HomeMy Public PortalAbout19-1940 - Amending Section 63150.5.1, Adding Section 63150.5.12, and Adding Section 63150.5.13 to Part 5 of Chapter 3 of the CMC to Prohibit the Sale of E Cigarettes and Other Vaping DevicesORDINANCE NO. 19-1940
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARSON, CALIFORNIA
AMENDING SECTION 63150.5.1 (DEFINITIONS), ADDING SECTION 63150.5.12 (SALE OF
ELECTRONIC CIGARETTES NOT APPROVED BY FDA PROHIBITED), AND ADDING
SECTION 63150.5.13 (SALE OF FLAVORED TOBACCO PRODUCTS), TO PART 5
(BUSINESSES, PROFESSIONS, TRADES AND OCCUPATIONS REQUIRING A PERMIT) OF
CHAPTER 3 (BUSINESS, PROFESSIONS AND TRADES) OF ARTICLE VI (TAXES AND
LICENSES) OF THE CARSON MUNICIPAL CODE TO PROHIBIT THE RETAIL SALE OF
ELECTRONIC CIGARETTES AND OTHER VAPING DEVICES THAT HAVE NOT BEEN
APPROVED BY THE U.S. FOOD AND DRUG ADMINISTRATION FOR INTRODUCTION INTO
INTERSTATE COMMERCE, AND TO PROHIBIT THE RETAIL SALE OF FLAVORED TOBACCO
PRODUCTS
WHEREAS, pursuant to Article X1, Section 7 of the California Constitution, the City has the police
power to make and enforce within its limits all local, police, sanitary, and other ordinances and
regulations not in conflict with general laws; and
WHEREAS, electronic cigarettes, vapes, vape pens, vape mods, other vaping devices, or other
electronic nicotine delivery systems (collectively "E -Cigarettes"), have become the most commonly used
tobacco product among adolescents in the United States since they entered the marketplace in or
around 2007; and
WHEREAS, according to the CDC, the number of middle and high school students who reported
being current users of tobacco products increased 36% from 3.6 million to 4.9 million between 2017 and
2018. The increase is largely attributable to a nationwide surge in E -Cigarette use by adolescents. There
were 1.5 million more youth E -Cigarette users in 2018 than in 2017. Frequent use of E -Cigarettes among
current high school E -Cigarette users increased from 20% in 2017 to 28% in 2018; and
WHEREAS, a February 2019 National Institute of Health report found that over 17.6% of 81h
graders, 32.3% of 101h graders, and 37.3% of 12'h graders reported trying vaping last year nationwide;
and
WHEREAS, according to the Center on Addiction, the use of E -Cigarettes involves the heating of
a product usually containing a propylene glycol or vegetable glycerin -based liquid with nicotine,
flavoring, and other chemicals and metals into an aerosol for inhalation; and
WHEREAS, there are over 15,000 vaping flavors available on the market, including flavors such
as bubble gum, cotton candy, fruit punch, menthol, and wintergreen, which have the effect of making E -
Cigarettes more attractive to minors; and
WHEREAS, in addition to vaping products, other tobacco products, including cigarettes and
hookah shisha, are often flavored in ways that make them attractive to minors, thus increasing the risk
that minors will use, and potentially become addicted to, these products; and
WHEREAS, as of November 13, 2019, 2172 cases of E -Cigarette use -associated lung injuries had
been reported to the CDC from across 49 states, including California, and 42 deaths had been confirmed
from 24 states, including California; and
ORDINANCE NO. 19-1940
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WHEREAS, the U.S. Surgeon General, the California Department of Public Health, the American
Lung Association, and the National Academies of Science, Engineering and Medicine have issued
warnings and advisories to the public about the health risks associated with the use of E -Cigarettes; and
WHEREAS, the United States Food and Drug Administration ("FDA") has not fully analyzed the
effects of E -Cigarettes or their appropriateness for the public health, nor has the FDA approved or
authorized E -Cigarettes for marketing or distribution in interstate commerce; and
WHEREAS, in an attempt to address the health risks associated with tobacco products, the
federal government in 2009 enacted the Family Smoking Prevention and Tobacco Control Act
("FSPTCA"), which, among other things, made E -Cigarettes subject to the FDA's regulatory authority,
similar to cigarettes.
