HomeMy WebLinkAboutOrd 1970ORDINANCE NO. 1970
AN ORDINANCE OF THE CITY OF BURLINGAME AMENDING CHAPTER
8.18 OF THE MUNICIPAL CODE TO ADD PROVISIONS BANNING THE SALE
OF FLAVORED TOBACCO PRODUCTS
WHEREAS, studies have shown that flavored tobacco products are
frequently the first tobacco product used by new - and especially young - users;
and
WHEREAS, the use of flavored tobacco products has been documented to
induce migration to smoking and nicotine addiction; and
WHEREAS, since their introduction in 2007, e -cigarettes have not been
subjected to or completed "pre -market' review by the federal Food and Drug
Administration; and
WHEREAS, both nationally and within Burlingame, there has been a radical
and well-documented rise in the use of e -cigarettes by minors; and
WHEREAS, studies have shown that repeated exposure of developing
brains to nicotine can have long-term negative consequences for health and
cognition; and
WHEREAS, efforts at the state and federal level to regulate flavored
tobacco products effectively, including e -cigarettes and vaping liquids, have thus
far failed while youth use continues to rise.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME
ORDAINS AS FOLLOWS:
DIVISION 1:
Section 1: Burlingame Municipal Code Chapter 8.18 is amended to add the
following:
"Section 8.18.120: Sale of Flavored Tobacco Products Prohibited
(a) Definitions: for the purposes of this section, the following definitions shall
govern unless the context clearly requires otherwise:
(1 )"Characterizing flavor' means a distinguishable taste or aroma or both,
other than the taste or aroma of tobacco, imparted by a tobacco product or
any byproduct produced by the tobacco product. Characterizing flavors
include, but are not limited to, tastes or aroma relating to any fruit,
chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage,
menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be
determined to have a characterizing flavor solely because of the use of
additives or flavorings or the provision of ingredient information. Rather, it
is the presence of a distinguishable taste or aroma, or both, as described in
the first sentence of this definition, that constitutes a characterizing flavor.
(2)"Constituent" means any ingredient, substance, chemical, or compound,
other than tobacco, water, or reconstituted tobacco sheet that is added by
the manufacturer to a tobacco product during the processing, manufacture,
or packing of the tobacco product.
(3)"Distinguishable" means perceivable by either the sense of smell or
taste.
(4)"Flavored tobacco product" means any tobacco product that contains a
constituent that imparts a characterizing flavor.
(5)"Labeling" means written, printed, pictorial, or graphic matter upon any
tobacco product or any of its packaging.
(6)"Packaging" means a pack, box, carton, or container of any kind or, if no
other container, any wrapping (including cellophane) in which a tobacco
product is sold, or offered for sale, to a consumer.
(7)"Tobacco product" means any product containing, made, or derived from
tobacco or nicotine that is intended for human consumption, including any
electronic device that delivers nicotine or other substances to the person
inhaling from the device, including, but not limited to, an electronic cigarette,
electronic cigar, electronic pipe, or electronic hookah and the nicotine -
containing liquids manufactured for use in such devices.
(8)"Tobacco retailer" means any store, stand, booth, concession or any
other enterprise — including an online or e-commerce vendor -- that engages
in the retail sale of tobacco products, including but not limited to stores that
engage in the retail sale of food items.
(b) Sale or offer for sale of flavored tobacco products prohibited.
(1) The sale or offer for sale within the City of Burlingame, including a sale
transacted remotely with delivery to an address within Burlingame, by any
person or tobacco retailer of any flavored tobacco product is prohibited and
no person or tobacco retailer shall sell, or offer for sale, any flavored
tobacco product.
(2) There shall be a rebuttable presumption that a tobacco product is a
flavored tobacco product if a manufacturer or any of the manufacturer's
agents or employees, in the course of their agency or employment, has
made a statement or claim directed to consumers or to the public that the
tobacco product has or produces a characterizing flavor including, but not
limited to, text, color, and/or images on the product's labeling or packaging
that are used to explicitly or implicitly communicate that the tobacco product
has a characterizing flavor.
(c) Enforcement; Violation a public nuisance. The provisions of this Section
shall be enforced through the mechanisms provided in Title 1 of this Code,
and violations may be subject to administrative, civil, or criminal remedies
as determined within the discretion of the City Attorney as prosecutor.
Violation of the provisions of this Section is deemed to constitute a public
nuisance and may be abated as such. Further, violation of this Section
shall constitute grounds for revocation of a violator's business license
under Section 6.04.280.
(d) No conflict with state or federal law. Nothing in this chapter shall be
interpreted or applied so as to create any requirement, power, or duty that
is preempted by federal or state law.
DIVISION 2:
If any section, subsection, sentence, clause or phrase of this Ordinance is for any
reason held to be invalid, such decision shall not affect the validity of the remaining
portions of this Ordinance. The Council declares that it would have adopted the
Ordinance and each section, subsection, sentence, clause or phrase thereof,
irrespective of the fact that any one or more sections, subsections, sentences,
clauses or phrases be declared invalid.
DIVISION 3:
This Ordinance shall be published in a newspaper of general circulation in
accordance with California Government Code Section 36933, published, and
circulated in the City of Burlingame, and shall be in full force and effect on April 1,
2020.
aw'', I ��
Donna Colson,
I, Meaghan Hassel -Shearer, City Clerk of the City of Burlingame, certify that
the foregoing ordinance was introduced at a public hearing at a regular meeting of
the City Council held on the 4th day of November, 2019, and adopted thereafter at
a regular meeting of the City Council held on the 18th day of November 2019, by
the following vote:
AYES: Councilmembers: BEACH, BROWNRIGG, COLSON, ORTIZ
NOES: Councilmembers: NONE
ABSTAIN: Councilmembers: KEIGHRAN