Chapter 3.59 — PROHIBITION ON THE SALE OF ELECTRONIC SMOKING DEVICES

The Board of Supervisors of the County of Alameda finds and declares that:

A. Despite progress in reducing smoking, tobacco use is still the leading cause of preventable death in the United States. Tobacco kills more than four hundred eighty thousand (480,000) people in this country annually — more than AIDS, alcohol, car accidents, illegal drugs, murders, and suicides combined.

B. The World Health Organization (WHO) estimates tobacco kills roughly six million (6,000,000) people and causes over half a trillion dollars in economic damage each year.

C.

5.6 million of today's Americans who are younger than eighteen (18) are projected to die prematurely from a smoking-related illness.

D.

Electronic cigarettes (also known as e-cigarettes) are the most commonly used tobacco product among youth in the United States:

1.

Unlike traditional cigarette use that has steadily declined among youth, the U.S. has seen a surge in teen e- cigarettes use; in 2018, the Surgeon General issued an advisory one-cigarette use among youth, declaring the growing problem an epidemic.

According to the 2019 National Youth Tobacco Survey; 5.3 million youth are current e-cigarette users in 2019, an increase of over three million (3,000,000) students since 2017.

3.

Among U.S. high school students, e-cigarette use increased by one hundred thirty-five (135) percent from 2017 to 2019, increasing from 11.7 percent to 27.5 percent; cine in four U.S. high school students reported using e-cigarettes. Among middle school students, e-cigarette use more than tripled from 2017 to 2019, increasing from 3.3 percent to 10.5 percent.

4.

In 2017-2018, over one in four (twenty-eight (28) percent) San Lorenzo Unified School District 11th graders and over one in five (twenty-one (21 percent) Castro Valley Unified School District 11th graders reported using e-cigarettes.

5.

According to the U.S. Centers for Disease Control and Prevention (CDC), "The rise in e-cigarette use during 2017-2018 is likely because of the recent popularity of e-cigarettes shaped like a USB flash drive ...these products can be used discreetly, have a high nicotine content, and come in flavors that appeal to youths."

6.

In the U.S., adolescents are more likely than adults to use e-cigarettes. For every one adult smoker who switches to e-cigarettes, eighty (80) youth initiate daily tobacco use through e-cigarettes.

E.

The widespread use of e-cigarettes by youth has significant public health consequences:

1.

Mounting research shows that e-cigarettes are neither safe nor harmless: e-cigarette aerosol contains many of the same toxic chemicals found in cigarettes such as nicotine, formaldehyde and lead, which are known to cause cancer, birth defects and other health problems. The U.S. Surgeon General and CDC highlight that youth e-cigarette use can pose harm to respiratory health and brain development.

2.

As stated by the U.S. Surgeon General, "Most e-cigarettes contain nicotine — the addictive drug in regular cigarettes, cigars, and other tobacco products. Nicotine exposure during adolescence can harm the developing brain — which continues to develop until about age 25. Nicotine exposure during adolescence can impact learning, memory, and attention. Using nicotine in adolescence can also increase risk for future addiction to other drugs. In addition to nicotine, the aerosol that users inhale and exhale from e-cigarettes can potentially expose both themselves and bystanders to other harmful substances, including heavy metals, volatile organic compounds, and ultrafine particles that can be inhaled deeply into the lungs."

The U.S. Surgeon General concluded: "The use of products containing nicotine poses dangers to youth, pregnant women, and fetuses. The use of products containing nicotine in any form among youth, including in e-cigarettes, is unsafe."

4.

Evidence from several longitudinal studies suggests that e-cigarette use is strongly associated with the use of other tobacco products among youth and young adults, including conventional cigarettes. The National Academies of Sciences, Engineering, and Medicine concluded in its 2018 report: "There is substantial evidence that e-cigarette use increases risk of ever using combustible tobacco cigarettes among youth and young adults."

5.

The 2018 National Academies of Sciences, Engineering, and Medicine report concluded that "among youth and young adult e-cigarette users who ever used combustible tobacco cigarettes, there is moderate evidence that e-cigarette use increases the frequency and intensity of subsequent combustible tobacco cigarette smoking."

6.

