San Diego County Municipal Code Ch. 8.9 Temporary Prohibition on the Sale or Distribution of Electronic Smoking…

(a) Electronic smoking devices are battery-operated devices that heat "e-liquid" solutions of chemicals, turning them into an aerosol that is inhaled in a manner similar to smoking a cigarette. There is a tremendous variety of e-liquids on the market. They often have varying compositions of flavorings, propylene glycol, vegetable glycerin, and other ingredients. Most have nicotine. Electronic smoking devices are also increasingly used to deliver tetrahydrocannabinol (THC) or cannabidiol (CBD).

(b) Currently, the electronic smoking market is largely unregulated. In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act, which extended the federal Food and Drug Administration's (FDA) authority to regulate tobacco products, including requiring that all new tobacco products receive FDA premarket clearance to be sold in the United States. However, FDA granted electronic tobacco products a grace period and extended it. Currently, manufacturers are required to submit Premarket Tobacco Product Applications to FDA by May 12, 2020.

(c) E-cigarettes are not approved by FDA as an aid to quit smoking. Studies indicate no evidence of definitive long-term efficacy of e-cigarettes as a cessation aid and many people become 'dual users' instead of completely quitting combustible cigarettes. E-cigarette manufacturers could request approval to market their products as a "modified risk tobacco product" or a cessation aid. Without this FDA approval manufacturers may not make safety or health claims for their products.

(d) The long-term health consequences of electronic smoking devices are unclear, but evidence is mounting that there are serious risks. Research suggests vegetable glycerin and propylene glycol, which produce the aerosol cloud, are toxic to cells in lungs. Research also indicates that the metals in heating coils enter the aerosol that is pulled into the lungs. A review of the research on vaping by the National Academies of Sciences, Engineering, and Medicine concluded that there was "conclusive evidence that in addition to nicotine, most e-cigarette products contain and emit numerous potentially toxic substances." This review noted the presence of known carcinogens, like formaldehyde and acrolein, but expressed the most concern about the unknown effects of flavorings.

(e) A longitudinal study, published in the American Journal of Preventive Medicine, in December 2019, revealed statistically significant associations between former e-cigarette use and current e-cigarette use with having incident respiratory disease.

(f) The findings of the 2019 National Youth Tobacco Survey, released by the Centers for Disease Control and Prevention (CDC) and FDA, showed that more than 5 million U.S. middle and high school students reported current e-cigarette (use within the last 30 days), an increase of more than 1.5 million students from the 2018 findings. The survey also found that 27.5 percent of high school students reported current e-cigarette use, a percentage that has increased dramatically since 2018.

(g) Electronic smoking devices have been implicated in an acute public health crisis that began in the summer of 2019. E-cigarette, or vaping, product use associated lung injury (EVALI), formerly known as vaping-associated pulmonary injury (VAPI), has led to hospitalizations and deaths nationwide, including in California. There have been 41 confirmed or probable EVALI cases in San Diego County as of December 18, 2019 (most recent data as of docket date). In response, the California Department of Public Health has urged the public to immediately cease using electronic smoking devices, regardless of whether they include THC, CBD, or nicotine. Investigations to date on the cause of the outbreak have identified vitamin E acetate, an additive in some e-cigarette, or vaping, products containing THC, as closely associated with EVALI. There may be other contributing causes of EVALI, and it is notable that some individuals with EVALI did not report using THC-containing products. Regardless of the specific ingredients ultimately pinpointed as contributing to this outbreak, EVALI is indicative of the uncertainties and potential harms of widespread recreational electronic smoking device use in a minimally regulated market.

(h) For the reasons stated above, the sale or distribution of electronic smoking devices is a public nuisance.

(i) It is the intent of the Board to provide for the public health, safety and welfare, by temporarily prohibiting the sale or distribution of electronic smoking devices in the unincorporated area of the County.

(Added by Ord. No. 10647 (N.S.), effective 2-27-20)

For the purposes of this chapter:

(a) "Distribution" means to give smoking products to the general public at no cost, or at nominal cost, or to give coupons, coupon offers, gift certificates, gift cards, or other similar offers, or rebate offers for smoking products to the general public at no cost or at nominal cost.

(b) "Electronic smoking device" is defined as an electronic and/or battery-operated device, which can be used to deliver an inhaled dose of nicotine or other substances whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, or any other product name or descriptor. For the purposes of this chapter, "electronic smoking device" does not include any product that the Food and Drug Administration has either granted premarket approval, or approved for use as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose.

(c) "E-cigarette, or vaping, product use associated lung injury outbreak" or "EVALI outbreak" is an outbreak of a severe and sometimes fatal illness that was identified in the summer of 2019 and is the subject of an ongoing investigation by the Centers for Disease Control and Prevention.

(Added by Ord. No. 10647 (N.S.), effective 2-27-20)

(a) The sale or distribution of an electronic smoking device is prohibited within the unincorporated area of the County for one year from the effective date of the ordinance codified in this chapter.

(b) This section shall not apply to electronic smoking devices that, at the conclusion of the ongoing investigation by the CDC, are not identified as a causal factor in the e-cigarette, or vaping, product use associated lung injury outbreak. The health officer shall issue a public notice at the termination of the CDC's investigation regarding whether this condition has been met.

(Added by Ord. No. 10647 (N.S.), effective 2-27-20)

Any person who violates the provisions of this chapter shall be subject to an infraction as set forth in section 11.116 of this code in conjunction with or in addition to any other remedy set forth in section 11.121 of this code or allowed by law. The County's Chief Administrative Officer may designate one or more County officers to enforce and administer any remedy authorized by this code.

(Added by Ord. No. 10647 (N.S.), effective 2-27-20)

This chapter shall remain in effect for one year from the effective date of the ordinance codified in this chapter and shall terminate thereafter.

(Added by Ord. No. 10647 (N.S.), effective 2-27-20)