HomeMy WebLinkAboutORD 1463ORDINANCE NO. 1463
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BALDWIN PARK
(RETAIL SALES OF TOBACCO PRODUCTS) AMENDING SECTION 125.020
(REQUIREMENTS AND PROHIBITIONS) OF CHAPTER 25 OF THE CITY OF
BALDWIN PARK MUNICIPAL CODE TO PROHIBIT THE SALE OF
FLAVORED TOBACCO PRODUCTS
WHEREAS, the potential failure of tobacco retailers to comply with tobacco control laws,
particularly laws prohibiting the sale of tobacco products to minors, presents a threat to the public
health, safety, and welfare of the residents of the City of Baldwin Park (the "City"); and
WHEREAS, the federal Family Smoking Prevention and Tobacco Control Act (Tobacco
Control Act), enacted in 2009, prohibited candy and fruit flavored cigarettes, largely because
these flavored products were marketed to youth and young adults, and younger smokers were
more likely than older smokers to have tried these products; and
WHEREAS, although the manufacture and distribution of flavored cigarettes (excluding
menthol) are banned by federal law, neither federal law nor California law restricts the sale of
menthol cigarettes or flavored non -cigarette tobacco products, such as cigars, cigarillos,
smokeless tobacco, hookah tobacco, electronic smoking devices, and the solutions used in these
devices; and
WHEREAS, flavored tobacco products are very common in California tobacco retailers as
evidenced by the following:
• 97.4% of stores that sell cigarettes sell menthol cigarettes;
• 94.5% of stores that sell little cigars sell them in flavored varieties;
• 84.2% of stores that sell electronic smoking devices sell flavored varieties; and
• 83.8% of stores that sell chew or snus sell flavored varieties;
WHEREAS, more than 1 in 4 stores located within 1,000 feet of California schools sell
tobacco, and more than 3 out of 4 of these tobacco retailers sell flavored tobacco products (not
including mentholated cigarettes);and
WHEREAS, mentholated and flavored products have been shown to be "starter" products
for youth who begin using tobacco and that these products help establish tobacco habits that can
lead to long-term addiction; and
WHEREAS, at least one study has found that the majority of smokeless tobacco users
reported that the first smokeless product they used was mint -flavored (such as ice, mint,
spearmint, or wintergreen flavors), and almost two-thirds who transitioned to daily use of
smokeless tobacco products first used a mint -flavored product; and
WHEREAS, young people are much more likely than adults to use menthol, candy and
fruit flavored tobacco products, including cigarettes, cigars, cigarillos, and hookah tobacco; and
WHEREAS, 70% of middle school and high school students who currently use tobacco,
report using flavored products that taste like menthol, alcohol, candy, cotton candy, bubble gum,
fruit, chocolate, or other sweets; and
WHEREAS, data from the National Youth Tobacco Survey indicate that more than two -
fifths of US middle school and high school smokers report using flavored little cigars or flavored
cigarettes; and
WHEREAS, much of the growing popularity of small cigars and smokeless tobacco is
among young adults and appears to be linked to use of flavored products; and
WHEREAS, the Centers for Disease Control and Prevention has reported a more than
800% increase in electronic cigarette use among middle school and high school students between
2011 and 2015; and
WHEREAS, nicotine solutions, which are consumed via electronic smoking devices such
as electronic cigarettes, are sold in dozens of flavors that appeal to youth, such as cotton candy
and bubble gum; and
WHEREAS, the California Attorney General has stated that electronic cigarette companies
have targeted minors with fruit -flavored products; and
WHEREAS, between 2004 and 2014 use of non -menthol cigarettes decreased among all
populations, but overall use of menthol cigarettes increased among young adults (ages 18 to 25)
and adults (ages 26+); and
WHEREAS, people ages 12 and older from communities of color are more likely to smoke
mentholated cigarettes and flavored tobacco products as evidenced by the following percentages
of people who smoke cigarettes reported smoking mentholated cigarettes in the last month; and
a. 82.6% of Black or African American individuals;
b. 53.2% of Native Hawaiians or Other Pacific Islanders;
c. 36.9% of individuals with multiracial backgrounds;
d. 32.3% of Hispanic or Latino individuals;
e. 31.2% of Asian individuals;
f. 24.8% of American Indians or Alaska Natives; and
g. 23.8% of White or Caucasian individuals;
WHEREAS, adding menthol and other flavorings to tobacco products, such as cigarettes,
little cigars, cigarillos, and smokeless tobacco, can mask the natural harshness and taste of
tobacco, making these products easier to use and increasing their appeal among youth; and
WHEREAS, the tobacco industry has been manipulating the dose of menthol in cigarettes
to ensure the uptake and continued use of tobacco, especially by young people and vulnerable
populations for many years; and
