control. 2016;25(Suppl 2):ii4-ii13. 4 Rutten LJ, Blake KD, Agunwamba AA, et al. Use of E-Cigarettes Among Current Smokers: Associations Among Reasons for Use, Quit Intentions, and Current Tobacco Use. Nicotine & tobacco research: official journal of the Society for Research on Nicotine and Tobacco. 2015;17(10):1228-1234. 16 Farsalinos KE, Romagna G, Voudris V. Factors associated with dual use of tobacco and electronic cigarettes: A case control study. The International journal on drug policy. 2015;26(6):595-600. 17 Kong G, Morean ME, Cavallo DA, Camenga DR, Krishnan -Sarin S. Reasons for Electronic Cigarette Experimentation and Discontinuation Among Adolescents and Young Adults. Nicotine & tobacco research: official journal of the Society for Research on Nicotine and Tobacco. 2015;17(7):847-854. Packet Page 308 Flavored Tobacco Product Regulations IterpaAi tobacco starting with a flavored tobacco product.' A policy would also aim to reduce access to tobacco specifically in retail settings, which is where a significant amount of underage purchasing occurs.6 The first comprehensive local flavored tobacco ban in California was passed by Yolo County in October 2016. As this occurred relatively recently, there are no peer -reviewed studies of the efficacy of a comprehensive flavor ban at a local level yet. However, the data from other longer - established flavor bans (i.e. FDA flavored cigarette ban and New York City flavored tobacco ban) can help predict local policy efficacy. The FDA banned flavored cigarettes (excluding menthol cigarettes) in 2009. This ban resulted in both the reduced probability of adolescents (middle and high school students) becoming cigarette smokers, and a reduction in the total number of cigarettes smoked by adolescents. However, the ban was positively associated with an increase in the adolescent smokers' use of menthol cigarettes. Thus, while the 2009 flavored cigarette ban did achieve its objective of reducing adolescent tobacco use, the effects were likely diminished by the continued availability of menthol cigarettes and other flavored tobacco products via online outlets.7 In a peer - reviewed research article projecting the impact that a US menthol ban would have on smoking prevalence and smoking -attributable deaths, the conclusion was that that in absence of a menthol ban, smoking prevalence would decline but the percentage of those using menthol products would increase.$ New York City (NYC) prohibited the sale of all flavored tobacco products (excluding menthol products) in 2009, with enforcement beginning in 2010. The evaluation from the NYC legislation found that flavored tobacco product sales and the odds of using any tobacco products among teens declined significantly after enforcement began.9 Policy Considerations Should the Council direct staff to move forward with this issue, staff would conduct a regulatory takings analysis. Specifically, a regulatory taking is a situation in which a government regulation limits the uses of private property to such a degree that the regulation effectively deprives the property owners of economically reasonable use or value of their property to such an extent that it deprives them of utility or value of that property, even though the regulation does not formally divest them of title to it. For some businesses, that may be 5 percent of sales, while it could be higher for others. Analyzing and identifying specific findings, such as the impacts of tobacco 5Dai, H. (2018). Single, Dual, and Poly Use of Flavored Tobacco Products Among Youths. Preventing Chronic Disease, 15(6), E87. Villanti, Johnson, Ambrose, Cummings, Stanton, Rose, ... Hyland. (2017). Flavored Tobacco Product Use in Youth and Adults: Findings From the First Wave of the PATH Study (2013-2014). American Journal of Preventive Medicine, 53(2), 139-151. 6 Willett, J., Bennett, M., Hair, E., Xiao, H., Greenberg, M., Harvey, E., ... Vallone, D. (2018). Recognition, use and perceptions of JUUL among youth and young adults. Tobacco Control, 28(1), 115-116. 7 Courtemanche, C.J., Palmer, M.K., Pesko, M.F., 2017. Influence of the flavored cigarette ban on adolescent tobacco use. Am. J. Prev. Med. 52, el39—el46. https:Hdoi.org/10. 1016/j.amepre.2016.11.019 8 Levy, D. T., Pearson, J. L., Villanti, A. C., Blackman, K., Vallone, D. M., Niaura, R. S., & Abrams, D. B. (2011). Modeling the future effects of a menthol ban on smoking prevalence and smoking -attributable deaths in the United States. American journal ofpublic health, 10](7), 1236-40. 