Chapter 8.11
REGULATION OF THE SALE OF FLAVORED TOBACCO PRODUCTS AND ELECTRONIC CIGARETTES
Sections:
8.11.010 Definitions.
8.11.020 Sale of flavored tobacco products prohibited.
8.11.030 Sale of electronic cigarettes prohibited.
8.11.040 Enforcement.
8.11.050 Public nuisance.
8.11.060 No conflict with federal or state law.
8.11.010 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
“Characterizing flavor” means a distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition that constitutes a characterizing flavor.
“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.
“Distinguishable” means perceivable by either the sense of smell or taste.
“Electronic cigarette” has the meaning set forth in Section 30121 of the California Revenue and Taxation Code, as may be amended from time to time.
“Flavored shisha tobacco product” means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.
“Flavored tobacco product” means any tobacco product that contains a constituent that imparts a characterizing flavor.
“Hookah” means a type of water pipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.
“Hookah tobacco retailer” means a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories at a retail location.
“Labeling” means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.
“Loose leaf tobacco” consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.
“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.
“Person” means any individual, partnership, cooperative association, private corporation, or any other legal entity.
“Premium cigar” means any cigar that is handmade, is not mass-produced by use of mechanization, has a wrapper that is made entirely from whole tobacco leaf, and has a wholesale price of no less than twelve dollars. A premium cigar does not have a filter, tip, or nontobacco mouthpiece and is capped by hand.
“Retail location” means both of the following:
1. A building from which tobacco products are sold at retail.
2. A vending machine.
“Sale” includes any transfer of title or possession for a consideration, exchange or barter, in any manner or by any means whatever.
“Shisha tobacco product” means a tobacco product smoked or intended to be smoked in a hookah. “Shisha tobacco product” includes, and may be referred to as, hookah tobacco, water pipe tobacco, maassel, narghile, and argileh. “Shisha tobacco product” does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.
“Tobacco product” means a tobacco product as defined in Section 104495(a)(8) of the California Health and Safety Code, as that provision may be amended from time to time.
“Tobacco product flavor enhancer” means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
“Tobacco retailer” means a person who engages in the sale of tobacco products directly to the public from a retail location. “Tobacco retailer” includes a person who operates vending machines from which tobacco products are sold in the city of Foster City. (Ord. 682 § 2, 2024; Ord. 653 § 2, 2022)
8.11.020 Sale of flavored tobacco products prohibited.
A. A tobacco retailer, or any of the tobacco retailer’s agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer within the geographic boundaries of Foster City.
B. There is 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, have 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, images, or all, on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
C. Subsection A of this section does not apply to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the following conditions are met:
1. The hookah tobacco retailer has a valid license to sell tobacco products issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 of the Business and Professions Code.
2. The hookah tobacco retailer does not permit any person under twenty-one years of age to be present or enter the premises at any time.
3. The hookah tobacco retailer shall operate in accordance with all relevant state and local laws relating to the sale of tobacco products.
4. If consumption of tobacco products is allowed on the premises of the hookah tobacco retailer, the hookah tobacco retailer shall operate in accordance with all state and local laws relating to the consumption of tobacco products on the premises of a tobacco retailer, including, but not limited to, Section 6404.5 of the Labor Code.
D. Subsection A of this section does not apply to sales of premium cigars sold in cigar lounges where tobacco products are purchased and consumed only on the premises of a cigar lounge. (Ord. 682 § 2, 2024; Ord. 653 § 2, 2022)
8.11.030 Sale of electronic cigarettes prohibited.
A. A tobacco retailer, or any of the tobacco retailer’s agents or employees, shall not sell, offer for sale or possess with the intent to sell or offer for sale electronic cigarettes within the geographic boundaries of Foster City. (Ord. 682 § 2, 2024; Ord. 653 § 2, 2022)
8.11.040 Enforcement.
A. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
B. Any violations of this chapter may be cause for suspension of a tobacco retail permit, which is required for all tobacco retailers operating in the city pursuant to Chapter 8.12.
C. Violations of this chapter are subject to administrative citations as set forth in Section 1.08.060.
D. Violations of this chapter are subject to an administrative fine as follows:
1. A fine not exceeding five hundred dollars for the first violation and one thousand dollars for each subsequent violation within one year.
2. Each day that a violation occurs shall constitute a separate violation.
3. Notice of the fine(s) shall be served on the retailer, individual, or entity who is owner of the establishment by certified mail. The notice shall contain an advisement of the right to request a hearing before the city manager or their designee contesting the imposition of the fine(s). Said hearing must be requested within ten days of the date appearing on the notice of the fine(s). The decision of the city manager or their designee shall be a final administrative order, with no administrative right of appeal to the city council.
4. Failure to Pay Fine(s). If said fine(s) is/are not paid within thirty days from the date appearing on the notice of the fine(s) or of the notice of determination of the city manager or their designee, the city manager or their designee may take other legal action necessary to recover the fine(s). In addition, any outstanding fine(s) must be paid prior to the issuance or renewal of any tobacco retailer permit.
E. Violations of this chapter may, in the discretion of the city attorney or designee, be prosecuted as infractions or misdemeanors.
F. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
G. 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 or designee, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. (Ord. 656 § 3, 2022)
8.11.050 Public nuisance.
Any violation of this chapter is hereby declared a public nuisance. (Ord. 653 § 2, 2022)
8.11.060 No conflict with federal or state law.
Nothing in this chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law. (Ord. 653 § 2, 2022)