WHEREAS, smoking mentholated cigarettes and flavored tobacco products reduces the
likelihood of successfully quitting smoking; and
WHEREAS, the tobacco industry has a well -documented history of developing and
marketing mentholated and flavored tobacco brands to communities of color and youth; and
WHEREAS, a review of advertising, promotions, and pack prices near California high
schools found that "for each 10 percentage point increase in the proportion of Black students, the
proportion of menthol advertising increased by 5.9% ... the odds of a Newport [a leading brand
of mentholated cigarettes] promotion were 50% higher ... and the cost of Newport was 12 cents
lower." There was no such association found for non -mentholated and non -flavored cigarettes
and tobacco products; and
WHEREAS, a study found that price reduction promotions for menthol cigarettes and
flavored tobacco products are disproportionately targeted to youth markets; and
WHEREAS, scientific reviews by the Tobacco Products Scientific Advisory Committee and
the United States Federal Drug Administration found marketing of menthol cigarettes and flavored
tobacco products likely increases the prevalence of smoking among the entire population, and
especially among youth, African Americans, and possibly Hispanic and Latino individuals; and
WHEREAS, scientific studies on the impact of a national ban on menthol in cigarettes and
flavored tobacco products found 36.5% of menthol and flavored tobacco products users would
try to quit smoking if menthol and flavored tobacco products were banned and between 300,000
and 600,000 lives would be saved by 2050; and
WHEREAS, the Attorney General of State of California supports the ban against flavored
tobacco products and has filed a brief with the Ninth Circuit Court in support of the ban; and
WHEREAS, an evaluation of New York City's law, which prohibits the sale of all flavored
tobacco, excluding menthol, found that as a result of the law, youth had 37% lower odds of ever
trying flavored tobacco products and 28% lower odds of ever using any type of tobacco; and
WHEREAS, the flavored tobacco ordinance of the City and County of San Francisco ("San
Francisco") was implemented in the fall of 2018. To date, no holder of a San Francisco tobacco
retailer license is known to have gone out of business because of the flavored tobacco ordinance;
and
WHEREAS, the prohibitions set forth herein would still provide for the sale of tobacco -
flavored tobacco products.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BALDWIN PARK,
CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The recitals above are true and correct and incorporated herein by reference.
SECTION 2. Section 125.020 of Chapter 25 (Tobacco Retail Licensing) of the City of
Baldwin Park Municipal Code is hereby amended by the following new definitions and such
Section 125.020 shall be reorganized upon the inclusion of such additional definitions to ensure
that all definitions therein are set forth in alphabetical order:
"Characterizing flavor" means a taste or aroma, other than the taste or aroma of cannabis or
tobacco, imparted either prior to or during consumption of a cannabis or tobacco product or any
byproduct produced by the cannabis or tobacco product, including, but not limited to, tastes or
aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa,
dessert, alcoholic beverage, cotton candy, herb, bubble gum, spice, or any other flavor that is
designed to mask the aroma and flavor of natural cannabis or tobacco or tobacco or cannabis -
related products. Characterizing flavor includes flavor in any form, mixed with, or otherwise added
to, any cannabis or tobacco product or nicotine delivery device, including electronic smoking
devices.
"Electronic smoking device" means 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, or vape pen. Electronic smoking device includes any component, part,
or accessory of the devise, and also includes any substance that may be aerosolized or vaporized
by such device, whether or not the substance contains cannabis or nicotine. Electronic smoking
device 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.
"Flavored cannabis or tobacco product" means any tobacco or cannabis product, which imparts
a characterizing flavor. There shall be a rebuttable presumption that a tobacco or cannabis
product is a flavored tobacco or cannabis product if a tobacco or cannabis retailer or any
employee or agent of a tobacco retailer has: (i) made a public statement or claim that the tobacco
or cannabis product imparts a characterizing flavor; (ii) used text and/or images on the cannabis
or tobacco retail product's labeling or retail packaging to explicitly or implicitly indicate that the
cannabis or tobacco product imparts a characterizing flavor; or (iii) taken action directed to
consumers that would be reasonably expected to cause consumers to believe the cannabis or
tobacco product imparts a characterizing flavor "Tobacco or Cannabis paraphernalia" means any
item designed or marketed for the consumption, use, or preparation of cannabis or tobacco
products.