9 Farley, S., & Johns, M. (2016). New York City flavored tobacco product sales ban evaluation. Tobacco Control, 26(l), 78-84. Packet Page 309 Flavored Tobacco Product Regulations IterpaAi products on the youth, that counter a regulatory taking, are critical to minimizing the City's exposure to potential litigation. Most regulatory takings challenges against tobacco control policies are centered on the argument that the proposed policy will have a negative economic impact on a business. According to the Public Health Law Center, the court typically evaluates regulatory takings claims by looking at whether the regulation has destroyed all value to the business. If the regulations do not go so far as to completely eliminate a business's value, the court focuses on three factors: (1) the economic impact of the government action; (2) the degree to which the action interferes with reasonable, investment -backed expectations; and (3) the character of the government action. In other words, the court will weigh the economic interests of the business against the law's goals and purpose.lo The City of Berkeley directly addressed this issue in their 2015 flavored tobacco ban by allowing retailers "engaged primarily" in the sale of e-cigarettes and e-liquids an exemption for up to three years if it made "a showing, as determined by the City Manager or his or her designee, "that [the flavor ban] would result in a taking without just compensation under either the California or the United States Constitution. `Engaged primarily' for purposes of this subsection means that the sale of electronic nicotine delivery systems and e-liquids account for more than 50% of the tobacco retailer's calendar year 2014 gross receipts." Potential Next Steps There are several options for the Council to consider as potential next steps: 1) Public hearing only — This would involve moving forward with directly placing the introduction of an ordinance banning the sale of flavored tobacco products in the City on a future City Council agenda. This option could be accomplished in late summer or fall and can be accomplished with existing resources but would not include any public engagement or stakeholder outreach. 2) Standard ordinance amendment process — This would involve a more typical process including a study session to explore the issue in depth during a public meeting, pubic and stakeholder outreach and engagement and a public hearing with ordinance amendments based on the feedback received through the process. This process typically takes 6-9 months and would require additional resources or tradeoffs with other projects currently in process such as Funding the Future. 3) No action at this time - The Council could choose to not take action at this time and closely monitor related Federal and State policies. Attachments 1. Statewide Matrix 2. List of Tobacco Retailers in the City 10 Public Health Law Center. (2011). Tobacco Control and the Takings Clause. Retrieved from https://publichealthlawcenter. org/sites/default/files/resources/tcic-guide-tobacco-takingsclause-2011 _0.pdf Packet Page 310 Item 14 AMERICAN Matrix of Local Ordinances Restricting LUNG THE CENTER ASSOCIATION® for Tobacco Policy&Organizing IN CALIFORNIA the Sale of Flavored Tobacco Products NOVEMBER 2018 The tobacco industry has a long history of using flavored tobacco to target youth and communities of color. The majority of youth who start experimenting with tobacco begin with flavored tobacco.' These products come in a variety of candy -like flavors including bubble gum, grape, menthol and cotton candy and include e-cigarettes, hookah tobacco, cigars, smokeless tobacco, and even flavored accessories such as blunt wraps. Since 2009, the United States Food and Drug Administration (FDA) has banned flavored cigarettes nationwide. However, this ban included an exemption for menthol flavored cigarettes and doesn't extend to non -cigarette tobacco products. There are currently no state laws in California restricting the sale of flavored tobacco products. It is up to local communities to take action to protect their youth from the lure of enticing flavored tobacco. The first community to restrict the sale of flavored tobacco in California was Santa Clara County in 2010. Since then, twenty-six communities have passed similar policies. What products may be included? 