Planning Division 10890 San Pablo Avenue, El Cerrito, CA 94530 (510) 215-4330 - FAX: (510) 233-5401 [email protected]

Planning Division 10890 San Pablo Avenue, El Cerrito, CA 94530 (510) 215-4330 - FAX: (510) 233-5401 Planning@Ci.El-Cerrito.Ca.Us

Community Development Department - Planning Division 10890 San Pablo Avenue, El Cerrito, CA 94530 (510) 215-4330 - FAX: (510) 233-5401 [email protected]

PLANNING COMMISSION STAFF REPORT Meeting Date: April 15, 2015

I. SUBJECT Applicant: City of El Cerrito Location: Citywide Request: Planning Commission Public Hearing – Regulation of Retail Sales of Tobacco

II. ACTION REQUESTED Make a recommendation to the City Council on the elements of the proposed tobacco retailer license program that relate to the Zoning Code.

III. BACKGROUND Tobacco use continues to be an urgent public health matter. Tobacco use is the number one preventable cause of death and disease in California, killing nearly 40,000 Californians every year. Typically, tobacco use is initiated and established during adolescence and the Centers for Disease Control and Prevention (CDC) reports that each day in the United States, more than 3,200 people younger than 18 years of age smoke their first cigarette. Although cigarette smoking among middle school and high school youth declined between 2000 and 2011, there has been an increase in electronic cigarette use and hookah use among youth in recent years.

In El Cerrito, about 20% of high school students in each grade have admitted to have used an e- cigarette or other nicotine delivery device. Between 8% and 16% of high school students in each grade stated that they have smoked a whole cigarette:

2013-14 School Year: 7th 9th 10th 11th 12th Grade Grade Grade Grade Grade E-cigarette or other NND 3% 17% 22% 21% 19% A whole cigarette 2% 8% 11% 13% 16% Smokeless tobacco 2% 3% 4% 4% 5% (See Attachment 2 for a summary of tobacco-related local finding from the California Healthy Kids Survey.)

American Lung Association’s State of Tobacco Control Report: The ALA annually issues their “State of Tobacco Control-California” report that includes grades for all cities and counties in California on policies for smokefree outdoor air, smoke free housing, and reducing sales of tobacco products. Prior to this year, El Cerrito had consistently received an “F”

Page 1 of 7 grade while the neighboring communities of Berkeley, Alameda, Richmond and unincorporated Contra Costa County (including Kensington) all received an “A” grade.

With the adoption of the City’s comprehensive Smoking Pollution Protection Ordinance (ECMC 2014-05) that requires 100% smoke free public places, commercial areas, and multi-unit residences within the City of El Cerrito, El Cerrito’s grade for 2015 increased from an F to and A for Smokefree Outdoor Air and Smokefree Housing, however El Cerrito received an overall B grade due its F grade regarding Reducing Sales of Tobacco Products. See attachment 3 for Summary of ALA 2015 State of Tobacco Control grades for Contra Costa and Alameda Counties.

CURRENT CONDITIONS IN EL CERRITO Studies have shown that limiting where tobacco is sold can curtail youth access to tobacco products, help local governments in targeting enforcement of the licensing provisions, and combat social perceptions that tobacco use is normal or acceptable. Requiring a local tobacco retailer license generally increases compliance rates of tobacco sales laws and provides revenue to cover administration of license and enforcement efforts. See attachment 5, 6 and 7 for more information.

The Contra Costa Tobacco Prevention Coalition (“Coalition”), American Lung Association (“ALA”), and the American Cancer Society (“ACS”) have all encouraged the City to establish a tobacco retailer license with an annual licensing fee that is high enough to fund effective enforcement programs that include compliance checks and to cover the actual costs of administering and enforcing the license requirements.

Currently, there are 18 tobacco retailers in El Cerrito, including two retailers whose apparent core business is the sale of tobacco products. See attachment 3 for a map of existing tobacco retailers in El Cerrito.

The City requires businesses to obtain a business license annually, and certain business types are required to obtain an additional license or permit, such as a taxicab permit, peddler/solicitors permit, firearms retailer permit, etc. The City does not currently require a tobacco retailer license nor track which retailers offer tobacco and related products for sale.

The City’s zoning code currently provides some land use regulations and standards regarding the sale of tobacco by some tobacco retailers, but does not require a tobacco retailer license (See ECMC 19.20.210).

Current Zoning Code: The current zoning code includes restrictions on the location, business size and hours of operation for retail establishments deriving 50 percent or more of gross sale receipts from the sale or exchange of tobacco related products (including but not limited to cigarettes, cigars, chewing tobacco and dipping tobacco, cigarette papers, pipes or any other instrument or paraphernalia for the smoking or ingestion of tobacco and products prepared from tobacco).

Generally speaking, stores that meet the current definition are prohibited from being located within 500 feet of a residential district, within 500 feet of an educational, cultural, or religious institution or public park or, within 1,000 feet of each other. They cannot exceed 5,000 square feet of floor area and can only be in operation between the hours of 8:00 a.m. to 10:00 p.m. daily.

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The current tobacco sales regulations are outdated; they do not include all tobacco retailers, the “test” of percent of gross sale receipts is hard to measure, and they lack many elements of model policies that are intended to protect the public’s health and safety, particularly youth.

Ordinance development process to date: Over the past few months, staff from the City Manager’s Office, Community Development and the Police Department have met multiple times regarding development of a tobacco retailer license program. Staff has researched best practices in other communities as well as researched the location and business type of current tobacco retailers in El Cerrito, worked with the Coalition and ChangeLab Solutions (a national, nonpartisan nonprofit), solicited comments from the public and received input from the Planning Commission, the ALA, the ACS, the National Association of Tobacco Retailers, Inc (NATO), and the California Retailers Association.

In October and November of 2014, the Planning Commission received staff presentations, public comment, and discussed aspects of proposed tobacco retailer license program. Outreach included staff personally visiting the 18 existing tobacco retailers to ensure they were informed of the meetings. In 2014, staff also sent a survey to the tobacco retailers to solicit their opinions on the topic.

Some interested members of the public commented to the Planning Commission they were in support of additional restrictions to be put in place to discourage the sale of tobacco to minors. However, one local tobacco retailer questioned if restrictions put in place by El Cerrito would be effective if Richmond did not also establish the same regulations along San Pablo Avenue.

Additionally, • On January 20, 2015, City Council held a study session about the proposed tobacco retailer license program and provided direction to staff. • On February 17, 2015, staff made an informational presentation at the El Cerrito Chamber of Commerce luncheon meeting. • On March 26, 2015, staff made an informational presentation at the Economic Development Committee meeting. • On April 1, 2015, staff posted the proposed ordinance online.

As required by the El Cerrito Municipal Code Section 19.32.050, public notification for tonight’s hearing was completed by placing a display advertisement of one-eighth page in the El Cerrito Journal on Friday, April 3, 2015. In addition, there is a page on the city website for interested parties. http://www.el-cerrito.org/tobaccoretailers

OVERVIEW OF PROPOSED TOBACCO RETAILER LICENSE PROGRAM Staff has developed a proposed local licensing system for tobacco retailers that is intended to achieve the following goals: 1. Ensure responsible, legal sales of tobacco related products. 2. Ensure that minors are not encouraged to use tobacco. 3. Fund a local enforcement program for compliance monitoring 4. Close gaps in Federal and State laws that do not yet address electronic cigarettes or electronic nicotine delivery systems and other products marketed to youth

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Tobacco retailer license required: The proposed ordinance requires every tobacco retailer to have a city tobacco retailer license. For FY 15-16, the annual fee is proposed to be between $500 to $600 per retail location. The fee is intended to cover the actual costs for the City to conduct compliance checks and enforcement operations, issue annual license and administer the program overall. The City Council can adjust the rate of the fee from time to time.

Note: During the first year, more staff time will likely be required to establish the program, train staff and outreach to retailers, however, in future years, the cost of the program is anticipated to be recovered in full through the collection of the tobacco retailer license fee.

Business standards: Based on best practices and other input, the proposed ordinance includes the following business standards: • Prohibit the sale of flavored tobacco products1 (other than cigarettes). This includes cigars, little cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, blunts, electronic cigarettes, and electronic smoking devices containing nicotine. • Prohibit the sale of single and small-pack cigars (packs with fewer than 5 cigars), except for single cigars priced over $5 each. • Prohibit tobacco retailing (including e-cigarettes & tobacco paraphernalia) by means of a self-service display. • Prohibit employees younger than the minimum legal sale age (“MLSA”) from selling tobacco products. • Ban mobile sales. • Prohibit the distribution of samples of tobacco and tobacco-related products (including electronic smoking devices) and coupons.

Separation requirements: Research shows that children are more likely to experiment with tobacco products when tobacco retailers are located near schools. Restricting tobacco sales around schools or other areas frequented by youth can help reduce youth initiation. The Coalition, ALA and the ACS all encouraged the City to restrict where prospective sellers of tobacco may be located (e.g., near schools, other sellers). CRA stated concern that local tobacco sales restrictions creates a significant disincentive for any company to consider locating in that community.

The proposed ordinance includes a 500-foot buffer around schools and other youth-sensitive areas such as the City Recreation facilities (Community Center & Senior Center), the library, and public parks (excluding the Ohlone Greenway and future “parklets”). Note: 500’ is approximately one residential block. Attachment 4 includes map showing the proposed buffers.

