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U.S. Sales Restrictions on Flavored Tobacco Products

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U.S. Sales Restrictions on Flavored Tobacco Products SALES RESTRICTIONS December 2017 U.S. SALES RESTRICTIONS ON FLAVORED TOBACCO PRODUCTS This chart provides select examples1 of U.S. cities and counties that restrict the sale of flavored tobacco products. The chart captures variations among these flavor restrictions by noting when (1) flavors are prohibited generally or only within certain “buffer” zones, (2) menthol is prohibited, (3) flavors are restricted in e-cigarettes, and (4) exemptions are provided for certain retailers. This chart also provides links to each jurisdiction’s laws and summarizes relevant legal challenges. Beneath this chart is a supplemental list show- ing these select flavored tobacco restrictions organized by type rather than by state. A state or local government considering whether to adapt any language from the follow- ing policies should take care to ensure that the language is appropriate, practical, and legal for its jurisdiction. Please note that the Tobacco Control Legal Consortium does not endorse or recommend any of the following policies. We have included these examples to illustrate how various jurisdictions regulate the sale of flavored tobacco products and related electronic nicotine delivery devices. This chart is not comprehensive. Feel free to contact the Public Health Law Center for more information about flavored tobacco restrictions where you live. www.publichealthlawcenter.org December 2017 Jurisdiction / Berkeley, California2 Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law Yes — within buffer zone Yes Yes No No “Effective January 1, 2017, “‘Characterizing flavor’ “‘Tobacco product’ means: no person shall sell, give means a distinguishable 1. any substance containing, away, barter, exchange, or taste or aroma, other than made of, or derived from to- otherwise deal in flavored the taste or aroma of tobacco, bacco or nicotine including but tobacco products within that is imparted either prior not limited to cigarettes, cigars, six hundred (600) feet of to or during consumption of cigarillos, pipe tobacco, snuff, any school ….” a tobacco product, including chewing tobacco, dipping tobac- Berkeley, Cal. Code § but not limited to tastes or co, bidis, and shisha; 9.80.035(D) (2017) (em- aromas of menthol ….” 2. any e-liquid; phasis added).3 Berkeley, Cal. Code § 3. any electronic nicotine deliv- 9.80.020(A) (2017) (em- ery system; and phasis added). 4. any tobacco paraphernalia.” “‘Flavored tobacco prod- Berkeley, Cal. Code § 9.80.020(K) uct’ means any tobacco (2017). product containing, made of, or derived from tobacco or nicotine that contains a constituent that imparts a characterizing flavor.” Berkeley, Cal. Code § 9.80.020(F) (2017) (empha- sis added). www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products p_2 December 2017 Jurisdiction / Contra Costa County, California Flavored sales restriction not enforced until January 1, 2018, although ordinance is effective August 17, 2017. Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law Yes — within buffer zone Yes Yes No No. Note that this “It is a violation of this “It is a violation of this divi- “‘Flavored tobacco product’ ordinance only division for any tobacco sion for any tobacco retailer means any tobacco product, applies to unin- retailer to sell or offer for to sell or offer for sale any other than cigarettes as defined corporated parts sale any flavored tobac- flavored tobacco product or by federal law, that contains a of the county. co product or menthol menthol cigarettes within constituent that imparts a char- cigarettes within 1,000 1,000 feet of any parcel oc- acterizing flavor.” feet of any parcel occu- cupied by a public or private Contra Costa County, Cal., Ordi- pied by a public or private school, playground, park, or nance 2017-01 (July 18, 2017) (to school, playground, park, library.” be codified atContra Costa Coun- or library.” Contra Costa County, Cal., ty, Cal., Code § 445-2.006(g)). Contra Costa County, Ordinance 2017-01 (July “‘Tobacco product’ means … (1) Cal., Ordinance 2017- 18, 2017) (to be codified at [a]ny product containing, made 01 (July 18, 2017) (to Contra Costa County, Cal., from, or derived from tobacco be codified at Contra Code § 445-6.006) (empha- or nicotine that is intended for Costa County, Cal., Code sis added). human consumption, wheth- § 445-6.006) (emphasis er smoked, heated, chewed, added). absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means … (2) [a]ny electronic smoking device . .” Contra Costa County, Cal., Ordinance 2017-01 (July 18, 2017) (to be codified at Contra Costa County, Cal., Code § 445- 2.006(t)) (emphasis added). www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products p_3 December 2017 Jurisdiction / Contra Costa County, California Flavored sales restriction not enforced until January 1, 2018, although ordinance is effective August 17, 2017. continued Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law “‘Menthol cigarettes’ means cig- arettes as defined by federal law, that have a characterizing flavor of menthol, mint or wintergreen ….” Contra Costa County, Cal., Ordi- nance 2017-01 (July 18, 2017) (to be codified atContra Costa Coun- ty, Cal., Code § 445-2.006(j)). Jurisdiction / El Cerrito, California Note: Existing retailers in good standing have until January 1, 2018, to come into compliance. Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law Yes Yes Yes (note that traditional ciga- No No 4 “No tobacco retailer, “‘Characterizing flavor’ rettes not included ) “No tobacco retailer, nor any of nor any of the retailer’s means a distinguishable “‘Flavored tobacco product’ the retailer’s agents or employ- agents or employees, taste or aroma, other than means any tobacco product ees, shall sell or offer for sale, shall sell or offer for sale, the taste or aroma of tobac- (other than cigarettes as de- or possess with intent to sell or possess with intent to co, imparted by a tobacco fined by the U.S. Food and Drug or offer for sale, any imitation sell or offer for sale, any product or any byproduct Administration) that contains a tobacco products or flavored imitation tobacco prod- produced by the tobacco constituent that imparts a char- tobacco product.” ucts or flavored tobacco product, including … men- acterizing flavor. This includes El Cerrito, Cal., Code § product.” thol, mint, wintergreen, … electronic smoking devices 6.100.160 (2017). El Cerrito, Cal., Code § herb, or spice.” containing nicotine.” 6.100.160 (2017). www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products p_4 December 2017 Jurisdiction / El Cerrito, California Note: Existing retailers in good standing have until January 1, 2018, to come into compliance. continued Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law El Cerrito, Cal., Code § El Cerrito, Cal., Code § 6.100.020 “‘Tobacco retailer’ or ‘retailer’ No 6.100.020 (2017) (emphasis (2017) (emphasis added). means any person that sells added). tobacco, tobacco products, elec- tronic smoking devices, smoking paraphernalia. … This definition is without regard to the quantity of tobacco, tobacco products or smoking paraphernalia sold, offers for sale, exchanged, or offered for exchange.” El Cerrito, Cal., Code § 6.100.020 (2017) (emphasis added). Jurisdiction / Hayward, California Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law Yes — within buffer zone Yes Yes (note that traditional ciga- Yes No “With the exception of “‘Characterizing Flavor’ rettes not included) Exception for “Tobacco Retail- Tobacco Retailers whose means a distinguishable “‘Tobacco product’ includes, ers whose business included the business included the sale taste or aroma, other than but is not limited to cigarettes, sale of flavored tobacco products of flavored tobacco prod- the taste or aroma of tobac- cigars, little cigars, chewing to- prior to the effective date of [the ucts prior to the effective co, imparted by a tobacco bacco, pipe tobacco, snuff, snus, flavored tobacco regulation].” date of this Article, it shall product or any byproduct or electronic smoking devices Hayward, Cal. Code § 10- be a violation of these produced by the tobacco (with or without nicotine).” 1.2783(c) (2017). regulations for any product, including, but not www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products p_5 December 2017 Jurisdiction / Hayward, California continued Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law Tobacco Retailer or any limited to, tastes or aromas Hayward, Cal. Code § 10- of the Tobacco Retailer’s relating to … menthol ….” 1.2782(t) (2017) (emphasis agents or employees to Hayward, Cal. Code § 10- added). sell or offer for sale, or 1.2782(b) (2017) (emphasis “‘Flavored Tobacco Product’ to possess with intent to added). means any tobacco product sell or offer for sale, any “‘Flavored Tobacco Product’ (other than cigarettes as defined flavored tobacco product by federal law) that contains a within a 500 foot radius means any tobacco product (other than cigarettes as constituent that imparts a char- of any private or public acterizing flavor.” kindergarten, elementary, defined by federal law) that middle, junior high, or contains a constituent that Hayward, Cal.
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