"Tobacco or Cannabis product" means:
1. any product containing, made, or derived from cannabis, 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, edibles,
cigars, little cigars, chewing tobacco, pipe tobacco, and snuff;
2. any electronic smoking device that delivers cannabis or nicotine or other substances to the
person inhaling from the device, including, but not limited to an electronic device, cigarette,
electronic cigar, electronic pipe; or
3. any component, part, or accessory intended or reasonably expected to be used with a tobacco
or cannabis product, whether or not sold separately or any of these contains cannabis, tobacco
or nicotine. "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.
"Tobacco or Cannabis retailer" means any person who sells from a retail establishment, offers for
sale from a retail establishment, or does or offers to exchange for any form of consideration,
tobacco, tobacco products, or tobacco paraphernalia from a retail establishment. "Tobacco
retailing" shall mean the doing of any of these things. This definition is without regard to the
quantity of cannabis or tobacco products or cannabis or tobacco paraphernalia sold, offered for
sale, exchanged, or offered for exchange.
SECTION 3. Section 125.020 of Chapter 25 of the City of Baldwin Park Municipal Code is
hereby amended by the addition of a new Subsection, which shall read as follows and be set forth
in alphabetical order within Section 125.020:
H. No tobacco or cannabis retailer shall sell or offer for sale or possess with the intent to sell or
offer for retail sale in the City of Baldwin Park, any flavored cannabis or flavored tobacco product
or any component, part, or accessory intended to impart or imparting a characterizing flavor in
any form, to any cannabis or tobacco product or nicotine or cannabis delivery device, including
electronic smoking devices. There shall be a rebuttable presumption that a cannabis or tobacco
product is a flavored cannabis or tobacco product if a cannabis tobacco retailer or any employee
or agent of a cannabis or tobacco retailer has:
1. made a public statement or claim that the cannabis or tobacco product imparts a characterizing
flavor;
2. used text and/or images on the cannabis or tobacco product's retail labeling or retail packaging
to explicitly or implicitly indicate that the cannabis or tobacco product imparts a characterizing
flavor; or
3. taken action directed to consumers in the retail business that would be reasonably expected
to cause consumers to believe the cannabis or tobacco product imparts a characterizing flavor.
SECTION 4. Inconsistent Provisions. Any provision of the City of Baldwin Park Municipal
Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of
such inconsistencies and no further, is hereby repealed or modified to the extent necessary to
implement the provisions of this Ordinance as it relates to retail sales only.
SECTION 5. Severability. If any section, subsection, subdivision, paragraph, sentence,
clause or phrase of this Ordinance, or any part thereof is for any reason held to be invalid or
unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect
the validity of the remaining portions of this Ordinance or any part thereof. The City Council hereby
declares that it would have passed each section, subsection, subdivision, paragraph, sentence,
clause or phrase thereof, irrespective of the fact that any one or more section, subsection,
subdivision, paragraph, sentence, clause or phrase would be subsequently declared invalid or
unconstitutional.
SECTION 6. Publication and Effective Date. The Mayor shall sign, and the City Clerk shall
attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once
in a newspaper of general circulation within fifteen (15) days after its adoption.
First read at a regular meeting of the City Council of the City of Baldwin Park held on the 6t" day
of October, 2021, and adopted and ordered published at a regular meeting of said Council on the
3rd day of November, 2021, to be effective on January 1, 2022.
PASSED, APPROVED, AND ADOPTED this 3rd day of November, 2021.
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EMM N E J. ESTRADA
MAYO
ATTEST:
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES SS:
CITY OF BALDWIN PARK
I, Marlen Garcia, City Clerk of the City of Baldwin Park, do hereby certify that the foregoing
Ordinance was introduced and placed upon its first reading at a regular meeting of the City
Council on November 3, 2021. Thereafter, said Ordinance No. 1463 was duly approved and
adopted at a regular meeting of the City Council on November 3, 2021 by the following vote to
wit:
AYES: COUNCIL MEMBERS: Avila, Damian, Estrada, Garcia, and Hernandez
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
ABSTAIN: COUNCIL MEMBERS: None