WHEREAS, despite the adoption of the FSPTCA, virtually all E -Cigarettes currently sold have not
been approved by the FDA. In 2017, the FDA issued guidance that gives E -Cigarette manufacturers until
August 8, 2022, to submit an application for pre -market review. The guidance purported to allow
unapproved E -Cigarette products to stay on the market until such time as the FDA complies with its
statutory duty to conduct a pre -market review to determine whether a new tobacco product poses a
risk to public health (a time which is currently unknown); and
WHEREAS, under the foregoing timeline, by the time E -Cigarette manufacturers are required to
submit their pre -market review applications, E -Cigarettes will have been on the market for fifteen years
without any FDA analysis or approval, and years could elapse thereafter before the FDA completes such
analysis or approves any E -Cigarettes for commercial marketing or distribution; and
WHEREAS, if current trends continue, six million more youth in the United States will begin
using E -Cigarettes just between now and 2022; and
WHEREAS, in order to protect the public health, safety and welfare of the residents and visitors
of the City of Carson, the City Council hereby intends to: (1) prohibit, City-wide, the retail sale of any and
all E -Cigarettes which have not received FDA authorization for introduction into interstate commerce;
and (2) prohibit the retail sale of all flavored tobacco products City-wide; and
WHEREAS, it is the Council's intent that if and when a specific E -Cigarette product receives such
FDA approval, such product would then become eligible for sale in the City of Carson consistent with this
Ordinance pursuant to a City tobacco and electronic cigarette permit issued in accordance with Carson
Municipal Code Sections 63150.5 et seq., while all other non -approved E -Cigarette products would
remain prohibited under this Ordinance until such time as they receive the requisite FDA approval.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CARSON, CALIFORNIA DOES ORDAIN AS
FOLLOWS:
SECTION 1. The foregoing recitals are true and correct and are incorporated herein as findings of
fact.
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SECTION 2. The City Council finds and determines that this Ordinance is exempt from the
requirements of the California Environmental Quality Act (CEQA) because: (1) it does not constitute a
"project" under CEQA Guidelines Section 15378(b)(2) in that it constitutes general policy and procedure
making; (2) it does not constitute a "project' under CEQA Guidelines Section 15378(b)(5) in that it has
no potential for resulting in physical change to the environment, either directly or indirectly; and (3) in
the alternative, it is exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3), in that it can
be seen with certainty that there is no possibility that this Ordinance will have a significant effect on the
environment, because the Ordinance merely prohibits the retail sale of flavored tobacco products and
non -FDA -approved E -Cigarettes.
SECTION 3. Section 63150.5.1 (Definitions) of Part 5 (Businesses, Professions, Trades and
Occupations Requiring a Permit) of Chapter 3 (Businesses, Professions and Trades) of Article VI (Taxes
and Licenses) of the Carson Municipal Code is hereby amended to read in its entirety as follows
(additions shown in bold italics, deletions shown in S'F"� gh):
"63150.5.2 Definitions.
`Characterizing flavor' means a taste or aroma, other than the taste or aroma of tobacco,
imparted either prior to or during consumption of a tobacco product or any byproduct produced by the
tobacco product, including but not limited to tastes or aromas relating to menthol, mint, wintergreen,
chocolate, vanilla, honey, cocoa, cotton candy, bubble gum, or any type of fruit, candy, alcoholic
beverage, dessert, herb, or spice.
'City' means the City of Carson, California.
'Code Enforcement Officer means any employee or agent of the City who is designated to
enforce any provision of this Code.
'Director means the City's Finance Officer or his or her designee.
"Electronic cigarette" means an electronic and/or battery-operated device, the use of which
may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances in
an aerosol or other related form. The term includes any such device, whether manufactured,
distributed, marketed, or sold as an electronic cigarette, an e -cigarette, an electronic cigar, an electronic
cigarillo, an electronic pipe, an electronic hookah, a vape, a nape pen, an advanced personal vaporizer,
a vape mod, a vaping device of any other kind, or any other product name or descriptor. The term does
not include any inhaler prescribed by a licensed doctor.
'Flavored tobacco product' means any tobacco product that imparts a characterizing flavor. A
public statement or claim made or disseminated by the manufacturer of a tobacco product, or by any
person authorized or permitted by the manufacturer to make or disseminate public statements
concerning such tobacco product, to the effect that such tobacco product has or produces a
characterizing flavor shall constitute presumptive evidence that the tobacco product is a flavored
tobacco product
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'Newly established business' means a business which was not engaged in tobacco and electronic
cigarette retailing within the City during the immediately preceding permit renewal period.
'Person' means any natural person, partnership, cooperative association, domestic or foreign
corporation, receiver, trustee, assignee, or any other legal entity.
'Tobacco and electronic cigarette paraphernalia' means cigarette papers or wrappers, pipe
holders, smoking materials of all types, cigarette rolling machines, hookahs, and any other item
designed to facilitate smoking or the ingestion of tobacco products. 'Tobacco and electronic cigarette
paraphernalia" includes "electronic cigarette."
