HomeMy WebLinkAbout2019-10-08 - AGENDA REPORTS - CONSIDERATION OF AN URGENCY ORDINANCE ADOPTING A M (2)Agenda Item: 9
DATE: October 8, 2019
SUBJECT: CONSIDERATION OF AN URGENCY ORDINANCE OF THE CITY
COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA,
ADOPTING A MORATORIUM ON THE ESTABLISHMENT OF
NEW TOBACCO RETAILERS WHO SELL FLAVORED TOBACCO
PRODUCTS
DEPARTMENT: City Manager's Office
PRESENTER: Joseph Montes
RECOMMENDED ACTION
City Council:
Consider adoption of an urgency ordinance entitled: "AN URGENCY ORDINANCE
OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA,
ADOPTING A MORATORIUM ON THE ESTABLISHMENT OF NEW
TOBACCO RETAILERS WHO SELL FLAVORED TOBACCO PRODUCTS."
2. Direct staff to set a public hearing and return within 45 days with a further report and
ordinance extending this moratorium for Council consideration.
BACKGROUND
On October 1, 2019, the Los Angeles County (County) Board of Supervisors adopted an
ordinance that requires tobacco retailers in the County unincorporated areas to obtain a business
license, as well as a Tobacco Retailers License. The ordinance also prohibits the sale of flavored
tobacco products, including electronic cigarette and vaping products, beginning 180 days from
the effective date of the County ordinance.
The County's stated rationale for the ordinance is based largely on health concerns, especially
health concerns for youth.
The Los Angeles City Attorney recently submitted a report to the Los Angeles City Council
recommending a ban on flavored tobacco products. The report describes the results of a study
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funded by the National Institute on Drug Abuse, the National Institutes of Health, the FDA, and
the Department of Health and Human Services, which found that the vast majority of youth who
self-reported ever experimenting with a tobacco product reported that they started with a
flavored tobacco product. A copy of that report is attached for the Council's reference.
City of Santa Clarita (City) staff has met with representatives of the County Sheriff's Department
to begin to explore the extent of the issues of youth vaping and smoking in Santa Clarita. City
staff also intends to reach out to representatives of the various school districts in the Santa Clarita
Valley to evaluate these issues.
City staff intends to continue to monitor pending legislation as well as the effectiveness of the
legislative approaches taken by various local jurisdictions to generate options for Council
consideration.
Currently, the City of Santa Clarita does not limit or restrict businesses selling tobacco products,
including flavored tobacco products, and City staff is aware that several existing retailers in the
City are selling flavored tobacco products. City staff is concerned that during this period of
research and study, the County's ordinance could have the effect of causing tobacco retailers in
the County to relocate to Santa Clarita to avoid the new County regulations.
The potential for additional retailers to proliferate in the City while City staff is exploring the
scope of the health issues and possible legislative solutions presents an immediate threat to the
health and welfare of the City's residents—especially youth in the City. Government Code
section 65858 authorizes the adoption of an interim urgency ordinance to protect the public
health, safety, and welfare, and to prohibit land uses that may conflict with land use regulations
that a city's legislative bodies are considering, studying, or intending to study within a
reasonable time. Adoption of this ordinance as a temporary urgency interim zoning regulation
will preserve the status quo in the City and afford sufficient time for City staff to present more
permanent options for the City Council's consideration.
As an urgency ordinance, this ordinance will require adoption by a 4/5 vote of the City Council
and will take effect immediately, but only last for 45 days. If adopted, it will return within 45
days at a public hearing for the Council to consider an extension of up to a year from the date of
the adoption of this ordinance.
ALTERNATIVE ACTION
Other action as determined by City Council.
FISCAL IMPACT
No fiscal impact
ATTACHMENTS
Ordinance
LA City Attorney Report R19-0305
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ORDINANCE NO.
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA CLARITA, CALIFORNIA, ADOPTING A MORATORIUM ON THE
ESTABLISHMENT OF NEW TOBACCO RETAILERS WHO SELL
FLAVORED TOBACCO PRODUCTS
THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA, DOES
ORDAIN AS FOLLOWS:
SECTION 1. Findings.
A. On October 1, 2019, the Los Angeles County (County) Board of Supervisors adopted an
ordinance that requires tobacco retailers in the County unincorporated areas to obtain a
business license, as well as a Tobacco Retailers License. The ordinance also prohibits the
sale of flavored tobacco products, including electronic cigarette and vaping products,
beginning 180 days from the effective date of the County ordinance.
B. The County's stated rationale for the ordinance is based largely on health concerns,
especially health concerns of youth.
C. The Los Angeles City Attorney recently submitted a report to the Los Angeles City Council
recommending a ban on flavored tobacco products. The report describes the results of a
study funded by the National Institute on Drug Abuse, the National Institutes of Health, the
FDA, and the Department of Health and Human Services which found that the vast majority
of youth who self-reported ever experimenting with a tobacco product reported that they
started with a flavored tobacco product.
D. City of Santa Clarita (City) staff has met with representatives of the County Sheriff's z
Department to begin to explore the extent of the issues of youth vaping and smoking in Santa 4)
Clarita. City staff also intends to reach out to representatives of the various school districts
in the Santa Clarita Valley to evaluate these issues.
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E. City staff intends to continue to monitor pending legislation as well as the effectiveness of
the legislative approaches taken by various local jurisdictions to generate options for Council
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consideration.
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F. Currently the City of Santa Clarita does not limit or restrict businesses selling tobacco Q
products, including flavored tobacco products, and City staff is aware that several existing
retailers in the City are selling flavored tobacco products. City staff is concerned that during
this period of research and study, the County's ordinance could have the effect of causing
tobacco retailers in the County to relocate to Santa Clarita to avoid the new County
regulations.
G. The potential for additional retailers to proliferate in the City while City staff is exploring the
scope of the health issues and possible legislative solutions presents an immediate threat to
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the health and welfare of the City's residents - especially youth in the City. Government
Code section 65858 authorizes the adoption of an interim urgency ordinance to protect the
public health, safety, and welfare, and to prohibit land uses that may conflict with land use
regulations that a city's legislative bodies are considering, studying, or intending to study
within a reasonable time. Adoption of this ordinance as a temporary urgency interim zoning
regulation will preserve the status quo in the City and afford sufficient time for City staff to
present more permanent options for the City Council's consideration.
H. As an urgency ordinance, this ordinance will require adoption by a 4/5 vote of the City
Council and will take effect immediately, but only last for 45 days. If adopted, it will return
within 45 days at a public hearing for the Council to consider an extension of up to a year
from the date of the adoption of this ordinance.
SECTION 2. Environmental Findings. The City Council exercises its independent
judgment and finds that this ordinance is not subject to the California Environmental Quality Act
(CEQA) pursuant to the State CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, sections: 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment); 15060(c)(3) (the activity is not a project as defined
in Section 15378); and 15061(b)(3), because the activity is covered by the general rule that
CEQA applies only to projects which have the potential for causing a significant effect on the
environment. The proposed ordinance maintains the status quo and prevents changes in the
environment pending the completion of the contemplated municipal code review. Because there
is no possibility that this ordinance may have a significant adverse effect on the environment, the
adoption of this ordinance is exempt from CEQA.
SECTION 3. Imposition of Moratorium. In accordance with Government Code section a
65858(a), and pursuant to the findings stated herein, the City Council hereby: (1) finds that there
exists a current and immediate threat to the public health, safety, and welfare requiring this w
interim Urgency Ordinance; (2) finds that this ordinance is necessary for the immediate z
preservation of the public peace, health, and safety as set forth herein; and (3) declares and 0
imposes a temporary moratorium for the immediate preservation of the public health, safety, and
welfare as set forth below:
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A. For a period of 45 days from the October 8, 2019, no retail sale of flavored tobacco
products may be commenced within the City limits by any tobacco retailer not currently
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selling same on the effective date of this ordinance and City staff is directed not to issue
any permits or entitlements that would facilitate commencement of such uses.
B. For purposes of this ordinance, in addition to the relevant definitions in Santa Clarita
Municipal Code Chapter 9.50 (Tobacco Control), the following definitions apply:
"Tobacco Retailer" means any person who sells, offers for sale or distribution,
exchanges, or offers to exchange for any form of consideration, tobacco, tobacco
products, or tobacco paraphernalia without regard to the quantity sold, distributed,
exchanged or offered for exchange.
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flavor.
"Flavored tobacco product" means any tobacco product which imparts a characterizing
"Tobacco product" means the following:
1. Any product containing, made or derived from tobacco or nicotine whether
natural or synthetic, 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
(including, but not limited to small cigars and cigarillos), chewing tobacco,
pipe tobacco, and snuff, or
2. Any electronic smoking device that delivers nicotine or other substances,
whether natural or synthetic, to the person inhaling from the device, including,
but not limited to, an electronic cigarette, electronic cigar, electronic pipe,
electronic hookah, or vaping device.
3. Notwithstanding any provision of subsections (1) and (2) to the contrary,
"tobacco product" includes any component, part, or accessory intended or
reasonably expected to be used with a tobacco product, whether or not sold
separately.
4. "Tobacco Product" does not include drugs, devices, or combination products
authorized for sale by the United States Food and Drug Administration, as
those terms are defined in the Federal Food, Drug and Cosmetic Act.
"Characterizing flavor" means a taste or aroma, other than the taste or aroma of tobacco,
imparted either prior to or during consumption of a tobacco product or any byproduct
produced by the tobacco product, including, but not limited to, tastes or aromas relating
to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert,
alcoholic beverage, herb, or spice. Characterizing flavor includes flavor in any form,
mixed with or otherwise added to any tobacco product or nicotine delivery device,
including electronic smoking devices.
"Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking
materials of all types, cigarette rolling machines, characterizing flavors in any form,
mixed with or otherwise added to any tobacco product or nicotine delivery device,
including electronic smoking devices, and any other item designed or used for the
smoking or ingestion of tobacco products.
C. A violation of this ordinance is a public nuisance per se, enforceable through any civil,
criminal, or equitable remedy, including, but not limited to, civil actions, injunctions,
administrative citations, or criminal penalties.
SECTION 4. Severability. If any section, subsection, sentence, clause, or phrase of this
ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of
competent jurisdiction, such decision will not affect the validity of the remaining portions of this
ordinance. The City Council declares that it would have passed this ordinance and each and
every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional
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without regard to whether any portion of the ordinance would be subsequently declared invalid
or unconstitutional.
SECTION 5. Effective Date and Duration. This ordinance is an urgency ordinance
enacted under Government Code section 65858(a). This urgency ordinance is effective
October 8, 2019, and will extend for a period of 45 days at which time it will automatically
expire unless extended by the City Council under Government Code section 65858.
SECTION 6. Publication. The City Clerk is directed to certify this ordinance and cause
it to be published in the manner required by law.
SECTION 7. Study. Staff is directed to study and analyze issues related to the sale and
use of flavored tobacco products, especially by persons under the age of 21, including but not
limited to, evaluating the extent to which local regulation is permitted or preempted and options
for prohibiting, limiting, licensing, or otherwise restricting sales and use of such products.
SECTION 8. Report. Staff is directed to provide a written report to the City Council at
least ten days prior to the expiration of this ordinance, describing the study conducted of the
conditions that led to the adoption of this ordinance, in accordance with state law.
PASSED, APPROVED, AND ADOPTED this 81h day of October, 2019.
ATTEST:
CITY CLERK
MAYOR
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STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF SANTA CLARITA )
I, Mary Cusick, City Clerk of the City of Santa Clarita, do hereby certify that the
foregoing Ordinance No. was introduced and adopted as an urgency measure pursuant to the
terms of California Government Code Section 36937(b) at a regular meeting of the City Council
on the 81h day of October 2019, by the following vote, to wit:
AYES: COUNCIL,MEMBERS:
NOES: COUNCIL,MEMBERS:
ABSENT: COUNCIL,MEMBERS:
AND I FURTHER CERTIFY that the foregoing is the original of Ordinance No.
and was published in The Signal newspaper in accordance with State Law (G.C. 40806).
CITY CLERK
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MICHAEL N. FEUER
CITY ATTORNEY
REPORT NO. R 19-0 3 0 5
REPORT RE:
SEP - 18 2019
POLICY OPTIONS FOR BANNING OR RESTRICTING THE SALE OF
FLAVORED TOBACCO PRODUCTS TO YOUTH; SURVEY OF LEGISLATIVE
REGULATIONS IN OTHER JURISDICTIONS
The Honorable City Council
of the City of Los Angeles
Room 395, City Hall
200 North Spring Street
Los Angeles, CA 90012
Honorable Members:
This Office, in consultation with the Chief Legislative Analyst's Office, has
prepared and now transmits for your review this report containing an overview of
options and policy considerations relative to banning or restricting the sale of flavored
tobacco products in the City of Los Angeles. This report responds to a Motion adopted
by Council requesting that the City Attorney, with the assistance of the Chief Legislative
Analyst, report on a proposed strategy to prohibit or restrict the sale of flavored tobacco
to youth and to report on how other jurisdictions are addressing the issue. Due to the
serious health crisis posed by flavored tobacco products for our City's youth, as detailed
below, the City Attorney's Office recommends that the City Council enact a Citywide
ban on the sale of all flavored tobacco products.
I. EXECUTIVE SUMMARY
E -cigarette usage, also known as "vaping," has created a public health crisis in
Los Angeles and across the nation. Within the last week, the Centers for Disease
Control and Prevention (CDC) warned Americans not to smoke e -cigarettes while the
CDC is investigating why as many as 380 people in 33 states who used e -cigarettes
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The Honorable City Council
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have, reported possible pulmonary disease, seven of whom have died.' The CDC's
advisory highlighted the CDC's inability to determine which of the many compounds or
additives used in vaping devices are causing the injuries and deaths. The symptoms
include shortness of breath, fatigue, fever and nausea or vomiting. The Los Angeles
County Department of Public Health urged healthcare providers to be on the alert for
pulmonary symptoms in e -cigarette users, after confirming that one of the vaping deaths
was a Los Angeles County resident.
The reports of serious symptoms and deaths related to the use of e -cigarettes is
all the more alarming because youth tobacco product usage has increased
exponentially in recent years, largely attributable to the popularity of e -cigarettes and
flavored additives. According to the CDC, in 2018 more than one in four high school
students had used a tobacco product in the past 30 days. Theis was a 77.8 percent
increase in e -cigarette usage from 2017 and virtually erased any progress achieved in
reducing youth tobacco product use that had occurred in prior years.3 The CDC opines
that this sharp increase in youth use is attributable to the availability of e -cigarettes in
kid -friendly flavors.4
The City has been an early leader in addressing the negative health
consequences of tobacco products. Los Angeles was the first city in California to
include e -cigarettes in the definition of tobacco products, bringing e -cigarettes within the
ambit of City ordinances regulating use and sale. The Los Angeles City Attorney's
Office also led in establishing the first tobacco retailer licensing unit -- regulating over
4,000 tobacco retailers -- focusing at the retailer level on the prohibition against sales to
youth, through enforcement and education, as well as focusing at the youth level on
outreach to discourage tobacco use. More must be done to protect against the negative
health consequences of tobacco use, specifically by banning or regulating flavorings
that appeal to youth and mask the natural harsh taste of tobacco.
At the federal level, the U.S. Food and Drug Administration (FDA) has been slow
to regulate e -cigarettes by delaying efforts to bring flavored e -cigarette products under
FDA review and approval requirements. Although the recent pulmonary disease
outbreak prompted the FDA to announce an intent to issue a guidance banning flavored
I CDC, Outbreak of Lung Illness Associated with Using E -cigarette Products, (September 16, 2019),
httos://www.cdc.qov/tobacco/basic information/e-ciqarettes/severe-ILing-4isease. html. The CDC revised
downward the original estimate of pulmonary disease cases from more than 400 to 380, but the death toll
has now risen from six to seven people, with the recent death of a Fresno, California patient.
2 Los Angeles County Department of Public Health, Press Release., Public Health Investigates First Death
Associated with E -Cigarettes in LA County, (September 6, 2019),
hftp:Hpublichealth, lacounty.gov/phcommon/public/media/mediapubhpdetail.cfm?prid=2137.
3 Karen: A. Cullen et al., Notes From the Field, MMWR, CDC (Nov. 16,201�8),
http://dx.doi.org/l 0. 1 5585/mmwr.mm6745a5.
4 Office of the Surgeon General, Surgeon General's Advisory on E -Cigarette Use Among Youth (2018),
https:He-cigarettes.surgeongeneral.gov/documents/surgeon-generals-advisory-on-e-cigarette-use-
among-youth-2018.pdf.
