Chapter 6.18
REGULATION OF THE SALE AND DISTRIBUTION OF FLAVORED TOBACCO PRODUCTS
Sections:
6.18.030 Prohibition on sale or distribution of flavored tobacco products.
6.18.050 No conflict with federal or state law.
6.18.010 Purpose.
The city council recognizes the inherent danger of tobacco products and that the use of tobacco products has devastating health and economic consequences. The city council further recognizes that tobacco use is the leading cause of preventable illness and death in the United States, and that tobacco product use is started and established primarily during adolescence.
Allowing flavored tobacco products to be sold in the city increases access to these harmful and dangerous products. To that end, no flavored tobacco products shall be sold in the city except as specifically enumerated below. (Ord. 513 § 2, 2020)
6.18.020 Definitions.
For purposes of this chapter, the following definitions shall apply:
“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.
“Distinguishable” means perceivable by either the sense of smell or taste.
“Distribute” or “distribution” means the transfer, by any person other than a common carrier, of a tobacco product at any point from the place of manufacture or thereafter to the person who sells the tobacco product to an individual for personal consumption.
“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 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, that such tobacco product has or produces a characterizing flavor shall constitute presumptive evidence that the tobacco product is a flavored tobacco product.
“Sell,” “sale,” and “to sell” mean any transaction where, for any consideration, ownership of a tobacco product is transferred from one person to another, including but not limited to any transfer or title or possession for consideration, exchange, or barter, in any manner or by any means.
“Tobacco product” means any tobacco cigarette, electronic cigarette cartridge, cigar, pipe tobacco, smokeless tobacco, snuff or any other form of tobacco which may be utilized for smoking, chewing, inhaling, vaping or other manner of ingestion. (Ord. 513 § 2, 2020)
6.18.030 Prohibition on sale or distribution of flavored tobacco products.
A. It is unlawful to sell or distribute any flavored tobacco product to a person in Solana Beach.
B. There shall be a rebuttable presumption that a tobacco product, other than a cigarette, 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. This section shall not apply to a product that has been approved by the 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 such an approved purpose. (Ord. 513 § 2, 2020)
6.18.040 Enforcement.
A. The city manager, or designee, is authorized to establish regulations and to take any and all actions reasonable and necessary to obtain compliance with this chapter, including, but not limited to, inspecting the premises of any business to verify compliance.
B. Any person, business or tobacco retailer violating this chapter shall be guilty of an infraction, which shall be punishable by a fine in accordance with Chapter 1.16 or 1.18 SBMC, or a misdemeanor, which shall be punishable by a fine not exceeding $1,000, or by imprisonment in the county jail for a period not exceeding six months or by both such fine and imprisonment. In addition to criminal fines, any person, business or tobacco retailer violating this chapter shall also be subject to civil penalties or administrative fines or both under Chapters 1.16 and 1.18 SBMC.
C. The city attorney may seek legal, injunctive, or other equitable relief to enforce this chapter.
D. Administrative enforcement of this chapter shall proceed pursuant to Chapter 1.18 SBMC.
E. Each violation of this chapter shall be considered a separate offense.
F. The remedies and penalties provided in this section are cumulative and not exclusive, and nothing in this chapter shall preclude any person from pursuing any other remedies provided by law.
G. Notwithstanding any other provision of this chapter, this chapter may be enforced through any remedy as provided for in this section upon its effective date. (Ord. 513 § 2, 2020)
6.18.050 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. 513 § 2, 2020)
6.18.060 Severability.
If any section, subsection, sentence, clause, phrase, or word of this chapter, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of this chapter. The city council declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. (Ord. 513 § 2, 2020)