1. E-Cigarettes - Restricts the sale of flavored electronic cigarettes. 2. Menthol - Restricts the sale of tobacco products labelled as menthol, including cigarettes, smokeless tobacco, little cigars, etc. 3. Little Cigars - Restricts the sale of flavored little cigars, which are small, usually filtered cigars wrapped in brown paper containing tobacco leaf. Little cigars became a popular alternative following the FDA's ban on flavored cigarettes. 4. Smokeless Tobacco - Restricts the sale of flavored smokeless tobacco such as chewing tobacco, dip, snus and snuff. 5. Components & Accessories - Restricts the sale of flavored accessory products such as blunt wraps and e-juice additives. These products cannot be smoked alone and serve as a delivery system for smoked products. 6. Products Marketed as Flavored - Tobacco companies sometimes try to circumvent flavor restrictions by marketing products as flavored without directly labelling them as such. This policy option allows communities to broaden the definition of flavored tobacco to include these products. What exemptions are allowed? 1. Adult -Only Stores Exempted - Adult -only retailers are limited to customers who are 21 and over. This limits sales of flavored tobacco to stores that youth do not have access to. 2. Grandfathered Retailers Exempted - Allows retailers that were in operation prior to a specifed date to continue selling flavored tobacco products. 3. Limited to Youth -Populated Areas - Retailers are required to be a certain distance away from schools, parks, or other youth -oriented locations. Since many flavored tobacco products target youth, including buffer zones is a way to limit their access to flavored products. Resources The Center has additional resources on tobacco retailer licensing ordinances, plug-in policies, and ordinances restricting menthol tobacco available at: http:// center4tobaccopoIicy.org/tobacco-policy/tobacco-retail- environment/ . ChangeLab Solutions has model ordinance language available for ordinances restricting flavored tobacco at: http://changelabsolutions.org. The Center for Tobacco Policy & Organizing I American Lung Association in California 15311 Street, Suite 201, Sacramento, CA 95814 Phone: (916 554.5864 1 Fax: (916 442.8585 ©2018. California Department of Public Health. ` ertt PaCle 11 THE AMERICAN LUNG ASSOCiATION IN CALIFORNIA THE CENTER FOR TOBACCO POLICY& ORGANIZIkeIjeI43 Marin County X X X X X X Nov 2018 Saratoga X X X X X Oct 2018 Half Moon Bay X X X X X X Oct 2018 Portola Valley X X X X X X Sep 2018 Beverly Hills X X X X X X August 2018 Richmond X X X X X X July 2018 Sausalito X X X X X July 2018 San Mateo County X X X X X X June 2018 San Francisco X X X X X X June 2018 Mono County X X X X X July 2018 Windsor X X** X X X March 2018 Cloverdale X X X X December 2017 Fairfax X X** X** X December 2017 San Leandro X X X X X Oct 2017 Palo Alto X X X X X X X Oct 2017 Oakland X X X X X X X Sep 2017 Contra Costa County X X X X X X July 2017 Los Gatos X X X X X X X May 2017 Novato X X** X X X Jan 2017 Santa Clara County X X X X X X X Oct 2016 X 1000 ft The Center for Tobacco Policy & Organizing American Lung Association in California 15311 Street, Suite 201, Sacramento, CA 95814 Phone: (916) 554.5864 1 Fax: (916) 442.8585 ©2018. California Department of Public Health. Funded under contract #14-10013. Packet Page 312 THE AMERICAN LUNG ASSOCiATION IN CALIFORNIA THE CENTER FOR TOBACCO POLICY& ORGANIZIR0Ije143 Yolo County X X X X X Oct 2016 Manhattan Beach X X X X X Dec 2015 El Cerrito X X. X X X X Oct 2015 Berkeley X X X X X X X Sept 2015 600 ft Sonoma X X** X*** X June 2015 Hayward X X* X X X X X July 2014 500 ft 'Ambrose, B.K., et al., Flavored Tobacco Product Use Among US Youth Aged 12-17 Years, 2013-2014. JAMA,2015: p.1-3. *Does not include menthol cigarettes **Exempts packages of at least 5 or more ***Doesn't apply to pipe tobacco The Center for Tobacco Policy & Organizing American Lung Association in California 15311 Street, Suite 201, Sacramento, CA 95814 Phone: (916) 554.5864 1 Fax: (916) 442.8585 ©2018. California Department of Public Health. Funded under contract #14-10013. Packet Page 313 Active Tobacco Retailers Item 14 Date: 1/10/2019 Customer Number Customer Status Service Address Line 1 Service Address Line 2 Service Code Invoice Status Customer Number Customer Name Line 1 9517 A 151 N SANTA ROSA S17 A 9517 CHEVRON STATIONS