Another typical separation requirement is limiting proximity of tobacco retailers to one another in order to prevent a concentration of tobacco retailers in an area. A high density of tobacco retailers has been associated with increased smoking rates, particularly among youth.

1 Flavored tobacco products are especially appealing to children because of their sweet flavors and bright packaging. Neither federal nor California laws restrict sales of flavored non-cigarette tobacco products, such as cigars, cigarillos, smokeless tobacco, hookah tobacco, and electronic smoking devices and the nicotine solutions used in these devices.

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Currently, most existing tobacco retailers are located on San Pablo Avenue, El Cerrito’s commercial corridor.

The proposed ordinance includes a separation requirement for new tobacco retailers to be at least 1,000’ from any existing tobacco retailer. This is the distance the current zoning code requires between significant tobacco retailers.

Business types such as grocery stores are vital to serve the needs of existing and future residents, and existing city policies (including but not limited to the recently adopted San Pablo Avenue Specific Plan and the Climate Action Plan (adopted in 2013) encourage smart infill development, walkable neighborhoods and community nodes. In an effort to balance the need for economic development and the goals of the proposed program, a new retailer may request an exception to the store-to-store separation requirement.

Allowing a new retailer to apply for an exception to the store-to-store separation requirement will provide the City with the opportunity to review the specific situation. The request will be reviewed and decided by the body that approves the use of the new retailer. For example, if the new retail use requires a Conditional Use Permit, then the Planning Commission would consider the exception.

Prohibition of Cigar/Hookah/Vape Lounges: Based on direction from the City Council, the proposed ordinance prohibits cigar lounges, hookah lounges and vapor lounges from establishing in El Cerrito.

The proposed ordinance closes a loophole in California law that permits smoking in retail tobacco shops and private smokers’ lounges by prohibiting any business from allowing customers to consume any amount of tobacco product, or where customers use an electronic smoking device or other apparatus to deliver an inhaled dose of nicotine or other substance. Smoking or inhaling such products exposes customers and employees to potentially hazardous chemicals and undermines existing clean indoor air laws.

The recently adopted Smoking Pollution Protection Ordinance (ECMC 2014-05) now requires 100% smoke free places of employment, however, including this specific prohibition would ensure it is clear to business owners and prospective business owners that this type of business is prohibited in El Cerrito.

Currently, there are no cigar lounges, hookah lounges, or vapor lounges operating in El Cerrito.

Prohibition of New Significant Tobacco Retailers (STRs): Based on direction from the City Council, the proposed ordinance prohibits any new STR from establishing in El Cerrito. Allowing more STRs to open in El Cerrito may reinforce positive social perceptions of smoking and convey tacit approval of tobacco use.

STRs (which can include head shops, discount cigarette stores, and smoke shops) have a higher rate of illegally selling tobacco to minors than the statewide average. Further, stores whose core business is selling tobacco often sell items that are commonly known to be drug paraphernalia while claiming that such items are intended for tobacco use.

At the January City Council study session, staff proposed to define “significant tobacco retailer” to include any tobacco retailer for which the principal or core business is selling tobacco products,

Page 5 of 7 smoking paraphernalia, or both, as evidenced by any one of the following: • self-disclosure • twenty percent (20%) or more of display area is devoted to tobacco products, smoking paraphernalia, or both (this is the definition suggested by ChangeLab Solutions) • fifty percent (50%) or more of gross sales receipts are derived from tobacco products, smoking paraphernalia, or both

Staff estimates there are currently two retailers who may meet the definition of a STR. The City Council was in general agreement to allow existing STR to continue.

Existing tobacco retailers operating at the time the ordinance goes into effect may seek an exception to this section by demonstrating that use of a larger display area or percentage of gross sales receipts preceded the effective date of this Ordinance. The tobacco retailer shall make this showing to the satisfaction of the City in order to be allowed to continue to devote the current amount of display area and/or receive up to the same percent of gross sales receipts from tobacco products.

Grandfather clause for existing retailers: Based on direction from the City Council and the Planning Commission, the proposed ordinance includes a “grandfather clause” to exempt existing retailers from the separation requirements and provide 24 months from the effective date for existing retailers to come into compliance with certain new business standards. This exception would not apply if the retailer lets its license lapse, closes for more than 60 days, changes its business operation significantly, or receives three or more violations within the transition period.

Existing retailers will be required to register as a tobacco retailer within 30 days of the effective date in order to utilize the grandfather clause.

Enforcement: Enforce remedies for violations would be handled through the City’s Administrative Penalties procedure. The City will charge retailers a re-inspection fee to off-set the additional staff time required to handle non-compliant businesses.

Implementation: Establishing and conducting the tobacco retailer license program will involve multiple City Departments:

• City Manager’s Office will oversee implementation of the program

• Finance Department will collect license fee and issue new/renewal Tobacco Retailer Licenses

• Community Development Department will review development/use applications to ensure compliance with the municipal code; conduct annual inspections of tobacco retailer establishments; and respond to municipal code complaints and violations

• Police Department will conduct annual decoy operations to detect tobacco sales to minors. The program would be modeled after the youth decoy program used to detect alcohol sales to minors

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Attachments: 1. Proposed Tobacco Retailer License Ordinance 2. Summary of tobacco-related local finding from the California Healthy Kids Survey 3. Summary of ALA 2015 State of Tobacco Control grades for Contra Costa and Alameda Counties 4. Existing tobacco retailers in El Cerrito 5. Maps showing proximity of existing tobacco retails to sensitive sites 6. Tobacco Prevention Coalition of Contra Costa County: “A Tool for Reducing Youth Access To Tobacco: The Tobacco Retailer License” 7. ChangeLab Solutions: “Tobacco Retailer Licensing: An Effective Tool for Public Health” 8. American Lung Association: “Tobacco Retailer Licensing Is Effective” 9. American Lung Association: “Emerging Products: E-Cigarettes” 10. Letter 1-14-15 of from Steve Duffy, National Association of Tobacco Outlets, Inc. 11. Letter of 2-18-15 from Angie Manetti, California Retailers Association

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DRAFT ORDINANCE NO. 2015–XX

AN ORDINANCE OF THE CITY OF EL CERRITO REQUIRING THE LICENSURE OF TOBACCO RETAILERS AND AMENDING THE EL CERRITO MUNICIPAL CODE BY REPEALING SECTION 19.20.210, AMENDING SECTION 19.46.060(D) AND TABLE 19.07-A AND ADDING A NEW CHAPTER 6.100 (“TOBACCO RETAILER LICENSE PROGRAM)

WHEREAS, tobacco use causes death and disease and continues to be an urgent public health challenge; and

WHEREAS, society is becoming more aware of the harms of smoking, particularly in El Cerrito, where a majority of participants in surveys and community meetings indicated a need to regulate smoking within the City limits; and

WHEREAS, the City Council recently adopted Ordinance 2014-05 to regulate smoking within the City of El Cerrito and protect the public and environment from secondhand smoke; and

WHEREAS, nationally, the failure of tobacco retailers to comply with all tobacco control laws, particularly laws prohibiting the sale of tobacco products to minors, presents an imminent threat to the public health, safety, and welfare and therefore is a threat to the public health, safety, and welfare of the residents of the City of El Cerrito; and

WHEREAS, a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the City of El Cerrito, to protect the health, safety, and welfare of our residents; and

WHEREAS, approximately 480,000 people die in the United States from tobacco-related diseases every year, making tobacco use the nation’s leading cause of preventable death;i and

WHEREAS, the California Legislature has recognized the danger of tobacco use and has made reducing youth access to tobacco products a high priority, as evidenced by the fact that:

1. The Legislature has declared that smoking is the single most important source of preventable disease and premature death in California (Cal. Health & Safety Code § 118950); 2. State law prohibits the sale or furnishing of cigarettes, tobacco products, and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors (Cal. Pen. Code § 308); 3. State law requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under 18 years of age (Cal. Bus. & Prof. Code § 22956) and provides procedures for using minors to conduct onsite compliance checks of tobacco retailers (Cal. Bus. & Prof. Code § 22952); and 4. State law prohibits the sale or furnishing of electronic cigarettes to minors (Cal. Health & Safety Code § 119405). 1

WHEREAS, the density of tobacco retailers, particularly in neighborhoods surrounding schools, has been associated with increased youth smoking rates;ii and

WHEREAS, a California study found that the density of tobacco retailers near schools was positively associated with the prevalence of students reporting experimental smoking;iii and

WHEREAS, a high density of tobacco retailers has been associated with increased smoking rates, particularly among youth;iv and

WHEREAS, over 8 percent of all tobacco retailers statewide were witnessed unlawfully selling to minors in 2012, and tobacco stores (defined as businesses in which at least 80 percent of merchandise was tobacco products) sold to minors at a much higher rate than the statewide average, as high as 20.5 percent;v and

WHEREAS, many cigarette, tobacco, and retail outlets specializing in tobacco paraphernalia (sometimes called “head shops”) sell items that are commonly known to be drug paraphernalia, including bongs and pipes used to smoke methamphetamine and other illicit drugs, and claim that such items are intended for tobacco use; and

WHEREAS, state law prohibits sales of “drug paraphernalia”;vi yet many retailers nevertheless sell items that are commonly known to be “drug paraphernalia,” including bongs and pipes used to smoke methamphetamine and other illicit drugs, claiming that such items are intended for tobacco use; and

