Pleasanton Municipal Code Art. I Tobacco Restrictions

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. Each of the reasons set forth below provides a separate and independent basis for the council's adoption of this chapter.

A. Substantial scientific evidence supports the causal relationship between using tobacco products and the 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 Centers for Disease Control and Prevention (CDC) reports that cigarette smoking is responsible for more than 480,000 deaths per year in the United States, including more than 41,000 deaths resulting from secondhand smoke exposure.

C. The California Department of Public Health (CDPH) Tobacco Control Program reports in Tobacco Facts and Figures 2018 that in California 63.6 percent of current cigarette smokers started by the age of 18, and that the overall tobacco use rate among California high school students is at 13.6 percent.

D. Youth under 21 currently have ready access to cigarettes and other tobacco products as a result of noncompliance with existing laws that prohibit the sale of such tobacco products to underage youth, self-service displays of tobacco products in tobacco stores, and seeing other underage youth with e-cigarettes in public parks or other youth gathering areas. The CDPH reports in its Young Adult Tobacco Purchase Survey 2019 that underage decoys were able to purchase a variety of tobacco products from many retail locations at a 21.6 percent violation rate in Alameda County.

E. The free distribution of cigarettes and other tobacco products encourages people to begin smoking and using tobacco products and thereby become addicted to the habit, discourages people from quitting 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.

F. The compelling purpose and intent of this chapter includes:

1. To prevent young people from using nicotine until they are mature and capable of making an informed and rational decision;

2. To reduce significantly the ability of young people from illegally obtaining tobacco products by banning the retail sale of flavored tobacco products, electronic smoking devices and related paraphernalia;

3. To reduce youth exposure to tobacco products at point of sale in grocery stores, pharmacies, convenience stores and gas stations, as well as exposure to tobacco store advertising, near youth-gathering places such as public schools, parks and recreation facilities;

4. To reduce the ability of young people to possess e-cigarettes in public parks or other public places where youth gather, as that may influence other youth to try such tobacco products;

5. To promote generally the health and welfare of all people in the community against the health hazards and harmful effects of using addictive tobacco products.

(Ord. 1529 § 1, 1991; Ord. 2120 § 1, 2015; Ord. 2208 § 3, 2020)

For the purposes of this chapter, the following terms shall be defined as set forth herein:

"Arm's length transaction"

means a sale in good faith and for valuable consideration that reflects the fair market value between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of violations of this chapter is not an arm's length transaction.

"Characterizing flavor"

means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco 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.

"Cigar"

means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco weighing more than three pounds per thousand.

"Cigarette"

means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette as described herein.

"Consumer"

means a person who purchases or intends to purchase a tobacco product or tobacco paraphernalia for consumption or use and not for sale to another.

"Coupon"

means any voucher, rebate card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a discounted price.

"Deliver"

means to commercially transfer tobacco products or tobacco paraphernalia to a consumer at a location not permitted under this chapter.

"Distribution"

means to give, sell, deliver, dispense, issue, or cause or hire any person to give, sell, deliver, dispense, issue or offer to give, sell, deliver, dispense or issue.

"E-cigarette" or "electronic cigarette"

means an activated or functioning device, whether an electronic device as defined by California Health and Safety Code Section 104495 or a similar device, including, but not limited to, a device intended to emulate smoking, which permits a person to inhale vapors, vaporized liquids or mists that may or may not include nicotine.

"Electronic smoking device"

means an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah. (See California Health and Safety Code Section 104495.)

"Flavored tobacco product"

means any tobacco product that imparts a characterizing flavor.

"Full retail price"

means the price listed for a tobacco product on its packaging or on any related shelving, advertising, or display where the tobacco product is sold, plus all applicable taxes and fees if such taxes and fees are not included in the listed price.

"Labeling"

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

"Little cigar"

means any rolled tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than three pounds per thousand. "Little cigar" includes, but is not limited to, tobacco products known or labeled as small cigar, little cigar or cigarillo.

"Manufacturer"

means any person, including any re-packer or re-labeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States.

"Package" or "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"

shall mean any natural person, firm, partnership, joint venture, unincorporated association, corporation, estate, trust, trustee, or any other group or combination of the above acting as a unit, or other legal entity, excepting however the United States of America, the state of California, and any political subdivision or unit thereof.

"Proprietor"

means a person with an ownership interest in a business. An ownership interest shall be deemed to exist when a person has a 10 percent or greater interest in the stock, assets or income of a business other than the sole interest of security for debt.

"Sale" or "sell" or "sold"

means any transfer, exchange, barter, gift, sale, distribution for a commercial purpose, or offer of any of the foregoing, in any manner or means whatsoever.

"Smoke" or "smoking"

means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, whether natural or synthetic, in any manner or in any form. "Smoking" includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking. (See California Health and Safety Code Section 104495.)

"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.

"Tobacco paraphernalia"

means cigarette papers or wrappers, blunt wraps, pipes, holders of smoking materials of all types, cigarette rolling machines, e-cigarette liquid pods and any other item designed primarily for the smoking or ingestion of tobacco products. (See California Business and Professions Code Section 22962.)

"Tobacco product"

means any of the following:

A product containing, made, or derived from tobacco 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, and blunt wraps.

An electronic device that delivers nicotine, other substances or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah.

Any component, part, or accessory of a tobacco product, whether or not sold separately.

Exception. "Tobacco product" does not include drugs, devices or combination of products 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 the product is marketed and sold solely for such an approved purpose. (See California Business and Professions Code Section 22950.5.)

"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.

"Tobacco retailer"

means any person who sells tobacco products and tobacco paraphernalia on a retail basis (but not in the quantity that qualifies the business as a tobacco store) in addition to other products and services being offered by the business.

"Tobacco retailer permit" or "permit"

means the certificate issued by the business license division which allows a location to sell tobacco products and tobacco paraphernalia on a retail basis.

"Tobacco store"

means any person which primarily sells tobacco products; generates more than 60 percent of its gross revenues annually from the sale of tobacco products and tobacco paraphernalia; does not permit any person under 18 to enter unless with parent or guardian; and does not sell alcoholic beverages or food for consumption on the premises. (See California Business and Professions Code Section 22962.)

(Ord. 1529 § 1, 1991; Ord. 2120 § 1, 2015; Ord. 2208 § 3, 2020)