The Honorable City Council
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e -cigarettes except those receiving FDA approval, the guidance is not expected to issue
until at least May of 2020, during which time flavored e -cigarette products will not be
subject to federal oversight. The State of California also has been slow to act. In
response to tobacco industry concerns, two recent legislative efforts to regulate flavored
tobacco products were watered down to such an extent that medical professionals and
health organizations that once backed the bills, became opposed to their passage. The
bills are currently stalled.
While efforts at the Federal and California State level have lagged, local
jurisdictions have stepped to the forefront to protect. public health. The County of
Los Angeles Board of Supervisors is scheduled to vote at its September 24, 2019,
meeting on an ordinance to ban the sale of flavored tobacco products, including
menthol additives. The City and County of San Francisco unanimously passed an
ordinance banning the sale of all flavored tobacco products, including menthol. A
referendum sponsored by tobacco manufacturers to overturn the San Francisco
ordinance lost in an electoral landslide. San Francisco thereafter went one step further
by banning the sale of all e -cigarettes lacking Food and Drug Administration (FDA)
approval; the ban is set to become operative at the end of 2019.
Other jurisdictions have enacted flavored tobacco bans or regulations. Beverly
Hills banned the sale of all tobacco products, flavored and unflavored alike. Oakland, EI
Cerrito and Yolo County have enacted bans on the sale of flavored tobacco, including
menthol flavoring.
According to a survey conducted by the Chief Legislative Analyst's Office, other
jurisdictions in California have created a variety of regulatory schemes with carve -outs.
Santa Clara County and the City of Palo Alto ban flavored tobacco but exempt adult -
only retailers. Manhattan Beach bans the sale of flavored tobacco products but
exempts menthol. Contra Costa County and the cities of Berkeley and Hayward create
buffer zones around sensitive sites, in which the sale of flavored tobacco products,
including menthol products, is prohibited.
A variety of options exist at the federal and state level for regulating the
advertisement of flavored tobacco products. A chart of the potential federal and state
statutes which could be amended to include e -cigarettes and/or flavored tobacco is
attached to this report as Attachment Two for the City Council's information.
Prior to drafting this report, the City Attorney's Office and Chief Legislative
Analyst's Office convened a meeting of stakeholders interested in providing input on the
policy options for banning or regulating flavored tobacco products. The meeting
included public health advocates and medical professionals such as the American Heart
Association, the American Lung Association, the American Cancer Society and the
Campaign for Tobacco Free Kids, as well as advocates representing the tobacco
industry, including JUUL and the Hookah Chamber of Commerce. The policy options
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advocated by the stakeholders ran the gamut from outright bans on flavored tobacco
products to menthol or product -specific exemptions or to the maintaining of the status
quo. The options are provided in this report.
City Council's concern about the role of flavored tobacco products in the tobacco
use epidemic, which prompted the request for this report on flavored tobacco products,
is both timely and urgent. Given the recent vaping-related deaths and injuries,
combined with the prevalence of vaping among the City's youth, this report urges the
City to heed the advice of medical experts and enact a Citywide ban on the sale of all
flavored tobacco products.
II. CURRENT RESEARCH
A. "vaping" and the Use of E -Cigarettes
The use of vaporizers (vapes) and e -cigarettes is stip so new that there is
not yet a comprehensive body of scientific research as with traditional cigarettes
and other tobacco products. Particularly lacking are long-term longitudinal
studies, which have only begun in the last few years. Yet, as the research is
released, it continuously shows health issues associated with the use of vapes
and e -cigarettes.
In one recent study, MRIs showed that even vaping a single time can
temporarily affect cardiovascular functioning in healthy people. In another,
exposure to various e -liquids caused inflammation and other negative
consequences in cells, which in turn led to endothelial dysfunction, a risk factor
for cardiovascular disease.6 Researchers have found that e -cigarettes sold in
the United States have been contaminated with microbial toxins.?
The concentration of nicotine in e -cigarettes poses a number of health
risks. Nicotine increases blood pressure and adrenaline, causing accelerated
heart rate and increasing the likelihood of a cardiac event.$ Nicotine is highly
addictive. A single e -cigarette cartridge contains approximately the same
s Alessandra Caporale et ai., Acute Effects of Electronic Cigarette Aerosol Inhalation on Vascular
Function Detected at Quantitative MRI, Radiology (2019),
https://pubs.rsna.org/doYpdf/10.1 148/radiol.2019190562.
6 Won Hee Lee et al., Modeling Cardiovascular Risks of E -Cigarettes with Human -induced Pluripotent
Stem Cell -Derived Endothelial Cells, 73 Journal of the American College of Cardiology Iss. 21, 2722
(2019), https://www.sciencedirect.com/science/article/pii/S0735109719346960?via%3Dihub.
7 Mi -Sun Lee, Endotoxin and (1 -43) -p -D -Glucan Contamination in Electronic Cigarette Products Sold in
the United States, 127(4) Environmental Health Perspectives 047008-1 (2019),
https:/Iehp.niehs.nih.gov/dol/pdf/10.1289/EHP3469.
8 Sympathominetic Effects of Acute E -Cigarette Use: Role of Nicotine and Non -Nicotine Constituents;
Journal of the American Heart Association. https://www.ahajoumals.org.
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amount of nicotine as a pack of cigarettes and is more readily absorbed.9
Nicotine affects parts of the brain involved in learning, memory emotion and
impulse control.10 E -cigarette usage in youth is particularly problematic from a
developmental and academic standpoint./"
Research on the component ingredients of e -liquid solutions has revealed
more than concentrated nicotine. The solutions contain propylene glycol and
vegetable glycerin, two of the primary ingredients in e -liquids found to be toxic to
human cells. Research demonstrates that acetaldehyde and formaldehyde, two
components of e -liquid vapor, increases the risk of lung and cardiovascular
disease following repeated exposure. 12 Inhaling acrolein, an herbicide which is
also present in e -liquid, has caused acute lung injury, including chronic
obstructive pulmonary disease (COPD), asthma, and lung cancer. 93
As previously discussed in this report, the CDC is conducting an
investigation into the outbreak of serious and lethal pulmonary disease across
the nation and has advised against vaping while the investigation is ongoing.14
B. The Use of Flavored Tobacco Products by Minors
According to the US Surgeon General, most tobacco use begins during
youth and young adulthood.i5 Scientific evidence also demonstrates that flavors
play a major role in youth initiation and continued use of tobacco products.16 For
example, in 2015, a study funded by the National Institute on Drug Abuse
(NIDA), National Institutes of Health, the FDA, and the Department of Health and
Human Services surveyed youth between the ages of 12 and 17 to determine the
4 How Much Nicotine is in Juul?, Truth Initiative. https://truthinitlaUve.org/research-resources/emerging-
tobacco-prod ucts/how-much-n icotine-juu I.
14 Nicotine and the Adolescent Brain; Journal of Physiology.
https://www.ncbi.nim.nih.gov/pmclarticles/PMC4560573/.
11 Ibid.
92 Chronic E -Cigarette Exposure Alters the Human Bronchial Epithelial Proteome. American Journal of
Respiratory and Critical Care Medicine. https://www.atsjournals.org/dot/full/10.1164/rccm.201710-
20330C.
13 Cf. footnote 4 and Toxic Substances Portal — Formaldehyde. Agency for Toxic Substances and
Disease Registry. https://www.atsdr.odc.gov/substancesitoxsubstance.asp?toxid=39.
14 https://www.cdc.gov/tobacco/basic information/e-cigarettes/severe-lung-
d isease. htm (#recommendations -public.
15 Office of the Surgeon General, Preventing Tobacco Use Among Youths, (June 6, 2017),
https://www, hhs.gov/surgeongeneral/reports-and-publicabons/tobacco/preventing-youth-tobacco-use-
factsheetrndex. html.
16 American Academy of Pediatrics et al., The Flavor Trap (Mar. 15, 2017),
https://www.tobaccofreekids.org/micrositestflavortrap/executive summary.pdf.
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prevalence of flavored tobacco use.17 This study found that the vast majority of
youth who self-reported ever experimenting with a tobacco product reported that
they started with a flavored tobacco product.18 Flavorings (other than menthol)
are currently prohibited in traditional combustible cigarettes in the United States
but widely available in other forms of tobacco products including e -cigarettes;
cigars, hookah and smokeless tobacco.
C. Menthol and Minty Flavors
Menthol is a chemical compound with a minty flavor used as a cigarette
additive by tobacco companies. By adding menthol to cigarettes, the natural
harsh taste of tobacco is masked making the cigarette experience milder.
Adding menthol to cigarettes also suppresses the user's instinctive coughing
reflex thereby making inhalation of the smoke more tolerable.
Although statistically, traditional cigarette smoking rates have decreased,
the prevalence of menthol cigarette use has increased. Menthol smokers of all
ages show greater signs of nicotine dependence and are less likely to
successfully quit smoking compared to other smokers.19 Studies have also
shown that youth smokers remain the most likely group to use menthol cigarettes
compared to all other age groups.211
The City Attorney's Office was asked to address whether ethnic disparities
relative to menthol tobacco exist. Our research has indeed revealed higher use
rates of menthol cigarettes amongst African American smokers. This has been
attributed to the tobacco industry's focus on African American consumers that
dates back to the 1950s. For example, tobacco industry documents reveal a
history of targeted marketing towards African American consumers and higher
rates of discounts and promotions in African American neighborhoods.21 The
consequences of these tobacco industry marketing practices are not only higher
menthol use for this community but also higher rates of some tobacco -caused
disease. Each year in the US more than 72,000 African Americans are
diagnosed with a tobacco -related cancer and more than 39,000 die from a
"Ambrose BK, Day HR, Rostron B, et al. Flavored Tobacco Product Use Among US Youth Aged 12-17
Years, 2013-2014, JAMA (2015).
78 Bridget K. Ambrose et al., Flavored Tobacco Product use Among US Youth, JAMA (2015).
19 David T. Levy et al., Quit Attempts and Quit Rates Among Menthol and Nonmenthol Smokers in the
United States, 101 (7) Am. J. Pub. Health 1156, 1241 (2011).
20 Andrea C. Villanti et al., Changes in the Prevalence and Correlates of Menthol Cigarette use in the
USA, 2004-2014, 25 Tobacco Control 1, 14 (2016).
21 Tess Boley Cruz et al., The Menthol Marketing Mix: Targeted Promotions for Focus Communities in the
United States. 12 Nicotine & Tobacco Res. 85,147 (2010). See also Nina C. Schleider et al., Tobacco
Marketing in California's Retail Environment 2011-2014, at 10, 12 (2015).
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tobacco -related cancer.22 Researchers have estimated that, nationally, one-third
of the number of lives that would be saved by a ban on menthol tobacco sales
would be African Amedcan.23
Many prominent African American organizations support a ban on the sale
of mentholated tobacco products. In 2013, Delta Sigma Theta, the
largest African American Sorority, approved a resolution to urge the FDA to
prohibit menthol cigarettes.24 The National Association for the Advancement of
Colored People (NAACP) has stated that "the tobacco industry has perniciously
targeted African Americans with mentholated products" and in 2016 issued a
resolution to support efforts by state and local governments to restrict the sale of
menthol tobacco products.25 4n September 9, 2019, consistent with the 2016
resolution, the NAACP issued a Statement commending the State of Michigan for
recently banning the sale of all flavored tobacco products, including menthol.26
In contrast, there are also community-based organizations that oppose a
prohibition on the sale of menthol cigarettes. According to the California
Department of Public Health, many of these organizations have received funding
from the tobacco industry.27 Despite the life-saving potential of a prohibition on
the sale of menthol tobacco, these opposition groups have suggested that a
prohibition on menthol unfairly targets the African American community,
criminalizes the smoking of menthol cigarettes and makes menthol smokers
susceptible to dangerous interactions between police and members of the
African American community. These arguments cannot be substantiated. Any
restriction on flavored tobacco only would restrict the sale of menthol tobacco
products not their use. A menthol restriction only would be enforced at the retail
sales level by prohibiting tobacco retailers from selling menthol flavored tobacco
products. There would be no crime or violation applicable to the purchaser or
user of the menthol tobacco product.
22 CDC, Vital Signs: Disparities in Tobacco -Related Cancer Incidence and Mortality—United States, 2004-
2013, Morbidity & Mortality Weekly Report, (2016),
http:ltwww.edc.gov/mmwrtvolumes/65/Wr/mm6544a3.htm.
23 David T. Levy et al., Modeling the Future Effects of a Menthol Ban on Smoking Prevalence and
Smoking -Attributable Deaths in the United States, 101(7) Am. J. Pub. Health 1156, 1236 (2011).
24 Delta Sigma Theta, Prohibiting the Use of Menthol as a Characterizing Flavor in Cigarettes, 2093
National Convention Workbook,
http://www.tobacco. ucsf.edu/sitesttobaoco. ucsf.ed u/filestu9/Attachment%205-Delta%2OResolution. pdf.
25 National Association for the Advancement of Colored People, Resolutions (2016),
htip://www. naacp.orgtwp-content/uploads/2016/03/Resolutions.2016. pdf.
26 National Association for the Advancement of Colored People, NAACP Issues Statement on Michigan's
Ban on Flavored Cigarettes, September 9, 2019, https://www.naacp.org/latesVnaacp-issues-statement
m ichigans-ban-flavored-"igarettesl.
27 California Dep't of Pub. Health, Menthol and Cigarettes (May 2017),
https:/twww.odph.ca. gov/Programs/CCDPH P/DCDIC/CTCB/CDPH%2ODocument%2OLibrary/Researchan
dEvaluation/Factsand Fig ures/FinalMenthol FactSheecolo05022017. pdf.
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Certain opposition groups that have received tobacco industry funding
have also suggested that menthol bans will lead to a dangerous illicit trade
despite no definitive evidence to support this concern.28 Other jurisdictions
surveyed by the City Attorney's Office that enacted flavored tobacco restrictions
did not report an increase in illicit trade. That said, should any illicit trade
develop, the City Attomey's Office has decades of experience prosecuting illicit
tobacco trafficking in the context of untaxed and counterfeit cigarettes. The City
Attorney's Office, in conjunction with the Los Angeles Police Department (LAPD),
is also the recent recipient of a State of California Department of Justice grant
award that specifically funds tobacco enforcement efforts for the City. Should
City Council enact any type of flavored tobacco prohibition, there are sufficient
resources currently available to support and implement any new regulatory
efforts.
D. Hookah
Hookah tobacco is a type of flavored tobacco usually mixed with
molasses, honey and/or fruit. Hookah tobacco is smoked through a hookah pipe-
-a water pipe with a smoke chamber, bowl, pipe and hose. Hookah smoke
contains high levels of toxic compounds including tar, carbon monoxide, heavy
metals and cancer-causing carcinogens. As with cigarette smoking, hookah
smoking is linked to lung and oral cancers, heart disease, and other serious
illnesses. It is estimated that a 45 -to -60 minute hookah smoking session is as
harmful as smoking 100 or more cigarettes.29
According to the 2018 National Youth Tobacco Survey (NYTS), 4.1
percent of high schoolers and 1.2 percent of middle schoolers, totaling over
700,000 youth, have used hookah in the past month.30 Several studies have also
found that although gains have been made in reducing cigarette use among
college students, the prevalence of hookah use is increasing.31 In addition, the
government-sponsored 2013-2014 Population Assessment on Tobacco and
Health (PATH) survey revealed that more than three-quarters (78.9 percent) of
youth hookah users reported that they use hookah because it comes in
appealing flavors.32
28 The Truth Initiative. Menthol: Facts, Stats and Regulations (Aug. 31, 2018),
https://truthinitiabve.org/research-resourcesitradibonal-tobacco-prod ucts/menthol-facts-stats-and-
regulations.
29 AMI, E.A, The effects of waterpipe tobacco smoking on health outcomes: a systematic review,
International Journal of Epidemiology, (2010).
30 CDC, Tobacco Product Use Among Middle and High School Students—United States, 2099-2018,
MMWR, 68, (February 12, 2019), hftps://www.cdc.gov/mmwr/volumest68/Wr/pdfs/mm6806el-H.pdf.
31 Creamer, McLisa R et al. College students' perceptions and knowledge of hookah use. Drug and
Alcohol Dependence Vol. 168 (2016).
32 Ambrose, BK, et al., Flavored Tobacco Product Use Among US Youth Aged 12-17 Years, 2093-2094,
Journal of the American Medical Association, (2015).