WHEREAS, state law requires all tobacco retailers to be licensed by the Board of Equalization primarily to curb the illegal sale and distribution of cigarettes due to tax evasion and counterfeiting (Cal. Bus. & Prof. Code §§ 22970.1, 22972); and

WHEREAS, state law explicitly permits cities and counties to enact local tobacco retail licensing ordinances, and allows for the suspension or revocation of a local license for a violation of any state tobacco control law (Cal. Bus. & Prof. Code § 22971.3); and

WHEREAS, California courts have affirmed the power of the City of El Cerrito to regulate business activity to discourage violations of law. See, e.g., Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1985); Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993); Prime Gas, Inc. v. City of Sacramento, 184 Cal. App. 4th 697 (2010); and

WHEREAS, despite the state’s efforts to limit youth access to tobacco, minors are still able to access cigarettes, as evidenced by the fact that in California, 36.8 percent of high school students have smoked a whole cigarette by 14 years of age;vii and In California, 64 percent of adult smokers started by the age of 18;viii and

WHEREAS, “little cigars” look nearly identical to cigarettes;ix and WHEREAS, although the sale of flavored and individual cigarettes is banned by federal law, neither federal nor California law restrict the sale of flavored cigar products or the sale

of individual cigar products;x and

WHEREAS, the federal Family Smoking Prevention and Tobacco Control Act (FSPTCA), enacted in 2009, prohibited candy and fruit-flavored cigarettes,xi largely because these flavored products were marketed to youth and young adults,xii and younger smokers were more likely to have tried these products than older smokers;xiii and although the manufacture and distribution of flavored cigarettes (excluding menthol) is banned by federal law,xiv neither federal nor California laws restrict sales of flavored non-cigarette tobacco products, such as cigars, cigarillos, smokeless tobacco, hookah tobacco, and electronic smoking devices and the nicotine solutions used in these devices; and

WHEREAS, flavored non-cigarette tobacco products have become increasingly common and are available in a variety of flavors that appeal to children and young adults,xv including apple, cherry, chocolate, grape, peach, strawberry, and vanilla; and

WHEREAS, the U.S. Food and Drug Administration and the U.S. Surgeon General have stated that flavored tobacco products are considered to be “starter” products that help establish smoking habits that can lead to long-term addiction;xvi and

WHEREAS, data from the National Youth Tobacco Survey indicate that more than two- fifths of U.S. middle and high school smokers report using flavored little cigars or flavored cigarettes;xvii and

WHEREAS, tobacco companies have used flavorings such as mint and wintergreen in smokeless tobacco products as part of a “graduation strategy” to encourage new users to start with products with lower levels of nicotine and progress to products with higher levels of nicotine;xviii and

WHEREAS, the U.S. Centers for Disease Control and Prevention has reported that electronic cigarette use among middle and high school students doubled from 2011 to 2012;xix and

WHEREAS, nicotine solutions, which are consumed via electronic smoking devices such as electronic cigarettes, are sold in dozens of flavors that appeal to youth, such as cotton candy and bubble gum;xx and

WHEREAS, the California Attorney General has stated that electronic cigarette companies have targeted minors with fruit-flavored products;xxi and

WHEREAS, research demonstrates that local tobacco retail ordinances dramatically reduce youth access to cigarettes. For example:

1. A review of 33 California communities with strong tobacco retailer licensing ordinances shows that the youth sales rate declined in 31 of these communities after the ordinances were enacted, with an average decrease of 26 percent in the youth sales rate;xxii 2. License suspension or revocation after repeated violations is recognized as an

effective strategy to reduce youth access to tobacco;xxiii and 3. A study of the effect of licensing and enforcement methods used in the Philadelphia area revealed a decrease in sales to minors from 85 percent in 1994 to 43 percent in 1998;xxiv 4. A study of several Minnesota cities found that an increased licensing fee in conjunction with strict enforcement of youth access laws led to a decrease from 39.8 percent to 4.9 percent in the number of youth able to purchase tobacco;xxv and

WHEREAS, over 100 cities and counties in California have passed tobacco retailer licensing ordinances in an effort to stop minors from using tobacco;xxvi and

WHEREAS, the City has a substantial interest in promoting compliance with federal, state, and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and finally, and most importantly, in protecting children from being lured into illegal activity through the misconduct of adults; and

WHEREAS, the City Council finds that the regulations imposed by this chapter provide a reasonable opportunity for tobacco retailers to operate within the City of El Cerrito. In the establishment of these regulations, the City Council considered their effects on the number and suitability of locations for tobacco retailers.

NOW THEREFORE, it is the intent of the City Council, in enacting this ordinance, to ensure compliance with the business standards and practices of the City and to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine products to minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein.

The City Council of the City of El Cerrito does hereby ordain as follows:

SECTION 1. FINDINGS. The above recitals are hereby declared to be true and correct and are findings of the City Council of the City of El Cerrito.

SECTION 2. AMENDMENT OF TITLE 19 OF THE EL CERRITO MUNICIPAL CODE A. Section 19.20.210 (“Tobacco Sales”) of the El Cerrito Municipal Code is hereby repealed.

B. Section 19.46.060 (D) of the El Cerrito Municipal Code is hereby amended to read as follows: (strikeout indicating deleted text)

Section 19.46.060(D) – Industry, Medium. Manufacturing or assembly of products from extracted, raw or finished materials or recycled or secondary materials, or bulk storage and handling of such products and materials. This classification includes: tobacco product manufacturing textile mills, textile product mills, apparel manufacturing, leather and allied

product manufacturing, wood product manufacturing, paper manufacturing, chemical manufacturing, plastics and rubber products manufacturing, nonmetallic mineral product manufacturing, primary metal manufacturing, and fabricated metal product manufacturing.”

C. Table 19.07-A (“Use Regulations-Commercial And Transit-Oriented Mixed-Use Districts”) under the heading Commercial Use Types is hereby amended to read as follows (strikeout indicates deleted text and underlined text is to be add):

CN CC TOM Additional Regulations Tobacco Sales C L A L A L See Section 19.20.210 Chapter 6.100

SECTION 3. AMENDMENT OF EL CERRITO MUNICIPAL CODE TITLE 6 Title 6 (“Business Permits and Regulations”) of the El Cerrito Municipal Code is hereby amended to add a new Chapter 6.100 (“Tobacco Retailer License Program”) to read as follows:

TOBACCO RETAILER LICENSE PROGRAM

Article 1 – Title and Definitions 6.100.010 - Title 6.100.020 - Definitions

Article 2. Requirements and Prohibitions

6.100.040 - Tobacco Retailer License Required. 6.100.060 - Lawful Business Operation. 6.100.080 - Display of License. 6.100.100 - Positive Identification Required. 6.100.120 - Minimum Age for Persons Selling Tobacco. 6.100.140- Self-Service Displays Prohibited. 6.100.160 - Flavored Tobacco Products Prohibited. 6.100.180 - Single and Small-Pack Cigars Prohibited. 6.100.200 - Original Labeling and Packaging. 6.100.220 - No Tobacco Product or Electronic Smoking Device Use on Premises. 6.100.240 - Mobile Vending. 6.100.260 - Tobacco Samples Prohibited. 6.100. 280 - False and Misleading Advertising Prohibited. 6.100.300 – Significant Tobacco Retailers Prohibited 6.100.320 - Drug Paraphernalia Laws. 6.100.340 - Consideration for Existing Retailers.

Article 3. Location Requirements

6.100.360 - Schools and Youth-Populated Areas.

6.100.380 - Proximity to Other Retailers.

Article 4. License Application and Procedures.

6.100.400 - Application Form. 6.100.420 - Issuance Procedure. 6.100.440 - Appeal. 6.100.460 - Renewal of License. 6.100.480 - Delinquency—Installments. 6.100.500 - Licenses Nontransferable. 6.100.520 - License Conveys a Limited, Conditional Privilege. 6.100.540 - Fee for License. 6.100.560 - Compliance Monitoring. 6.100.580 - Suspension or Revocation of License for Violation. 6.100.600 - Product Removal During Suspension or Revocation. 6.100.620 - Appeal of Suspension or Revocation.

Article 5. Penalties

6.100.640 - Penalties 6.100.660 - Tobacco Retailing Without a Valid License. 6.100.680 - Agreed Penalty In Lieu of Hearing.

Article 1. 6.100.010 Title.

This Chapter shall be known as the Tobacco Retailer License Program. The City of El Cerrito hereinafter shall be called "City."

6.100. 020 Definitions. The following definitions apply to this Chapter:

A. “Business” shall mean any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making purposes or that has an employee (Refer to ECMC 4.31.010 for definition of “Employee”.)

B. “Arm’s Length Transaction” means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an Arm’s Length Transaction.

C. “Cigar” means (i) any roll of tobacco wrapped entirely or in part in tobacco or in any substance containing tobacco; or (ii) any paper or wrapper that contains tobacco and is designed for smoking or ingestion of tobacco products. For the purposes of this Chapter, “Cigar” includes, but is not limited to, tobacco products known or labeled as “cigar,” “cigarillo,” “tiparillo,” “little cigar,” “blunt,” “blunt wrap,” or “cigar wrap.”

D. “Cigar Lounge” means any facility, building, structure or location, where customers consume cigars or similar smoking products

E. “Characterizing Flavor” means a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. F. “Distinguishable” means perceivable by an ordinary consumer by either the sense of smell or taste.

