Irvine Municipal Code Ch. 6 Flavored Tobacco Sale, Offer for Sale, and Use Prohibited

The City Council of the City hereby finds and declares that, for the reasons set forth in the above Recitals, there is a need to adopt this Ordinance establishing regulations that will prohibit the use of all flavored tobacco products, including without limitation all flavored e-liquids, pods, e-juices, or other flavored products used in electronic nicotine delivery systems, in the City of Irvine. Pursuant to the findings stated herein, the City Council hereby: (1) finds that there exists a current and immediate threat to the public health, safety, and welfare requiring this Ordinance; (2) finds that this Ordinance is necessary for the immediate preservation of the public peace, health, and safety as set forth herein; and (3) declares and imposes regulations for the immediate preservation of the public health, safety and welfare of the City of Irvine.

(Ord. No. 20-01, § 2, 1-28-20)

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

A. "Electronic smoking device" means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other regulated substances, including any component, part, or accessory of such device, whether or not sold separately. "Electronic smoking device" 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, hookah pen, vape pen or any other product name or descriptor. An electronic smoking device excludes any product approved by the United States Food and Drug Administration as a nontobacco product used for medicinal purposes and is being marketed and sold solely for that approved purpose. This definition of "electronic smoking device" is consistent and coextensive with the definition provided in Irvine Municipal Code Section 4-10-502.

B. "Flavored tobacco product" means any tobacco product that contains a constituent that imparts a characterizing flavor.

C. "Characterizing flavor" shall mean the definition as used by the U.S. Food and Drug Administration and the California Department of Public Health to refer to a distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. 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. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a characterizing flavor.

D. "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.

E. "Distinguishable" means perceivable by either the sense of smell or taste.

(Ord. No. 20-01, § 2, 1-28-20)

A. The use of any flavored tobacco product by persons under 21 is prohibited and no person shall use or attempt to use any flavored tobacco product.

B. 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 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.

C. Notwithstanding subparts A.—C. of this Section 4-10-603, the sale or offer for sale of hookah products and the use of flavored tobacco for hookah uses is not prohibited by this Section 4-10-603.

(Ord. No. 20-01, § 2, 1-28-20)

A. The provisions of this chapter may be enforced by the Irvine Police Department, any peace officer or code enforcement officer, or other employees designated by the City Manager.

B. If any person under 21 is in violation of the provisions of this chapter, the Irvine Police Department reserves the right to confiscate any electronic smoking device and/or flavored tobacco products in the possession of such person under 21.

C. Causing, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.

D. Any person who is found to violate any provision of this chapter shall be deemed guilty of an infraction and shall be punishable as provided in Title 4, Division 13 of the Code. Notwithstanding the foregoing, persons who have not previously been found or deemed guilty of an infraction as a result of a violation of this chapter and who also have not previously participated in an educational tobacco diversion program, may elect to participate in a City-approved educational tobacco diversion program. Any action on the infraction shall be dismissed upon completion of the educational tobacco diversion program.

E. Nothing in this chapter is intended to limit the requirements of California law, which prohibits the giving, selling, or furnishing of any tobacco products, including electronic smoking devices, to persons under 21 years of age.

(Ord. No. 20-01, § 2, 1-28-20)

Any violation of this chapter is hereby declared a public nuisance.

(Ord. No. 20-01, § 2, 1-28-20)

This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted or prohibited by other applicable laws.

(Ord. No. 20-01, § 2, 1-28-20)