'Tobacco and electronic cigarette retailer' means any person who sells, offers for sale, or offers
to exchange, for any form of consideration, tobacco, tobacco products, or tobacco and electronic
cigarette paraphernalia; "tobacco and electronic cigarette retailing" shall mean engaging in any of these
things.
'Tobacco product' means any substance containing, made, or derived from tobacco leaf or
nicotine, including but not limited to any tobacco cigarette, cigar, pipe tobacco, snuff, hookah shisha,
smokeless tobacco or any other form of tobacco which may be utilized for smoking, chewing, inhaling or
other manner of ingestion."
SECTION 4. A new Section 63150.5,12 (Sale of Electronic Cigarettes Not Approved by FDA
Prohibited) is hereby added to Part 5 (Businesses, Professions, Trades and Occupations Requiring a
Permit) of Chapter 3 (Businesses, Professions and Trades) of Article VI (Taxes and Licenses) of the Carson
Municipal Code, to read in its entirety as follows (additions shown in bold italics, deletions shown in
"63150.5.12 Sale of Electronic Cigarettes Not Approved by FDA Prohibited.
Notwithstanding any provision of Section 63150.5 et seq. (Sections 63150.5 through
63150.11, inclusive) or any other provision of the Carson Municipal Code, is it unlawful
in the City to sell, offer to sell, exchange, or offer to exchange, for any form of
consideration, any electronic cigarette unless and until that product has been approved
and authorized for introduction into interstate commerce by the United States Food and
Drug Administration pursuant to 21 U.S.C. §387j, as may be amended from time to time.
Neither this Section 63150.5.12 nor any other provision of Section 63150.5 et seq. shall
be construed or interpreted to apply to the sale of "drug paraphernalia," as that term is
defined in California Health & Safety Code Section 11014.5, and as may be amended
from time to time."
SECTION 5. A new Section 63150.5.13 (Sale of Flavored Tobacco Products Prohibited) is hereby
added to Part 5 (Businesses, Professions, Trades and Occupations Requiring a Permit) of Chapter 3
(Businesses, Professions and Trades) of Article VI (Taxes and Licenses) of the Carson Municipal Code, to
read in its entirety as follows (additions shown in bold italics, deletions shown in Wali gh):
"63150.5.13 Sale of Flavored Tobacco Products Prohibited.
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Notwithstanding any provision of Section 63150.5 et seq. (Sections 63150.5 through
63150.11, inclusive) or any other provision of the Carson Municipal Code, it is unlawful
in the City for any tobacco and electronic cigarette retailer to sell, offer to sell,
exchange, or offer to exchange, for any form of consideration, any flavored tobacco
product."
SECTION 6. SEVERABILITY. If any section, subsection, sentence, clause, phrase, or portion of
this ordinance is, for any reason, held to be invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions of this
ordinance. The City Council hereby declares that it would have adopted this ordinance and each
section, subsection, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses, phrases, or portions thereof may be declared invalid or
unconstitutional.
SECTION 7. EFFECTIVE DATE. This ordinance shall be in full force and effect thirty (30) days after
its adoption.
SECTION B. CERTIFICATION. The City Clerk shall certify to the adoption of this ordinance, and
shall cause the same to be posted and codified in the manner required by law.
PASSED, APPROVED and ADOPTED at a regular meeting of the City Council on this 14'h day of
January, 2020.
[Signatures on Following Page]
ORDINANCE NO. 19-1940
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APPROVED AS TO FORM:
STATE OF CALIFORNIA }
COUNTY OF LOS ANGELES } ss.
CITY OF CARSON }
CITY OF CARSON:
ATTEST:
I, Donesia Gause-Aldana, City Clerk of the City of Carson, California, hereby attest to and certify that the
foregoing ordinance, being Ordinance 19-1940 passed first reading on the 3`d day of December, 2019,
adopted by the Carson City Council at its meeting held on the 14`h day of January, 2020, by the following
roll call vote:
AYES:
COUNCIL MEMBERS:
NOES:
COUNCIL MEMBERS:
ABSTAIN:
COUNCIL MEMBERS:
ABSENT:
COUNCIL MEMBERS:
RECUSED:
COUNCIL MEMBERS:
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
CITY OF CARSON
Robles,Dear,Davis—Holmes,Hicks,Hilton
None
None
None
None
onesia Gause-Aldana, MMC, City herc
1
J ss.
}
I, Donesia Gause-Aldana, City Clerk of the City of Carson, California, do hereby certify that
Ordinance No. 19-1940 has been duly and regularly published according to law and the order of the City
Council of said City and that same was so published in Our Weekly, a newspaper of general circulation
on the following date(s):
Adopted Ordinance:
In witness whereof, I have hereunto subscribed my name this day of , 2020.
Donesia Gause-Aldana, MMC, City Clerk
ORDINANCE NO. 19-1940
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