G. “Drug Paraphernalia” has the meaning set forth in California Health & Safety Code section 11014.5, as that section may be amended from time to time.

H. “Electronic smoking device” means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. “Electronic smoking device” includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. “Electronic smoking device” does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease.

I. “Electronic Smoking Device Paraphernalia” means cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, Electronic Smoking Device batteries, Electronic Smoking Device chargers, and any other item specifically designed for the preparation, charging, or use of Electronic Smoking Devices.

J. “Flavored Tobacco Product” means any tobacco product (other than cigarettes as defined by federal law) that contains a constituent that imparts a characterizing flavor. This includes cigars, little cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, blunts, and electronic cigarettes or electronic smoking devices containing nicotine.

1. For purposes of this definition, “constituent” means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, which is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.

2. Further, a tobacco product is presumed to be a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees has:

a. Made a public statement or claim that the tobacco product has or produces a characterizing flavor, including, but not limited to, text and/or images on the product’s labeling or packaging that are used explicitly or implicitly to communicate information about the flavor, taste, or aroma of a tobacco product; or

b. Taken actions directed to consumers that would be reasonably expected to result in consumers believing that the tobacco product imparts a characterizing flavor.

K. "Gross receipts" includes the total of amounts actually received or receivable from sales and the total of amounts actually received or receivable for the performance of any act or service of whatever nature it may be for, for which a charge is made or credit allowed, in connection with the sale of materials, goods, wares, or merchandise. Refer to ECMC 4.32.010 for the full definition.

L. “Hookah lounge” means any facility, building, structure or location, where customers share tobacco or a similar smoking product from a communal hookah placed throughout the establishment.

M. “Imitation Tobacco Product” means any edible non-tobacco product designed to resemble a tobacco product or any non-edible non-tobacco product designed to resemble a tobacco product that is intended to be used by children as a toy. Examples of imitation tobacco products include, but are not limited to, candy or chocolate cigarettes, bubble gum cigars, shredded bubble gum resembling spit tobacco, and shredded beef jerky in containers resembling snuff tins. An electronic smoking device is not an imitation tobacco product.

N. “Packaging” means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale to a consumer.

O. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

P. “Proprietor” means a Person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a Person has a ten percent (10%) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a Person can or does have or share ultimate control over the day-to-day operations of a business.

Q. “Self-Service Display” means the open display or storage of tobacco products, electronic smoking devices or smoking paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of Self-Service Display.

R. “Significant Tobacco Retailer” means any tobacco retailer for which the principal or core business is selling tobacco products, Smoking Paraphernalia, or both, as evidenced by any one of the following: 1. twenty percent (20%) or more of floor or display area is devoted to tobacco products, smoking paraphernalia, or both; 2. fifty percent (50%) or more of gross sales receipts are derived from tobacco products, smoking paraphernalia, or both; 3. Self-disclosure S. “Smoking Lounge” means any facility, building, structure or location, where customers consume tobacco or a similar smoking product, or where customers use an electronic

smoking device or other apparatus to deliver an inhaled dose of nicotine or other substance within the establishment. This includes cigar lounge, hookah lounge, vapor bar, and similar establishments.

T. “Smoking Paraphernalia” means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the consumption or preparation of tobacco products; Electronic Smoking Devices, Electronic Smoking Device Paraphernalia.

U. "Tobacco product" means any of the following: 1. Any substance containing tobacco leaf, including but not limited to cigarettes, cigars, little cigars, cigarillos, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, blunts, clove cigarettes, or any other preparation of tobacco.

2. Any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, including but not limited to electronic cigarettes or electronic smoking devices.

“Tobacco product” does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.

V. “Tobacco Retailer” means any person or business that sells tobacco, tobacco products, electronic smoking devices, smoking paraphernalia, or any combination thereof, including retail or wholesale sales. “tobacco retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products or smoking paraphernalia sold, offers for sale, exchanged, or offered for exchange.

W. “Tobacco Retailer License” means the license issued pursuant to Section 4 that authorizes retail sales of tobacco, tobacco products, electronic smoking devices, smoking paraphernalia, or any combination thereof, at a certain, fixed location and by a certain tobacco retailer.

X. “Vapor Lounge” or “Vape Lounge” or “Vapor Bar” (also referred to as “smoking device bar” or “electronic smoking device lounge”) means any facility, building, structure or location where customers use an electronic smoking device or other apparatus to deliver an inhaled dose of nicotine or other substance within the establishment.

ARTICLE 2. Requirements and Prohibitions

6.100. 040 TOBACCO RETAILER LICENSE REQUIRED. It shall be unlawful for any person to act as a tobacco retailer in the City of El Cerrito without first obtaining and maintaining a valid tobacco retailer license pursuant to this chapter for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer license is a nuisance as a matter of law.

6.100.060 LAWFUL BUSINESS OPERATION. It shall be a violation of this chapter for a licensee, or any of the licensee’s agents or employees, to violate any local, state, and/or federal laws regarding sales, advertising or display of tobacco products, electronic smoking devices, imitation tobacco products and/or smoking paraphernalia.

6.100.080 DISPLAY OF LICENSE. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

6.100.100 POSITIVE IDENTIFICATION REQUIRED. No person engaged in tobacco retailing shall sell or transfer any tobacco product or smoking paraphernalia to another person who appears to be under the age of twenty-seven (27) years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess the tobacco product, electronic smoking device or smoking paraphernalia.

6.100.120 MINIMUM AGE FOR PERSONS SELLING TOBACCO. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing.

6.100.140 SELF-SERVICE DISPLAYS PROHIBITED. Tobacco retailing, including any tobacco product, electronic smoking device, or smoking paraphernalia, by means of a self-service display is prohibited.

6.100.160 FLAVORED TOBACCO PRODUCTS PROHIBITED. No person engaged in tobacco retailing, or any of the licensee’s agents or employees, shall sell or offer for sale, or to possess with intent to sell or offer for sale, any imitation tobacco products or flavored tobacco product.

1. There shall be a presumption that a tobacco retailer in possession of four or more flavored tobacco products, which shall include individual flavored tobacco products, packages of flavored tobacco products, or any combination thereof, possesses such flavored tobacco products with intent to sell or offer for sale.

6.100.180 SINGLE AND SMALL-PACK CIGARS PROHIBITED. No person engaged in tobacco retailing, or any of the licensee’s agents or employees, shall sell or offer for sale, or to possess with intent to sell or offer for sale:

1. Any single cigar, whether or not packaged for individual sale; 2. Any number of cigars fewer than the number contained in the manufacturer’s original consumer packaging designed for retail sale to a consumer; 3. Any package of cigars containing fewer than five (5) cigars. 4. Subsection one does not apply to the sale or offer for sale of a single cigar for which the retail price exceeds five dollars ($5.00). This minimum retail amount may be adjusted from time to time by a resolution of the City Council.

6.100.200 ORIGINAL LABELING AND PACKAGING. Every tobacco retailer shall maintain on the premises the original labeling and packaging provided by the manufacturer

for all tobacco products that are sold or offered for sale by the establishment separately from the original packaging designed for retail sale to the consumer. The original labeling and packaging from which the contents are sold separately shall be maintained during such time as the contents of the package are offered for sale, and may be disposed of upon the sale of the entire contents of such package.

6.100.220 NO TOBACCO PRODUCT OR ELECTRONIC SMOKING DEVICE USE ON PREMISES. No retailer shall operate a facility, building, structure or location, where customers consume any amount of tobacco product, or where customers use an electronic smoking device or other apparatus to deliver an inhaled dose of nicotine or other substance.

6.100.240 MOBILE VENDING. No license for a tobacco retailer may be issued to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.

6.100.260 TOBACCO SAMPLES PROHIBITED. Except as allowed in adult-only businesses per State and Federal law, no person shall knowingly distribute, furnish without charge, or cause to be furnished without charge for a commercial purpose, cigarettes or other tobacco products including and smoking paraphernalia, or coupons for discounts on the purchase of cigarettes or other tobacco products including and smoking paraphernalia, at any event open to the public or in any public place, including but not limited to any public way, mall or shopping center, park, playground, or any property owned by the City or any other public agency.

6.100.280 FALSE AND MISLEADING ADVERTISING PROHIBITED. A tobacco retailer without a valid tobacco retailer license or a proprietor whose privilege to sell tobacco has been suspended or revoked:

1. Shall keep all tobacco products and smoking paraphernalia out of public view. The public display of tobacco products or smoking paraphernalia in violation of this provision shall constitute tobacco retailing without a license; and 2. Shall not display any advertisement relating to tobacco products or smoking paraphernalia that promotes the sale or distribution of such products from the tobacco retailer’s location or that could lead a reasonable consumer to believe that such products can be obtained at that location. 6.100.300 SIGNIFICANT TOBACCO RETAILERS PROHIBITED. No tobacco retailer shall operate as a “significant tobacco retailer”.