INC 9514 A 956 E FOOTHILL BL S17 A 9514 RITE AID #5822 9527 A 552 CALIFORNIA S17 A 9527 SEVEN 11 9526 A 290 CALIFORNIA S17 A 9526 CAMPUS BOTTLE SHOP 9525 A 201 MADONNA RD S17 A 9525 RALPHS GROCERY CO 9523 A 204 MADONNA RD S17 A 9523 MADONNA SHELL 9520 A 3 SANTA ROSA S17 A 9520 SANTA ROSA SHELL 9511 A 774 FOOTHILL S17 A 9511 CORK AND BOTTLE 9508 A 692 MARSH S17 A 9508 SEVEN ELEVEN STORE #27835C 9521 A 11590 LOS OSOS VALLEY RD S17 A 9521 LAGUNA LAKE SHELL 9495 A 1291 LAUREL LANE S17 A 9495 LAUREL LANE MARKET 9496 A 1401 OSOS S17 A 9496 SIDEWALK MARKET 9492 A 3180 BROAD S17 A 9492 CHEVRON STATIONS INC 9489 A 3211 BROAD S17 A 9489 CROSSROADS LIQUOR 9488 A 2015 BROAD S17 A 9488 BROAD STREET UNOCAL 9487 A 2145 BROAD S17 A 9487 MANUEL'S 9506 A 157 HIGUERA S17 A 9506 76 STATION 9504 A 586 HIGUERA S17 A 9504 SANDY'S LIQUOR AND DELI 9503 A 2000 MONTEREY S17 A 9503 COAST INVESTMENTS, INC. 9500 A 1301 MONTEREY S17 A 9500 SEVEN 11 9522 A 12424 LOS OSOS VALLEY RD S17 A 9522 B N B CHEVRON 9519 A 296 SANTA ROSA S17 A 9519 CONICO 8180 A 1251 JOHNSON AVE S17 A 8180 RITE AID DRUGS #5820 10156 A 973 FOOTHILL BL SUITE 104 S17 A 10156 CLOUD 9 IMPORTS 8199 A 3550 BROAD ST S17 A 8199 VONS #2306 0000030909 A 871 SANTA ROSA ST S17 A 0000030909 WEIRD WILLIES II CA CORPORATION 10198 A 1111 CHORRO ST S17 A 10198 SANCTUARY TOBACCO SHOP, THE 0000027566 A 3920-3 BROAD ST S17 A 0000027566 THE CLUB SMOKE SHOP 10083 A 2600 BROAD ST S17 A 10083 SLO QUICK STOP 0000028450 A 1756 MONTEREY ST S17 A 0000028450 UNIVERSITY SPIRIT GAS & MINI MART 0000025857 A 11560 LOS OSOS VALLEY RD, STE S17 A 0000025857 LAGUNA SMOKES 0000032059 A 592 CALIFORNIA BL S17 A 0000032059 ROYAL SMOKE & VAPE 0000032058 A 487 MADONNA RD, SUITE 2 S17 A 0000032058 SMOKE N VAPE INC 0000030280 A 158 HIGUERA ST, STE E S17 A 0000030280 SLO BEVERAGE N MORE INC 0000025443 A 254 SANTA ROSA S17 A 0000025443 MOLLER INVESTMENT GROUP #6103 11183 A 4021 BROAD ST S17 A 11183 EDNA VALLEY SHELL 0000025270 A 1502 FROOM RANCH WAY S17 A 0000025270 BEVERAGES & MORE 0000028549 A 328 MARSH ST S17 A 0000028549 MISSION STATION INC 0000025657 JA 12211 BROAD ST IS17 JA 10000025657 1 MOLLER INVESTMENT GROUP #6112 Page 1 Packet Page 314 Policy Approaches to Address Youth Vaping Item 14 The evidence is clear that flavors play a critical role in the youth vaping epidemic: Nearly all youth e-cigarette users use flavored products and 70% cite flavors as a key reason for their use. In January 2020, the FDA released their policy proposal to address youth vaping, however, many health organizations cited this policy as a shortfall. Here's a snapshot of the policy solutions some California jurisdictions have pursued in an effort to end youth vaping. Ban on the sale of Flavored Ban on the sale of all Tobacco Products Beverly Hills (2018) Tobacco & E-cigarettes (including online sales) San Francisco (2019) Ban on the sale of Flavored Tobacco Santa Maria (2020) Ban on the sale of E-Cigarettes Arroyo Grande (2020) 50+ Cities & Counties in CA Proposed SB 793 For up-to-date information on tobacco regulation at the federal, state, and local level, contact the Tobacco Control Program at tobaccofree@co.slo.ca.us (Created 1 /7/2020) Ban on the sale of Flavored E-cigarette Pods (except Mint/Menthol*) FDA 2020 Proposal Ban on the sale of Flavored Tobacco (except mint/Menthol*) Sonoma (2015) LEAST RESTRICTIVE Item 14 Chapter 8.14 TOBACCO RETAILER LICENSES 8.14.010 Purpose. 8.14.020 Definitions. 8.14.030 Requirement for tobacco retailer license. 8.14.040 Application procedure. 8.14.050 Issuance of license. 8.14.060 Display of license. 8.14.070 Fees for license. 8.14.080 Licenses nontransferable. 8.14.085 Noncompliance with tobacco related laws —License violation. 8.14.090 License compliance monitoring. 8.14.100 Suspension or revocation of license. 8.14.110 Appeal of suspension and/or revocation. 8.14.120 Administrative fine —Penalties —Enforcement. 8.14.130 Severability. 