Chapter 9.46

TOBACCO PRODUCT SAMPLING

Sections:

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

• A. "Coupon" means anything that can be exchanged for or used to acquire a to-

bacco product for free or for nominal cost, such as a printed piece of paper, voucher, ticket, rebate, rebate offer, check, credit, token, gift certificate, code, password, or anything labeled "coupon" or "coupon offer."

• B. "Nominal cost" means the cost of any item that is transferred from one person to another for less than the total of:

  1. Twenty-five percent of the full retail value of the item exclusive of taxes and fees; plus

  2. All taxes and fees previously paid and all taxes and fees still due on the item at the time of transfer.

• C. "Nonsale distribution" means to give, within the jurisdictional limits of the city, a tobacco product or coupon at no cost or at nominal cost to a person who is not a tobacco seller.

• D. "Public place" means any place within the jurisdictional limits of the city, public or private, that is open to the general public regardless of any fee or age requirement, including, for example, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, and buses.

• E. "Tobacco paraphernalia" means any item designed for the consumption, use, or preparation of tobacco products.

• F. "Tobacco product" means:

  1. Any 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

  2. Any electronic device that delivers nicotine or other substances to the person inhaling from the device, in-

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SAN JOSÉ CODE

§ 9.46.010

cluding, but not limited to an electronic cigarette, cigar, pipe, or hookah; and

3. Notwithstanding any provision of Subsections 1. and 2. above to the contrary, "tobacco product" includes any component, part, or accessory of a tobacco product, whether or not sold separately. "Tobacco product" does not include any 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 such product is marketed and sold solely for such an approved purpose.

• G. "Tobacco seller" means any person who sells, distributes with an economic or a business purpose, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, distributed, offered for sale, exchanged, or offered for exchange.

(Ord. 29576.)

• A. No tobacco seller nor any agent or employee of a tobacco seller shall engage in the nonsale distribution of any tobacco product or coupon in any public place.

• B. No person shall knowingly permit the nonsale distribution of any tobacco product or coupon by a tobacco seller or any agent or employee of a tobacco seller:

  1. In any public place under the legal or de facto control of the person; or

  2. Through any agent or employee of the person.

This provision shall not apply to coupons incidentally distributed in connection with a printed or electronic publication, such as, for example, magazines, newspapers, and websites, so long as that person's distribution of a publication containing coupons is not primarily motivated by an economic or a business purpose to distribute coupons. (Ord. 29576.)