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For over 20 years, state law has prohibited the smoking of tobacco
(including hookah tobacco) in restaurants and bars. In the City of Los Angeles,
despite extensive outreach and education efforts by the City Attorney's Office,
many restaurants and bars unlawfully furnish hookah tobacco and allow their
patrons to smoke in their businesses. Many of these businesses claim to be
"hookah lounges;" however, state law does not recognize the term "hookah
lounge" or afford such business any special privilege or exemption from the
state's smoking prohibitions. Only smokers' lounges can lawfully allow indoor
smoking, and any business that serves food or alcohol cannot, pursuant to state
law, qualify as a smokers' lounge.
The Hookah Chamber of Commerce presented the City Attorney's Office
with a letter on behalf of their membership requesting an exemption for hookah
tobacco. The President of the Hookah Chamber of Commerce declined this
Office's request for a membership list and indicated a list would not be provided
because some of their members had been previously prosecuted by our Office.
A review of our prior cases revealed that indeed over 60 bars and restaurants
have been criminally prosecuted by the City Attorney's Office for unlawfully
allowing hookah smoking in violation of state law. This Office estimates that
there are still over 100 restaurants and bars that continue to unlawfully allow their
patrons to smoke hookah in their business in violation of state law.
III. Existing Los Angeles City Initiatives
The City of Los Angeles has consistently been a statewide leader in tobacco
control policy. Not only was the City the first jurisdiction in the State to establish a
tobacco retailer licensing program (that has since been replicated in over 150
cities/counties in California), but the City of Los Angeles was also the first city in
California to include e -cigarettes in the definition of tobacco products—two years before
the State of California acted in 2016. Three current initiatives that demonstrate the
City's commitment to protecting youth from the dangers of tobacco use and nicotine
addiction are the Tobacco Enforcement Program (TEP), the Decreasing Adolescent
Tobacco Access (DATA) Initiative and the TEP's ongoing collaborative efforts with the
Los Angeles Unified School District (LAUSD).
A. The Tobacco Enforcement Program (TEP)
The Tobacco Retailer's Permit Ordinance established the TEP in May of
2000, with the goal of reducing youth access to tobacco products and decreasing
youth smoking rates. Permit fee revenue collected by the City funds the TEP to
ensure that the City's more than 4,000 tobacco retailers maintain a yearly
tobacco permit and comply with local and state laws regulating tobacco sales—
particularly the prohibition against sales to youth.
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The TEP continuously engages in outreach aimed at the City's tobacco
retailers that includes a wide array of services to support and encourage
responsible retailing practices. These ongoing services include direct retailer
training, site visits, targeted mailings, resource documents, and both phone and
email support. This retailer outreach infrastructure has been utilized successfully
to ensure that all City tobacco retailers are made aware of any new tobacco -
related laws and regulations. Most recently, the TEP utilized this outreach
infrastructure to successfully ensure that all City tobacco retailers were made
aware of the expanded state law definition of tobacco products to include e -
cigarettes and that the tobacco sales age had been raised from 18 to 21.
Likewise, should City Council approve any new tobacco -related law, the TEP has
the appropriate infrastructure in place to provide sufficient outreach and
education to City tobacco retailers to support their compliance with the law.
B. The Decreasing Adolescent Tobacco Access (DATA) Initiative
In addition to the permit -fee funded TEP, the City Attorney is also the
recent recipient of a grant awarded by the California Attorney General's Office.
This grant has funded the City's Decreasing Adolescent Tobacco Access (DATA)
Initiative which further supports the City's goal of keeping tobacco products away
from youth. Through the DATA Initiative, the City has implemented several
strategies to address the alarming increase in youth e -cigarette usage, including
a comprehensive vaping awareness media campaign, an expanded youth
outreach program, and an increase in undercover minor decoy compliance
checks conducted by LAPD.
Through the DATA Initiative, traditional tobacco -related education
modules have been modernized to stay up to date with current youth trends
including the alarming popularity of flavored e -cigarettes. In addition, TEP's
expanded youth outreach now regularly includes presentations at parent centers,
school assemblies, after-school outreach events and the providing of resource
tables at City schools. TEP's youth focused outreach is also provided at health
fairs, community events and includes collaboration with the City's Department of
Recreation and Parks. An aggressive public education campaign to youth and
their parents is also in development and expected to begin in earnest this Fall.
C. Los Angeles Unified School District (LAUSD)
Beginning in 2002, TEP was asked to be a participant agency in LAUSD's
Public Health Advisory Board facilitated by the LAUSD Beyond the Bell Program
and funded by the Tobacco Use Prevention and Education (TUPE) program.
TEP has also been funded directly by the TUPE program to provide tobacco -use
prevention and education at LAUSD schools and has participated in research on
The Honorable City Council
of the City of Los Angeles
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youth tobacco access funded by the Tobacco Related Diseases Research
Program (TRDRP).
LAUSD is in the process of revising its policy bulletin, BUL-3277.2,
"Preventive Measures and Mandatory Procedures for Students Who Violate
Laws Regarding Drugs, Alcohol, Tobacco, and Other Intoxicants." The Division
of Instruction, Division of District Operations and the Beyond the Bell Branch
have collaborated on the policy and plan to submit their final draft to the LAUSD
Superintendent and Board of Education for input and approval. LAUSD expects
the new policy to be finalized in the Fall of 2019.
IV. Overview of State and Local Legislation Efforts to Regulate Flavored
Tobacco
A. Federal Efforts
I. Food and Drug Administration (FDA)
Although the Federal government has been slow to respond to the
market explosion of flavored e -cigarette products, on September 11, 2019,
the federal government took a first step when Alex Azar, Secretary of the
United States Department of Health and Human Services as well as Ned
Sharpless, the Acting Commissioner of the FDA announced that the FDA
intends to issue enforcement guidance, requiring that any flavored e -
cigarette product (including menthol but not including tobacco flavoring) be
removed from the market until the product applies for and secures
approval from the FDA under the Tobacco Control Act. The FDA allowed
flavored e -cigarette products to remain on the market in the interim, at
least through May of 2020.33
Previous to the recent announcement, the FDA had delayed efforts
to bring flavored e -cigarette products under FDA review and approval
requirements. On May 10, 2016, the FDA issued a Final Rule deeming e -
cigarette and other nicotine products that were not a part of the original
2009 Federal Tobacco Control Act, including e -cigarettes, to be "tobacco
products."34 The new Rule allowed the FDA to regulate e -cigarettes
(including flavored products) and other covered tobacco products in the
same way that it could regulate traditional tobacco products under the
original 2009 Tobacco Control Act. A year later in May 2017, the FDA
issued a Guidance related to the 2016 Deeming Rule, which extended the
33 https://www.cnbc.com/video/2019/09/11/hhs-secretary-aiex-azar-tda-will-finalize-new-e-cigarette-
rules.html.
sa Deeming Tobacco Products to be Subject to the Federal Food, Drug, and Cosmetic Act, 21 CFR pt.
1100, 1140, and 1143 (2016).
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compliance period for some tobacco product manufacturers, including
flavored e -cigarette manufacturers.35 This meant that flavored e -cigarette
devices that were currently on the market could remain on the market
(without any review by the FDA) until August 2022 (now accelerated to
May of 2020).
In March of 2018, several health organizations including the
American Academy of Pediatrics, the American Cancer Society Cancer
Action Network, and the Campaign for Tobacco -Free Kids sued the FDA
regarding its decision to grant deadline extensions to e -cigarette
manufacturers under the May 2017 Guidance.36 The court sided with the
health organizations and vacated the Guidance for several reasons,
including that its outcome (allowing e -cigarettes to be on the market
without review by the FDA) cannot be reconciled with the 2009 Tobacco
Control Act.37
The immediate past Commissioner of the FDA, Scott Gottlieb,38
issued the Guidance that extended the deadlines set in the Tobacco
Control Act. Commissioner Gottlieb gradually revised his views about
flavored e -cigarettes. After initially concluding that that the FDA's tentative
regulation of flavored e -cigarettes "struck the wrong balance,"39 by April of
2018, Commissioner Gottlieb recognized "the troubling reality ... that
electronic nicotine delivery systems (ENDS) such as e -cigarettes have
become wildly popular with kids."40 By March of 2019, Commissioner
Gottlieb stated that "the number of children using e -cigarettes remains at
epidemic levels" and announced new, more severe actions the FDA would
take against e -cigarette retailers and manufacturers 41
36 U.S. Dep't of Health and Hum. Serv., Extension of Certain Tobago Product Compliance Deadlines
Related to the Final Deeming Rule (Revised): Guidance for Industry (Mar. 8, 2019),
https:/Avww.fda. gov/regu latory-information/search-fda-guidance-documents/extension-certain-tobacco-
product compliance -deadlines -related -final -deeming -rule.
36 American Academy of Pediatrics v. FDA, No. PWG -18-883, 2019 WL 2123397, F.Supp.3d (Dist. Ct.
Md. 2019).
37 Id.
38 Scott Gottlieb served as the FDA Commissioner from May of 2017 to April of 2019.
30Angelica LaVito, Fortner FDA Chief Gottlieb, CNBC (May 21, 2019),
https:lAvww.cnbc.00m/2019/05121 /former-fda-chief-goWieb-we-struck-the-wrong-balance-on-e-
cigarettes.htmi.
40 FDA, Statement from FDA Commissioner Scott Gottlieb on New Enforcement Actions (Apr. 24, 2018),
hdps:llwww.fda.gov/news-events/press-announcements/statement fda-commissioner-scoff-gotdieb-md-
new-enforcement-actions-and-youth-tobacco-prevention.
41 FDA, Statement from FDA Commissioner Scott Gottlieb on Forceful New Actions (Mar. 4, 2019),
https://www.fda.gov/news-events/press-announcements/statement fda-commissioner-scoff-gotdieb-md-
forceful-new-actions-focused-retailers-man ufactu rens.
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ii. House Subcommittee on Economic and Consumer Policy
On July 25, 2019, the House of Representatives' Subcommittee on
Economic and Consumer Policy, which is a part of the House Committee
on Oversight and Reform, held two days of hearings on the topic of youth
vaping. The Subcommittee heard from parents, doctors, researchers, and
representatives of JUUL. Notably, the Subcommittee questioned JUUL
co-founder and current Chief Product Officer, James Monsees, on the
second day of hearings.
At present, there are multiple bills to address youth vaping that
have been introduced in the House of Representatives, and nearly all of
these bills have an equivalent counterpart in the U.S. Senate. Some of
these bills include: H.R. 293: Youth Vaping Prevention Act of 2019; H.R.
1498: SAFE Kids Act; H.R. 2111: PROTECT Act; H.R. 2339: Reversing
the Youth Tobacco Epidemic Act of 2019; H.R. 2411: Tobacco to 21 Act;
and H.R. 3942: Preventing Online Sales of E -Cigarettes to Children Act.
B. State Efforts
L California State Senate Bill 38
On December 3, 2018, SB 38 was introduced in the California State
Senate by Senators Jerry Hill, Mike McGuire, and Anthony Portantino. In
its original form, SB 38 prohibited the sale of all flavored tobacco products
and was sponsored by the American Lung Association (ALA), the
American Cancer Society (ACS), and the American Heart Association
(AHA).42
On May 23, 2019, the bill was removed from consideration by
Senator Hill because of amendments to the bill that carved out exemptions
for tobacco products with patents issued prior to January 1, 2000, menthol
products, and hookah 43 According to Senator Hill, "the amendments
imposed on the bill erode those protections [that keep flavored tobacco
products from children] by creating unnecessary, harmful exemptions."44
The sponsorship from the ALA, ACS, and AHA were also withdrawn and
the previously supportive public health organizations then pivoted to
oppose the bill.
42 Letter from Lindsey Freitas, Senior Director, Advoc., Am. Lung Ass'n Cal., to Sen. Jerry Hill, Cal. Sen.
(May 21, 2019) (On file with Sen. Jerry Hill).
https://sdl3.senate.ca.gov/sites/sdl3.senate.ca.gov/files/aha—ala—acs—sb-38—opposition.pdf.
43 SB 38 Amended May 17, 2019 (Cal. Sen.).
44 Office of State Senator Jerry Hill, Senator Jerry Hill Withdraws Bill to Ban Flavored Tobacco Products,
Senate District 13 (May 23, 2019), https://sdl3.senate.ca.gov/news/2019-05-23-senator jery-hill-
withdraws-bill-ban-flavored-tobacco-products-rather-accept.
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At present, there are no California State Senate bills considering a
flavor ban.
Iii. California State Assembly Bill 1639
On February 22, 2019, AB 1639 was introduced in the California
State Assembly by Assembly Members Gray, Cunningham, Robert Rivas,
and Kamlager-Dove.4$ Originally, the bill would have banned flavored e -
cigarettes, with broad exceptions. AB 1639 exempts "tobacco, mint, or
menthol flavors;" retailers who sell tobacco in stores limited to customers
aged 21 and older; and online retailers who verify that the purchaser is at
least 21 years of age.46 On August 20, 2019, the bill was amended to
remove the flavor ban altogether. According to media reports, the removal
of the flavor ban resulted from opposition groups that felt the originally
included ban was too weak due to its exemption for menthol products.47'
The now stripped -down version of AB 1639 includes increased
retailer compliance checks by the California Department of Public Health
to reduce the availability of tobacco to persons under 21. The bill also
imposes certain advertising restrictions. AB 1639 sets civil fines for
noncompliance with various aspects of the bill, as well as escalating
license suspension periods (and eventual revocations) for retailers that
are found in violation of the law.
At present, AB 1639 is currently pending in the Senate. Two
additional Assembly Bills would affect flavored tobacco products: AB 739
and AB 1625. The former would ban sales of flavored tobacco products,
but it has been untouched in the Committees on Government Organization
and Health since April 1, 2019. The latter would require manufacturers to
submit a list of tobacco products sold that do not have a characterizing
flavor. This bill has been untouched in the Committees on Government
Organization and Judiciary since March 25, 2019.
iii. Executive Order Signed by Governor Newsom
On September 16, 2019, California Governor Gavin Newsom
signed an executive order to confront the youth vaping epidemic. The
order directs the California Department of Public Health to allocate $20
million to a vaping awareness campaign and develop recommendations to
45 AB 1639 was most recently amended on August 20, 2019.
46 AB 1639 Amended August 13, 2019 (Cal. Assem.).
47 Catherine Ho, California Bill Cracking Down on Youth Vaping Moves Forward, SF Chronicle (August
20, 2019), https://www.sfchronicle.cora/business/arbele/California-bill-cracking-down-on-youth-vaping-
14364950. php.
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require warning signs about the health risks of vaping at vaping retailers
and in vaping advertisements; increase enforcement regarding illegal
sales; and to establish standards for nicotine content and uniform
packaging for purposes of including nicotine content in the calculation of
applicable taxes. The order also directs the California Tax and Fee
Administration (CDTFA) to develop recommendations to remove illegal or
counterfeit vaping products from stores and to review taxes on e -
cigarettes to determine if taxes could be assessed according to nicotine
content.
Governor Newson's press release that announced the executive
order also expressed the Govemor's desire to work with the legislature
and build on this executive action to "put together a strong tobacco reform
package in 2020."
C. Local Efforts by Other Selected Jurisdictions in California
Cities and counties throughout California have been active in adopting
prohibitions on the sale of flavored tobacco. The first local restriction on the sale
of flavored tobacco was enacted by Santa Clara County in 2010.48 Following
Santa Clara, 34 cities in California passed some type of restriction on the sale of
flavored tobacco. Four of these 34 cities are in Los Angeles County: Manhattan
Beach in 2015, West Hollywood in 2016, Beverly Hills in 2018, and Hermosa
Beach in 2019. A matrix of Local Ordinances Restricting the Sale of Flavored
Tobacco Products compiled by The Center for Tobacco Policy and Organizing is
attached to this report as Attachment One.49
i. Los Angeles County (Draft Ordinance to Ban Sale of All
Flavored Tobacco)
Pursuant to a Motion introduced by Supervisor Mark Ridley-
Thomas and Supervisor Janice Hahn, the Board of Supervisors instructed
County Counsel to prepare an ordinance to address nuisance tobacco
shops and regulate flavored tobacco retailers.80 At the August 14, 2019
Health and Operations Cluster Meeting, a proposed draft ordinance was
48 County of Santa Clara Raises Purchase Age for Tobacco and Electronic Smoking Products, County of
Santa Clara County News (June 9, 2015), https://www.seegov.org/sites/opa/nr/Pages/County-Raises-
Purchase-Age-for-Tobacco-and-Electron ic-Smoking-P rod acts-from-18-to-21-in-Unincorporated-Santa-
Clara-County.aspx.
A9 The Center for Tobacco Policy and Organizing, Matrix of Local Ordinances Restricting the Sale of
Flavored Tobacco Products, Am. Lung Assoc. (May 2019) https://center4tobaccopolicy.orglwp-
content/uploads/20191051Matrix-of-Local-Ordinances-Restricting-Flavored-Tobacco-2019-05-07, pdf.