8.14.010 Purpose. It is the intent of the city of San Luis Obispo, in enacting this chapter, to discourage violations of laws which prohibit or regulate the sale or distribution of tobacco products to minors, but not to expand or reduce the degree to which the acts regulated by state or federal law are criminally proscribed or to alter the penalty provided therefor. (Ord. 1440 § 1 (part), 2003) 8.14.020 Definitions. The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise: Packet Page 316 Item 14 A. "Electronic smoking device" means an electronic device which can be used to deliver an inhaled dose of nicotine or any other substances (excluding cannabis), including any component, part, or accessory of such a device, whether or not sold separately, including flavored vape juices and liquids used in such devices, even if sold separately. "Electronic smoking device" includes any such electronic smoking device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. B. "Person" means any natural person, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity. C. "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 ten percent 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 can or does have, or can or does share, ultimate control over the day -today operations of a business. D. "Tobacco product" means any product containing, made from, 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, pipe tobacco, snuff, chewing tobacco, dipping tobacco, electronic smoking devices or any other preparation of tobacco including Indian cigarettes called "bidis." "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 and is marketed and sold solely for such an approved purpose. E. "Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, or tobacco products; "tobacco retailing" shall mean the doing of any of these things. F. "Licensing agent" means a city employee designated by the city administrative officer to serve in this capacity. G. "Enforcement agency" means the San Luis Obispo police department. H. "Hearing officer" means the city employee designated by the city administrative officer to serve in this 8.14.030 Requirement for tobacco retailer license. It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which that activity is to occur. No license will be issued to authorize tobacco retailing at other than a fixed location; itinerant tobacco retailing and tobacco retailing from vehicles are prohibited. Packet Page 317 Item 14 No license will be issued to authorize tobacco retailing at any location that is licensed under state law to serve alcoholic beverages for consumption on the premises (e.g., an "on -sale" license issued by the California The sale or distribution by an establishment of an Electronic Smoking Device is prohibited in the City of San Luis Obispo, including all non -flavored and flavored Electronic Smoking Device products, including mint and menthol where the Electronic Smoking Device is: (a) Requires premarket review under 21 U.S.C. 387j, as may be amended from time to time; and (b) Does not have a premarket review order under 21 U.S.C. § 387j(c)(1)(A)(i), as maw amended from time to time. Department of Alcoholic Beverage Control); tobacco retailing in bars and restaurants serving alcoholic beverages is prohibited. Licenses are valid for one year and each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license prior to its expiration. The conference of a tobacco retailer license does not confer any new rights under any other law and does not exempt any business that otherwise would be subject to the smoke -free workplace provisions within the San Luis Obispo Municipal Code and Labor Code Section 6404.5. (Ord. 1440 § 1 (part), 2003) 8.14.040 Application procedure. A. Application for a tobacco retailer's license shall be submitted to the licensing agent in the name of each proprietor/person proposing to conduct retail tobacco sales and shall be signed by such person or an authorized agent thereof. All applications shall be submitted on a form supplied by the licensing agent and shall contain the following information: 1. The name, address, and telephone number of the applicant. 2. The business name, address, and telephone number of each location for which a tobacco retailer's license is sought. 3. Such other information as the licensing agent deems necessary for enforcement of this chapter. 