San Benito County Municipal Code Ch. 7.13 Prohibiting Sales of Flavored Tobacco Products and Single Use Electronic…

It is the intent of the Board of Supervisors, in enacting the ordinance codified in this chapter, to ensure compliance with the business standards and practices of the county and to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco products to youth, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein. The provisions of this chapter shall apply within the unincorporated and incorporated areas of San Benito County.

(Ord. 1044, § 1, 2022)

The ordinance codified in this chapter is titled “Prohibiting Sales of Flavored Tobacco Products and Single Use Electronic Cigarettes.”

(Ord. 1044, § 2, 2022)

For the purpose of this chapter, the following words and terms shall have the following meaning:

CHARACTERIZING FLAVOR. A distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted either prior to or during the consumption of a tobacco product. CHARACTERIZING FLAVORS include, but are not limited to tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice.

DISTINGUISHABLE. Perceivable by either the sense of smell or taste of an ordinary consumer.

ELECTRONIC SMOKING DEVICE. Any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. ELECTRONIC SMOKING DEVICE includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. ELECTRONIC SMOKING DEVICE does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

FLAVORED TOBACCO PRODUCT. Any tobacco product that imparts a characterizing flavor.

LABELING Written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.

PACKAGING. 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.

SALE, SELL or TO SELL. 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 by any means.

SINGLE USE ELECTRONIC CIGARETTE. Any single-use device or delivery system sold in combination with nicotine which can be used to deliver to a person nicotine in aerosolized or vaporized form, including but not limited to, a single-use e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. SINGLE USE ELECTRONIC CIGARETTES shall not include any product that has been approved by the Food and Drug Administration for sale as a tobacco cessation product or other therapeutic purposes where that product is marketed and sold solely for such approved use.

STATE. The State of California.

TOBACCO PRODUCT.

(1) Any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;

(2) Any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or

(3) Any component, part, or accessory of (1) or (2), above, whether or not any of these contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.

TOBACCO PRODUCT does not mean drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

TOBACCO RETAILER. Any person who engages in tobacco retailing.

TOBACCO RETAILING. Selling, offering for sale, exchanging, or offering to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange.

(Ord. 1044, § 3, 2022)

(A) It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees to sell or offer for sale any flavored tobacco product within the incorporated and unincorporated areas of the county.

(B) There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:

(1) Made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor;

(2) Used text and/or images on the tobacco products’ labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or

(3) Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.

(C) It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees to sell or offer for sale, any single use electronic cigarette within the incorporated and unincorporated areas of the county.

(D) All tobacco retailers are responsible for the actions of their employees relating to the sale, offer to sell, and furnishing of tobacco products and single use electronic cigarettes at the retail location. The sale of any tobacco product or single use electronic cigarette by an employee shall be considered an act of the tobacco retailer.

(Ord. 1044, § 4, 2022)

(A) Violation of any provision of this chapter shall constitute an infraction and will be grounds for issuance of a notice of violation and assessment of an administrative citation and penalty by the county’s enforcement officer or its designated enforcement agency.

(B) Enforcement actions under this chapter are issuance of an administrative citation and assessment of a fine. Any section of this chapter may be enforced by the county, or, if agreed to, by its designated enforcement agency.

(C) A tobacco retailer, is guilty of an infraction and shall be punished by a fine of $250 for each violation of this section. All tobacco retailers are responsible for the actions of their employees relating to the sale, offer to sell, and furnishing of tobacco products or single use electronic cigarettes at the retail location. The sale of any tobacco product or single use electronic cigarette by an employee shall be considered an act of the tobacco retailer.

(D) The enforcement agency for the provisions of this chapter is the county and any designated enforcement agency authorized by the county to enforce one or more sections of this chapter.

(Ord. 1044, § 5, 2022)