Chapter 9.05
ELECTRONIC SMOKING DEVICES
Sections:
9.05.030 Sale to minors prohibited.
9.05.040 Possession by minors prohibited.
9.05.050 Vending machines and self-service displays prohibited.
9.05.060 Nuisance enforcement.
9.05.010 Findings.
The common council of the city of Brookfield finds that:
A. The purpose of this chapter is to protect the public health, safety and welfare of the property and persons in the city by prohibiting persons under eighteen (18) years of age from possessing electronic smoking devices and prohibiting the sale of electronic smoking devices to persons under eighteen (18) years of age; and
B. Persons under age eighteen (18) are prohibited by law from purchasing or possessing cigarettes and other tobacco products, and retailers are prohibited from selling them to minors. There are new tobacco-less products, however, commonly referred to as “electronic cigarettes,” “e-cigarettes,” “e-cigars,” “e-cigarillos,” “e-pipes,” “e-hookahs,” or “electronic nicotine delivery systems,” which allow the user to simulate cigarette smoking. These products may be purchased by minors and are being marketed without age restrictions or health warnings and come in different flavors that appeal to young people; and
C. The production and distribution of electronic smoking devices is not currently regulated by federal or state authorities, and the U.S. Food and Drug Administration (“FDA”) has not completed testing of these products. But, initial studies by the FDA have determined that electronic smoking devices can increase nicotine addiction among young people and contain chemical ingredients known to be harmful, which may expose users and the public to potential health risks; and
D. The use of electronic smoking devices has increased significantly in recent years, as evidenced by the fact that:
1. Between 2017 and 2018, e-cigarette use rose from eleven and seven-tenths (11.7) percent to twenty and eight-tenths (20.8) percent among high school students and from three and three-tenths (3.3) percent to four and nine-tenths (4.9) percent among middle school students;
2. In 2017 to 2018, sixty-seven and eight-tenths (67.8) percent of current youth e-cigarette users cited the availability of appealing flavors as the primary reason for use;
3. In 2018, more than three million (3,000,000) middle and high school students were current users of e-cigarettes, and e-cigarettes were the most commonly used tobacco products among youth; and
E. Existing studies on electronic smoking devices’ vapor emissions and cartridge contents have found a number of dangerous substances including:
1. Chemicals known to cause cancer such as formaldehyde, acetaldehyde, lead, nickel and chromium;
2. PM 2.5, acrolein, tin, toluene, and aluminum, which are associated with a range of negative health effects such as skin, eye, and respiratory irritation, neurological effects, damage to reproductive systems, and even premature death from heart attacks and stroke; and
F. Some cartridges used by electronic smoking devices can be refilled with liquid nicotine solution, creating the potential for exposure to dangerous concentrations of nicotine; and
G. A study published in the Journal of Environmental and Public Health suggests that electronic smoking devices “may have the capacity to ‘re-normalize’ tobacco use in a demographic that has had significant denormalization of tobacco use previously”; and
H. Electronic smoking devices often mimic conventional tobacco products in shape, size, and color, with the user exhaling a smoke-like vapor similar in appearance to the exhaled smoke from cigarettes and other conventional tobacco products; and
I. The purported health benefits from electronic smoking devices have not been scientifically proven, and use of these devices has not been proven safe, either for their users or for bystanders. More than one study has concluded that exposure to vapor from electronic smoking devices may cause passive or secondhand vapor inhalation. Clinical studies about the safety and efficacy of electronic smoking devices have not been submitted to the FDA for the more than four hundred (400) brands of electronic smoking devices that are on the market, and consumers have no knowledge of whether electronic smoking devices are safe; what types of concentration of potentially harmful chemicals the products contain; and what dose of nicotine the products deliver. The World Health Organization has strongly advised consumers against the use of electronic smoking devices until they are “deemed safe and effective and of acceptable quality by a competent national regulatory body.” The World Medical Association has determined that electronic smoking devices “are not comparable to scientifically proven methods of smoking cessation” and that “neither their value as therapeutic aids for smoking cessation nor their safety as cigarette replacements is established”; and
J. Research indicates electronic smoking devices may lead youth to try tobacco products. In addition, research indicates that youth who use electronic smoking devices are more likely to use tobacco products, including cigarettes, than those youth who do not use electronic smoking devices; and
K. Electronic smoking devices are currently unregulated and have been proven to emit nicotine, ultrafine particles, volatile organic compounds, and other toxins. Inhalation of nicotine is proven to be dangerous to everyone, especially children and pregnant women. Exposure to ultrafine particles may exacerbate respiratory illnesses, such as asthma, and may constrict arteries which could trigger a heart attack. The volatile organic compounds, such as formaldehyde and benzene, found in electronic smoking device aerosols are proven carcinogens; and
