CHAPTER 15. SALES OF FLAVORED TOBACCO PRODUCTS AND SALES OF ELECTRONIC SMOKING DEVICES PROHIBITED

4-15.01 Definitions.

For the purposes of this chapter, the following words and phrases have the following meanings:

(a) Adult means, for the purposes of this chapter, an individual twenty-one (21) years of age or older.

(b) Adult-Only Business is any retailer or business that allows entry only by adults onto the entire premises of the business or retailer, or that requires minors to be accompanied by a parent, guardian, or another adult in order to enter the entire premises of the business or the retailer. The definition of an adult-only retailer does not include any retailer or business that only prohibits minors from entering certain sections, divisions, or a part of the premises that is marked or otherwise restricted as adult-only and allows minors to otherwise enter the remainder of its premises unaccompanied by a parent, guardian or another adult.

(c) Characterizing Flavor means a distinguishable taste or aroma imparted by a tobacco product or any byproduct produced by the tobacco product that is perceivable by an ordinary consumer by either the sense of taste or smell, other than the taste or aroma of tobacco. A characterizing flavor includes, but is not limited to, a taste or aroma relating to a fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice.

(d) Cigar means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than three (3) pounds per one thousand (1,000).

(e) 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.

(f) Consumer means a person who purchases a tobacco product for consumption and not for sale to another.

(g) E-Liquid means any substance that is intended to be consumed in aerosolized or vaporized form using an electronic smoking device, regardless of the nicotine content of the substance.

(h) Electronic Smoking Device means any device or delivery system that can be used to deliver to a person, in aerosolized or vaporized form, nicotine, tetrahydrocannabinol, or any other cannabinoid, including but not limited to an electronic cigarette, electronic cigar, electronic pipe, electronic hookah, or vape pen. Electronic smoking device includes any component, part, or accessory of such a device, including but not limited to a cartridge, that is used during the operation of the device.

(i) Flavored Tobacco Product means any tobacco product that contains a constituent that imparts a characterizing flavor. Menthol cigarettes are included in the definition of a flavored tobacco product for the purposes of this chapter. A tobacco product whose labeling or packaging contains text or an image indicating that the product imparts a characterizing flavor is presumed to be a flavored tobacco product.

(j) Hookah means a type of waterpipe, 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.

(k) Hookah Tobacco Business means a tobacco retailer, a smoking lounge or bar that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories, or the serving of those products and accessories for on-site smoking.

(l) Labeling means written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.

(m) Little Cigar means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than three (3) pounds per one thousand (1,000). Little cigar includes, but is not limited to, any tobacco product known or labeled as "small cigar" or "little cigar."

(n) Package or Packaging means a pack, box, carton, or container of any kind, or any wrapping, in which a tobacco product is sold or offered for sale to a consumer.

(o) Menthol Cigarettes means cigarettes as defined by Federal law that have a characterizing flavor of menthol, mint, or wintergreen, including cigarettes advertised, labeled, or described by the manufacturer as possessing a menthol characterizing flavor.

(p) 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, waterpipe 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.

(q) Smoke means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization, when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the byproducts, except when the combusting or vaporizing material contains no tobacco, marijuana, or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term smoke includes, but is not limited to, tobacco and marijuana smoke and gases, particles, e-liquids, and vapors from electronic smoking devices as defined in this chapter.

(r) Tobacco Paraphernalia means any item designed or marketed for the consumption, use, or preparation of tobacco products.

(s) Tobacco Product means any of the following:

(1) Any product containing, made from, 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, and snuff.

(2) Any electronic smoking device that contains nicotine or can be used to deliver nicotine in aerosolized or vaporized form.

(3) Any component, part, or accessory of a tobacco product, whether or not it is sold separately.

(4) Tobacco Product does not include any product that has been approved by the United States 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 that approved purpose.

(t) Tobacco Retailer means any individual or entity who sells, offers for sale, or exchanges or offers to exchange for any form of consideration tobacco, tobacco products, or tobacco paraphernalia. Tobacco retailing means the doing of any of these things. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. (§3B, Ord. 2211, eff. 12/17/21)

4-15.02 Sale or Offer for Sale of Flavored Tobacco Products Prohibited.

(a) No person or tobacco retailer as defined in this chapter, including any person or retailer that has obtained a tobacco retailer license pursuant to Article 2, Chapter 4 of Title 5, shall sell, or offer to sell, any flavored tobacco product.

(b) There shall be a rebuttable presumption that a tobacco retailer in possession of four (4) 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.

(c) 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:

(i) 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; or

(ii) Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor. (§3B, Ord. 2211, eff. 12/17/21)

4-15.03 Sale or Offer for Sale of Electronic Smoking Devices Prohibited.

No person or tobacco retailer as defined in this chapter, including any person or retailer that has obtained a tobacco retailer license pursuant to Article 2, Chapter 4 of Title 5, shall sell, or offer to sell, any electronic smoking device. (§3B, Ord. 2211, eff. 12/17/21)

4-15.04 Exemption.

Notwithstanding any other provision of this section, hookah tobacco businesses with valid tobacco retailer licenses issued pursuant to this Code shall be exempt from the requirements of this chapter; provided, that such businesses qualify as an adult-only business and operate in accordance with all relevant State and local laws relating to the sale of tobacco products and tobacco paraphernalia. (§3B, Ord. 2211, eff.
12/17/21)

4-15.05 Public Nuisance.

Any violation of this chapter is hereby declared a public nuisance. (§3B, Ord. 2211, eff. 12/17/21)

4-15.06 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. (§3B, Ord. 2211, eff. 12/17/21)

4-15.07 Violation and Enforcement.

(a) Each incident of violation of this chapter is an infraction subject to a one hundred dollar ($100.00) fine or otherwise punishable pursuant to Section 1-2.01.

(b) In addition, the violation of, or noncompliance with, any of the requirements of this chapter shall be subject to any administrative, civil, or criminal enforcement remedies available under the law and/or this Code. Further, the City may enforce the violation of this chapter by means of civil enforcement through a restraining order, a preliminary or permanent injunction or by any other means authorized by the law. (§3B, Ord. 2211, eff. 12/17/21)

4-15.08 Severability.

If any provision, 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 court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of the chapter. The city council hereby declares that it would have passed this chapter, and each provision, section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this chapter or application thereof would be subsequently declared invalid or unconstitutional. (§3B, Ord. 2211, eff. 12/17/21)