1. No license for a tobacco retailer may be issued if the retailer intends to operate as a significant tobacco retailer. 2. No tobacco retailer may utilize more than twenty percent (20%) of the store display area for tobacco products, smoking paraphernalia or both. 3. No tobacco retailer may derive fifty percent (50%) or more of gross sales receipts from tobacco products, smoking paraphernalia, or both. Existing tobacco retailers operating at the time this ordinance goes into effect may seek an exception to this section by demonstrating that use of a larger display area or percentage of

gross sales receipts preceded the effective date of this Ordinance. The tobacco retailer shall make this showing to the satisfaction of the City. Such tobacco retailers will be allowed to continue to devote the same amount of display area and/or receive up to the same percent of gross sales receipts from tobacco products as demonstrated so long as:

1. A tobacco retailer license and exception to this section are obtained in a timely manner; 2. The tobacco retailer is not closed for business or otherwise suspends tobacco retailing for more than sixty (60) consecutive days; 3. The tobacco retailer does not substantially change the business premises or business operation, as determined by the City; 4. The tobacco retailer does not increase the percent of display area and/or gross sales receipts beyond that store’s previously declared percentages, or the aforementioned limits, whichever is greater; 5. The tobacco retailer does not receive three or more citations for any reason within a five year period; 6. The tobacco retailer retains the right to operate under other applicable laws. 6.100. 320 DRUG PARAPHERNALIA LAWS. It shall be a violation of this chapter for any licensee or any of the licensee’s agents or employees to violate any local, state, or federal law regulating controlled substances or Drug Paraphernalia, such as, for example, California Health and Safety Code section 11364.7, except that conduct authorized pursuant to the state Medical Marijuana Program (California Health and Safety Code sections 11362.7 et seq.) shall not be a violation of this chapter.

6.100.340 CONSIDERATION FOR EXISTING RETAILERS. Existing tobacco retailers have 24 months from adoption of this ordinance to comply with sections 6.100.120 through 6.100.200 inclusive so long as:

1. The tobacco retailer license is obtained within this extension period. 2. The tobacco retailer is not closed for business or otherwise suspends tobacco retailing for more than sixty (60) consecutive days. 3. The tobacco retailer does not substantially change the business premises or business operation. 4. The tobacco retailer does not receive three or more violations within a twenty-four month period. And; 5. The tobacco retailer retains the right to operate under other applicable laws.

Article 3. Location Requirements.

The distances set forth in this section shall be measured as a straight line, without regard to intervening structures or objects, from the property line of the property containing the tobacco retail business to the property line of the property so used at the time of submission of the permit application; provided, however that the distances between tobacco retailers as set forth in subsection b shall be measured from the outside wall of the tenant space of each tobacco retailer.

6.100.360 SCHOOLS AND YOUTH-POPULATED AREAS. No new license may be issued to authorize tobacco retailing within five hundred (500) feet of public and private schools and areas with youth populations as follows:

1. A private or public kindergarten, elementary, middle, junior high, or high school. 2. A library open to the public. 3. A publically-owned park (excluding the Ohlone Greenway and pocket parks as defined in the the San Pablo Avenue Specific Plan) or recreation facility including, but not limited to, clubhouses, the Community Center, the Senior Center, the Swim Center.

EXCEPTION: Existing tobacco retailers operating at the time this Ordinance goes into effect may remain in their current location. In addition, when such businesses are sold in an arm’s length transaction, as determined by the City, the location exception will continue to apply to the new proprietor.

6.100.380 PROXIMITY TO OTHER RETAILERS. No new license may be issued to authorize tobacco retailing within one thousand (1,000) feet of a tobacco retailer location already licensed pursuant to this chapter.

EXCEPTIONS: 1. Existing tobacco retail location at the time this Ordinance goes into effect may remain in their current location. In addition, when such businesses are sold in an arm’s length transaction, as determined by the City, the location exception will continue to apply to the new proprietor. 2. Any new retailer may request an exception to 6.100. 04.020. The request will be reviewed and decided by the body that approves the use or other required permission. In making a decision on an exception, the approving body will consider whether there are specific economic, legal, social, environmental or other benefits of the proposed retail operation that will outweigh the harms. (For example, the decision to grant the exception will take into account if the proposed use will provide a public benefit which will further one or more of the goals of the San Pablo Avenue Specific Plan or other adopted city policy document related to economic development.) The benefits will be stated in a finding(s) that the approving body makes when approving the exception. Article 4. License Application and Procedures.

6.100.400 APPLICATION FORM. Applications for a tobacco retailer license shall be submitted on a form provided by the City.

6.100.420 ISSUANCE PROCEDURE. Upon the receipt of a complete application for a tobacco retailer license and the license fee required by this chapter, the City shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:

1. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter.

2. Tobacco retailing is not an allowed use at the stated location. 3. The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter, that is unlawful pursuant to any portion of the El Cerrito Municipal Code or that is unlawful pursuant to any other law. 4. The location for which a tobacco retailer license is sought lacks a valid state tobacco retailer license by the California Board of Equalization. 5. The applicant has been found in violation of three (3) or more regulations within the last five years pertaining to any local, state, and/or federal laws regarding sales, advertising or display of tobacco products, electronic smoking devices, imitation tobacco products and/or smoking paraphernalia. 6.100.440 APPEAL: Any person aggrieved by any decision of the license administrator with respect to the issuance or refusal to issue such license may follow the process described in ECMC 4.32.150

6.100.460 RENEWAL OF LICENSE. The initial tobacco retailer license will expire at the same time as the retailer’s business license, therefore the initial license may have a term shorter than one year.

The renewal term of a tobacco retailer license is one year. Each tobacco retailer shall apply for the annual renewal of his or her tobacco retailer license and the license fee shall be due and payable in advance of the time the retailer’s business license expires. The applicant for the renewal of a tobacco retailer license shall submit the renewal form, including a sworn statement setting forth such information concerning the applicant's business as may be required by the license administrator to enable the administrator to ascertain if tobacco retail was the principal or core business during the preceding year and if the applicant or employee has been found in violation pertaining to any local, state, and/or federal laws regarding sales, advertising or display of tobacco products, electronic smoking devices, flavored tobacco products, imitation tobacco products and/or smoking paraphernalia.

6.100.480 DELINQUENCY—INSTALLMENTS. For failure to pay a renewal fee of the license when due, the license administrator shall add a penalty at the rate set forth for business license taxes per ECMC 4.32.210, using the tobacco license cost as the basis to determine the penalty amount.

No license shall be issued, nor one which has been suspended or revoked, shall be reinstated or reissued, to any person who, at the time of applying therefore, is indebted to the city for any delinquent license fees, unless such licensee, with the consent of the license administrator, enters into a written agreement with the city through the license administrator to pay such delinquent fees in at least monthly installments extending over a period not to exceed one year.

Such agreement must acknowledge the obligation owed to the city by the licensee, and provide that upon failure to make timely payment of any installment, the whole amount unpaid shall become immediately due and payable and that the current license shall be revocable by the license administrator upon thirty days' notice and, in the event legal action is brought by the city to enforce collection of any amount included in the agreement, such licensee shall pay all costs of suit incurred by the city or its assignee, including reasonable

attorney fees. The execution of such an agreement shall not prevent the prior accrual of penalties on unpaid balances at the rate provided in this section, but no penalties shall accrue on account of fees included in the agreement after the execution of the agreement and the payment of the first installment and during such time as such licensee shall not be in breach of the agreement.

6.100.500 LICENSES NONTRANSFERABLE. A. A tobacco retailer license may not be transferred from one person to another or from one location to another. A new tobacco retailer license is required whenever a tobacco retailing business has a change in proprietor(s).

B. Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:

1. The location has been transferred to new proprietor(s) in an arm’s length transaction; and 2. The new proprietor(s) provide the City with clear and convincing evidence that the new proprietor(s) have acquired or are acquiring the location in an arm’s length transaction. 6.100.520 LICENSE CONVEYS A LIMITED, CONDITIONAL PRIVILEGE. Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer license any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the City identified on the face of the permit. For example, nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this Code or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code section 6404.5. For example, obtaining a tobacco retailer license does not make the retailer a “retail or wholesale tobacco shop” for the purposes of California Labor Code section 6404.5.

6.100.540 FEE FOR LICENSE. The fees for the annual tobacco retailer license shall be established by the City Council and included in the City’s Master Fee Schedule. Fees are payable at the time the establishment obtains or renews its business license. The fee shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and enforcement, but shall not exceed the cost of the regulatory program authorized by this chapter. Annual fees shall not be pro-rated or refunded during the course of the year. Upon adoption of this ordinance, the following fees will be included in the City’s Master Fee Schedule as amended by council resolution and reviewed annually thereafter:

$577 for tobacco retailer license (initial license) $533 for tobacco retailer license renewal

The City may charge a re-inspection fee to off-set the additional staff time required to handle non-compliant businesses. Additional inspections will be billed based on actual costs incurred. To encourage compliance in a timely manner, existing tobacco retailers that are able to demonstrate full compliance with this ordinance at the time of initial application for a tobacco retailer license, shall have the license fee for the first year offset by 50%. Existing tobacco retailers who are able to demonstrate full compliance with this ordinance at the time of license renewal in 2016 shall have that year’s license renewal fee reduced by 25%.

6.100.560 COMPLIANCE MONITORING. Compliance with these regulations shall be enforced by the City’s Community Development Department, in conjunction with the El Cerrito Police Department. The City Manager may designate another position responsible for these duties. The Code Enforcement Officer or his/her designee shall use reasonable efforts to conduct a compliance check visit to each tobacco retailing business at least once during the initial twelve (12) month period, and thereafter on a periodic basis to determine if the tobacco retailer is in compliance with these regulations. Nothing in this section shall create a right of action in any tobacco retailer or other person against the City or its agents in conducting these annual inspections.