4. Whether or not any proprietor has previously been issued a license pursuant to this chapter that is, or was at any time, suspended or revoked and, if so, the dates of the suspension period or the date of revocation. (Ord. 1440 § 1 (part), 2003) 8.14.050 Issuance of license. Upon the receipt of an application for a tobacco retailer's license, the licensing agent shall issue a license unless substantial record evidence demonstrates one of the following bases for denial: A. The application is incomplete or inaccurate; or B. The application seeks authorization for tobacco retailing by a person or at a location for which a suspension is in effect pursuant to Section 8.14.100 of this chapter; or Packet Page 318 Item 14 C. The application seeks authorization for tobacco retailing in an area that is in violation of city zoning pursuant to Title 17 of this code or that is unlawful pursuant to any other local, state, or federal law. (Ord. 1440 § I (part), 2003) 8.14.060 Display of license. Each license shall prominently display the license in a public place at each location where tobacco retailing occurs. (Ord. 1440 § 1 (part), 2003) 8.14.070 Fees for license. The fee for a tobacco retailer's license shall be established by resolution of the city council of the city of San Luis Obispo. The fee shall be calculated so as to recover the total cost, but no more than the total cost, of license administration and enforcement, including, for example, but not limited to, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violation, and prosecution of violators. The fee for tobacco retailer's license shall be paid to the licensing agent. (Ord. 1440 § 1 (part), 2003) 8.14.080 Licenses nontransferable. A tobacco retailer's license is nontransferable. For example, if a proprietor to whom a license has been issued changes business location, that proprietor must apply for a new license prior to acting as a tobacco retailer at the new location. Or if the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer. (Ord. 1440 § 1 (part), 2003) 8.14.085 Noncompliance with tobacco related laws —License violation. Compliance with all local, state and federal tobacco -related laws shall be a condition of a city tobacco retailer license and it shall be 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. (Ord. 1473 § 1, 2005) 8.14.090 License compliance monitoring. Compliance with this chapter shall be monitored by the San Luis Obispo police department. At least four compliance checks of each tobacco retailer shall be conducted during each twelve-month period. The cost of compliance monitoring shall be incorporated into the license fee. (Ord. 1440 § 1 (part), 2003) 8.14.100 Suspension or revocation of license. A. In addition to any other penalty authorized by law, a tobacco retailer's license may be suspended or revoked if the city finds, after notice to the licensee and opportunity to be heard, that the licensee or his or her agents or employees has violated the conditions of the license imposed pursuant to this chapter. 1. Upon a finding by the city of a first license violation within any five-year period, the license shall be suspended for thirty days. 2. Upon a finding by the city of a second license violation within any five-year period, the license shall be suspended for ninety days. Packet Page 319 Item 14 3. Upon a finding by the city of a third license violation within any five-year period, the license shall be suspended for one year. 4. Upon a finding by the city of a fourth license violation within any five-year period, the license shall be revoked. B. A tobacco retailer's license shall be canceled if the city finds, after notice and opportunity to be heard, that one of the following conditions exists. The revocation shall be without prejudice to the filing of a new application for a license. 1. The application is incomplete for failure to provide the information required by Section 8.14.040. 2. The information contained in the application, including supplemental information, if any, is found to be false in any material respect. 3. The application seeks authorization for a license for tobacco retailing that is unlawful. (Ord. 1440 § 1 (part), 2003) 8.14.110 Appeal of suspension and/or revocation. A. A decision of the city to revoke or suspend a license is appealable to a hearing officer and must be filed with the hearing officer at least ten working days prior to the commencement date of the license suspension or revocation. An appeal shall stay all proceedings in furtherance of the appealed action. Following appeal, the decision of the hearing officer may be appealed to the city administrative officer or his or her designee. A decision of the city administrative officer or his or her designee shall be the final decision of the city. B. During a period of license suspension, the tobacco retailer must remove from public view all tobacco products. (Ord. 1440 § 1 (part), 2003) 8.14.120 Administrative fine —Penalties —Enforcement. A. Any violation