Berkeley Municipal Code Ch. 13.62 Tobacco Vending Machines and Free Sampling

The City Council hereby finds and determines that the adoption of this chapter is necessary to the promotion of the public health, safety and welfare.

A. Substantial scientific evidence supports the causal relationship between using tobacco products and deadly diseases such as lung cancer, chronic bronchitis, heart disease, emphysema and other types of cancer. The Surgeon General of the United States has determined that smoking is the leading cause of preventable death in this country.

B. The Surgeon General of the United States has declared that nicotine is as addictive as cocaine or heroin. Children can become addicted to these products through the use of free tobacco samples or easy purchase through tobacco vending machines and self service displays.

C. The free distribution of cigarettes and other tobacco products encourages people to begin smoking, and tempts those who had quit smoking to begin smoking again. Encouraging smoking and discouraging those who are currently smoking from overcoming the habit endangers the public health by leading more people into habits that cause illness and death.

D. Free distribution of cigarettes and other tobacco products promotes unsightly litter, thereby increasing the costs to the public in cleaning the streets; and also causes pedestrian traffic congestion.

E. Accordingly, the City Council finds that prohibiting the distribution of free cigarette samples or coupons and the sale of cigarettes through vending machines and self-service displays (and mandating vendor assistance to purchase tobacco products) is an important step towards combating illegal use of tobacco by minors and is essential to protect the health and welfare of the public.

F. Minors are more likely to attempt to buy or steal cigarettes and other tobacco products when these items are accessible in self-service displays. Requiring vendor-assisted sales of tobacco products and banning self-service displays will reduce tobacco sales to minors and reduce shoplifting of cigarettes. (Ord. 6588-NS § 2, 2000; Ord. 6081-NS § 1, 1991)

A. "Cigarette vending machine" means any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper bill, or other thing representative of value, which dispenses or releases a tobacco product.

B. "Distribution" means to give, sell, deliver, dispense, issue or cause or hire any person to give, sell, deliver, dispense or issue.

C. "Person" means an individual, firm, partnership, joint venture, unincorporated association, corporation, or any other group or combination of the above acting as a unit.

D. "Tobacco accessories" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed primarily for the smoking or ingestion of tobacco products.

E. "Tobacco product sample" means a tobacco product and/or tobacco accessories distributed to members of the general public at no cost or at a nominal cost for product promotional purposes.

F. "Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, smoking tobacco and smokeless tobacco.

G. "Self service merchandising" means the open display of tobacco products and point of sale tobacco promotional products to which the public has access without the intervention of the vendor or a store employee.

H. "Vendor assisted" means only a store employee or owner has access to the tobacco product and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased.

I. "Tobacco retailer" means any person or business that operates a store, stand, booth concession or other place at which sales of tobacco products are made to purchasers for personal consumption or use.

J. "Inaccessible" means that all tobacco products are unobtainable to the public. Tobacco products shall be locked in an enclosed secure case that is re-locked following each transaction or tobacco products must be stored in an area that is impossible for the public to access.

K. "Tobacco Retailer Store" means a retail store utilized primarily for the sale of tobacco products and accessories and which the sale of other products is merely incidental. (Ord. 6588-NS § 3, 2000; Ord. 6081-NS § 2, 1991)

No person shall locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use on their or its premises of any cigarette vending machine used or intended to be used for the purpose of selling or distributing any tobacco products therefrom. (Ord. 6081-NS § 3, 1991)

All tobacco products shall be offered for sale exclusively by means of vendor assistance. All tobacco products will be stored in an enclosed, secure case or must be in an area not accessible to the public, and shall require employee assistance to retrieve the tobacco products. Tobacco storage area must remain inaccessible to public at all times regardless of presence of vendor. (Ord. 6588-NS § 4, 2000)

No person shall distribute, or direct, authorize, or permit any agent or employee to distribute, (1) any tobacco product sample, or (2) coupons, certificates, or other written material which may be redeemed for tobacco products and/or tobacco accessories without charge or for a nominal charge, to any person on any public street or sidewalk or in any public park or play ground or on any public ground or in any public building or place open to the public. (Ord. 6926-NS § 1 (part), 2006; Ord. 6081-NS § 4, 1991)

It shall be unlawful for any person to sell, permit to be sold, offer for sale or display for sale any tobacco products by means of self-service display, rack, counter top or shelf that allows self-service sales for any tobacco products.

Exceptions: Any business which primarily sells tobacco products and tobacco related products (a tobacco retailer store) is exempt from this section if persons under the age of 18 years are prohibited from entering the tobacco retailer store. (Ord. 6588-NS § 5, 2000)

A. Any person violating any provision of this chapter shall be guilty of an infraction as set forth in Chapter 1.20 of this code.

B. The health officer, the registered environmental health specialist, and the license and collection supervisor shall have the authority to issue citations for violations of this chapter. (Ord. 6588-NS § 6, 2000; Ord. 6081-NS § 5, 1991)

Any citizen who desires to register a complaint under this chapter may initiate enforcement with the Department of Health and Human Services. (Ord. 6081-NS § 6, 1991)

The City Council may adopt a resolution establishing a fee which must be paid by the owner or operator of a specific location whenever the City Manager, or their designee, determines upon re-inspection that a person has failed to comply with any orders, notices or direction issued by the City under this chapter. (Ord. 6588-NS § 7, 2000)