6.100.580 Retailers may be subject to additional inspections based on random selection, past violations or complaints. Nothing in this paragraph shall create a right of action in any licensee or other person against the City or its agents.

6.100.600 The City’s Police Department shall develop and carry out inspections, including a “youth decoy” program in an effort to enforce any local, state or federal law related to tobacco sales, especially those related to a minimum age for tobacco purchases or possession.

6.100.620 INSPECTION AND RIGHT OF ENTRY: To the extent permissible by law, the Community Development Director, Chief of Police and their designees shall have the right to enter and inspect any tobacco retailer for the purpose of ensuring compliance with these regulations, provided that any such entry and inspection shall be conducted in a reasonable manner AND whenever there is reason to suspect a violation of any of the provisions of the tobacco retailer regulations.

Police officers and sheriff's deputies are sworn law enforcement officers (peace officers) with powers of arrest. Whether in plain clothes or uniform, peace officers have the legal right to visit and inspect any licensed premises at any time during business hours without a search warrant upon presentation of appropriate credentials. This includes inspecting the bar and back bar, store room, office, closed or locked cabinets, safes, kitchen, or any other area within the licensed premises. Inspections will be requested or conducted no more than once in a 24-hour period. Refusal to allow inspection will be a violation of this Chapter.

6.100.640 SUSPENSION OR REVOCATION OF LICENSE FOR VIOLATION. In addition to any other penalty authorized by law, a tobacco retailer license shall be suspended or revoked if any court of competent jurisdiction determines, or the City finds based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee’s agents or employees, has violated any of the

requirements, conditions, or prohibitions of this chapter or has pleaded guilty, “no contest” or its equivalent, or admitted to a violation of any law designated in this chapter.

1. Upon a finding by the City of a first violation of this chapter, at a location within any five year period, the privilege to sell tobacco, tobacco products, electronic delivery devises and smoking paraphernalia shall be suspended for ten (10) days. 2. Upon a finding by the City of a second violation of this chapter at a location within any five year period, the privilege to sell tobacco, tobacco products, electronic delivery devises and smoking paraphernalia shall be suspended for thirty (30) days. 3. Upon a finding by the City of a third violation of this chapter at a location within any five year period, the privilege to sell tobacco, tobacco products, electronic delivery devises and smoking paraphernalia shall be suspended for sixty (60) days. 4. Upon a finding by the City of four or more violations of this chapter at a location within any five year period, license shall be revoked. Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:

6.100.660 PRODUCT REMOVAL DURING SUSPENSION OR REVOCATION. To ensure customers and the public are aware of periods of suspension or revocation, all tobacco-related products, paraphernalia, and advertising must be removed from public view during periods of suspension or revocation. (1)During periods of suspension or revocation, the City shall post a notice to the public on the property that states “This retailer has violated important public health laws regulating tobacco. Tobacco sales are currently banned at this location.” The notice will be at least 22” wide and placed nearby the main entrance to the store

6.100.680 APPEAL OF SUSPENSION OR REVOCATION. Any person or business found to be in violation of this chapter shall have the right to a hearing in accordance with ECMC Chapter 1.14, “Administrative Penalties”.

Article 5. Penalties 6.100.700 A. Violations of this chapter are hereby declared to be public nuisances. B. Violations of this chapter may be prosecuted as infractions or misdemeanors when the interests of justice so require. C. Violations of this chapter are subject to a civil action brought by the City Attorney, punishable by a civil fine not less than two hundred fifty dollars ($250) and not exceeding one thousand dollars ($1,000) per violation. D. Any person who is found to have violated this chapter shall be liable for such costs, expenses and disbursements paid or incurred by the City or any of its contractors in the

correction, abatement, prosecution of, or administrative hearing on, the violation. Reinspection fees to ascertain compliance with previously noticed violations shall be charged to the owner of the establishment, as may be set by the City Council in the Master Fee Schedule.

6.100.720 TOBACCO RETAILING WITHOUT A VALID LICENSE. A. In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the City finds based on a preponderance of evidence, after notice and an opportunity to be heard, that any person or business has engaged in tobacco retailing at a location without a valid tobacco retailer license, either directly or through the person’s agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailer license as follows:

1. After a first violation of this section at a location within any five (5) year period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until thirty (30) days have passed from the date of the violation. 2. After a second violation of this section at a location within any five (5) year period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until ninety (90) days have passed from the date of the violation. 3. After of a third or subsequent violation of this section at a location within any five (5) year period, the tobacco retailer license will be revoked and no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until two (2) years have passed from the date of the violation.

B. For the purposes of the civil remedies provided in this chapter: 1. Each day on which a tobacco product or smoking paraphernalia is offered for sale is a violation of this chapter; or 2. Each individual retail tobacco product and each individual retail item of smoking paraphernalia that is distributed, sold, or offered for sale in violation of this chapter shall constitute a separate violation of this chapter.

6.100.740 AGREED PENALTY IN LIEU OF HEARING. For a first or second alleged violation of this chapter within any twenty-four (24) month period, the City Manager may allow a tobacco retailer alleged to have violated this chapter to agree to the penalties provided in this section in lieu of the penalties that would otherwise apply under this chapter and to forego a hearing on the allegations.. Agreements for penalties in lieu of a hearing shall not be confidential and shall contain the following terms as well as any other non-criminal provisions established by the City Manager in the interests of justice:

A After a first alleged violation of this chapter at a location, the retailer shall agree to all of the following penalties (inclusive): 1. An agreement to stop acting as a tobacco retailer for two (2) days. 2. An administrative penalty of one thousand dollars ($1,000).

3. Posting of a sign outside near the store’s main entrance for the two days during which sales are suspended, that is at least at least 22” wide and states “This retailer has violated important public health laws regulating tobacco. Tobacco sales are currently banned at this location.” 4. An admission that the violation occurred and an acknowledgment that the violation will be considered in determining the fine or penalty for any future violation. B. After a second alleged violation of this chapter at a location within any twenty-four (24) month period, the retailer shall agree to all of the following penalties (inclusive): 1. An agreement to stop acting as a tobacco retailer for seven (7) days. 2. An administrative penalty of at least five thousand dollars ($5,000). 3. Posting of a sign outside near the store’s main entrance for the two days during which sales are suspended, that is at least at least 22” wide and states “This retailer has violated important public health laws regulating tobacco. Tobacco sales are currently banned at this location.” 4. An admission that the violation occurred and an acknowledgment that the violation will be considered in determining the fine or penalty for any future violations.

SECTION 4. SEVERABILITY If any section, subsection, sentence, clause or phrase of this chapter is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter. The city council hereby declares that it would have passed the ordinance codified in this chapter, and each and every section, subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to whether any portion of this chapter would be subsequently declared invalid or unconstitutional.

SECTION 5. NOTICING, POSTING AND PUBLICATION This ordinance is adopted pursuant to the procedures established by state law, and all required notices have been given and the public hearing has been properly held and conducted.

SECTION 6. EFFECTIVE DATE. This ordinance shall take effect on December 1, 2015.

THE FOREGOING ORDINANCE was introduced at a regular meeting of the City Council on ______, 2015 and passed by the following vote:

AYES: NOES: ABSENT: ABSTAIN:

ADOPTED AND ORDERED published at a regular meeting of the City Council held on ______, 2015 and passed by the following vote:

AYES: NOES: ABSENT:

ABSTAIN:

APPROVED:

______Mark Friedman, Mayor

ATTEST:

______Cheryl Morse, City Clerk

IN WITNESS of this action, I sign this document and affix the corporate seal of the City of El Cerrito on ______, 2015.

______Cheryl Morse, City Clerk

ORDINANCE CERTIFICATION

I, Cheryl Morse, City Clerk of the City of El Cerrito, do hereby certify that this Ordinance is the true and correct original Ordinance No. 2015-XX of the City of El Cerrito; that said Ordinance was duly enacted and adopted by the City Council of the City of El Cerrito at a meeting of the City Council held on the ___ day of _____, 2015; and that said Ordinance has been published and/or posted in the manner required by law.

WITNESS my hand and the Official Seal of the City of El Cerrito, California, this ___ day of ______, 2015.

