San Marcos Municipal Code Ch. 10.10 Youth Access to Smoking Materials

(a)

Advertising means printed matter that calls the public's attention to things for sale.

(b)

Advertising Display or Display means a sign, sign-board, poster, or banner that is temporarily or permanently affixed to the ground, sidewalk, a pole or post, or a building, or is displayed in the windows of a commercial establishment, and that is used to advertise or promote products.

(c)

Business means any sole proprietorship, joint venture, corporation or other business entity formed for profit making purposes, including retail establishments where goods or services are sold, as well as professional corporations and other entities where legal, medicinal, dental, engineering, architectural or other professional services are delivered.

(d)

City shall mean the City of San Marcos.

(e)

Electronic Smoking Device means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances by delivering a vaporized or heated solution. Electronic Smoking Device includes any such device, whether manufactured, distributed marketed or sold as an electronic cigarette, an e-cigarette, an electronic cigar, electronic cigarillo, an electronic pipe, an electronic hookah, vaporizer, vape pen, or any product name or descriptor, including any component, part or accessory of such a device, whether or not sold separately. Electronic Smoking Device does not include any inhaler or other product specifically approved by the United States Food and Drug Administration for therapeutic purposes or for use in the mitigation, treatment or prevention of disease, where such product is marketed and sold solely for such an approved purpose.

(f)

Electronic Smoking Device Paraphernalia means cartridges, cartomizers, e-liquid, smoke juices, tips, atomizers, Electronic Smoking Device batteries, Electronic Smoking Device chargers and any other item specifically designed for the preparations, charging or use of Electronic Smoking devices.

(g)

Employee means any person who is employed by an employer in consideration for direct or indirect wages or profit, and any person who volunteers his or her services for a non-profit entity.

(h)

Minor means any individual who is prohibited by State law and this Municipal Code from purchasing tobacco products.

(i)

Non-profit Entity means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational- character building, political, social or other similar purpose, the net proceeds from the operations of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A public agency is not a Non-Profit Entity within the meaning of this section.

(j)

Person shall mean any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

(k)

Self-service Merchandising means open display of smoking materials and point-of-sale smoking materials-related promotional products that the public has access to without the intervention of an Employee.

(l)

Smoking Materials means Tobacco Products, Electronic Smoking Device, Electronic Smoking Device Paraphernalia, and any other product containing tobacco or nicotine that releases gases, particles or vapors into the air as a result of combustion, electrical ignition or vaporization, when the apparent or usual purpose is human inhalation of the byproducts.

(m)

Tobacco Products 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; (2) any Electronic Smoking Device; and (3) notwithstanding any provision of subsections (1) and (2) to the contrary, "Tobacco Products" includes any component, part, or accessory of Tobacco Products, whether or not sold separately. "Tobacco Products" 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.

(n)

Tobacco Retailer means any Person who sells, offers for sale, exchanges, or offers 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.

(o)

Tobacco Vending Machine means any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper currency, or other things representative of value, which dispenses or releases Smoking Materials.

(p)

Vendor-assisted means only a store Employee has access to the Smoking Materials and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased.

(Ord. No. 2016-1427, 6-28-2016; Ord. No. 2016-1428, 7-26-2016; Ord. No. 2019-1471, § 5(Exh. D), 2-12-2019)

(a)

No Person or Business shall engage in the sale of Tobacco Products without first posting a plainly visible sign at the point of purchase of Tobacco Products which has wording and sizing as required by California Business and Professions Code Section 22952 and California Code of Regulations Title 17 Section 6902, as those sections may be amended from time to time.

(b)

No Person, Business, Tobacco Retailer, or owner, manager or operator of any establishment subject to this ordinance shall sell, offer to sell, or permit to be sold any Smoking Materials to an individual without requesting and examining identification of customers appearing to be 21 and younger for the purpose of establishing the purchaser's age unless the seller has some other reasonable basis for determining the buyer's age.