In addition, there is a growing body of research concluding that there are significant health risks associated with e-cigarette use. For example, daily e-cigarette use is associated with increased odds of a heart attack. The American Lung Association has warned that the inhalation of harmful chemicals through vaping may cause irreversible lung damage and lung disease.

7.

A December 2019 University of California San Francisco study found that people who smoke e-cigarettes face a significant risk of developing severe, chronic lung illnesses — such as asthma, bronchitis and emphysema — that have long been associated with smoking combustible cigarettes. The study showed that people who use e-cigarettes in addition to smoking traditional tobacco triple their risk of chronic lung disease.

8.

The California Department of Public Health issued a Health Advisory on November 5, 2019, informing the public about the imminent public health risks posed by vaping any product, including the use of a- cigarettes.

9.

CDC continues to warn that any tobacco product use, including a-cigarettes, is unsafe, especially for youth, pregnant, and breastfeeding women.

F.

Among high school students in all of Alameda County who purchased e-cigarettes, sixty-nine (69) percent reported buying them from the store themselves or from; someone else; only six and one-half percent

purchased online (2017-2018 California Student Tobacco Survey for Alameda County).

G.

An April 2018 national survey of over one thousand (1,000) twelve (12) to seventeen (17) year-olds found that nearly three-quarters (seventy-four (74) percent) of youth who used a particular brand of flavor pods in the past thirty (30) days reported that they obtained the device at a physical retail location; over half (fiftytwo (52) percent) reported that they received the product from a social source, such as a friend or family member, while only six percent reported that they received the product through an online transaction.

H.

In 2018, the U.S. Food and Drug Administration (FDA) Center for Tobacco Products issued more than one thousand three hundred (1,300) warning letters and fines to tobacco retailers who illegally sold e-cigarette products to minors, including major national retail chains, tobacco specialty stores and online retailers.

I.

E-cigarettes are readily accessible in the unincorporated areas of Alameda County. In a 2019 observation survey of tobacco retailers within the unincorporated-areas of Alameda County (n=72), fifty (50) percent of stores surveyed sold flavored electronic smoking devices.

J.

Marketing of e-cigarettes contributes to youth appeal.

1.

The California Attorney General has stated that e-cigarette companies have targeted youth with their products.

2.

E-cigarette companies have effectively used marketing strategies, including celebrity endorsements, slick magazine advertisements, social media campaigns, paid influencers, and music sponsorships, to reach youth and young adults. A 2016 study found that 78.2 percent of middle and high school students twenty million five hundred thousand (20,500,000) youth had been exposed to e-cigarette advertisements from at least one source, an increase from 68.9 percent only two years before, in 2014.

3.

In 2019, the FDA warned a leading e-cigarette company for marketing unauthorized modified risk tobacco products, including claims to children and youth that e-cigarettes are safer than traditional cigarettes.

4.

In 2017-2018, forty-four percent of San Lorenzo Unified School District 11th graders and forty-two percent Castro Valley Unified School District 11th graders perceived little to harm in using a-cigarettes compared to smoking cigarettes.

K.

California law defines tobacco products to include electronic smoking devices. No electronic smoking device is currently approved by the FDA as a smoking cessation product.

L.

To protect the public, especially youth, against the health risks created by tobacco products, Congress enacted the Family Smoking Prevention and Tobacco Control Act ("Tobacco Control Act") in 2009. The Tobacco Control Act authorized the FDA to set national standards governing the manufacture of tobacco products, to limit levels of harmful components in tobacco products and to require manufacturers to disclose information and research relating to the products' health effects.

M.

A central requirement of the Tobacco Control Act is premarket review of all new tobacco products. Specifically, every "new tobacco product" — defined to include any tobacco product not on the market in the United States as of February 15, 2007 — must be authorized by the FDA for sale in the United States before it may enter the marketplace. A new tobacco product may not be marketed until the FDA has found that the product is: (1) appropriate for the protection of the public health upon review of a premarket tobacco application; (2) substantially equivalent to a grandfathered product; or (3) exempt from substantial equivalence requirements.

N.

