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HomeMy WebLinkAbout2020-01DocuSign Envelope ID: B8958586-3F27-484D-A163-177D2294A719 ORDINANCE NO. 2020-01 AMENDING SECTION 7-6 OF THE DANVILLE MUNICIPAL CODE REGULATING TOBACCO RETAILING, ADVERTISING AND PROMOTION, AND BANNING THE SALE OF ELECTRONIC SMOKING DEVICES AND E - LIQUIDS The Danville Town Council does ordain as follows: SECTION 1. FINDINGS. In enacting this ordinance, the Town Council makes the following findings: WHEREAS, nationwide, electronic cigarette use has increased at alarming rates since the first products became available about 10 years ago, and while there have been many successful efforts to reduce underage tobacco use, the growing availability of e -cigarettes has reversed those positive trends; and WHEREAS, electronic smoking devices often mimic conventional tobacco products in shape, size, and color, with the user exhaling a smoke -like vapor similar in appearance to the exhaled smoke from cigarettes and other conventional tobacco products; and WHEREAS, although the manufacture and distribution of flavored cigarettes (excluding menthol) is banned by federal law, neither federal nor California laws restrict sales of flavored non -cigarette tobacco products, such as electronic smoking devices and the nicotine solutions used in these devices; and WHEREAS, a central requirement of the Tobacco Control Act is premarket review of all new tobacco products 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. 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, the FDA's premarket review process is intended to determine if a tobacco product is appropriate for the protection of the public health "with respect to the risks and benefits to the population as a whole, including users and non-users of the tobacco product, and taking into account: (A) the increased or decreased likelihood that existing users of tobacco products will stop using such products; and (B) the increased or decreased likelihood that those who do not use tobacco products will start using such products"; and DocuSign Envelope ID: B8958586-3F27-484D-A163-177D2294A719 WHEREAS, virtually all electronics cigarettes that are sold today are considered "new tobacco products" under the Tobacco Control Act, but have not obtained a premarket review order and the FDA has not taken action to enforce this requirement; and WHEREAS, in 2017, the FDA issued Guidance that gives electronic cigarette manufacturers until August 8, 2022 to submit their application for premarket review. The Guidance further allows unapproved products to stay on the market indefinitely, until such time as the FDA complies with its statutory duty to conduct a premarket review to determine whether a new tobacco product poses a risk to public health. In March 2019, the FDA issued draft guidance in which it considered moving the premarket application deadline up by one year for certain flavored e -cigarettes products. It is not known when, if ever, this narrow adjustment will become final or will take effect; and WHEREAS, the California Constitution, Article XI, Section 7, provides cities and counties with the authority to enact ordinances to protect the health, safety, welfare, and morals of their citizens; and WHEREAS, the FDA and federal law also expressly grants state and local governments the right to enact measures that are more restrictive than those in the federal law; and WHEREAS, the Town of Danville has a substantial interest in promoting compliance with federal, state, and local laws prohibiting the sale or furnishing of tobacco products and electronic cigarette products to minors and in discouraging the illegal purchase of tobacco and electronic cigarette products by minors. SECTION 2. AMENDING SECTION 7-6 OF THE DANVILLE MUNICIPAL CODE. Section 7-6 of the Danville Municipal Code is hereby amended by adding the following subsections to read as follows: SECTION 7-6 TOBACCO RETAILING, ADVERTISING, PROMOTION AND LICENSING 7-6.1 Definitions. The following words and phrases, whenever used in this Section 7-6, shall be construed as defined herein: Advertising display sign means any sign, billboard, signboard, poster, placard, pennant, banner, graphic display, mural, or similar device that is used to advertise or promote a product. PAGE 2 OF ORDINANCE NO. 2020-01 DocuSign Envelope ID: B8958586-3F27-484D-A163-177D2294A719 Characterizing flavor means a distinguishable taste or aroma imparted by a tobacco product or any byproduct produced by the tobacco product that is perceivable by an ordinary consumer by either the sense of taste or smell, other than the taste or aroma of tobacco. A "characterizing flavor" includes, but is not limited to, a taste or aroma relating to a fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. Electronic smoking device shall mean an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances. An "electronic smoking device" includes a device that is manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, a vape pen, or a vapor pen. E -liquid means any substance that is intended to be consumed in aerosolized or vaporized form using an electronic smoking device, regardless of the nicotine content of the substance. Flavored tobacco product means any tobacco product, other than cigarettes as defined by federal law, that contains a constituent that imparts a characterizing flavor. A tobacco product whose labeling or packaging contains text or an image indicating that the product imparts a characterizing flavor is presumed to be a flavored tobacco product. Mobile billboard means any sign, billboard, signboard, poster, placard or other advertising 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 indicated 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 section, 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. Person means any individual, firm, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or other legal entity. Promote or promotion means a display of any logo, brand name, character, graphic, artwork, colors, scenes, or designs that are a recognized image of a particular product brand of tobacco that calls the public's attention to the product brand. 