Laguna Niguel Municipal Code Art. 15 Prohibition on Flavored Electronic Cigarette Products

The following words and phrases, whenever used in this article, shall have the meanings defined in this section unless the context clearly requires otherwise:

Associated product means a product intended for use with an electronic cigarette, including but not limited to flavor refills, cartridges, and component parts, whether or not the product contains nicotine.

Characterizing flavor means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of an electronic cigarette product or any byproduct produced by the electronic cigarette product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice; provided, however, that an electronic cigarette product shall not be determined to have a characterizing flavor solely because of the use of additives or the provision of ingredient information.

Electronic cigarette means any electronic and/or battery-operated device or delivery system sold in combination with nicotine or other substances, in aerosolized or vaporized form, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic cigarettes include any component, part, or accessory of such a device that is used during the operation of the device when sold in combination with any liquid or substance containing nicotine. Electronic cigarettes also include any liquid or substance containing nicotine, whether sold separately or sold in combination with any device that could be used to deliver to a person nicotine in aerosolized or vaporized form. Electronic cigarettes do not include any battery, battery charger, carrying case, or other accessory not used in the operation of the device if sold separately. Electronic cigarettes shall not include any drug, device, or combination product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where that product is marketed and sold solely for such approved use.

Electronic cigarette paraphernalia means any item designed or marketed for the consumption, use, or preparation of electronic cigarette products.

Electronic cigarette product includes: (1) any electronic cigarette; and (2) any associated product, component, part, or accessory intended or reasonably expected to be used with an electronic cigarette, whether or not sold separately.

Electronic cigarette retailer means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, electronic cigarettes, electronic cigarette products or electronic cigarette paraphernalia. "Electronic cigarette retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of electronic cigarette products or electronic cigarette paraphernalia sold, offered for sale, exchanged, or offered for exchange.

Flavored electronic cigarette product means any electronic cigarette product that imparts a characterizing flavor. There shall be a rebuttable presumption that an electronic cigarette product is a flavored electronic cigarette product if an electronic cigarette retailer, manufacturer, or any employee or agent of an electronic cigarette retailer or manufacturer has made a statement or claim directed to consumers or to the public that the electronic cigarette product has or produces a characterizing flavor including, but not limited to, text, color, and/or images on the product's labelling or packaging that are used to explicitly or implicitly communicate that the electronic cigarette product has a characterizing flavor.

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

Manufacturer means any person, including but not limited to any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels an electronic cigarette product; or imports a finished electronic cigarette product for sale or distribution into the United States.

Nicotine means the chemical substance named 3-(1-Methyl-2-pyrrolidinyl) pyridine or C[10]H[14]N[2], including any salt or complex of nicotine, whether derived from tobacco, or from any other source.

Packaging means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which an electronic cigarette 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.

(Ord. No. 2019-199, § 3, 11-19-19)

(a) It shall be a violation of this article for any electronic cigarette retailer or any of the electronic cigarette retailer's agents or employees to sell or offer for sale, any flavored electronic cigarette product.

(b) It shall be a violation of this article for any electronic cigarette retailer to possess with intent to sell or offer for sale, any flavored electronic cigarette product. There shall be a rebuttable presumption that an electronic cigarette retailer in possession of four or more flavored electronic cigarette products, including but not limited to individual flavored electronic cigarette products, packages of flavored electronic cigarette products, or any combination thereof, possesses such flavored electronic cigarette products with intent to sell or offer for sale.

(Ord. No. 2019-199, § 3, 11-19-19)

(a) The city manager, or his or her designee, may enforce this article.

(b) Any person who violates any provision of this article is guilty of a misdemeanor punishable by a fine of $1,000.00, or imprisonment for a term of six months, or both, provided that where the city attorney determines that such action may be in the best interests of justice, the city attorney may specify in the accusatory pleadings that the offense shall be an infraction. Each violation of this article, and each day during which any such violation is committed or continued, shall constitute a separate offense.

(c) Any violation of this article is a public nuisance. In addition to the penalties provided in this section, any use or condition caused or permitted to exist in violation of any of the provisions of this article shall be and is declared to be a public nuisance, and may be abated as such by the city.

(d) In addition to other remedies set forth in this section, the city may issue an administrative citation for any violation of this article, as set forth in article 2 (administrative citations) of division 3 (citations in lieu of immediate arraignment) of title 1 (general provisions) of the Municipal Code.

(e) This section shall not be interpreted to limit the applicable civil or administrative remedies available under law. The remedies set forth in this section are hereby declared to be cumulative and non-exclusive.

(f) The city manager, or his or her designee, may adopt administrative rules, regulations, or guidelines for the implementation and enforcement of this article.

(g) For 30 days from the effective date of this section, the exclusive remedy of the city for a violation of this article shall be the issuance of an administrative citation as provided in subsection (d) of this section. Such citations issued during this 30-day period shall be without the imposition of a fine or penalty, or an appeal fee, until the person cited has exhausted all of his or her administrative remedies therefore contained in article 2 (administrative citations) of division 3 (citations in lieu of immediate arraignment) of title 1 (general provisions) of the Municipal Code, and thereafter, such fine and appeal fees shall become due and payable.

(Ord. No. 2019-199, § 3, 11-19-19)

Nothing in this article shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law.

(Ord. No. 2019-199, § 3, 11-19-19)