In determining whether the marketing of a tobacco product is appropriate for the protection of the public health, the FDA must consider the risks and benefits of the product to the population as a whole, including users and nonusers of the product, and taking into account the increased or decreased likelihood that existing users of tobacco products will stop using tobacco products and the increased or decreased likelihood that those who do not use tobacco products will start using them. Where there is a lack of showing that permitting the sale of a tobacco product would be appropriate for the protection of the public health, the Tobacco Control Act requires that the FDA deny an application for premarket review.

O.

Virtually all e-cigarettes that are sold today entered the market after 2007, but have not been reviewed by the FDA to determine if they are appropriate for the public health. In May 2017, the FDA issued guidance that, as a matter of the FDA's enforcement discretion, purports to give e-cigarette manufacturers until August 8, 2022 to submit their application for premarket review of e-cigarettes that were on the market as of August 8, 2016. The guidance further purports, as a matter of the FDA's enforcement discretion, to allow unapproved products to stay on the market indefinitely, until such time as the FDA complies with its statutory duty to conduct a premarket review to determine whether a new tobacco product poses a risk to public health. In March 2019, the FDA issued draft guidance in which it considered moving the premarket application deadline up by one year for certain flavored e-cigarette products. It is not known when, if ever, this narrow adjustment will become final or will take effect.

P.

The FDA has exercised its discretion to not initiate enforcement action for e-cigarettes that remain in the marketplace. Nevertheless, the Tobacco Control Act clearly requires every "new tobacco product" — defined to include any tobacco product not on the market in the United States as of February 15, 2007 — to be authorized by the FDA for sale in the United States before it may enter the marketplace. Therefore, given the enforcement void at the federal level and the major public health crisis stemming from the use of electronic smoking devices, particularly among youth, the County of Alameda deems it necessary and appropriate to adopt this chapter to protect the health, safety, and welfare of its residents.

(Ord. No. 2020-11, § 1, 3-10-20)

It is the purpose and intent of the Board of Supervisors, in enacting this chapter, to impose a tobacco retailing restriction by prohibiting the sale of electronic smoking devices to protect the health, safety, and general welfare of residents within the unincorporated areas of the County of Alameda.

(Ord. No. 2020-11, § 1, 3-10-20)

The following words and phrases, whenever used in this chapter, shall be construed as hereafter set forth, unless it is apparent from the context that they have a different meaning:

"Cannabis delivery operator" has the meaning set forth in Chapter 6.108.

"Cannabis retail operator" has the meaning set forth in Chapter 6.108.

"Combined cannabis operation" has the meaning set forth in chapter 6.109.

"Consumer" means a person who purchases or intends to purchase a tobacco product or tobacco paraphernalia for consumption or use and not for sale to another.

"Department" means the community development agency of the County of Alameda and its authorized representatives, designees, or agents.

"Electronic smoking device means:

1.

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.

2.

"Electronic smoking device" includes any component, part, or accessory intended or reasonably expected to be used with an electronic smoking device, whether or not sold separately.

3.

Notwithstanding any provision of subsections 1 and 2 to the contrary, "electronic smoking device" 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."

"Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

"Sale" or "sell" or "sold" means any transfer, exchange, barter, gift, sale, distribution for a commercial purpose, or offer of any of the foregoing, in any manner or by any means whatsoever.

"Tobacco retailing" has the meaning set forth in Chapter 3.58.

(Ord. No. 2020-11, § 1, 3-10-20)

No person may sell or possess with intent to sell any electronic smoking device within the unincorporated areas of the county.

(Ord. No. 2020-11, § 1, 3-10-20)

The prohibition in Section 3.59.030 shall not apply to electronic smoking devices sold by a cannabis retail or delivery operator holding a permit under Chapter 6.108 or combined cannabis operation holding a permit under Chapter 6.109.

(Ord. No. 2020-11, § 1, 3-10-20)

A violation of this chapter shall be deemed a violation of Section 3.58.030(B) of this code, and administration and enforcement shall be undertaken following the procedures in Chapter 3.58 for violation of Section 3.58.030(B).

(Ord. No. 2020-11, § 1, 3-10-20)

The department may adopt rules and regulations which are necessary or appropriate to implement, administer, and enforce the provisions of this chapter.

(Ord. No. 2020-11, § 1, 3-10-20)

If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this chapter, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases of this chapter, or its application to

any other person or circumstance. The Board of Supervisors hereby 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. No. 2020-11, § 1, 3-10-20)