S0 County of Los Angeles, Motion by Supervisors Mark Ridley-Thomas and Janice Hahn (Sept. 25, 2018),
hftp://fiie.lacounty.gov/SDSlnter/bos/supdocs/126756.pdt
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jointly presented by County Counsel, the Department of Public Health and
the Treasurer and Tax Collector. This draft Ordinance prohibits the retail
sales of flavored tobacco products, including menthol. Additionally, the
draft Ordinance requires "tobacco only" shops to obtain a separate
business license, prohibit the entrance of customers under 21 years of
age, and prohibit the consumption of food or alcoholic beverages on the
premises. The proposed draft Ordinance is scheduled to be formally
presented at the meeting of the Board of Supervisors on September 24,
2019.
U. San Francisco and Other California Cities (Ban on Sale of All
Flavored Tobacco, No Exemptions)
On June 20, 2017, the San Francisco County Board of Supervisors
voted unanimously to pass an Ordinance amending the city's Health Code
by adding Article 19, to ban the sale of all flavored tobacco products,
including menthol .51 Thereafter, opponents of the ban (funded in large
part by tobacco manufacturers) gathered enough signatures to put a
referendum on the June 2018 ballot to overturn the Ordinance.52 Although
over $10 million was spent to overturn the Ordinance, the referendum was
not successful with 68 percent of San Francisco residents voting in favor
of the flavored tobacco prohibition.53 Despite overwhelming voter
approval of the ban, the tobacco industry has initiated a second attempt to
put a referendum on a future ballot to overturn the San Francisco law. In
May 2019 JUUL introduced and funded a new ballot initiative (for the
November 2019 election) to overturn the voter -approved flavored tobacco
prohibition.
Notably, shortly after San Francisco enacted this flavored tobacco
ban, the Board of Supervisors voted to prohibit the sale of e -cigarettes
altogether. On June 28, 2019, San Francisco Mayor London Breed
signed and approved the addition of Article 19R to the San Francisco
County Health Code to prohibit the sale of all e -cigarettes that lack Food
and Drug Administration premarket approval. This prohibition is set to
take effect at the end of 2019. As with the flavored tobacco ban, JUUL
has indicated its intent to seek to overturn this law by way of referendum.
51 San Francisco Health Code Ordinance No. 140-17 (2017). See also Lesley McClurg, San Francisco
Passes First -in -the -Nation Flavored Tobacco, Vaping Ban, KQED (June 6, 2018),
https://www. kged. org/futureofyou/441395/Sf-voters-may-ban-gape-flavors-menthol-cigarettes.
52 McClurg, supra note 13. See also Ballotpedia, Proposition E, Ban on the Sale of Flavored Tobacco,
https://ballotpedia.org/San_Francisco,_Califomia,_Proposition_E,_Ban on the_Sale of Flavored_Tobac
co (June 2018) (last visited July 1, 2019).
53 Ballotpedia, supra note 10.
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In addition to San Francisco, other California cities have enacted
comprehensive flavored tobacco bans. The California cities with
jurisdiction -wide flavored tobacco bans include Oakland, Palo Alto and EI
Cerrito. Some California jurisdictions have enacted flavor bans with
exemptions. The County of Santa Clara exempts certain retailers and
Manhattan Beach exempts menthol flavoring.
iii. Beverly Hills (Ban on sale of All Tobacco Products, Flavored
and Unflavored)
One of the most expansive restrictions on tobacco sales in the
State was enacted recently in the adjoining City of Beverly Hills. On .lune
4, 2019, the Beverly Hills City Council approved an Ordinance to prohibit
the sale of all tobacco products (flavored and unflavored) in the city.54
iv. Palo Alto (Ban on Sale of All Flavored Tobacco Products, 21
and Over Venues Exempted)
Palo Alto City Council passed an Ordinance in October of 2017
which restricts the sale of flavored tobacco products to retailers that
generate more than 60 percent of their gross annual revenue from the
sale of tobacco products, are adult -only, do not sell food or alcohol for
consumption in the premises, and post signage outside the premises that
clearly and conspicuously informs patrons that the premises is off-limits to
persons who are under 21 years old.55
V. Berkeley and Other California Cities (Ban on Sale of All
Flavored Tobacco Products, 21 and Over Venues Exempted)
The City of Berkeley prohibits the sale of flavored tobacco
products, including menthol flavored tobacco products, within a 600 foot
buffer zone of a school, defined to include public and private Kindergarten
through 12th grade with an enrollment of at least 25 students. The 600
foot buffer zone ordinance is applicable to all tobacco products, including
mentholated products. The City of Manhattan Beach has a similar buffer
zone ordinance.
54 This Ordinance exempted three existing cigar lounges, hotels that sell tobacco products only to guests
through concierge services, and those who can prove an exceptional hardship caused by the ban. City of
Beverly Hills Municipal Code Ordinance No. 19-0-2783. See also City of Beverly Hills, Information for
Businesses, http:/twww.beverlyhills.org/citymanager/smokinginfbrmaUon/infbrmatonforbusinesses/ (last
visited July 2, 2019). See also Kim Baldonado, Beverly Hills Moves Ahead with a Plan to Outlaw all
Tobacco Sales, NBC 4 (May 7, 2019), https://www.nbclosangeles.com/news/locaYBeverly-Hills-
Considering-Ban-on-Tobacco-Sales-509613541. html.
55 City of Pala Alto Municipal Code Ordinance No. 5418.
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V. Advertising Restrictions Pursuant to Settlement Agreements
The City Council requested that City Attorney's Office and Chief Legislative
Analyst's Office report on the options, at the Federal and State levels, to regulate the
advertising and marketing of e -cigarettes products. The majority of advertising
restrictions currently applicable to tobacco products are a result of terms in the Master
Settlement Agreement (MSA) and The Smokeless Master Settlement Agreement
(SMSA).56 Although e -cigarettes are a type of flavored tobacco product, they were not
contemplated by the MSA or the SMSA and therefore not included in either settlement.
The MSA and SMSA provide the following restrictions on tobacco products (not
including e -cigarettes):$'
Prohibit direct or indirect targeting of youth in advertising, marketing
and promotions.
• Prohibit brand name sponsorship of concerts, sports events, events
with an intended audience having a significant percentage of youth
and events with paid participants who are youth.
• Prohibit access by youth to free samples of tobacco products.
• Prohibit payments for placement of tobacco products in the media.
Prohibit outdoor advertising of tobacco products.
• Prohibit transit ads, on or in public or private vehicles.
• Prohibit using cartoons to advertise tobacco products.
• Prohibit tobacco brand-name merchandise.
66 The Master Settlement Agreement (MSA) is a settlement reached in November 1998 between the state
Attorneys General of 46 states, five U.S. territories, the District of Columbia and the five largest cigarette
manufacturers in the United States concerning the advertising, marketing and promotion of cigarettes.
The Smokeless Master Settlement Agreement (SMSA) was executed at the same time as the MSA
between the leading manufacturer of smokeless tobacco in the United States and the jurisdictions that
signed the MSA, plus Minnesota and Mississippi. https://oag.ca.gov/tobacco/msa.
67 For those tobacco products covered under the MSA and the SMSA, the following advertisements are
exempted:
- Advertisements that are 14 square feet or smaller, and are either outside a tobacco retail store
but on store property, or on the window of a tobaoco retailer store facing outward;
- Advertisement inside a tobacco retail store that are not placed on a window facing outward;
- Advertisements located inside an adult -only facility (when= operator ensure that no minors are
present);
- Outside Advertisements at the site of the adult -only facility advertising the event with a brand
name for the duration of the event and no more than 14 days before the event;
- Billboards advertising a tobacco brand sponsored event at the site of the event for 90 days before
the initial sponsored event and 10 days after the last sponsored event; or
- Advertisements outside a tobacco manufacturing facility.
The Honorable City Council
of the City of Los Angeles
Page 19
A matrix listing additional advertisement restrictions, at both the federal and state
levels, unrelated to the MSA or SMSA that potentially could be applied to certain types
of flavored tobacco products, including flavored e -cigarettes is attached to this report as
Attachment Two.
VI. Stakeholder Engagement
On July 17, 2019, the City Attorney's Office and Chief Legislative Analyst's Office
convened a stakeholder meeting, where it heard from a number of parties. Tobacco
industry representatives, JUUL, the Hookah Chamber of Commerce and certain civil
rights groups attended the meeting to oppose a citywide ban on the sale of flavors,
including hookah and menthol. The American Heart Association, American Lung
Association, American Cancer Society, The Campaign for Tobacco Free Kids, several
medical doctors and other constituent groups attended the meeting to express their
support for a citywide ban on the sale of flavors, including menthol.
After the July 17, 2019 stakeholder meeting, dozens of organizations, coalitions,
advocates, and individuals provided the City with additional materials. These materials
included formal letters of opposition or support, informational pieces, studies, charts,
graphs, images, constituent letters and signatures, slides, and links to additional
materials such as Congressional hearings.
VII. Legislative Options
Legislative options initiated by other jurisdictions at the state and local level are
listed below by decreasing severity:
• Ban the retail sale of all tobacco products, including flavored
tobacco products;
• Ban the retail sale of all flavored tobacco products without
exemption;
• Ban the retail sale of all flavored tobacco products, exempting
menthol cigarettes and/or hookah;
• Ban the retail sale of all flavored tobacco products except in 21 -
and -over specially licensed tobacco shops;
Ban the retail sale of all or some flavored tobacco products near
sensitive sites; or
Reduce tobacco retail location concentration or by overall number
Vlli. City Attorney Recommendation
The health and well-being of an entire generation of our youth will be affected by
the City's leadership during this current vaping crisis. We have been here before: The
tobacco industry previously used the lure and masking qualities of kid -friendly flavors to
The Honorable City Council
of the City of Los Angeles
Page 20
addict youth to combustible tobacco products, resulting in immense human suffering
and billions of dollars in medical costs. The Master Settlement Agreement with tobacco
manufacturers executed two decades ago eliminated flavored combustible cigarettes
resulting in a steady and dramatic decline in smoking rates.
The tobacco manufacturers regrouped. With the introduction of e -cigarettes,
which were not covered by the Master Settlement Agreement, flavored products were
reintroduced to a new generation of our youth with resulting increase in youth tobacco
usage. The current health crisis was a predictable resuilt and so too should be the City's
response. The City Attorney's Office recommends nothing short of a Citywide ban on,
the sale of all flavored tobacco products, without exception, as the best option to protect
our current generation of youth and the generations to follow from the negative health
consequences associated with use of tobacco products.
EAlEE��
This Office will be pleased to draft an ordinance to implement any of the
legislative options discussed in this report and transmit that ordinance to the City
Council for its consideration and adoption.
If you require any further information or have any questions, please contact the
undersigned at (213) 202-5595. She or another member of this Office will be available
when you consider this matter to answer any questions you may have.
Sincerely,
MICHAEL N. FEUER, City Attorney
By
CELINA PORRAS
Deputy City Attorney
VF-CP:ac
W\GENERAL COUNSEL DIVISIOMORDINANCES AND REPORTS\REPORTS - FINALTIavored Tobacco.docx
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ATTACHMENT ONE
AMERic-AN,
Matrix of Loc�al Ordinances Restrictin 9
LUNG
ASSOCIATION,
OMA*00M
the Sale of Flavored Tobacco Products
THE CENTER
for Tobacco Poky & Organizing
MAY 2019
The tobacco industry has a long history of using flavored
tobacco to target youth and communities of color, The
majority of youth who start experimenting with tobacco
begin with flavored tobacco.1 These products come in a
variety of candy -like flavors including bubble gum, grape,
menthol and cotton candy and include e -cigarettes, hookah
tobacco, cigars, smokeless tobacco,, and even flavored
accessories such as blunt wraps.
Since 2009, the United States Food and Drug Administration
(FDA) has banned flavored cigarettes nationwide, However,
this ban included an exemption for menthol flavored
cigarettes and doesn't extend to, non -cigarette tobacco
products. There are currently no state laws in California
restricting the sale of flavored tobacco products. It is up to
local communities to take action to protect their youth from
the lure of enticing flavored tobacco,
The first community to restrict the sale of flavored tobacco in
California was Santa Clara County in 2010. Since then, thirty-
five communities have passed similar policies.
What products may be included?
1. E-Cigareftes - Restricts the sale of flavored electronic
ciga reties.
2. Menthol - Restricts the sale of tobacco products labelled
as menthol, including cigarettes, smokeless tobacco, little
cigars, etc.
3. Little Cigars - Restricts the sale of flavored little cigars,
which are small, usually filtered cigars wrapped in brown
paper containing tobacco leaf. Little cigars became a popular
alternative following the FDA's ban on flavnred cigarettes,
4. Smokeless Tobacco - Restricts the sale of flavored
smokeless tobacco such as chewing tobacco, dip, snus and
snuff.
5. Components & Accessories - Restricts the, sale of flavored
accessory products such as blunt wraps and e -juice additives.
These products cannot be smoked alone and serve as a
delivery system for smoked products.
6. Products Marketed as Flavored - Tobacco companies
sometimes try to circumvent flavor restrictions by marketing
products as flavored without directly labelling them as
such, This policy option allows communities to broaden the
definition of flavored tobacco to, Include these products,
What exemptions are allowed?
1. Adult -Only Stores Exempted - Adult -only retailers are
limited to customers who are 21 and over. This limits sales of
flavored tobacco to stores that youth do not have access to,
2. Grandfathered Retailers Exempted - Allows retailers that
were in operation prior to a specifed date to continue selling
flavored tobacco products.
3�. Limited to Youth -Populated Areas - Retailers are required
to be a certain distance away from schools, parks, or other
youth -oriented locations. Since many flavored tobacco
products target youth, including buffer zones is a way to limit
their access to flavored products.
OEM=
The Center has additional resources on tobacco retailer
licensing ordinances, plug-in policies, and ordinances
restricting menthol tobacco available at: httpW
centeroto baccopWicy,org/tobacco-polkyAobacco-retail-
environment/, ChangeLab Solutions has model ordinance
language available for ordinances restricting flavored
tobacco at: http,://changelabsolutions.org,
The Center for Tobacco Policy & OrganWng I American Lung Association In Caflfornia
15311 Street, Wte 201, Sacramento, CA 958141 Phone; (9 16) 554.5864 1 Fax: (916) 442.8585
02019 UftniP 17CPMrblltiftt of Public I fodW. Furdidumder contract #14-113213,
THE AMERICAN LUNG ASSOCIATION IN CALIFORNIA THE CENTER FOR TOBAcco POLICY & ORGANIZI NG Page 2 of 3
San Cantos
Apni 2^019
x
x
x
x
x
Larkspur
April 2019
x
x
x
x
x
Sacramento
April 2019
x
x
x
x
,Albany
April 2019
x
x
x
x
x
x
Corte Madera
Mauch 2019
x
x
x
x
x
Hermosa Beach
Jan 2019
x
x
x
x
x
x x
San Pablo
Dec 2018
x
x
x
x
x
x
Alameda
Nov 2'018
x
x',
x
x
x
x
Santa Cruz
Nave 2018
x
x
x
x
x
X
Marin County
Nov 2018
x
x
x
x
x
x
Saratoga
Oct 2018
x.
x
x
x
x
Wulf Moon Bay
Oct 2018
X
x
x
x
x
x
Portoa,Valley
Sep 2018
x
x
x
x
x
Beverly Hulls
August 2018
x
x
x
x
x
x
Richmond
July 2018
x
x
x
x
x
x
Sausalito
July 2018
x
x
x
;{
X
San Mateo County
x
June 2018
x
x
x
x
x
San Francisco
.lune 2018
x
x
x
x
x
x
Mona County
July 2018
x
'VW"indsor
March 2018
x
x",
x
x
x
The Center for Tobacco POUCy 6 Organ!Sng I American Lung, Association in California
15311 Street, Suite 201, Sacramento, CA 958141 phone: (916)554'.58641 Fax; (9161442.8585
=019. California Oteartmentof Public Health,. Funded under contract #1+1q213.
Q
THE AM ERICAN LUNG ASSOCIATION IN CALI FORN IA TH E CENTER FOR TO BACCO POLICY & ORGANIZI N G Page 3 of 3
Cloverdale
Dec 2017
X
X
X
X
Fairtax
Dec 2017
X
X
X
X
San Leandro
002017
X
X
X
X
X
Palo Alto
Oct 2017
X
X
X
X
X
X
Oakland
Sep 2017
X
X
X
X
X
X
Contra Costa County
July 2017
X
X
X
X
X
X
Los Gatos
May 2017
X
X
X
X
X
X
Novato
Jan 2017
X
X.0
X
X
X
Santa Clara County
Oct 2016
X
X
X
X
X
X
YoIcs County
Oct 2016
X
X
X
X
X
Manhattan Beach
Dec 2015
X
X
X
X
X
El Cerrito
Oct 2015
X
X.