(c)

No Person, Business, Tobacco Retailer or other establishment shall sell or offer for sale cigarettes or other tobacco or smoking products not in the original packaging provided by the manufacturer and with all required health warnings.

(d)

It shall be unlawful for any Person, Business or Tobacco Retailer to sell, permit to be sold, offer for sale or display for sale any Smoking Materials by means of Self-service Merchandising or by any means other than Vendor-assisted sales as defined in Section 10.10.010, above.

(e)

No Person, Business or Tobacco Retailer shall locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use on his, her or its premises any Tobacco Vending Machine for the purpose of selling or distributing any Smoking Materials except as allowed hereinafter. Operating and maintaining a Tobacco Vending Machine for dispensing cigarettes or other Smoking Materials shall be allowed and such machines or machine may be located in any Business premises from which Minor Persons are excluded by law.

(f)

It shall be unlawful for any Person, Business or Tobacco Retailer to distribute "free sample" Smoking Materials, except in enclosed areas where Minors are not permitted. A "free sample" does not include any form of Smoking Materials that is provided in connection with: 1) the Vendor-assisted purchase, exchange or redemption for proof of purchase of any Smoking Materials after age verification is performed as set forth in Section 10.10.020(b), above, including, but not limited to, a free offer in connection with the purchase of Smoking Materials, such as a "two-for-one" offer; or 2) the conducting of consumer testing or evaluation of Smoking Materials with Persons after age verification is performed as set forth in Section 10.10.020(b), above.

(Ord. No. 2004-1219, 1-27-04; Ord. No. 2016-1427, 6-28-2016; Ord. No. 2016-1428, 7-26-2016; Ord. No. 2019-1471, § 5(Exh. D), 2-12- 2019)

It shall be unlawful for any Person, Business, or Tobacco Retailer to place or maintain, or cause to be placed or maintained, any display containing Smoking Materials.

(Ord. No. 2004-1219, 1-27-04; Ord. No. 2016-1427, 6-28-2016; Ord. No. 2019-1471, § 5(Exh. D), 2-12-2019)

(a)

Section 10.10.030 does not apply to commercial establishments where access to the premises by Persons under 21 years of age is prohibited by law.

(b)

Section 10.10.030(a) does not apply to displays in any establishments that are located behind a counter and not accessible to patrons unless Vendor-assisted, or are located in other restricted areas that are not accessible to patrons unless Vendor-assisted.

(Ord. No. 2004-1219, 1-27-04; Ord. No. 2016-1428, 7-26-2016; Ord. No. 2019-1471, § 5(Exh. D), 2-12-2019)

(a)

No Person or Employee shall discharge, refuse to hire or in any manner retaliate against any Employee or applicant for employment because such Employee or applicant agrees to abide by the provision of this article.

(b)

No Person shall intimidate or threaten any reprisal or effect any reprisal for the purpose of retaliating against another Person because such other Person seeks to attain compliance with provisions of this article.

(Ord. No. 2019-1471, § 5(Exh. D), 2-12-2019)

This article shall not be interpreted or construed to permit Tobacco Vending Machines and distribution of Tobacco Product samples where they are otherwise restricted by other applicable laws. Nor shall this article be construed as cause for breach of any pre-existing private contract, or cause for interference with regulations imposed by State or federal law or related to interstate commerce.

(Ord. No. 2019-1471, § 5(Exh. D), 2-12-2019)

(a)

Any Person, Business or Tobacco Retailer who violates any provision of this article shall upon conviction thereof, be guilty of a misdemeanor offense, punishable as provided in Section 1.12.010 of this Code.

(b)

The owner, operator or manager of any public place or place of employment within the purview of this article shall comply herewith. Such owner, operator or manager shall post or cause to be posted all signage required by this article.

(c)

It shall be the responsibility of employers to disseminate information concerning the provisions of this article to Employees.

(Ord. No. 99-1066, 7-13-99; Ord. No. 2019-1471, § 5(Exh. D), 2-12-2019; Amend. of 2-5-2025(1))