Chapter 6.06
TOBACCO MERCHANDISING REGULATION
Sections:
6.06.030 Restrictions on tobacco merchandising.
6.06.040 Enforcement – Penalties – Civil actions.
6.06.010 PURPOSE.
The purpose of this chapter is to promote the welfare of youth by discouraging the commercial exploitation of potential underage tobacco users and by discouraging actions that promote the unlawful sale of tobacco products to youth as well as the unlawful purchase or possession of tobacco products by youth, the sale and/or distribution of e-cigarettes to youth and the possession of e-cigarettes by youth.
(Ord. 2018-19 § 1 (part), 2018: Ord. 2014-04 § 3, 2014: Ord. 2003-28 § 2 (part), 2003).
6.06.020 DEFINITIONS.
A. “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, e-cigarette, or tobacco paraphernalia, or any byproduct produced by the tobacco product, e-cigarette, or tobacco paraphernalia, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice; provided, however, that a tobacco product, e-cigarette, or tobacco paraphernalia shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.
B. “E-cigarette” means any electronically or battery-operated device, often shaped like a cigarette, containing a nicotine-based liquid, sometimes flavored, that is vaporized and inhaled, and which is used to simulate the experience of smoking tobacco or other combustible substances.
C. “Flavored tobacco product” means any tobacco product, e-cigarette, or tobacco paraphernalia that imparts a characterizing flavor.
D. “Labeling” means written, printed, or graphic matter upon any tobacco product, e-cigarette, or tobacco paraphernalia, or any of its packaging, or accompanying such tobacco product, e-cigarette, or tobacco paraphernalia.
E. “Manufacturer” means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product, e-cigarette, or tobacco paraphernalia; or imports a finished tobacco product, e-cigarette, or tobacco paraphernalia for sale or distribution into the United States.
F. “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, e-cigarette, or tobacco paraphernalia is sold or offered for sale to a consumer.
G. “Person” means any individual, firm, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or other legal entity.
H. “Retail tobacco store” means a retail store where at least fifty percent of the annual gross receipts are from the sale of tobacco products and smoking accessories and in which the sale of other products is merely incidental, and meets all of the following requirements:
1. Does not permit any person under twenty-one years of age to be present or enter the premises at any time, unless accompanied by the person’s parent or legal guardian, as defined in Section 6903 of the Family Code; and
2. Does not sell alcoholic beverages or food for consumption on the premises.
I. “Self-service display” means an open display of tobacco products which is accessible without the intervention of a vendor, including, but not limited to, a rack, shelf, or counter-top display.
J. “School” means a building or group of buildings and associated grounds used for educational and/or classroom purposes operated by the Santa Cruz City School District (SCCSD) and/or other public or private educational institutions offering a general course of study at primary, secondary or high school levels (grades K through 12) which is equivalent to the courses of study at such levels offered by the SCCSD, as specified by city council resolution from time to time. Pre-school, vocational or trade programs shall be considered schools only when incidental to the primary use as a school as defined herein. Excluded from this definition are buildings operated by public or private education institutions in which the total student enrollment is less than twenty-five students and private residences at which students participate in home-based or independent study programs.
K. “Tobacco product” means:
1. Any product containing, made, 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, snuff; and
2. 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.
3. Notwithstanding any provision of subsections (K)(1) and (2) to the contrary, “tobacco product” includes any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately. “Tobacco product” does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.
L. “Vendor-assisted sale” means a purchase requiring a direct, face-to-face exchange between the vendor and the customer, in which the vendor does not transfer possession of the product to the customer until the purchase is completed.
M. “Youth” means any person or persons under twenty-one years of age.
(Ord. 2018-19 § 1 (part), 2018: Ord. 2014-04 § 4, 2014: Ord. 2003-28 § 2 (part), 2003).
6.06.030 RESTRICTIONS ON TOBACCO MERCHANDISING.
A. It shall be unlawful to sell, permit to be sold, or offer for sale any tobacco or e-cigarette product by means of self-service merchandising or by any means other than a vendor-assisted sale. This prohibition shall not apply to a retail tobacco store, or a vending machine authorized by Chapter 6.05.
B. It shall be unlawful to sell or otherwise distribute e-cigarettes to youth.
C. Effective on June 11, 2019, it shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees to sell or offer for sale, or to possess with intent to sell or offer for sale, any flavored tobacco product; provided, however, that the initial six months of implementation shall be primarily focused on education and outreach with active enforcement to commence January 1, 2020.
1. There shall be a rebuttable presumption that a tobacco retailer in possession of four or more flavored tobacco products, including but not limited to individual flavored tobacco products, packages of flavored tobacco products, or any combination thereof, possesses such flavored tobacco products with intent to sell or offer for sale.
2. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:
a. Made a public statement or claim that the tobacco product imparts a characterizing flavor;
b. Used text and/or images on the tobacco product’s labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or
c. Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.
(Ord. 2018-19 § 1 (part), 2018: Ord. 2014-04 § 5, 2014: Ord. 2003-28 § 2 (part), 2003).
6.06.040 ENFORCEMENT – PENALTIES – CIVIL ACTIONS.
A. Causing, permitting, aiding, abetting, or concealing a violation of any provision of the ordinance codified in this chapter shall constitute a violation. After notification, it shall be a separate offense for each day such violation shall continue.
B. Violations of this chapter shall be prosecuted as infractions and shall not be punishable by imprisonment. Every violation determined to be an infraction is punishable by:
1. A fine not exceeding one hundred dollars for a first violation;
2. A fine not exceeding two hundred dollars for a second violation of the same provision within one year;
3. A fine not exceeding five hundred dollars for a third and each additional violation of the same provision within one year.
C. The ordinance codified in this chapter may be administered and enforced by city staff in accordance with Title 4.
D. Violations of this chapter are hereby declared to be public nuisances.
E. In addition to other remedies provided by this chapter, any violation of this chapter may be enforced by a civil action brought by the city attorney, including but not limited to administrative or judicial nuisance abatement proceedings, civil 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. 2018-19 § 1 (part), 2018: Ord. 2003-28 § 2 (part), 2003).