X
X
X
X
Berkeley
Sep 2015
X
X
X
X
X
X
Sonoma
June 2015
X
X
X
X
Hayward
July 2014
X
X.
X
X
X
X
'Ambrose, B -K, at al., Flavored Tobacco
Product Use Armarkg US Youth Aged 12-17
Years. 2013-200 JAMA.20M p.1-3.
'Does not Wude mentrol eganettes
"Exampts packages of at wlsast 5 or more
—DGusret ap* to pipe tobiao
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The Center for Tobacco Policy & Organizing I American Lung Association In California
L5314 Street, Suite 201, Sacramento, CA 958141 Phone. (916) 554.5864 1 Fax; (916)+442,8585
02019. Caleornia Departrrenj of PLishc Hvith, Funded undercontract 014-10213.
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ATTACHMENT TWO
ATTACHMENT TWO
Federal and State Advertising Restrictions Respective to Tobacco Products
Topic
Law
Summar
Storefront
Cal. Business and
No more than 33 percent of the square
Advertising
Professions Code §§
footage of windows and clear (e.g. glass)
25612(c)(7), 25617,
doors of an alcohol retailer may have
25619 (Lee Law)
advertisement of any sort, including
tobacco.
Blunt Wrap
Cal. Business and
No person or business may place
Advertising
Professions Code §§
advertising for blunt wraps lower than four
22958(a), 22962
feet above the floor. No person or
(STAKE Act)
business offering blunt wrap for safe may
Cal. Penal Code 308
place blunt wrap advertising within two
feet of a candy, snack, or nonalcoholic
beverage display.
State Building
Cal. Gov't Code §
No advertising for any product containing
Advertising
19994.35
tobacco shall be allowed in any building
owned and occupied by the state.
Video Games
Cal. Penal Code §
The law prohibits paid commercial
308.5
advertising for alcohol and tobacco
products in video games intended for
either private use or use in a public
establishment, and intended primarily for
use by any person under the age of 18
years. Paid commercial advertising
includes, for example, containers or
packaging, product brand names,
trademarks, or copyrighted slogans.
Samples,
Cal. Health and
Free or nominal cost cigarettes or
Coupons, and
Safety Code §118950
smokeless tobacco products (or coupons,
Promotional
Cal. Code of
coupon offers, rebate offers, gift
Offers
Regulations Title 18,
certificates, gift cards, or "other similar
§ 4081
offers" for such products) may not be
distributed on public grounds or private
grounds that are open to the public.
Free samples of smokeless tobacco
Cal. Business and
products may not be distributed within a
Professions Code §
two -block radius of any premises or facility
17534, 17535,
whose primary purpose is directed
17537.3
towards person under the age of 21,
including schools, clubhouses, and youth
centers, when those premises are being
used for their primary purposes.
Promotional offers, mail in and telephone
Attachment 2, Page 1 of 3
ATTACHMENT TWO
Federal and State Advertising Restrictions Respective to Tobacco Products
requests for promotional offers must state
they are not available to individuals under
21 years of age and must include
appropriate efforts to ensure person is at
least 21 years of age (asking date of
birth).
Mailing unsolicited samples of smokeless
tobacco as part of an advertising program
is prohibited.
Attachment 2, Page 2 of 3
ATTACHMENT TWO
Federal and State Advertising Restrictions Respective to Tobacco Products
requests for promotional offers must state
they are not available to individuals under
21 years of age and must include
appropriate efforts to ensure person is at
least 21 years of age (asking date of
birth).
Mailing unsolicited samples of smokeless
tobacco as part of an advertising program
is prohibited.
Attachment 2, Page 2 of 3
ATTACHMENT TWO
Federal and State Advertising Restrictions Respective to.Tobacco Products
TelevisionlRadi
15 USC §§ 1335, 1338,
The law prohibits advertising
o Cigarette
1339
cigarettes or little cigars (defined by
Advertising
weight) on any medium of electronic
communication subject to the
jurisdiction of the U.S. Federal
Communications Commission (FCC)
(such as television and radio).
- Law does not apply to regular size
cigars.
TelevisionlRadi
15 USC §§ 4402, 404,
The law prohibits advertising
o Smokeless
4405
smokeless tobacco on any medium
Tobacco
of electronic communication subject
Advertising
to the jurisdiction of the FCC (such
as television and radio).
Federal Laws on Misleading Consumers, Content Disclosures to Public and
Permissible Forms of Advertisement
Ban on
21 USC § 331(tt), 333, 372
Illegal to make any express or
Misleading
(Tobacco Control Act)
implied statement to consumers in
Consumers
tobacco product labeling or through
about FDA
the media that would mislead
endorsements
consumers to believing that a
tobacco product is: 1) Approved by
the FDA; 2) Endorsed by FDA; 3)
Deemed safe by the FDA: or 4) Less
harmful due to FDA regulation.
Content
21 USC § 387d, 387n
U.S. Dept. of Health and Human
Disclosures to
(Tobacco Control Act)
Services (HHS) will determine
the Public
15 USC §§ 1333, 1336,
whether tar or nicotine yields of
1338, 1339
cigarette and tobacco products must
be disclosed on all product packages
and advertisements.
Permissible
21 USC § 333, 372, 387a -I,
Manufacturer, distributor or retailer
Forms of
387f(d) (Tobacco Control
must notify FDA 30 days prior to
Labeling and
Act)
advertising cigarettes or smokeless
Advertising
21 Code of Federal
tobacco in a medium other than the
Regulation Section
following:
1140.30(a)
1) Periodicals or other publications;
2) Billboards;
3) Posters and placards; or
4) Promotional Materials (direct mail,
POS materials).
Notice must disclose exposure to
those under thea a of 18.
Attachment 2, Page 3 of 3
MICHAEL N. FEUER
CITY ATTORNEY
REPORT NO. R 19-0 3 0 5
REPORT RE:
SEP - 18 2019
POLICY OPTIONS FOR BANNING OR RESTRICTING THE SALE OF
FLAVORED TOBACCO PRODUCTS TO YOUTH; SURVEY OF LEGISLATIVE
REGULATIONS IN OTHER JURISDICTIONS
The Honorable City Council
of the City of Los Angeles
Room 395, City Hall
200 North Spring Street
Los Angeles, CA 90012
Honorable Members:
This Office, in consultation with the Chief Legislative Analyst's Office, has
prepared and now transmits for your review this report containing an overview of
options and policy considerations relative to banning or restricting the sale of flavored
tobacco products in the City of Los Angeles. This report responds to a Motion adopted
by Council requesting that the City Attorney, with the assistance of the Chief Legislative
Analyst, report on a proposed strategy to prohibit or restrict the sale of flavored tobacco
to youth and to report on how other jurisdictions are addressing the issue. Due to the
serious health crisis posed by flavored tobacco products for our City's youth, as detailed
below, the City Attorney's Office recommends that the City Council enact a Citywide
ban on the sale of all flavored tobacco products.
I. EXECUTIVE SUMMARY
E -cigarette usage, also known as "vaping," has created a public health crisis in
Los Angeles and across the nation. Within the last week, the Centers for Disease
Control and Prevention (CDC) warned Americans not to smoke e -cigarettes while the
CDC is investigating why as many as 380 people in 33 states who used e -cigarettes
City Hall East Zoo N. Main S vet Room 800 Las Angeles, CA goo12 (213) 97Mioo Fax (213) 97$-8312
The Honorable City Council
of the, City of Los Angeles
Page 2
have, reported possible pulmonary disease, seven of whom have died.' The CDC's
advisory highlighted the CDC's inability to determine which of the many compounds or
additives used in vaping devices are causing the injuries and deaths. The symptoms
include shortness of breath, fatigue, fever and nausea or vomiting. The Los Angeles
County Department of Public Health urged healthcare providers to be on the alert for
pulmonary symptoms in e -cigarette users, after confirming that one of the vaping deaths
was a Los Angeles County resident.
The reports of serious symptoms and deaths related to the use of e -cigarettes is
all the more alarming because youth tobacco product usage has increased
exponentially in recent years, largely attributable to the popularity of e -cigarettes and
flavored additives. According to the CDC, in 2018 more than one in four high school
students had used a tobacco product in the past 30 days. Theis was a 77.8 percent
increase in e -cigarette usage from 2017 and virtually erased any progress achieved in
reducing youth tobacco product use that had occurred in prior years.3 The CDC opines
that this sharp increase in youth use is attributable to the availability of e -cigarettes in
kid -friendly flavors.4
The City has been an early leader in addressing the negative health
consequences of tobacco products. Los Angeles was the first city in California to
include e -cigarettes in the definition of tobacco products, bringing e -cigarettes within the
ambit of City ordinances regulating use and sale. The Los Angeles City Attorney's
Office also led in establishing the first tobacco retailer licensing unit -- regulating over
4,000 tobacco retailers -- focusing at the retailer level on the prohibition against sales to
youth, through enforcement and education, as well as focusing at the youth level on
outreach to discourage tobacco use. More must be done to protect against the negative
health consequences of tobacco use, specifically by banning or regulating flavorings
that appeal to youth and mask the natural harsh taste of tobacco.
At the federal level, the U.S. Food and Drug Administration (FDA) has been slow
to regulate e -cigarettes by delaying efforts to bring flavored e -cigarette products under
FDA review and approval requirements. Although the recent pulmonary disease
outbreak prompted the FDA to announce an intent to issue a guidance banning flavored
I CDC, Outbreak of Lung Illness Associated with Using E -cigarette Products, (September 16, 2019),
httos://www.cdc.qov/tobacco/basic information/e-ciqarettes/severe-ILing-4isease. html. The CDC revised
downward the original estimate of pulmonary disease cases from more than 400 to 380, but the death toll
has now risen from six to seven people, with the recent death of a Fresno, California patient.
2 Los Angeles County Department of Public Health, Press Release., Public Health Investigates First Death
Associated with E -Cigarettes in LA County, (September 6, 2019),
hftp:Hpublichealth, lacounty.gov/phcommon/public/media/mediapubhpdetail.cfm?prid=2137.
3 Karen: A. Cullen et al., Notes From the Field, MMWR, CDC (Nov. 16,201�8),
http://dx.doi.org/l 0. 1 5585/mmwr.mm6745a5.
4 Office of the Surgeon General, Surgeon General's Advisory on E -Cigarette Use Among Youth (2018),
https:He-cigarettes.surgeongeneral.gov/documents/surgeon-generals-advisory-on-e-cigarette-use-
among-youth-2018.pdf.
The Honorable City Council
of the City of Los Angeles
Page 3
e -cigarettes except those receiving FDA approval, the guidance is not expected to issue
until at least May of 2020, during which time flavored e -cigarette products will not be
subject to federal oversight. The State of California also has been slow to act. In
response to tobacco industry concerns, two recent legislative efforts to regulate flavored
tobacco products were watered down to such an extent that medical professionals and
health organizations that once backed the bills, became opposed to their passage. The
bills are currently stalled.
While efforts at the Federal and California State level have lagged, local
jurisdictions have stepped to the forefront to protect. public health. The County of
Los Angeles Board of Supervisors is scheduled to vote at its September 24, 2019,
meeting on an ordinance to ban the sale of flavored tobacco products, including
menthol additives. The City and County of San Francisco unanimously passed an
ordinance banning the sale of all flavored tobacco products, including menthol. A
referendum sponsored by tobacco manufacturers to overturn the San Francisco
ordinance lost in an electoral landslide. San Francisco thereafter went one step further
by banning the sale of all e -cigarettes lacking Food and Drug Administration (FDA)
approval; the ban is set to become operative at the end of 2019.
Other jurisdictions have enacted flavored tobacco bans or regulations. Beverly
Hills banned the sale of all tobacco products, flavored and unflavored alike. Oakland, EI
Cerrito and Yolo County have enacted bans on the sale of flavored tobacco, including
menthol flavoring.
According to a survey conducted by the Chief Legislative Analyst's Office, other
jurisdictions in California have created a variety of regulatory schemes with carve -outs.
Santa Clara County and the City of Palo Alto ban flavored tobacco but exempt adult -
only retailers. Manhattan Beach bans the sale of flavored tobacco products but
exempts menthol. Contra Costa County and the cities of Berkeley and Hayward create
buffer zones around sensitive sites, in which the sale of flavored tobacco products,
including menthol products, is prohibited.
A variety of options exist at the federal and state level for regulating the
advertisement of flavored tobacco products. A chart of the potential federal and state
statutes which could be amended to include e -cigarettes and/or flavored tobacco is
attached to this report as Attachment Two for the City Council's information.
Prior to drafting this report, the City Attorney's Office and Chief Legislative
Analyst's Office convened a meeting of stakeholders interested in providing input on the
policy options for banning or regulating flavored tobacco products. The meeting
included public health advocates and medical professionals such as the American Heart
Association, the American Lung Association, the American Cancer Society and the
Campaign for Tobacco Free Kids, as well as advocates representing the tobacco
industry, including JUUL and the Hookah Chamber of Commerce. The policy options
The Honorable City Council
of the City of Los Angeles
Page 4
advocated by the stakeholders ran the gamut from outright bans on flavored tobacco
products to menthol or product -specific exemptions or to the maintaining of the status
quo. The options are provided in this report.
City Council's concern about the role of flavored tobacco products in the tobacco
use epidemic, which prompted the request for this report on flavored tobacco products,
is both timely and urgent. Given the recent vaping-related deaths and injuries,
combined with the prevalence of vaping among the City's youth, this report urges the
City to heed the advice of medical experts and enact a Citywide ban on the sale of all
flavored tobacco products.
II. CURRENT RESEARCH
A. "vaping" and the Use of E -Cigarettes
The use of vaporizers (vapes) and e -cigarettes is stip so new that there is
not yet a comprehensive body of scientific research as with traditional cigarettes
and other tobacco products. Particularly lacking are long-term longitudinal
studies, which have only begun in the last few years. Yet, as the research is
released, it continuously shows health issues associated with the use of vapes
and e -cigarettes.
In one recent study, MRIs showed that even vaping a single time can
temporarily affect cardiovascular functioning in healthy people. In another,
exposure to various e -liquids caused inflammation and other negative
consequences in cells, which in turn led to endothelial dysfunction, a risk factor
for cardiovascular disease.6 Researchers have found that e -cigarettes sold in
the United States have been contaminated with microbial toxins.?
The concentration of nicotine in e -cigarettes poses a number of health
risks. Nicotine increases blood pressure and adrenaline, causing accelerated
heart rate and increasing the likelihood of a cardiac event.$ Nicotine is highly
addictive. A single e -cigarette cartridge contains approximately the same
s Alessandra Caporale et ai., Acute Effects of Electronic Cigarette Aerosol Inhalation on Vascular
Function Detected at Quantitative MRI, Radiology (2019),
https://pubs.rsna.org/doYpdf/10.1 148/radiol.2019190562.
6 Won Hee Lee et al., Modeling Cardiovascular Risks of E -Cigarettes with Human -induced Pluripotent
Stem Cell -Derived Endothelial Cells, 73 Journal of the American College of Cardiology Iss. 21, 2722
(2019), https://www.sciencedirect.com/science/article/pii/S0735109719346960?via%3Dihub.
7 Mi -Sun Lee, Endotoxin and (1 -43) -p -D -Glucan Contamination in Electronic Cigarette Products Sold in
the United States, 127(4) Environmental Health Perspectives 047008-1 (2019),
https:/Iehp.niehs.nih.gov/dol/pdf/10.1289/EHP3469.
8 Sympathominetic Effects of Acute E -Cigarette Use: Role of Nicotine and Non -Nicotine Constituents;
Journal of the American Heart Association. https://www.ahajoumals.org.