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 that is in or immediately adjacent to a window or doorway and is visible from any street, sidewalk, or other public thoroughfare. PAGE 3 OF ORDINANCE NO. 2020-01 DocuSign Envelope ID: B8958586-3F27-484D-A163-177D2294A719 Smoking paraphernalia shall mean cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the consumption or preparation of tobacco or cannabis products; electronic smoking devices and items specifically designed for the preparation, charging, or use of electronic smoking devices including cartridges, cartomizers, e -liquid, smoke juice, tips, atomizers, electronic smoking device batteries, electronic smoking device chargers, and any other electronic smoking device paraphernalia. Tobacco product means any of the following: i. 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, little cigars, chewing tobacco, pipe tobacco, and snuff, including flavored tobacco products. ii. Any Electronic smoking device. iii. Any component, part, or accessory of a tobacco product, whether or not it is sold separately. iv. "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 the product is marketed and sold solely for that approved purpose. Tobacco retailer means any person or entity that sells tobacco, tobacco products, electronic smoking devices, smoking paraphernalia, or any combination thereof, including retail or wholesale sales. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products or smoking paraphernalia sold, offered for sale, exchanged, or offered for exchange. Town Manager means the Town Manager for the Town of Danville or his or her designee. 7-6.2 Restriction on Advertising of 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 any tobacco products, including flavored tobacco products, on an advertising display sign in a publicly visible location within one thousand six hundred (1,600) feet of the perimeter of an elementary or secondary school, public park or public playground. 7-6.4 Distribution or Sale of Tobacco -Related Promotional Items to person under 21. No person may market, license, distribute, sell or cause to be marketed licensed, distributed or sold any item or service to any person under the age of 21, which bears the brand name, alone or in conjunction with, any other word, logo, symbol, motto, selling PAGE 4 OF ORDINANCE NO. 2020-01 DocuSign Envelope ID: B8958586-3F27-484D-A163-177D2294A719 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, including flavored tobacco products. 7-6.5 Self-service Displays Prohibited. It is unlawful for any person to sell, permit to be sold, offer for sale, or display for sale, any tobacco product, including flavored tobacco products, by means of self-service display, rack, counter top or shelf that allows self-service sales for any tobacco product other than vendor -assisted sales. 7-6.6 Vendor Assistance Required. All tobacco products, including flavored tobacco products, shall be offered for sale exclusively by means of vendor assistance, with tobacco products kept in a locked case or in an area not accessible to the public and requiring employee assistance to retrieve the tobacco products. 7-6.14 Violations. (a) Any person violating any provision of this Section 7-6 shall be guilty of an infraction and shall be subject to penalties as set by state law. (b) Violations of this Section 7-6 shall be deemed a public nuisance. 7-6.17 Sale of Electronic Smoking Devices and E -liquids Prohibited. No tobacco retailer may sell, offer for sale, or exchange or offer to exchange for any form of consideration, to a consumer any electronic smoking device or e -liquid where the electronic smoking device or e -liquid: (a) Is a new tobacco product as defined in Section 387j(a)(1) of Title 21 of the U.S. Code; (b) Requires premarket review under Section 387j of Title 21 of the U.S. Code; and (c) Does not have a premarket review order issued under Section 387j(c)(1)(A)(i) of Title 21 of the U.S. Code. SECTION 3. CODIFICATION. Section 2 of this ordinance shall be codified in the Danville Municipal Code. SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT. The Town Council finds that adoption of this ordinance is exempt from the California Environmental Quality Act ("CEQA") because its provisions will not result in a direct or reasonably foreseeable indirect physical change in the environment (CEQA Guidelines Section 15060(c)(2)), and it can be seen with certainty that there is no possibility that the ordinance will have a significant impact on the environment (CEQA Guidelines Section 15061(b) (3)). PAGE 5 OF ORDINANCE NO. 2020-01 DocuSign Envelope ID: 88958586-3F27-484D-A163-177D2294A719 SECTION 5. 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 the ordinance. The Danville Town Council hereby declares that they would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases was declared invalid. SECTION 5. PUBLICATION AND EFFECTIVE DATE. The City Clerk shall have a summary of this ordinance published twice in a newspaper of general circulation, once within five (5) days before its adoption and once within 15 (fifteen) days after adoption. This ordinance shall become effective 30 days after adoption. The foregoing Ordinance was introduced on February 4, 2020 and approved and adopted by the Danville Town Council on February 18, 2020, by the following vote: AYES: Arnerich, Blackwell, Morgan, Stepper, Storer NOES: None ABSTAINED: None ABSENT: None APPROVED AS TO FORM: �DocuSigned by: R44 R. EW4 CITY AT1 0698 4EApt3F4BF... MAYOR ATTEST: DocuSigned by: /11:'rea'L ,- �, (i. orf: 172D`54;5CA1101... �/ CITY CLERK CLERK'S CERTIFICATE DocuSi ned by: 71735A31-04C042F... r I, Marie Sunseri, City Clerk of the Town of Danville, hereby certify that the foregoing is a true and accurate copy of Ordinance No. 2020-01 of said Town and that said ordinance was published according to law. 2/20/2020 Dated: ,-DocuSijned by: '-71735A3F04C0421- ... City Clerk of the Town of Danville PAGE 6 OF ORDINANCE NO. 2020-01