L. The use of electronic smoking devices in smoke-free locations threatens to undermine compliance with smoking regulations and reverse the progress that has been made in establishing a social norm that smoking is not permitted in public places and places of employment; and
M. A Harvard University health study found high levels of diacetyl in thirty-nine (39) of fifty-one (51) unique flavors of chemicals used in electronic smoking devices. Diacetyl is associated with bronchiolitis obliterans and other severe respiratory diseases among workers who have inhaled heated vapors containing diacetyl; and
N. Existing studies on electronic smoking devices’ vapor emissions and cartridge contents have found a number of dangerous substances, including: carcinogens such as formaldehyde, acetaldehyde, lead, nickel, and chromium; PM 2.5, acrolein, tin, toluene, and aluminum which are associated with a range of negative health effects, such as skin, eye, and respiratory irritation, neurological effects, damage to reproductive systems, and premature death from heart attacks and stroke; inconsistent labeling of nicotine levels in electronic smoking device products; and in one instance, diethylene glycol, an ingredient used in antifreeze and toxic to humans; and
O. Many news stories have detailed police reports of individuals using electronic smoking devices to smoke illegal narcotics, such as marijuana wax, synthetic marijuana, liquid marijuana, and hash oil; and
P. As of August 2019, the University of Wisconsin Center for Tobacco Research and Intervention has found several cases of severe breathing complications and lung disease linked to vaping. Since April 2019, the FDA has received one hundred eighteen (118) new reports of e-cigarette users experiencing seizures and similar incidents. In total, the agency has received one hundred twenty-seven (127) reports of neurological events following e-cigarette use between 2010 and 2019; and
Q. That in 2016, the FDA adopted regulations prohibiting the sale of electronic smoking devices to any person under age eighteen (18). (Ord. 2573-19 § 1 (part), 2019)
9.05.020 Definitions.
Definitions:
A. “Electronic smoking device” means an electronic device that can be used to deliver an inhaled dose of nicotine or any other substance intended for human consumption that may be used by a person to simulate smoking through inhalation of vapor or aerosol from the product. It includes any such device whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, vape pen, or any other product name or descriptor.
B. “Electronic smoking device paraphernalia” or “vapor” means cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of electronic smoking devices. It does not include any cigarette, as defined in Section 139.30(1m), Wisconsin Statutes, nicotine product, as defined in Section 134.66(1)(f), Wisconsin Statutes, or tobacco products, as defined in Section 139.75(12), Wisconsin Statutes.
C. “Local police agency” means city of Brookfield police department and the Waukesha County Sheriff’s Department.
D. “Minor” means any individual who is less than eighteen (18) years of age.
E. “Person” means any individual, firm, corporation, or organization.
F. “Secondary school” means a school intermediate between elementary school and college, including middle and high school, and usually offering general, technical, vocational, or college-preparatory courses.
G. “School grounds” means the same as defined in Section 895.523(1)(g), Wisconsin Statutes, but shall also include such grounds of a “private school” as defined in Section 115.001(3r), Wisconsin Statutes. (Ord. 2573-19 § 1 (part), 2019)
9.05.030 Sale to minors prohibited.
No person shall sell, give, furnish, or cause to be sold, given, or furnished an electronic smoking device or electronic smoking device paraphernalia to a minor. (Ord. 2573-19 § 1 (part), 2019)
9.05.040 Possession by minors prohibited.
A. Possession by Minors Prohibited. A minor shall not do any of the following:
1. Purchase or attempt to purchase an electronic smoking device or electronic smoking device paraphernalia.
2. Possess or attempt to possess an electronic smoking device or electronic smoking device paraphernalia.
3. Use electronic smoking device or electronic smoking device paraphernalia.
4. Present or offer to a person a purported proof of age that is false, fraudulent, or not actually his or her own proof of age for the purpose of purchasing, attempting to purchase, possessing, or attempting to possess an electronic smoking device or electronic smoking device paraphernalia.
B. No person, regardless of age, who is enrolled in secondary school may possess or attempt to possess an electronic smoking device or electronic smoking device paraphernalia while on school property.
C. Subsection (A) of this section does not apply to a minor participating in an undercover operation in which the minor purchases or receives a vapor product under the direction of a local police agency as part of an enforcement action, unless the initial or contemporaneous purchase or receipt of the vapor product by the minor was not under the direction of the local police agency and was not part of the undercover operation. (Ord. 2573-19 § 1 (part), 2019)
9.05.050 Vending machines and self-service displays prohibited.
No person shall sell, give, furnish, or cause to be sold, given, or furnished an electronic smoking device or electronic smoking device paraphernalia by use of a vending machine or self-service display unless the person ensures that no minor is permitted to enter the premises at any time. (Ord. 2573-19 § 1 (part), 2019)
9.05.060 Nuisance enforcement.
In addition to the penalties listed within this chapter, the city may pursue a nuisance enforcement action against a person selling, giving, or furnishing electronic smoking devices under Chapter 8.32. (Ord. 2573-19 § 1 (part), 2019)