The Honorable City Council
of the City of Los Angeles
Page 5
amount of nicotine as a pack of cigarettes and is more readily absorbed.9
Nicotine affects parts of the brain involved in learning, memory emotion and
impulse control.10 E -cigarette usage in youth is particularly problematic from a
developmental and academic standpoint./"
Research on the component ingredients of e -liquid solutions has revealed
more than concentrated nicotine. The solutions contain propylene glycol and
vegetable glycerin, two of the primary ingredients in e -liquids found to be toxic to
human cells. Research demonstrates that acetaldehyde and formaldehyde, two
components of e -liquid vapor, increases the risk of lung and cardiovascular
disease following repeated exposure. 12 Inhaling acrolein, an herbicide which is
also present in e -liquid, has caused acute lung injury, including chronic
obstructive pulmonary disease (COPD), asthma, and lung cancer. 93
As previously discussed in this report, the CDC is conducting an
investigation into the outbreak of serious and lethal pulmonary disease across
the nation and has advised against vaping while the investigation is ongoing.14
B. The Use of Flavored Tobacco Products by Minors
According to the US Surgeon General, most tobacco use begins during
youth and young adulthood.i5 Scientific evidence also demonstrates that flavors
play a major role in youth initiation and continued use of tobacco products.16 For
example, in 2015, a study funded by the National Institute on Drug Abuse
(NIDA), National Institutes of Health, the FDA, and the Department of Health and
Human Services surveyed youth between the ages of 12 and 17 to determine the
4 How Much Nicotine is in Juul?, Truth Initiative. https://truthinitlaUve.org/research-resources/emerging-
tobacco-prod ucts/how-much-n icotine-juu I.
14 Nicotine and the Adolescent Brain; Journal of Physiology.
https://www.ncbi.nim.nih.gov/pmclarticles/PMC4560573/.
11 Ibid.
92 Chronic E -Cigarette Exposure Alters the Human Bronchial Epithelial Proteome. American Journal of
Respiratory and Critical Care Medicine. https://www.atsjournals.org/dot/full/10.1164/rccm.201710-
20330C.
13 Cf. footnote 4 and Toxic Substances Portal — Formaldehyde. Agency for Toxic Substances and
Disease Registry. https://www.atsdr.odc.gov/substancesitoxsubstance.asp?toxid=39.
14 https://www.cdc.gov/tobacco/basic information/e-cigarettes/severe-lung-
d isease. htm (#recommendations -public.
15 Office of the Surgeon General, Preventing Tobacco Use Among Youths, (June 6, 2017),
https://www, hhs.gov/surgeongeneral/reports-and-publicabons/tobacco/preventing-youth-tobacco-use-
factsheetrndex. html.
16 American Academy of Pediatrics et al., The Flavor Trap (Mar. 15, 2017),
https://www.tobaccofreekids.org/micrositestflavortrap/executive summary.pdf.
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prevalence of flavored tobacco use.17 This study found that the vast majority of
youth who self-reported ever experimenting with a tobacco product reported that
they started with a flavored tobacco product.18 Flavorings (other than menthol)
are currently prohibited in traditional combustible cigarettes in the United States
but widely available in other forms of tobacco products including e -cigarettes;
cigars, hookah and smokeless tobacco.
C. Menthol and Minty Flavors
Menthol is a chemical compound with a minty flavor used as a cigarette
additive by tobacco companies. By adding menthol to cigarettes, the natural
harsh taste of tobacco is masked making the cigarette experience milder.
Adding menthol to cigarettes also suppresses the user's instinctive coughing
reflex thereby making inhalation of the smoke more tolerable.
Although statistically, traditional cigarette smoking rates have decreased,
the prevalence of menthol cigarette use has increased. Menthol smokers of all
ages show greater signs of nicotine dependence and are less likely to
successfully quit smoking compared to other smokers.19 Studies have also
shown that youth smokers remain the most likely group to use menthol cigarettes
compared to all other age groups.211
The City Attorney's Office was asked to address whether ethnic disparities
relative to menthol tobacco exist. Our research has indeed revealed higher use
rates of menthol cigarettes amongst African American smokers. This has been
attributed to the tobacco industry's focus on African American consumers that
dates back to the 1950s. For example, tobacco industry documents reveal a
history of targeted marketing towards African American consumers and higher
rates of discounts and promotions in African American neighborhoods.21 The
consequences of these tobacco industry marketing practices are not only higher
menthol use for this community but also higher rates of some tobacco -caused
disease. Each year in the US more than 72,000 African Americans are
diagnosed with a tobacco -related cancer and more than 39,000 die from a
"Ambrose BK, Day HR, Rostron B, et al. Flavored Tobacco Product Use Among US Youth Aged 12-17
Years, 2013-2014, JAMA (2015).
78 Bridget K. Ambrose et al., Flavored Tobacco Product use Among US Youth, JAMA (2015).
19 David T. Levy et al., Quit Attempts and Quit Rates Among Menthol and Nonmenthol Smokers in the
United States, 101 (7) Am. J. Pub. Health 1156, 1241 (2011).
20 Andrea C. Villanti et al., Changes in the Prevalence and Correlates of Menthol Cigarette use in the
USA, 2004-2014, 25 Tobacco Control 1, 14 (2016).
21 Tess Boley Cruz et al., The Menthol Marketing Mix: Targeted Promotions for Focus Communities in the
United States. 12 Nicotine & Tobacco Res. 85,147 (2010). See also Nina C. Schleider et al., Tobacco
Marketing in California's Retail Environment 2011-2014, at 10, 12 (2015).
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tobacco -related cancer.22 Researchers have estimated that, nationally, one-third
of the number of lives that would be saved by a ban on menthol tobacco sales
would be African Amedcan.23
Many prominent African American organizations support a ban on the sale
of mentholated tobacco products. In 2013, Delta Sigma Theta, the
largest African American Sorority, approved a resolution to urge the FDA to
prohibit menthol cigarettes.24 The National Association for the Advancement of
Colored People (NAACP) has stated that "the tobacco industry has perniciously
targeted African Americans with mentholated products" and in 2016 issued a
resolution to support efforts by state and local governments to restrict the sale of
menthol tobacco products.25 4n September 9, 2019, consistent with the 2016
resolution, the NAACP issued a Statement commending the State of Michigan for
recently banning the sale of all flavored tobacco products, including menthol.26
In contrast, there are also community-based organizations that oppose a
prohibition on the sale of menthol cigarettes. According to the California
Department of Public Health, many of these organizations have received funding
from the tobacco industry.27 Despite the life-saving potential of a prohibition on
the sale of menthol tobacco, these opposition groups have suggested that a
prohibition on menthol unfairly targets the African American community,
criminalizes the smoking of menthol cigarettes and makes menthol smokers
susceptible to dangerous interactions between police and members of the
African American community. These arguments cannot be substantiated. Any
restriction on flavored tobacco only would restrict the sale of menthol tobacco
products not their use. A menthol restriction only would be enforced at the retail
sales level by prohibiting tobacco retailers from selling menthol flavored tobacco
products. There would be no crime or violation applicable to the purchaser or
user of the menthol tobacco product.
22 CDC, Vital Signs: Disparities in Tobacco -Related Cancer Incidence and Mortality—United States, 2004-
2013, Morbidity & Mortality Weekly Report, (2016),
http:ltwww.edc.gov/mmwrtvolumes/65/Wr/mm6544a3.htm.
23 David T. Levy et al., Modeling the Future Effects of a Menthol Ban on Smoking Prevalence and
Smoking -Attributable Deaths in the United States, 101(7) Am. J. Pub. Health 1156, 1236 (2011).
24 Delta Sigma Theta, Prohibiting the Use of Menthol as a Characterizing Flavor in Cigarettes, 2093
National Convention Workbook,
http://www.tobacco. ucsf.edu/sitesttobaoco. ucsf.ed u/filestu9/Attachment%205-Delta%2OResolution. pdf.
25 National Association for the Advancement of Colored People, Resolutions (2016),
htip://www. naacp.orgtwp-content/uploads/2016/03/Resolutions.2016. pdf.
26 National Association for the Advancement of Colored People, NAACP Issues Statement on Michigan's
Ban on Flavored Cigarettes, September 9, 2019, https://www.naacp.org/latesVnaacp-issues-statement
m ichigans-ban-flavored-"igarettesl.
27 California Dep't of Pub. Health, Menthol and Cigarettes (May 2017),
https:/twww.odph.ca. gov/Programs/CCDPH P/DCDIC/CTCB/CDPH%2ODocument%2OLibrary/Researchan
dEvaluation/Factsand Fig ures/FinalMenthol FactSheecolo05022017. pdf.
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Certain opposition groups that have received tobacco industry funding
have also suggested that menthol bans will lead to a dangerous illicit trade
despite no definitive evidence to support this concern.28 Other jurisdictions
surveyed by the City Attorney's Office that enacted flavored tobacco restrictions
did not report an increase in illicit trade. That said, should any illicit trade
develop, the City Attomey's Office has decades of experience prosecuting illicit
tobacco trafficking in the context of untaxed and counterfeit cigarettes. The City
Attorney's Office, in conjunction with the Los Angeles Police Department (LAPD),
is also the recent recipient of a State of California Department of Justice grant
award that specifically funds tobacco enforcement efforts for the City. Should
City Council enact any type of flavored tobacco prohibition, there are sufficient
resources currently available to support and implement any new regulatory
efforts.
D. Hookah
Hookah tobacco is a type of flavored tobacco usually mixed with
molasses, honey and/or fruit. Hookah tobacco is smoked through a hookah pipe-
-a water pipe with a smoke chamber, bowl, pipe and hose. Hookah smoke
contains high levels of toxic compounds including tar, carbon monoxide, heavy
metals and cancer-causing carcinogens. As with cigarette smoking, hookah
smoking is linked to lung and oral cancers, heart disease, and other serious
illnesses. It is estimated that a 45 -to -60 minute hookah smoking session is as
harmful as smoking 100 or more cigarettes.29
According to the 2018 National Youth Tobacco Survey (NYTS), 4.1
percent of high schoolers and 1.2 percent of middle schoolers, totaling over
700,000 youth, have used hookah in the past month.30 Several studies have also
found that although gains have been made in reducing cigarette use among
college students, the prevalence of hookah use is increasing.31 In addition, the
government-sponsored 2013-2014 Population Assessment on Tobacco and
Health (PATH) survey revealed that more than three-quarters (78.9 percent) of
youth hookah users reported that they use hookah because it comes in
appealing flavors.32
28 The Truth Initiative. Menthol: Facts, Stats and Regulations (Aug. 31, 2018),
https://truthinitiabve.org/research-resourcesitradibonal-tobacco-prod ucts/menthol-facts-stats-and-
regulations.
29 AMI, E.A, The effects of waterpipe tobacco smoking on health outcomes: a systematic review,
International Journal of Epidemiology, (2010).
30 CDC, Tobacco Product Use Among Middle and High School Students—United States, 2099-2018,
MMWR, 68, (February 12, 2019), hftps://www.cdc.gov/mmwr/volumest68/Wr/pdfs/mm6806el-H.pdf.
31 Creamer, McLisa R et al. College students' perceptions and knowledge of hookah use. Drug and
Alcohol Dependence Vol. 168 (2016).
32 Ambrose, BK, et al., Flavored Tobacco Product Use Among US Youth Aged 12-17 Years, 2093-2094,
Journal of the American Medical Association, (2015).
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For over 20 years, state law has prohibited the smoking of tobacco
(including hookah tobacco) in restaurants and bars. In the City of Los Angeles,
despite extensive outreach and education efforts by the City Attorney's Office,
many restaurants and bars unlawfully furnish hookah tobacco and allow their
patrons to smoke in their businesses. Many of these businesses claim to be
"hookah lounges;" however, state law does not recognize the term "hookah
lounge" or afford such business any special privilege or exemption from the
state's smoking prohibitions. Only smokers' lounges can lawfully allow indoor
smoking, and any business that serves food or alcohol cannot, pursuant to state
law, qualify as a smokers' lounge.
The Hookah Chamber of Commerce presented the City Attorney's Office
with a letter on behalf of their membership requesting an exemption for hookah
tobacco. The President of the Hookah Chamber of Commerce declined this
Office's request for a membership list and indicated a list would not be provided
because some of their members had been previously prosecuted by our Office.
A review of our prior cases revealed that indeed over 60 bars and restaurants
have been criminally prosecuted by the City Attorney's Office for unlawfully
allowing hookah smoking in violation of state law. This Office estimates that
there are still over 100 restaurants and bars that continue to unlawfully allow their
patrons to smoke hookah in their business in violation of state law.
III. Existing Los Angeles City Initiatives
The City of Los Angeles has consistently been a statewide leader in tobacco
control policy. Not only was the City the first jurisdiction in the State to establish a
tobacco retailer licensing program (that has since been replicated in over 150
cities/counties in California), but the City of Los Angeles was also the first city in
California to include e -cigarettes in the definition of tobacco products—two years before
the State of California acted in 2016. Three current initiatives that demonstrate the
City's commitment to protecting youth from the dangers of tobacco use and nicotine
addiction are the Tobacco Enforcement Program (TEP), the Decreasing Adolescent
Tobacco Access (DATA) Initiative and the TEP's ongoing collaborative efforts with the
Los Angeles Unified School District (LAUSD).
A. The Tobacco Enforcement Program (TEP)
The Tobacco Retailer's Permit Ordinance established the TEP in May of
2000, with the goal of reducing youth access to tobacco products and decreasing
youth smoking rates. Permit fee revenue collected by the City funds the TEP to
ensure that the City's more than 4,000 tobacco retailers maintain a yearly
tobacco permit and comply with local and state laws regulating tobacco sales—
particularly the prohibition against sales to youth.
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The TEP continuously engages in outreach aimed at the City's tobacco
retailers that includes a wide array of services to support and encourage
responsible retailing practices. These ongoing services include direct retailer
training, site visits, targeted mailings, resource documents, and both phone and
email support. This retailer outreach infrastructure has been utilized successfully
to ensure that all City tobacco retailers are made aware of any new tobacco -
related laws and regulations. Most recently, the TEP utilized this outreach
infrastructure to successfully ensure that all City tobacco retailers were made
aware of the expanded state law definition of tobacco products to include e -
cigarettes and that the tobacco sales age had been raised from 18 to 21.
Likewise, should City Council approve any new tobacco -related law, the TEP has
the appropriate infrastructure in place to provide sufficient outreach and
education to City tobacco retailers to support their compliance with the law.
B. The Decreasing Adolescent Tobacco Access (DATA) Initiative
In addition to the permit -fee funded TEP, the City Attorney is also the
recent recipient of a grant awarded by the California Attorney General's Office.
This grant has funded the City's Decreasing Adolescent Tobacco Access (DATA)
Initiative which further supports the City's goal of keeping tobacco products away
from youth. Through the DATA Initiative, the City has implemented several
strategies to address the alarming increase in youth e -cigarette usage, including
a comprehensive vaping awareness media campaign, an expanded youth
outreach program, and an increase in undercover minor decoy compliance
checks conducted by LAPD.
Through the DATA Initiative, traditional tobacco -related education
modules have been modernized to stay up to date with current youth trends
including the alarming popularity of flavored e -cigarettes. In addition, TEP's
expanded youth outreach now regularly includes presentations at parent centers,
school assemblies, after-school outreach events and the providing of resource
tables at City schools. TEP's youth focused outreach is also provided at health
fairs, community events and includes collaboration with the City's Department of
Recreation and Parks. An aggressive public education campaign to youth and
their parents is also in development and expected to begin in earnest this Fall.
C. Los Angeles Unified School District (LAUSD)
Beginning in 2002, TEP was asked to be a participant agency in LAUSD's
Public Health Advisory Board facilitated by the LAUSD Beyond the Bell Program
and funded by the Tobacco Use Prevention and Education (TUPE) program.
TEP has also been funded directly by the TUPE program to provide tobacco -use
prevention and education at LAUSD schools and has participated in research on
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youth tobacco access funded by the Tobacco Related Diseases Research
Program (TRDRP).
LAUSD is in the process of revising its policy bulletin, BUL-3277.2,
"Preventive Measures and Mandatory Procedures for Students Who Violate
Laws Regarding Drugs, Alcohol, Tobacco, and Other Intoxicants." The Division
of Instruction, Division of District Operations and the Beyond the Bell Branch
have collaborated on the policy and plan to submit their final draft to the LAUSD
Superintendent and Board of Education for input and approval. LAUSD expects
the new policy to be finalized in the Fall of 2019.