of the provisions of this chapter by any person is a misdemeanor and is punishable as provided in Chapter 1.12, Section 1.12.030 of this code. Any violation of the provisions of this chapter by any person is also subject to administrative fines as provided in Chapter 1.24 of this code. B. If the city of San Luis Obispo finds, based on substantial record evidence, that any unlicensed person has engaged in tobacco retailing activities in violation of Section 8.14.030 of this chapter, the city shall fine that person as follows. Each day that an unlicensed person offers tobacco, tobacco products or tobacco for sale or exchange shall constitute a separate violation and assessed a fine in accordance with Sections 1.12.080 and 1.24.070(A) of this code. C. Violations of this chapter are hereby declared to be public nuisances. Packet Page 320 Item 14 D. In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the city attorney, including but not limited to administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity. (Ord. 1440 § 1 (part), 2003) 8.14.130 Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this chapter is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this chapter or the rules adopted hereby. The city council of the city of San Luis Obispo hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. (Ord. 1440 § 1 (part), 2003) Packet Page 321 Item 14 Page intentionally left blank. Packet Page 322 Consideration of a Prohibition on the Sale Of Flavored Tobacco and/or Electronic Cigarette Prodi January 21, 2020 9 - �' •r TT .4 ,rti- a _ _ ti Recommendation 1. Receive a report on the federal, state and regional approaches prohibiting the sale of flavored tobacco and/or electronic cigarette products; and 2. Review and provide direction on an Ordinance prohibiting the sale of cigarette products that have not introduced electronic received premarket review by the U.S. Food and Drug Administration. Background • November, 2018: The City Council directs staff to analyze issues related to prohibiting or limiting the sale of flavored tobacco and electronic cigarettes products (e-cigarettes) within the City. • April, 2019: Staff provided an update to the City Council on the various policy issues as well as potential options to prohibit the sale flavored tobacco products and e-cigarettes in the City. • October, 2019: The City Council directed staff to return for additional discussion and direction. San Luis Obispo's Existing Tobacco Regulations goon Flavored Tobacco Products and E-cigarettes Flavored Tobacco Electronic Cigarette/Vaping (e-cigarette) Popularity of E-Cigarettes With the Youth • E-cigarettes are the most popular tobacco product among the youth Nationwide Over 17% of 8th graders, 32% of 10th graders and 37% of 12th graders reported trying e-cigarettes California More than 30% of high school students used e-cigarettes, with 10% of students saying they regularly use the product . San Luis Obispo 31 % of 11 t" graders reported regularly using e-cigarette products 66% of 9t" graders say it's easy to get e-cigarette products Recent Federal and California Laws California 2003 Enacted the Cigarette and Tobacco Products Licensing Act 4D Federal 2009 Enacted the Family Smoking Prevention and Tobacco Control Act Federal January 2020 Age to purchase tobacco products increased to 21 46 0 California January 2020 Introduced SB 793 which prohibits the sale of flavored tobacco products Federal February 2020 Prohibition of most flavored e- cigarette cartri Other Cities/Counties in California _....-11. _ .vncelope Klamath N atjonal Forest were SN Rivers Tonal Forest Shasta -Trinity National Forest ModocI- Refuge National FOr at Black Rock BeserS - High Rock Canyon Emigrant.,. vn�� e�ucca Redoing Lassen ° National FOrest F- RISOPtil I L-.E IT_ �I"",'4V A i;i Jrl Plume's © cni�o National Forest N Mendocino ° National Forest ono c rson city vQ Eldorado Satrento National Fore' Humboltll-Toi! Sa2Rr National For _ q Sterislaus National Forest Q\ Yosemite San \ National Park \\\ 'e Sierra Nat ionei © Forest ` I Q Fresno o CALIFORWA wsara Sequoia QNational Forest ` v san��� Bakersfield qy�9 n ss♦1 1 m Los Padres Long to h Other Cities/County in the Region Morro Bay* Arroyo Grande County of San City of Santa Luis Obispo Maria What was Prohibited Prohibited the sale of Prohibited the Prohibited the restricted the sale of all all flavored and sale of all sale of all flavored and