The City Council recognizes the inherent danger of tobacco products
and that the use of tobacco products has devastating health and economic
consequences. The City Council further recognizes that tobacco use
is the leading cause of preventable illness and death in the United
States, and that tobacco product use is started and established primarily
during adolescence.
Allowing flavored tobacco products to be sold in the City increases
access to these harmful and dangerous products. To that end, no flavored
tobacco products shall be sold in the City except as specifically
enumerated in this chapter.
(Ord. 2020-13)
For purposes of this chapter, the following definitions shall
apply:
means a distinguishable taste or aroma or both, other than
the taste or aroma of tobacco, imparted by a tobacco product or any
byproduct produced by the 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. A tobacco product
shall not be determined to have a characterizing flavor solely because
of the use of additives or flavorings or the provision of ingredient
information. Rather, it is the presence of a distinguishable taste
or aroma or both, as described in the first sentence of this definition,
that constitutes a characterizing flavor.
means perceivable by either the sense of smell or taste.
means the transfer, by any person other than a common carrier,
of a tobacco product at any point from the place of manufacture or
thereafter to the person who sells the tobacco product to an individual
for personal consumption.
has the meaning set forth in Section 30121 of the California
Revenue and Taxation Code, as may be amended from time to time.
means any shisha tobacco product that contains a constituent
that imparts a characterizing flavor.
means any tobacco product that imparts a characterizing flavor.
A public statement or claim made or disseminated by the manufacturer
of a tobacco product, or by any person authorized or permitted by
the manufacturer to make or disseminate public statements concerning
such tobacco product, that such tobacco product has or produces a
characterizing flavor shall constitute presumptive evidence that the
tobacco product is a flavored tobacco product.
means a type of waterpipe, used to smoke shisha or other
tobacco products, with a long flexible tube for drawing aerosol through
water. Components of a hookah may include heads, stems, bowls, and
hoses.
means a tobacco retailer that is engaged in the retail sale
of shisha tobacco products, hookah, and hookah smoking accessories.
mean any transaction where, for any consideration, ownership
of a tobacco product is transferred from one person to another, including,
but not limited to, any transfer or title or possession for consideration,
exchange, or barter, in any manner or by any means.
means a tobacco product smoked or intended to be smoked in
a hookah. "Shisha tobacco product" includes, and may be referred to
as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh.
"Shisha tobacco product" does not include any electronic devices,
such as an electronic hookah, electronic cigarette, or electronic
tobacco product.
means any tobacco cigarette, electronic cigarette cartridge,
cigar, pipe tobacco, smokeless tobacco, snuff or any other form of
tobacco which may be utilized for smoking, chewing, inhaling, vaping
or other manner of ingestion.
(Ord. 2020-13)
A.
It
is unlawful to sell or distribute any flavored tobacco product to
a person in the City of Encinitas.
B.
There
shall be a rebuttal presumption that a tobacco product, other than
a cigarette, is a flavored tobacco product if a manufacturer or any
of the manufacturer's agents or employees, in the course of their
agency or employment, has made a statement or claim directed to consumers
or to the public that the tobacco product has or produces a characterizing
flavor, including, but not limited to, text, color, and/or images
on the product's labeling or packaging that are used to explicitly
or implicitly communicate that the tobacco product has a characterizing
flavor.
C.
This
section shall not apply to a product that has been approved by the
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.
D.
This
section shall not apply to the sale or distribution of shisha tobacco
products for use in a hookah.
(Ord. 2020-13)
A.
The
City Manager, or designee, is authorized to establish regulations
and to take any and all actions reasonable and necessary to obtain
compliance with this chapter, including, but not limited to, inspecting
the premises of any business to verify compliance.
B.
Any person, business or tobacco retailer violating this chapter shall be guilty of an infraction, which shall be punishable by a fine in accordance with Chapter 1.08 of the Encinitas Municipal Code, or a misdemeanor, which shall be punishable by a fine not exceeding one thousand dollars, by imprisonment not exceeding six months, or by both such fine and imprisonment. In addition to criminal fines, any person, business or tobacco retailer violating this chapter shall also be subject to civil penalties or administrative fines or both under Chapter 1.08 of the Encinitas Municipal Code.
C.
The
City Attorney may seek legal injunctive or other equitable relief
to enforce this chapter.
D.
Administrative enforcement of this chapter shall proceed pursuant to Chapter 1.08 of the Encinitas Municipal Code.
E.
Each
violation of this chapter shall be considered a separate offense.
F.
The
remedies and penalties provided in this section are cumulative and
not exclusive, and nothing in this chapter shall preclude any person
from pursuing any other remedies provided by law.
G.
Notwithstanding
any other provision of this chapter, this chapter may be enforced
through any remedy as provided for in this section upon its effective
date.
(Ord. 2020-13)
Nothing in this chapter shall be interpreted or applied so as
to create any requirement, power, or duty that is preempted by Federal
or State law.
(Ord. 2020-13)
If any section, subsection, subdivision, paragraph, sentence,
clause, phrase or portion of this chapter is, for any reason, held
to be invalid or unconstitutional by any court of competent jurisdiction,
such decision shall not affect the validity or effectiveness of the
remaining portions of this chapter. The City Council hereby declares
that it would have adopted the ordinance codified in this chapter
and each section, subsection, subdivision, paragraph, sentence, clause,
phrase and portion of this chapter irrespective of the fact that one
or more sections, subsections, subdivisions, paragraphs, sentences,
clauses, phrases or portions thereof may be declared invalid or unconstitutional.
To this end, the provisions of this chapter are declared severable.
(Ord. 2020-13)
The operative date of this chapter is January 1, 2021.
(Ord. 2020-13)