IV. Overview of State and Local Legislation Efforts to Regulate Flavored
Tobacco
A. Federal Efforts
I. Food and Drug Administration (FDA)
Although the Federal government has been slow to respond to the
market explosion of flavored e -cigarette products, on September 11, 2019,
the federal government took a first step when Alex Azar, Secretary of the
United States Department of Health and Human Services as well as Ned
Sharpless, the Acting Commissioner of the FDA announced that the FDA
intends to issue enforcement guidance, requiring that any flavored e -
cigarette product (including menthol but not including tobacco flavoring) be
removed from the market until the product applies for and secures
approval from the FDA under the Tobacco Control Act. The FDA allowed
flavored e -cigarette products to remain on the market in the interim, at
least through May of 2020.33
Previous to the recent announcement, the FDA had delayed efforts
to bring flavored e -cigarette products under FDA review and approval
requirements. On May 10, 2016, the FDA issued a Final Rule deeming e -
cigarette and other nicotine products that were not a part of the original
2009 Federal Tobacco Control Act, including e -cigarettes, to be "tobacco
products."34 The new Rule allowed the FDA to regulate e -cigarettes
(including flavored products) and other covered tobacco products in the
same way that it could regulate traditional tobacco products under the
original 2009 Tobacco Control Act. A year later in May 2017, the FDA
issued a Guidance related to the 2016 Deeming Rule, which extended the
33 https://www.cnbc.com/video/2019/09/11/hhs-secretary-aiex-azar-tda-will-finalize-new-e-cigarette-
rules.html.
sa Deeming Tobacco Products to be Subject to the Federal Food, Drug, and Cosmetic Act, 21 CFR pt.
1100, 1140, and 1143 (2016).
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compliance period for some tobacco product manufacturers, including
flavored e -cigarette manufacturers.35 This meant that flavored e -cigarette
devices that were currently on the market could remain on the market
(without any review by the FDA) until August 2022 (now accelerated to
May of 2020).
In March of 2018, several health organizations including the
American Academy of Pediatrics, the American Cancer Society Cancer
Action Network, and the Campaign for Tobacco -Free Kids sued the FDA
regarding its decision to grant deadline extensions to e -cigarette
manufacturers under the May 2017 Guidance.36 The court sided with the
health organizations and vacated the Guidance for several reasons,
including that its outcome (allowing e -cigarettes to be on the market
without review by the FDA) cannot be reconciled with the 2009 Tobacco
Control Act.37
The immediate past Commissioner of the FDA, Scott Gottlieb,38
issued the Guidance that extended the deadlines set in the Tobacco
Control Act. Commissioner Gottlieb gradually revised his views about
flavored e -cigarettes. After initially concluding that that the FDA's tentative
regulation of flavored e -cigarettes "struck the wrong balance,"39 by April of
2018, Commissioner Gottlieb recognized "the troubling reality ... that
electronic nicotine delivery systems (ENDS) such as e -cigarettes have
become wildly popular with kids."40 By March of 2019, Commissioner
Gottlieb stated that "the number of children using e -cigarettes remains at
epidemic levels" and announced new, more severe actions the FDA would
take against e -cigarette retailers and manufacturers 41
36 U.S. Dep't of Health and Hum. Serv., Extension of Certain Tobago Product Compliance Deadlines
Related to the Final Deeming Rule (Revised): Guidance for Industry (Mar. 8, 2019),
https:/Avww.fda. gov/regu latory-information/search-fda-guidance-documents/extension-certain-tobacco-
product compliance -deadlines -related -final -deeming -rule.
36 American Academy of Pediatrics v. FDA, No. PWG -18-883, 2019 WL 2123397, F.Supp.3d (Dist. Ct.
Md. 2019).
37 Id.
38 Scott Gottlieb served as the FDA Commissioner from May of 2017 to April of 2019.
30Angelica LaVito, Fortner FDA Chief Gottlieb, CNBC (May 21, 2019),
https:lAvww.cnbc.00m/2019/05121 /former-fda-chief-goWieb-we-struck-the-wrong-balance-on-e-
cigarettes.htmi.
40 FDA, Statement from FDA Commissioner Scott Gottlieb on New Enforcement Actions (Apr. 24, 2018),
hdps:llwww.fda.gov/news-events/press-announcements/statement fda-commissioner-scoff-gotdieb-md-
new-enforcement-actions-and-youth-tobacco-prevention.
41 FDA, Statement from FDA Commissioner Scott Gottlieb on Forceful New Actions (Mar. 4, 2019),
https://www.fda.gov/news-events/press-announcements/statement fda-commissioner-scoff-gotdieb-md-
forceful-new-actions-focused-retailers-man ufactu rens.
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ii. House Subcommittee on Economic and Consumer Policy
On July 25, 2019, the House of Representatives' Subcommittee on
Economic and Consumer Policy, which is a part of the House Committee
on Oversight and Reform, held two days of hearings on the topic of youth
vaping. The Subcommittee heard from parents, doctors, researchers, and
representatives of JUUL. Notably, the Subcommittee questioned JUUL
co-founder and current Chief Product Officer, James Monsees, on the
second day of hearings.
At present, there are multiple bills to address youth vaping that
have been introduced in the House of Representatives, and nearly all of
these bills have an equivalent counterpart in the U.S. Senate. Some of
these bills include: H.R. 293: Youth Vaping Prevention Act of 2019; H.R.
1498: SAFE Kids Act; H.R. 2111: PROTECT Act; H.R. 2339: Reversing
the Youth Tobacco Epidemic Act of 2019; H.R. 2411: Tobacco to 21 Act;
and H.R. 3942: Preventing Online Sales of E -Cigarettes to Children Act.
B. State Efforts
L California State Senate Bill 38
On December 3, 2018, SB 38 was introduced in the California State
Senate by Senators Jerry Hill, Mike McGuire, and Anthony Portantino. In
its original form, SB 38 prohibited the sale of all flavored tobacco products
and was sponsored by the American Lung Association (ALA), the
American Cancer Society (ACS), and the American Heart Association
(AHA).42
On May 23, 2019, the bill was removed from consideration by
Senator Hill because of amendments to the bill that carved out exemptions
for tobacco products with patents issued prior to January 1, 2000, menthol
products, and hookah 43 According to Senator Hill, "the amendments
imposed on the bill erode those protections [that keep flavored tobacco
products from children] by creating unnecessary, harmful exemptions."44
The sponsorship from the ALA, ACS, and AHA were also withdrawn and
the previously supportive public health organizations then pivoted to
oppose the bill.
42 Letter from Lindsey Freitas, Senior Director, Advoc., Am. Lung Ass'n Cal., to Sen. Jerry Hill, Cal. Sen.
(May 21, 2019) (On file with Sen. Jerry Hill).
https://sdl3.senate.ca.gov/sites/sdl3.senate.ca.gov/files/aha—ala—acs—sb-38—opposition.pdf.
43 SB 38 Amended May 17, 2019 (Cal. Sen.).
44 Office of State Senator Jerry Hill, Senator Jerry Hill Withdraws Bill to Ban Flavored Tobacco Products,
Senate District 13 (May 23, 2019), https://sdl3.senate.ca.gov/news/2019-05-23-senator jery-hill-
withdraws-bill-ban-flavored-tobacco-products-rather-accept.
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At present, there are no California State Senate bills considering a
flavor ban.
Iii. California State Assembly Bill 1639
On February 22, 2019, AB 1639 was introduced in the California
State Assembly by Assembly Members Gray, Cunningham, Robert Rivas,
and Kamlager-Dove.4$ Originally, the bill would have banned flavored e -
cigarettes, with broad exceptions. AB 1639 exempts "tobacco, mint, or
menthol flavors;" retailers who sell tobacco in stores limited to customers
aged 21 and older; and online retailers who verify that the purchaser is at
least 21 years of age.46 On August 20, 2019, the bill was amended to
remove the flavor ban altogether. According to media reports, the removal
of the flavor ban resulted from opposition groups that felt the originally
included ban was too weak due to its exemption for menthol products.47'
The now stripped -down version of AB 1639 includes increased
retailer compliance checks by the California Department of Public Health
to reduce the availability of tobacco to persons under 21. The bill also
imposes certain advertising restrictions. AB 1639 sets civil fines for
noncompliance with various aspects of the bill, as well as escalating
license suspension periods (and eventual revocations) for retailers that
are found in violation of the law.
At present, AB 1639 is currently pending in the Senate. Two
additional Assembly Bills would affect flavored tobacco products: AB 739
and AB 1625. The former would ban sales of flavored tobacco products,
but it has been untouched in the Committees on Government Organization
and Health since April 1, 2019. The latter would require manufacturers to
submit a list of tobacco products sold that do not have a characterizing
flavor. This bill has been untouched in the Committees on Government
Organization and Judiciary since March 25, 2019.
iii. Executive Order Signed by Governor Newsom
On September 16, 2019, California Governor Gavin Newsom
signed an executive order to confront the youth vaping epidemic. The
order directs the California Department of Public Health to allocate $20
million to a vaping awareness campaign and develop recommendations to
45 AB 1639 was most recently amended on August 20, 2019.
46 AB 1639 Amended August 13, 2019 (Cal. Assem.).
47 Catherine Ho, California Bill Cracking Down on Youth Vaping Moves Forward, SF Chronicle (August
20, 2019), https://www.sfchronicle.cora/business/arbele/California-bill-cracking-down-on-youth-vaping-
14364950. php.
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require warning signs about the health risks of vaping at vaping retailers
and in vaping advertisements; increase enforcement regarding illegal
sales; and to establish standards for nicotine content and uniform
packaging for purposes of including nicotine content in the calculation of
applicable taxes. The order also directs the California Tax and Fee
Administration (CDTFA) to develop recommendations to remove illegal or
counterfeit vaping products from stores and to review taxes on e -
cigarettes to determine if taxes could be assessed according to nicotine
content.
Governor Newson's press release that announced the executive
order also expressed the Govemor's desire to work with the legislature
and build on this executive action to "put together a strong tobacco reform
package in 2020."
C. Local Efforts by Other Selected Jurisdictions in California
Cities and counties throughout California have been active in adopting
prohibitions on the sale of flavored tobacco. The first local restriction on the sale
of flavored tobacco was enacted by Santa Clara County in 2010.48 Following
Santa Clara, 34 cities in California passed some type of restriction on the sale of
flavored tobacco. Four of these 34 cities are in Los Angeles County: Manhattan
Beach in 2015, West Hollywood in 2016, Beverly Hills in 2018, and Hermosa
Beach in 2019. A matrix of Local Ordinances Restricting the Sale of Flavored
Tobacco Products compiled by The Center for Tobacco Policy and Organizing is
attached to this report as Attachment One.49
i. Los Angeles County (Draft Ordinance to Ban Sale of All
Flavored Tobacco)
Pursuant to a Motion introduced by Supervisor Mark Ridley-
Thomas and Supervisor Janice Hahn, the Board of Supervisors instructed
County Counsel to prepare an ordinance to address nuisance tobacco
shops and regulate flavored tobacco retailers.80 At the August 14, 2019
Health and Operations Cluster Meeting, a proposed draft ordinance was
48 County of Santa Clara Raises Purchase Age for Tobacco and Electronic Smoking Products, County of
Santa Clara County News (June 9, 2015), https://www.seegov.org/sites/opa/nr/Pages/County-Raises-
Purchase-Age-for-Tobacco-and-Electron ic-Smoking-P rod acts-from-18-to-21-in-Unincorporated-Santa-
Clara-County.aspx.
A9 The Center for Tobacco Policy and Organizing, Matrix of Local Ordinances Restricting the Sale of
Flavored Tobacco Products, Am. Lung Assoc. (May 2019) https://center4tobaccopolicy.orglwp-
content/uploads/20191051Matrix-of-Local-Ordinances-Restricting-Flavored-Tobacco-2019-05-07, pdf.
S0 County of Los Angeles, Motion by Supervisors Mark Ridley-Thomas and Janice Hahn (Sept. 25, 2018),
hftp://fiie.lacounty.gov/SDSlnter/bos/supdocs/126756.pdt
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jointly presented by County Counsel, the Department of Public Health and
the Treasurer and Tax Collector. This draft Ordinance prohibits the retail
sales of flavored tobacco products, including menthol. Additionally, the
draft Ordinance requires "tobacco only" shops to obtain a separate
business license, prohibit the entrance of customers under 21 years of
age, and prohibit the consumption of food or alcoholic beverages on the
premises. The proposed draft Ordinance is scheduled to be formally
presented at the meeting of the Board of Supervisors on September 24,
2019.
U. San Francisco and Other California Cities (Ban on Sale of All
Flavored Tobacco, No Exemptions)
On June 20, 2017, the San Francisco County Board of Supervisors
voted unanimously to pass an Ordinance amending the city's Health Code
by adding Article 19, to ban the sale of all flavored tobacco products,
including menthol .51 Thereafter, opponents of the ban (funded in large
part by tobacco manufacturers) gathered enough signatures to put a
referendum on the June 2018 ballot to overturn the Ordinance.52 Although
over $10 million was spent to overturn the Ordinance, the referendum was
not successful with 68 percent of San Francisco residents voting in favor
of the flavored tobacco prohibition.53 Despite overwhelming voter
approval of the ban, the tobacco industry has initiated a second attempt to
put a referendum on a future ballot to overturn the San Francisco law. In
May 2019 JUUL introduced and funded a new ballot initiative (for the
November 2019 election) to overturn the voter -approved flavored tobacco
prohibition.
Notably, shortly after San Francisco enacted this flavored tobacco
ban, the Board of Supervisors voted to prohibit the sale of e -cigarettes
altogether. On June 28, 2019, San Francisco Mayor London Breed
signed and approved the addition of Article 19R to the San Francisco
County Health Code to prohibit the sale of all e -cigarettes that lack Food
and Drug Administration premarket approval. This prohibition is set to
take effect at the end of 2019. As with the flavored tobacco ban, JUUL
has indicated its intent to seek to overturn this law by way of referendum.
51 San Francisco Health Code Ordinance No. 140-17 (2017). See also Lesley McClurg, San Francisco
Passes First -in -the -Nation Flavored Tobacco, Vaping Ban, KQED (June 6, 2018),
https://www. kged. org/futureofyou/441395/Sf-voters-may-ban-gape-flavors-menthol-cigarettes.
52 McClurg, supra note 13. See also Ballotpedia, Proposition E, Ban on the Sale of Flavored Tobacco,
https://ballotpedia.org/San_Francisco,_Califomia,_Proposition_E,_Ban on the_Sale of Flavored_Tobac
co (June 2018) (last visited July 1, 2019).
53 Ballotpedia, supra note 10.
The Honorable City Council
of the City of Los Angeles
Page 17
In addition to San Francisco, other California cities have enacted
comprehensive flavored tobacco bans. The California cities with
jurisdiction -wide flavored tobacco bans include Oakland, Palo Alto and EI
Cerrito. Some California jurisdictions have enacted flavor bans with
exemptions. The County of Santa Clara exempts certain retailers and
Manhattan Beach exempts menthol flavoring.
iii. Beverly Hills (Ban on sale of All Tobacco Products, Flavored
and Unflavored)
One of the most expansive restrictions on tobacco sales in the
State was enacted recently in the adjoining City of Beverly Hills. On .lune
4, 2019, the Beverly Hills City Council approved an Ordinance to prohibit
the sale of all tobacco products (flavored and unflavored) in the city.54
iv. Palo Alto (Ban on Sale of All Flavored Tobacco Products, 21
and Over Venues Exempted)
Palo Alto City Council passed an Ordinance in October of 2017
which restricts the sale of flavored tobacco products to retailers that
generate more than 60 percent of their gross annual revenue from the
sale of tobacco products, are adult -only, do not sell food or alcohol for
consumption in the premises, and post signage outside the premises that
clearly and conspicuously informs patrons that the premises is off-limits to
persons who are under 21 years old.55
V. Berkeley and Other California Cities (Ban on Sale of All
Flavored Tobacco Products, 21 and Over Venues Exempted)
The City of Berkeley prohibits the sale of flavored tobacco
products, including menthol flavored tobacco products, within a 600 foot
buffer zone of a school, defined to include public and private Kindergarten
through 12th grade with an enrollment of at least 25 students. The 600
foot buffer zone ordinance is applicable to all tobacco products, including
mentholated products. The City of Manhattan Beach has a similar buffer
zone ordinance.
54 This Ordinance exempted three existing cigar lounges, hotels that sell tobacco products only to guests
through concierge services, and those who can prove an exceptional hardship caused by the ban. City of
Beverly Hills Municipal Code Ordinance No. 19-0-2783. See also City of Beverly Hills, Information for
Businesses, http:/twww.beverlyhills.org/citymanager/smokinginfbrmaUon/infbrmatonforbusinesses/ (last
visited July 2, 2019). See also Kim Baldonado, Beverly Hills Moves Ahead with a Plan to Outlaw all
Tobacco Sales, NBC 4 (May 7, 2019), https://www.nbclosangeles.com/news/locaYBeverly-Hills-
Considering-Ban-on-Tobacco-Sales-509613541. html.