non -flavored e- flavored and flavored tobacco non -flavored cigarettes products non -flavored e- products e-cigarettes cigarettes products Prohibited youth products possession of all tobacco products Pending FDA No Yes Yes Yes Review Process Effective Date TBD* March 2020 February 2020 July 2020 Public Engagement 1. Legal ad was circulated in a local posted on the City's website and Hall newspaper, in front of City 2. Postcards mailed to retailers in the City's Tobacco Retail License program 3. Letters mailed to retailers in the City's Tobacco Retail License program 4. Letter mailed to the County of San Luis Obispo's Public Health Agency Tobacco Control . Environmental Concerns • Many electronic cigarette products are single use • Electronic cigarette devices are challenging to dispose of • San Luis Obispo Integrated Waste Management Authority (IWMA) has been impacted by electronic cigarette and e-juice disposal Policy Options Key Questions Yes No Flavored Tobacco Products 1) Is Council supportive of prohibiting the sale of all flavored tobacco products? E-Cigarette Products 2) Is Council supportive of prohibiting the sale of e-cigarette products only? 3) Should it include an exemption for non -flavored (tobacco) products? 4) Pending FDA approval? Effective Date 5) Shall enforcement begin 90 days after final adoption? Alternatives 1. Move to adopt the introduced ordinance (Attachment A) prohibiting the sale of all e-cigarette products (flavored and non -flavored) that have not received premarket review by the FDA. 2. Modify and move to adopt the introduced ordinance to prohibit sale of e-cigarette products (flavored and non - flavored) that have not received premarket review by the FDA and flavored tobacco products. 3. Direct staff to conduct additional public engagement. Additional public engagement efforts, including public workshops, study sessions, and online surveys, would require additional staff resources or workplan tradeoffs. Recommendation 1. Receive a report on the federal, state and regional approaches prohibiting the sale of flavored tobacco and/or electronic cigarette products; and 2. Review and provide direction on an introduced Ordinance prohibiting the sale of electronic cigarette products that have not received premarket review by the U.S. Food and Drug Administration. �11 Y Off, �R1 15 Alternative Ordinance Options Prohibiting the Sale of Flavored Tobacco SECTION 2. Section 8.14.030, of the San Luis Obispo Municipal Code is hereby amended as reflected in Exhibit A to read as follows: 1. The sale, offer for sale, exchange, or offer to exchange of any flavored tobacco product is prohibited. (a) "Flavored Tobacco Product" means if the product manufacturer, tobacco retailer, or any of their respective 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 characterizingflavor. avor. Date of Enforcement SECTION 6. Effective Date. This ordinance shall go into full force and effect 90 days after it passage. Alternative Ordinance Options Prohibiting the Sale of Flavored E-Cigarette Products SECTION 2. Section 8.14.030, of the San Luis Obispo Municipal Code is hereby amended as reflected in Exhibit A to read as follows: (b) "Flavored Electronic Smoking Device " means an electronic device which can be used to deliver an inhaled dose of flavored nicotine or any other flavored substances (excluding cannabis), including any component, part, or accessory of such a device, whether or not sold separately, including flavored vape juices and liquids used in such devices, even if sold separately. "The sale or distribution by an establishment of a flavored Electronic Smoking Device is prohibited in the City of San Luis Obispo, including mint and menthol where the Electronic Smoking Device: (a) Requires premarket review under 21 U.S.C. § 387j, as may be amended from time to time; and (b) Does not have a premarket review order under 21 U.S.C. § 387j(c)(1)(A)(i), as may be amended from time to time." Date of Enforcement SECTION 6. Effective Date. This ordinance shall go into full force and effect 90 da after it passage. Cannabis Cannabis vaping products are regulated through the State of California (unlike e-cigarettes products) and are generally subject to additional regulations that prevent diversion to youth • California Code of Regulations, Title 17 Division 1. Chapter 12. Manufactured Cannabis Safety California Department of Public Health —Cannabis Regulations