______Cheryl Morse, City Clerk

i U.S. Department of Health and Human Services. 2014. The Health Consequences of Smoking — 50 Years of Progress. A Report of the Surgeon General, www.surgeongeneral.gov/library/reports/50-years-of- progress/full-report.pdf ii Henriksen L, Feighery EC, Schleicher NC, et al. 2008. “Is Adolescent Smoking Related to Density and Proximity of Tobacco Outlets and Retail Cigarette Advertising Near Schools?” Preventive Medicine 47: 210- 214. v Chapman R. 2012. State Health Officer’s Report on Tobacco Use and Promotion in California. California Department of Public Health, California Tobacco Control Program, p. 8, www.cdph.ca.gov/Documents/EMBARGOED%20State%20Health%20Officers%20Report%20on%20Tobacc o.pdf vi Cal. Health & Safety Code §§ 11014.5, 11364.7. vii Chapman, R. 2012. State Health Officer’s Report on Tobacco Use and Promotion in California. California

Department of Public Health, California Tobacco Control Program, p. 5, www.cdph.ca.gov/Documents/EMBARGOED%20State%20Health%20Officers%20Report%20on%20Tobacc o.pdf viii Chapman, R. 2012. State Health Officer’s Report on Tobacco Use and Promotion in California. California Department of Public Health, California Tobacco Control Program, p. 6, www.cdph.ca.gov/Documents/EMBARGOED%20State%20Health%20Officers%20Report%20on%20Tobacc o.pdf ix Answers About Black & Milds, Swisher Sweets, and Other Little Cigars and Cigarillos. Available at: http://smokefree.gov/tob-cigarillo.aspx. x 21 C.F.R. § 1140.14(d). xi 21 U.S.C. § 387g. xii Carpenter CM, Wayne GF, Pauly JL, et al. 2005. “New Cigarette Brands with Flavors that Appeal to Youth: Tobacco Marketing Strategies.” Health Affairs. 24(6): 1601–1610; Lewis M and Wackowski O. 2006. “Dealing with an Innovative Industry: A Look at Flavored Cigarettes Promoted by Mainstream Brands.” American Journal of Public Health. 96(2): 244–251; Connolly GN. 2004. “Sweet and Spicy Flavours: New Brands for Minorities and Youth.” Tobacco Control. 13(3): 211–212; U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 537, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf. xiii U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 539, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf. xiv 21 U.S.C. § 387g. xv U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 164, 205, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf; Morris DS and Fiala SC. 2013. “Flavoured, Non-cigarette Tobacco for Sale in the USA: An Inventory Analysis of Internet Retailers.” Tobacco Control. [Electronic publication ahead of print], http://tobaccocontrol.bmj.com/content/early/2013/08/08/tobaccocontrol-2013-051059.full. xvi Food and Drug Administration. 2011. Fact Sheet: Flavored tobacco products, www.fda.gov/downloads/TobaccoProducts/ProtectingKidsfromTobacco/FlavoredTobacco/UCM183214.pdf; U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 539, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.

xvii King BA, Tynan MA, Dube SR, et al. 2013. “Flavored-Little-Cigar and Flavored-Cigarette Use Among U.S. Middle and High School Students.” Journal of Adolescent Health. [Article in press], www.jahonline.org/article/S1054-139X%2813%2900415-1/abstract. xviii U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 539, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.

xix Centers for Disease Control & Prevention. 2013. “Electronic Cigarette Use Among Middle and High School Students—United States, 2011–2012,” Morbidity and Mortality Weekly Report (MMWR) 62(35): 729–730. xx Cameron JM, Howell DN, White JR, et al. 2013. “Variable and Potentially Fatal Amounts of Nicotine in E- cigarette Nicotine Solutions.” Tobacco Control. [Electronic publication ahead of print], http://tobaccocontrol.bmj.com/content/early/2013/02/12/tobaccocontrol-2012-050604.full; U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 549, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco- use/full-report.pdf. xxi Press Release, State of California Department of Justice, Office of the Attorney General, Brown Announces Electronic Cigarette Maker's Agreement to Stop Deceptive Marketing and Sales to Minors (Aug. 3, 2010), oag.ca.gov/news/press-releases/brown-announces-electronic-cigarette-makers-agreement-stop-deceptive- marketing. xxii American Lung Association in California, Center for Tobacco Policy & Organizing. 2013. Tobacco Retail Licensing is Effective, http://center4tobaccopolicy.org/wp-content/uploads/2013/09/Tobacco-Retailer- Licensing-is-Effective-September-2013.pdf xxiii California Department of Health Services, Tobacco Control Section. 2003. Final Report, Independent Evaluation of the California Tobacco Control Prevention & Education Program: Waves 1, 2, and 3 (1996- 2000), p. 110, www.cdph.ca.gov/programs/tobacco/Documents/WavesComplete.pdf xxiv Ma GX, Shive S and Tracy M. 2001. “The Effects of Licensing and Inspection Enforcement to Reduce Tobacco Sales to Minors in Greater Philadelphia, 1994-1998.” Addictive Behaviors 26(5): 677-687. xxv Forster JL, Murray DM, Wolfson M, et al. 1988. “The Effects of Community Policies to Reduce Youth Access to Tobacco.” American Journal of Public Health 88(8): 1193-1197. xxvi American Nonsmokers’ Rights Foundation. 2012. California Municipalities with Laws Restricting Youth Access to Tobacco, http://changelabsolutions.org/publications/anrf-list

The California Healthy Kids Survey (CHKS) is a comprehensive youth health risk and resilience data collection service sponsored by the California Department of Education (CDE). Reports for El Cerrito schools are available on the School District’s website at http://www.wccusd.net/Page/3645.

Staff compiled the following information from the 2013-14 California Healthy Kids Surveys for El Cerrito High School & Portola Middle School (now Korematsu Middle School). Among other topics, the survey included information on drug, alcohol and tobacco use by students, as well as the perception of harm and perceived difficultly to obtain cigarettes. (Note: Middle School students were not asked all the questions included in the High School survey.)

Percent of Students who have never used …. 7th 9th 10th 11th 12th Grade Grade Grade Grade Grade Smokeless tobacco 98 97 96 96 95 A whole cigarette 98 92 89 87 84 E-cigarette or other NND 97 83 78 79 81 Marijuana 97 78 62 62 62 Alcohol (one full drink) 92 72 62 53 58

Percent of Students who used …. in the last 30 days: 9th 10th 11th 12th Grade Grade Grade Grade Used a drug or alcohol 21% 29% 32% 35% Used e-cigarette 9% 9% 5% 6% Smoked cigarette 5% 2% 4% 3% Used smokeless tobacco use 1% 1% 2% 1%

Perception of Harm from Cigarettes: 7th 9th 10th 11th 12th Grade Grade Grade Grade Grade Occasional smoking great harm 33 36 40 43 37 Smoking 1-2 packs per day great harm 55 66 72 71 72 Strongly disapprove of peer smoking 71 61 64 58 62 1 or more packs of cigarettes a day

Perceived Difficulty of Obtaining Cigarettes: 7th 9th 10th 11th 12th Grade Grade Grade Grade Grade Very Difficult 17 10 14 8 10 Fairly Difficult 7 9 9 6 7 Fairly Easy 16 24 22 29 22 Very Easy 10 21 23 30 39 Don’t' Know 10 36 33 27 23

State of Tobacco Control 2015 – California Local Grades

ALAMEDA COUNTY

County Alameda Albany Berkeley Dublin Emeryville Fremont Hayward Livermore Newark Oakland Piedmont Pleasanton San LeandroUnion City Unincorporated Overall Tobacco Control Grade B B A A C C B D D B C D C A D Total Points 8 10 13 11 5 6 8 2 3 9 6 3 5 12 4 Smokefree Outdoor Air A A A A B A B D C B A C A A B Dining 2 2 4 4 4 4 4 2 4 4 4 4 4 4 4 Entryways 4 4 4 4 4 4 0 2 4 4 4 2 4 4 4 Public Events 4 4 4 2 0 4 2 0 0 0 4 0 4 4 0 Recreation Areas 4 4 4 4 4 4 4 2 0 4 4 0 4 4 4 Service Areas 4 4 4 4 4 4 4 0 4 4 4 4 4 4 4 Sidewalks 1 1 1 0 0 1 1 0 0 0 1 0 0 0 0 Worksites 1 1 1 0 1 1 0 0 0 0 1 0 1 1 0 Total Points 20 20 22 18 17 22 15 6 12 16 22 10 21 21 16 Smokefree Housing A C A B C C F D D C C D D B D Nonsmoking Apartments 4 0 4 2 0 0 0 0 0 0 0 0 0 4 0 Nonsmoking Condominiums 4 0 4 2 0 0 0 0 0 0 0 0 0 0 0 Nonsmoking Common Areas 4 4 4 4 4 4 0 2 2 4 4 2 2 4 2 Nonsmoking Housing Authority 1 n/a 0 0 n/a n/a n/a 0 n/a 0 n/a 1 n/a n/a 0 Total Points 13 4 12 8 4 4 0 2 2 4 4 3 2 8 2 Reducing Sales of Tobacco Products F A A B F F A F F A F F F A F Tobacco Retailer Licensing 0 4 4 3 0 0 4 0 0 4 0 0 0 4 0 Total Points 0 4 4 3 0 0 4 0 0 4 0 0 0 4 0 Emerging Issues Bonus Points Emerging Products Definition - Secondhand Smoke 0 0 1 1 1 1 1 0 0 0 1 1 1 1 0 Emerging Products Definition - Licensing 0 1 0 1 0 0 1 0 0 1 0 0 0 1 0 Retailer Location Restrictions 1 1 1 1 1 0 1 0 1 1 0 0 1 1 0 Sampling of Tobacco Products 0 0 1 1 1 1 1 1 0 1 0 1 0 1 1 Sale of Tobacco Products in Pharmacies 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 Flavored Tobacco Products 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 Minimum Pack Size of Cigars 0 0 0 0 0 0 1 0 0 0 0 0 0 1 0 Total Points 1 2 4 4 3 2 6 1 1 3 1 2 2 5 1

Overall Tobacco Control Grade: A (11-12), B (8-10), C (5-7), D (2-4), F (0-1); Smokefree Housing Grade: A (11+), B (8-10), C (5-7), D (2-4), F (0-1) determined by grades and points from other three categories – A (4), B (3), C (2), D (1), F (0) Reducing Sales of Tobacco Products Grade: A (4+), B (3), C (2), D (1), F (0) Smokefree Outdoor Air Grade: A (18+), B (13-17), C (8-12), D (3-7), F (0-2)

American Lung Association in California | State of Tobacco Control 2015 – California Local Grades 31 State of Tobacco Control 2015 – California Local Grades