55 City of Pala Alto Municipal Code Ordinance No. 5418.
The Honorable City Council
of the City of Los Angeles
Page 18
V. Advertising Restrictions Pursuant to Settlement Agreements
The City Council requested that City Attorney's Office and Chief Legislative
Analyst's Office report on the options, at the Federal and State levels, to regulate the
advertising and marketing of e -cigarettes products. The majority of advertising
restrictions currently applicable to tobacco products are a result of terms in the Master
Settlement Agreement (MSA) and The Smokeless Master Settlement Agreement
(SMSA).56 Although e -cigarettes are a type of flavored tobacco product, they were not
contemplated by the MSA or the SMSA and therefore not included in either settlement.
The MSA and SMSA provide the following restrictions on tobacco products (not
including e -cigarettes):$'
Prohibit direct or indirect targeting of youth in advertising, marketing
and promotions.
• Prohibit brand name sponsorship of concerts, sports events, events
with an intended audience having a significant percentage of youth
and events with paid participants who are youth.
• Prohibit access by youth to free samples of tobacco products.
• Prohibit payments for placement of tobacco products in the media.
Prohibit outdoor advertising of tobacco products.
• Prohibit transit ads, on or in public or private vehicles.
• Prohibit using cartoons to advertise tobacco products.
• Prohibit tobacco brand-name merchandise.
66 The Master Settlement Agreement (MSA) is a settlement reached in November 1998 between the state
Attorneys General of 46 states, five U.S. territories, the District of Columbia and the five largest cigarette
manufacturers in the United States concerning the advertising, marketing and promotion of cigarettes.
The Smokeless Master Settlement Agreement (SMSA) was executed at the same time as the MSA
between the leading manufacturer of smokeless tobacco in the United States and the jurisdictions that
signed the MSA, plus Minnesota and Mississippi. https://oag.ca.gov/tobacco/msa.
67 For those tobacco products covered under the MSA and the SMSA, the following advertisements are
exempted:
- Advertisements that are 14 square feet or smaller, and are either outside a tobacco retail store
but on store property, or on the window of a tobaoco retailer store facing outward;
- Advertisement inside a tobacco retail store that are not placed on a window facing outward;
- Advertisements located inside an adult -only facility (when= operator ensure that no minors are
present);
- Outside Advertisements at the site of the adult -only facility advertising the event with a brand
name for the duration of the event and no more than 14 days before the event;
- Billboards advertising a tobacco brand sponsored event at the site of the event for 90 days before
the initial sponsored event and 10 days after the last sponsored event; or
- Advertisements outside a tobacco manufacturing facility.
The Honorable City Council
of the City of Los Angeles
Page 19
A matrix listing additional advertisement restrictions, at both the federal and state
levels, unrelated to the MSA or SMSA that potentially could be applied to certain types
of flavored tobacco products, including flavored e -cigarettes is attached to this report as
Attachment Two.
VI. Stakeholder Engagement
On July 17, 2019, the City Attorney's Office and Chief Legislative Analyst's Office
convened a stakeholder meeting, where it heard from a number of parties. Tobacco
industry representatives, JUUL, the Hookah Chamber of Commerce and certain civil
rights groups attended the meeting to oppose a citywide ban on the sale of flavors,
including hookah and menthol. The American Heart Association, American Lung
Association, American Cancer Society, The Campaign for Tobacco Free Kids, several
medical doctors and other constituent groups attended the meeting to express their
support for a citywide ban on the sale of flavors, including menthol.
After the July 17, 2019 stakeholder meeting, dozens of organizations, coalitions,
advocates, and individuals provided the City with additional materials. These materials
included formal letters of opposition or support, informational pieces, studies, charts,
graphs, images, constituent letters and signatures, slides, and links to additional
materials such as Congressional hearings.
VII. Legislative Options
Legislative options initiated by other jurisdictions at the state and local level are
listed below by decreasing severity:
• Ban the retail sale of all tobacco products, including flavored
tobacco products;
• Ban the retail sale of all flavored tobacco products without
exemption;
• Ban the retail sale of all flavored tobacco products, exempting
menthol cigarettes and/or hookah;
• Ban the retail sale of all flavored tobacco products except in 21 -
and -over specially licensed tobacco shops;
Ban the retail sale of all or some flavored tobacco products near
sensitive sites; or
Reduce tobacco retail location concentration or by overall number.
Vlli. City Attorney Recommendation
The health and well-being of an entire generation of our youth will be affected by
the City's leadership during this current vaping crisis. We have been here before: The
tobacco industry previously used the lure and masking qualities of kid -friendly flavors to
The Honorable City Council
of the City of Los Angeles
Page 20
addict youth to combustible tobacco products, resulting in immense human suffering
and billions of dollars in medical costs. The Master Settlement Agreement with tobacco
manufacturers executed two decades ago eliminated flavored combustible cigarettes
resulting in a steady and dramatic decline in smoking rates.
The tobacco manufacturers regrouped. With the introduction of e -cigarettes,
which were not covered by the Master Settlement Agreement, flavored products were
reintroduced to a new generation of our youth with resulting increase in youth tobacco
usage. The current health crisis was a predictable resuilt and so too should be the City's
response. The City Attorney's Office recommends nothing short of a Citywide ban on,
the sale of all flavored tobacco products, without exception, as the best option to protect
our current generation of youth and the generations to follow from the negative health
consequences associated with use of tobacco products.
EAlEE��
This Office will be pleased to draft an ordinance to implement any of the
legislative options discussed in this report and transmit that ordinance to the City
Council for its consideration and adoption.
If you require any further information or have any questions, please contact the
undersigned at (213) 202-5595. She or another member of this Office will be available
when you consider this matter to answer any questions you may have.
Sincerely,
MICHAEL N. FEUER, City Attorney
By
CELINA PORRAS
Deputy City Attorney
VF-CP:ac
W\GENERAL COUNSEL DIVISIOMORDINANCES AND REPORTS\REPORTS - FINALTIavored Tobacco.docx
ATTACHMENT ONE
AMERic-AN,
Matrix of Loc�al Ordinances Restrictin 9
LUNG
ASSOCIATION,
OMA*00M
the Sale of Flavored Tobacco Products
THE CENTER
for Tobacco Poky & Organizing
MAY 2019
The tobacco industry has a long history of using flavored
tobacco to target youth and communities of color, The
majority of youth who start experimenting with tobacco
begin with flavored tobacco.1 These products come in a
variety of candy -like flavors including bubble gum, grape,
menthol and cotton candy and include e -cigarettes, hookah
tobacco, cigars, smokeless tobacco,, and even flavored
accessories such as blunt wraps.
Since 2009, the United States Food and Drug Administration
(FDA) has banned flavored cigarettes nationwide, However,
this ban included an exemption for menthol flavored
cigarettes and doesn't extend to, non -cigarette tobacco
products. There are currently no state laws in California
restricting the sale of flavored tobacco products. It is up to
local communities to take action to protect their youth from
the lure of enticing flavored tobacco,
The first community to restrict the sale of flavored tobacco in
California was Santa Clara County in 2010. Since then, thirty-
five communities have passed similar policies.
What products may be included?
1. E-Cigareftes - Restricts the sale of flavored electronic
ciga reties.
2. Menthol - Restricts the sale of tobacco products labelled
as menthol, including cigarettes, smokeless tobacco, little
cigars, etc.
3. Little Cigars - Restricts the sale of flavored little cigars,
which are small, usually filtered cigars wrapped in brown
paper containing tobacco leaf. Little cigars became a popular
alternative following the FDA's ban on flavnred cigarettes,
4. Smokeless Tobacco - Restricts the sale of flavored
smokeless tobacco such as chewing tobacco, dip, snus and
snuff.
5. Components & Accessories - Restricts the, sale of flavored
accessory products such as blunt wraps and e -juice additives.
These products cannot be smoked alone and serve as a
delivery system for smoked products.
6. Products Marketed as Flavored - Tobacco companies
sometimes try to circumvent flavor restrictions by marketing
products as flavored without directly labelling them as
such, This policy option allows communities to broaden the
definition of flavored tobacco to, Include these products,
What exemptions are allowed?
1. Adult -Only Stores Exempted - Adult -only retailers are
limited to customers who are 21 and over. This limits sales of
flavored tobacco to stores that youth do not have access to,
2. Grandfathered Retailers Exempted - Allows retailers that
were in operation prior to a specifed date to continue selling
flavored tobacco products.
3�. Limited to Youth -Populated Areas - Retailers are required
to be a certain distance away from schools, parks, or other
youth -oriented locations. Since many flavored tobacco
products target youth, including buffer zones is a way to limit
their access to flavored products.
OEM=
The Center has additional resources on tobacco retailer
licensing ordinances, plug-in policies, and ordinances
restricting menthol tobacco available at: httpW
centeroto baccopWicy,org/tobacco-polkyAobacco-retail-
environment/, ChangeLab Solutions has model ordinance
language available for ordinances restricting flavored
tobacco at: http,://changelabsolutions.org,
The Center for Tobacco Policy & OrganWng I American Lung Association In Caflfornia
15311 Street, Wte 201, Sacramento, CA 958141 Phone; (9 16) 554.5864 1 Fax: (916) 442.8585
02019 UftniP 17CPMrblltiftt of Public I fodW. Furdidumder contract #14-113213,
THE AMERICAN LUNG ASSOCIATION IN CALIFORNIA THE CENTER FOR TOBAcco POLICY & ORGANIZI NG Page 2 of 3
San Cantos
Apni 2^019
11
X
X
M
Larkspur
Apttl 2019
M
X
It
M
M
Sacramento
April 2019
M
X
1C
M
M
X
,Albany
April 2019
x
M
M
M
M
1C
Corte Madera
Mauch 2019
M
M
X
M
11
Hermosa Beach
Jan 21119
X
M
X
X
M
M X
Sate Pablo
Dec 2018
M
M
M'
X
M
Alameda
Nov 2'018
11
M',
M
M
M
M
Santa Cruz
Nave 2018
k
M
X
M
M
Marin County
Nov 2018
M
M
M
M
M
M
Saratoga
Oct 2018
M
M
x
M
X
Wulf Moon Bay
Oct 2018
M
M
X
M
X
Portofa,Valley
Sep 2018
1G
x
M
x
M
M
Beverly Hull's
August 2018
M
X
x
M
M
M
Richmond
July 2018
M
11
M
M
M
Sausalito
July 2018
M
X
M
;{
X
San Mateo County
if
June 2018
X
X
M
x
M
San Francisco
.lune 2018
X
M
M
1C
M
Mona County
July 2018
M
'V4Nlndsor
March 2018
M
M.,
M
M
M
The Center for Tobacco Polley 6 Organizing I American Lung, Association in California
15311 Street, Suite 201, Sacramento, CA 958141 Phone: 19161554'.58641 Fax: (9161442.8585
=019. California Oteartmentof Public Health,. Funded under contract #1+1q213.
THE AM ERICAN LUNG ASSOCIATION IN CALI FORN IA TH E CENTER FOR TO BACCO POLICY & ORGANIZI N G Page 3 of 3
Cloverdale
Dec 2017
X
X
X
X
Fairtax
Dec 2017
X
X
X
X
San Leandro
002017
X
X
X
X
X
Palo Alto
Oct 2017
X
X
X
X
X
X
Oakland
Sep 2017
X
X
X
X
X
X
Contra Costa County
July 2017
X
X
X
X
X
X
Los Gatos
May 2017
X
X
X
X
X
X
Novato
Jan 2017
X
X.0
X
X
X
Santa Clara County
Oct 2016
X
X
X
X
X
X
YoIcs County
Oct 2016
X
X
X
X
X
Manhattan Beach
Dec 2015
X
X
X
X
X
El Cerrito
Oct 2015
X
X.
X
X
X
X
Berkeley
Sep 2015
X
X
X
X
X
X
Sonoma
June 2015
X
X
X
X
Hayward
July 2014
X
X.
X
X
X
X
'Ambrose, B.K. at al., Flavored Tobacco
Product Use Armarkg US Youth Aged 12-17
Years, 2013.20K JAMA.2015: p.1-3.
'Does not Wude mentrol eganettes
"Exampts packages of at llsast 5 or more
—DGusret apply to pipe tobiao
2
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600 ft
The Center for Tobacco Policy & Organizing I American Lung Association In California
1.5311 Street, Suite 201, Sacramento, CA 958141 Phone. (916) 554.5864 1 Fax; (916)+442,8585
02019. Caleornia Depanlrenj of public He;jth. Funded undercontmet 014.10213.
ATTACHMENT TWO
ATTACHMENT TWO
Federal and State Advertising Restrictions Respective to Tobacco Products
Topic
Law
Summar
Storefront
Cal. Business and
No more than 33 percent of the square
Advertising
Professions Code §§
footage of windows and clear (e.g. glass)
25612(c)(7), 25617,
doors of an alcohol retailer may have
25619 (Lee Law)
advertisement of any sort, including
tobacco.
Blunt Wrap
Cal. Business and
No person or business may place
Advertising
Professions Code §§
advertising for blunt wraps lower than four
22958(a), 22962
feet above the floor. No person or
(STAKE Act)
business offering blunt wrap for safe may
Cal. Penal Code 308
place blunt wrap advertising within two
feet of a candy, snack, or nonalcoholic
beverage display.
State Building
Cal. Gov't Code §
No advertising for any product containing
Advertising
19994.35
tobacco shall be allowed in any building
owned and occupied by the state.
Video Games
Cal. Penal Code §
The law prohibits paid commercial
308.5
advertising for alcohol and tobacco
products in video games intended for
either private use or use in a public
establishment, and intended primarily for
use by any person under the age of 18
years. Paid commercial advertising
includes, for example, containers or
packaging, product brand names,
trademarks, or copyrighted slogans.
Samples,
Cal. Health and
Free or nominal cost cigarettes or
Coupons, and
Safety Code §118950
smokeless tobacco products (or coupons,
Promotional
Cal. Code of
coupon offers, rebate offers, gift
Offers
Regulations Title 18,
certificates, gift cards, or "other similar
§ 4081
offers" for such products) may not be
distributed on public grounds or private
grounds that are open to the public.
Free samples of smokeless tobacco
Cal. Business and
products may not be distributed within a
Professions Code §
two -block radius of any premises or facility
17534, 17535,
whose primary purpose is directed
17537.3
towards person under the age of 21,
including schools, clubhouses, and youth
centers, when those premises are being
used for their primary purposes.
Promotional offers, mail in and telephone
Attachment 2, Page 1 of 3
ATTACHMENT TWO
Federal and State Advertising Restrictions Respective to Tobacco Products
requests for promotional offers must state
they are not available to individuals under
21 years of age and must include
appropriate efforts to ensure person is at
least 21 years of age (asking date of
birth).
Mailing unsolicited samples of smokeless
tobacco as part of an advertising program
is prohibited.
Attachment 2, Page 2 of 3
ATTACHMENT TWO
Federal and State Advertising Restrictions Respective to.Tobacco Products
TelevisionlRadi
15 USC §§ 1335, 1338,
The law prohibits advertising
o Cigarette
1339
cigarettes or little cigars (defined by
Advertising
weight) on any medium of electronic
communication subject to the
jurisdiction of the U.S. Federal
Communications Commission (FCC)
(such as television and radio).
- Law does not apply to regular size
cigars.
TelevisionlRadi
15 USC §§ 4402, 404,
The law prohibits advertising
o Smokeless
4405
smokeless tobacco on any medium
Tobacco
of electronic communication subject
Advertising
to the jurisdiction of the FCC (such
as television and radio).
Federal Laws on Misleading Consumers, Content Disclosures to Public and
Permissible Forms of Advertisement
Ban on
21 USC § 331(tt), 333, 372
Illegal to make any express or
Misleading
(Tobacco Control Act)
implied statement to consumers in
Consumers
tobacco product labeling or through
about FDA
the media that would mislead
endorsements
consumers to believing that a
tobacco product is: 1) Approved by
the FDA; 2) Endorsed by FDA; 3)
Deemed safe by the FDA: or 4) Less
harmful due to FDA regulation.
Content
21 USC § 387d, 387n
U.S. Dept. of Health and Human
Disclosures to
(Tobacco Control Act)
Services (HHS) will determine
the Public
15 USC §§ 1333, 1336,
whether tar or nicotine yields of
1338, 1339
cigarette and tobacco products must
be disclosed on all product packages
and advertisements.
Permissible
21 USC § 333, 372, 387a -I,
Manufacturer, distributor or retailer
Forms of
387f(d) (Tobacco Control
must notify FDA 30 days prior to
Labeling and
Act)
advertising cigarettes or smokeless
Advertising
21 Code of Federal
tobacco in a medium other than the
Regulation Section
following:
1140.30(a)
1) Periodicals or other publications;
2) Billboards;
3) Posters and placards; or
4) Promotional Materials (direct mail,
POS materials).
Notice must disclose exposure to
those under thea a of 18.
Attachment 2, Page 3 of 3