Chapter 33 — SALES OF FLAVORED TOBACCO PRODUCTS AND PHARMACY SALES OF TOBACCO

For the purposes of this chapter, the following definitions shall govern unless the context clearly requires otherwise:

(a)

"Adult" shall mean any individual twenty-one (21) years of age or older.

(b)

"Adult-only retailer" shall mean any retailer or businesses that allows entry only by adults onto the entire premises of the business or retailer, or that require minors to be accompanied by a parent, guardian, or another adult in order to enter the entire premises of the business or the retailer. The definition of an "adult- only retailer" does not include any retailer or business that only prohibits minors from entering certain sections, divisions, or a part of the premises that are marked or otherwise restricted as adult only and allows minors to otherwise enter the remainder of its premises unaccompanied by a parent, guardian or another adult.

(c)

"Characterizing flavor" shall mean 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" shall mean 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" shall mean perceivable by either the sense of smell or taste.

(f)

"Distribute" or "distribution" means the transfer by any person other than a common carrier, at any point from the place of manufacture or thereafter to a person who sells or offers to sell the electronic cigarette or other electronic smoking device.

(g)

"Flavored tobacco product" shall mean any tobacco product that contains a constituent that imparts a characterizing flavor.

(h)

"Hookah pipe" shall mean a type of water pipe used to smoke flavored tobacco products, with a long flexible tube for drawing aerosol through water.

(i)

"Hookah products" shall mean any component of a hookah pipe including, but not limited to, heads, stems, bowls, vases and hoses.

(j)

"Labeling" shall mean written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.

(k)

"Packaging" shall mean 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.

(l)

"Person" means any individual, partnership, cooperative association, private corporation, or any other legal entity.

(m)

"Pharmacy" shall mean any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.

(n)

"Sell," "sale" or "to sell" shall mean any transaction where, for any consideration, ownership is transferred from one person or entity to another including, but not limited to, any transfer of title or possession for consideration, exchange or barter, in any manner or by any means.

(o)

"Tobacco product" shall have the same definition as set forth in subsection (h) of Section 5-31.01 of this Code.

(p)

"Tobacco retailer" shall have the same definition as set forth in subsection (i) of Section 5-31.01 of this Code.

(q)

"Tobacco retailer license" shall mean a tobacco retailer that has been issued a license pursuant to Section 5-31.02 of this Code.

(§ 3, Ord. 871-C.S., eff. March 30, 2022)

(a)

No person, tobacco retailer, or other legal entity shall sell, or offer for sale nor distribute, any flavored tobacco product, except as provided in Section 5-33.02(c).

(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)

Tobacco retailers that are adult-only retailers that sell flavored tobacco products for use with a hookah pipe or hookah products shall be exempt from the requirements of Section 5-33.02(a).

(d)

For tobacco retailers that have a valid tobacco retailer license, the provisions of Section 5-33.02(a) shall take effect upon expiration of the tobacco retailer license in effect as of the effective date of this ordinance.

(§ 3, Ord. 871-C.S., eff. March 30, 2022)

(a)

No pharmacy or pharmacy employee or agent shall sell or offer for sale any tobacco product.

(b)

No new tobacco retailer license may be issued to a pharmacy after the effective date of this ordinance.

(c)

No tobacco retailer license may be renewed by a pharmacy after the effective date of this ordinance.

(d)

The provisions of Section 5-33.03(a) shall take effect upon the expiration of the pharmacy's tobacco retailer license in effect as of the effective date of this ordinance.

(§ 3, Ord. 871-C.S., eff. March 30, 2022)

(a)

The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

(b)

Violations of this chapter are subject to a civil action brought by the City Attorney, punishable by a civil fine payable to the city not less than One Hundred and no/100ths ($100.00) Dollars and not exceeding One Thousand and no/100ths ($1,000.00) Dollars per violation.

(c)

Violations of this chapter may, in the discretion of the City Attorney, be prosecuted as infractions or misdemeanors.

(d)

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

(e)

In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the City Attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(§ 3, Ord. 871-C.S., eff. March 30, 2022)

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

(§ 3, Ord. 871-C.S., eff. March 30, 2022)

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

(§ 3, Ord. 871-C.S., eff. March 30, 2022)