Anderson Municipal Code Ch. 8.60 Tobacco Merchandising Regulation

The purpose of this chapter is to promote the welfare of the youth in the City of Anderson by discouraging the commercial exploitation of potential underage tobacco users and by discouraging actions that promote the unlawful sale and/or distribution of e-cigarettes to youth and the possession of e-cigarettes by the youth.

(Ord. No. 826, § 1, 11-19-2019)

"Business" means any sole proprietorship, partnership, joint venture, corporation, association, or any other entity formed for profit-making purposes or that has an employee, as defined in this section.

"Characterizing flavor" means a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted by tobacco, either prior to or during use of the tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, nut or spice provided, however, that 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.

"City" shall mean the City of Anderson.

"Electronic smoking device" means an electronic device that can be used to deliver an inhaled dose of nicotine or tobacco or any other substances, including any component, part or accessory of such a device, whether or not sold separately.

"Employee" means any person who is employed, retained as an independent contractor by any employer, as defined in this section, or any person who volunteers his or her services for an employer, association, nonprofit, or volunteer entity.

"Employer" means any person, partnership, corporation, association, nonprofit or other entity which employs or retains the service of one or more persons or supervises volunteers.

"Flavored tobacco product" means any tobacco product or smoking product that imparts a characterizing flavor.

"Labeling" means written, printed, or graphic matter upon any tobacco product or any of its packaging, or accompanying such tobacco product.

"Manufacturer" means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States.

"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 is sold or offered for sale to a consumer.

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

"Smoking product" means any substance or product containing nicotine or tobacco that is meant to be used in conjunction with an e-cigarette or any other type of smoking or vaporizing contraption including but not limited to joints, cigarettes, cigars, bongs or pipes. "Smoking product" also means, Indian cigarettes called "bidis", and cartridges and liquid solutions for e-cigarettes, which may be utilized for smoking, chewing, inhaling or other manner of ingestion.

"Tobacco" or "tobacco product" means:

1. Any product containing, made, or derived from tobacco leaf 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.

2. Any electronic device that delivers nicotine or other similar substances to the person inhaling from the device, including, but not limited to any type of vaping device, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah.

3. Any component, part, cartridge or accessory intended or reasonably expected to be used with a tobacco product, whether or not 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 (e.g., Nicorette gum, patch, etc.) or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

"Tobacco paraphernalia" means any item designed or marketed for the consumption, use, or preparation of tobacco products.

"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia. "Tobacco retailing" shall mean 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.

(Ord. No. 826, § 1, 11-19-2019)

A. Except as provided in subsections D and E, 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.

B. There shall be a rebuttable presumption that a tobacco retailer in possession of 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 the intent to sell or offer them for sale.

C. 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:

1. Made a public statement or claim that the tobacco product imparts a characterizing flavor;

2. 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

3. Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.

D. Any tobacco retailer whose inventory includes fifty percent or more flavored tobacco products at the time this chapter is adopted shall have six months from the time of adoption to come into compliance. Any tobacco retailer whose inventory includes less than fifty percent flavored tobacco products at the time this chapter is adopted shall have forty-five days from the time of adoption to come into compliance.

E. This section shall not apply to menthol cigarettes; cigars, little cigars or cigarillos with a characterizing flavor (e.g., products of the type sold by swisher sweets, black and mild, backwoods, etc.); or chewing tobacco or snuff with a characterizing flavor (e.g., products of the type sold by copenhagen, skoal, grizzly, etc.).

(Ord. No. 826, § 1, 11-19-2019)

A. Any person or business violating any provision of this chapter, upon conviction thereof, shall be guilty of a misdemeanor and subject to a fine (not including court-imposed mandatory penalties) of one hundred dollars for the first violation, two hundred dollars for the second violation, and five hundred dollars for any subsequent violation. For purposes of this chapter, each day of noncompliance shall be considered a separate violation.

B. The provisions of this chapter may be enforced through civil and/or criminal proceedings including, but not limited to, action for nuisance abatement pursuant to the City of Anderson Municipal Code Chapter 8.28, administrative citation pursuant to City of Anderson Municipal Code Chapter 1.22, and/or injunctive relief. In any enforcement action, the city may seek reimbursement for the costs of investigation, inspection or monitoring leading to the establishment of the violation, and for the reasonable costs of preparing and bringing the enforcement action. The remedies provided by this section are nonexclusive, cumulative and in addition to any other remedy the city may have at law or in equity.

C. The City of Anderson city attorney or his/her designee ("attorney") is authorized to enforce, on behalf of the city, the provisions of this chapter. Any person may request that the director investigate a violation of this chapter by filing a written complaint with the public health department.

D. The attorney, and code compliance officer if applicable, shall maintain clear and thorough records and logs of all investigations and communications made in relation to every written complaint filed with the public health department pursuant to this section.

(Ord. No. 826, § 1, 11-19-2019)