CONTRA COSTA COUNTY

County Antioch Brentwood Clayton Concord Danville El Cerrito Hercules Lafayette Martinez Moraga Oakley Orinda Pinole Pittsburg Pleasant HillRichmond San Pablo San Ramon Walnut Creek Unincorporated Overall Tobacco Control Grade F F D C D B F C C F C F C F C A D C B B Total Points 0 0 2 6 2 8 0 7 6 0 6 0 7 1 5 13 4 7 8 10 Smokefree Outdoor Air F F D C D A F A A F A F A D B A F A A A Dining 0 0 0 2 0 4 0 4 4 0 4 0 4 0 2 4 0 4 4 4 Entryways 0 0 0 0 0 4 0 4 4 0 4 0 4 0 3 4 0 4 4 4 Public Events 0 0 0 2 0 4 0 4 4 0 4 0 4 0 3 4 0 4 0 4 Recreation Areas 0 0 4 2 4 4 0 4 4 0 4 2 4 4 4 4 0 4 4 4 Service Areas 0 0 0 2 0 4 0 4 4 0 4 0 4 0 4 4 0 4 4 4 Sidewalks 0 0 0 1 0 1 0 1 0 0 0 0 0 0 0 0 0 0 1 0 Worksites 0 0 0 0 0 1 0 0 1 0 0 0 0 0 0 0 0 0 1 0 Total Points 0 0 4 9 4 22 0 21 21 0 20 2 20 4 16 20 0 20 18 20 Smokefree Housing F F F F F A F B C F C F C F C A F C A C Nonsmoking Apartments 0 0 0 0 0 4 0 2 0 0 1 0 1 0 1 4 0 0 4 1 Nonsmoking Condominiums 0 0 0 0 0 4 0 2 0 0 1 0 1 0 0 4 0 0 4 1 Nonsmoking Common Areas 0 0 0 0 0 4 0 4 4 0 4 0 4 0 4 4 0 4 4 4 Nonsmoking Housing Authority n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a 0 n/a 1 n/a n/a n/a 0 Total Points 0 0 0 0 0 12 0 8 4 0 6 0 6 0 5 13 0 4 12 6 Reducing Sales of Tobacco Products F F D A D F F F F F F F D F F A A D F A Tobacco Retailer Licensing 0 0 1 4 1 0 0 0 0 0 0 0 1 0 0 4 4 1 0 4 Total Points 0 0 1 4 1 0 0 0 0 0 0 0 1 0 0 4 4 1 0 4 Emerging Issues Bonus Points Emerging Products Def - Secondhand Smoke 0 0 0 1 0 1 0 0 1 0 1 0 0 1 0 1 0 0 1 1 Emerging Products Def - Licensing 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 1 Retailer Location Restrictions 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Sampling of Tobacco Products 1 0 1 1 0 0 1 1 1 0 0 1 1 1 1 1 0 1 1 1 Sale of Tobacco Products in Pharmacies 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 Flavored Tobacco Products 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Minimum Pack Size of Cigars 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Total Points 1 0 1 3 0 1 1 1 2 0 1 1 1 2 1 4 0 1 2 3

American Lung Association in California | State of Tobacco Control 2015 – California Local Grades 37

Agenda Item No. ___ Attachment ___

Current Tobacco Retailers in El Cerrito by Store Type

Red: retail shop, food service, convenience store (3) Blue: Gas Station (5) Green: Grocery Store or Drugstore over 10,000’ (3) Yellow: Liquor Store (4) Purple: tobacco shop (2) Light Blue: no longer sells tobacco (3) Orange: Private Club (1)

Store type Licensed Location school school park park existing within within within within TR 500 ' 1000' 500 ' 1000' within 1000' A retail shop 7022 Stockton Ave no no no no no

B retail shop 10963 San Pablo Ave no yes OG OG yes

C gas station 10602 San Pablo Ave no no OG OG yes

D gas station 6700 Fairmount Ave no yes OG OG yes

E gas station 11687 San Pablo Ave no no no no yes

F gas station 11319 San Pablo Ave yes yes OG yes yes

G gas station 3160 Carlson Blvd no no no yes yes

H golf course 7901 Cutting Blvd yes yes no yes no

I Large Format Store 11565 San Pablo Ave no no OG OG yes

J Large Format Store 1000 El Cerrito Plaza yes yes OG yes yes

K Large Format Store 11450 San Pablo Ave no yes OG yes yes

L liquor store 11299 San Pablo Ave yes yes OG yes yes

M liquor store 10560 San Pablo Ave no no OG OG yes

N liquor store 11382 San Pablo Ave no yes OG yes yes

O liquor store 10012-14 San Pablo Ave no no no yes yes

P retail shop 10374 San Pablo Ave yes yes yes yes yes

Q tobacco shop 10382 San Pablo Ave yes yes yes yes yes

R tobacco shop 10170 San Pablo Ave no yes no OG yes

S NO LONGER SELLS 9937 San Pablo Ave no no yes yes yes TOBACCO T NO LONGER SELLS 10650 San Pablo Ave no no OG OG yes TOBACCO U NO LONGER SELLS 670 El Cerrito Plaza no yes no yes yes TOBACCO W VACANT (former 10636 San Pablo Ave no no OG no yes retailer)

TR = Tobacco Retailer OG = Ohlone Greenway El Cerrito: Stores Selling Tobacco by Proximity to Schools, Parks, and Youth Sensitive Sites*, 2014

S o Ray n

Za o E ra T m l a l u F e r Tehiyah Day School a b l a

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r Poinsett Park Tassajara Park & Pottery Studio d tt lin e is sa s a Ro in M lp o ir a P a m a d J V l Ludwig o T i a r s n d ta o a S D n p

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n g a a

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d M n a P i Montessori Family School a

e A s F l i M ern a u s n

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d r View T h E a u R r i C s f t V le o Baxter Gateway Park i hi Canyon Trail Park & Art Center s R O o t t a a n t lo Prospect Sierra Elementary n W n a Co T W g il K G a e d H p i B c e ar s ls e a y pe c o l t r o n V s tt ian lk Made i ri s ul ra e ll r J a w o e a M g W W in g t t Kenilworth ot J t n Madera Elementary n u u a K n y c C Snowdon G ti wa o k T n l a a t D Glen Mawr W e h s v o Un o r nam o s B ed C n A L Stre u Summit Public School K2 et s r B ib a h l s r r i a e e t i n g y r y L r o s n e g la c a t R Doug t J ot y r o o a L o d n m g n n o n e in e ll a e C rk i L L M o B s Pa H E k w g e i n d e I b l la l e x m e P i t 8 e k ro B t i R 0 n r la e W y t B tr ent r Arlington Park & Clubhouse g y o K m e t P o a w Ernest I h 8 n g s 0 in t D Victor k e o c r V n Bruce King Memorial Dog Park u il B la N C ue a L va ro e l n Fred T. Korematsu Middle School (January 2016)Cameron Elementary r e o C v b e r l

d Castro Park & Clubhouse a

r h G A t H r

t K Hillside Natural Area k 3 J in 5 a a Te 6 a g rra 5 v ce 5 y 5 n L n e St. John the Baptist le o K Cypre i a S r n ss O l e a s e na w c B n h o r o ke s D e u lo t T in n t D C erra n n s ce g o R c rn C is e rlBu o to d C e Ea r a i n a n M L E a v N P B f l a t l i e a t ib m n N b a a r a r v r a t e M o r a k e a E i e s t r r l C r t v v l l S e y o li e e o b e e a o r s G e ll r w v e R t e ie t ls i a t v w on to ea kt n S c S to h S e Fred T. Korematsu Middle School v y l a i w t Prospect Sierra School n ive id Dr hm Community Center S c e S P a o Cerrito Vista Park a l m v o s rt L r A i i o i e o e P b s s v e h n w Huber Park e o A r M b a B t u a y r lr y a P

a e n r c o k rra t Av S Te is il a o v a n ld e L a L P W e s ka a x is re b L k u in E l K i h o g b c a S e e t k ic a t e o re e v o r H u r r n t E a e n y v S

e e i y a i e ek n E w ur n rro Two stores o ton Library a E l ck rek B at this location Sto Senior Center Eu A l b e Fairmont Park & ClubhouseFairmont Elementary m El Cerrito Senior High a B r l a e Susan l E r

a ! l R Store Selling Tobacco m i E N c C h v o n e o l m r co v l Lin r l u o e e tra s w n C y 500 ft Buffer for Schools, Parks, Sites lo n t l e a a il t l C w W O l k L d a oc S i a R o b y d a k t a e o r n o r n 1,000 ft Store Buffer D t St. Jerome Catholic Elementary l P y E C la a vi a A r b l l s o Central Park Y o Harding Park & ClubhouseHarding Elementary El Cerrito City Limits o S n K C s a e e a tral n n E B y e m r C m l e C C B i R t C h e e a e C r o e l r l e u B l m a r n n yn o r r t L o l i s e s s t n n o A t se o s n

La a n

a o

n m

o Creekside Park Cerrito Creek Park a

t o Ward

n P

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S * Sensitive Site: Community Center, Senior Center, Library. Albany Middle School R Buffer from school, park, and site boundary. 0 0.15 0.3 0.6 Miles Stores geocoded to parcel points.

Contra Costa Public Health, Epidemiology, Planning and Evaluation, February 2015 Source: California Board of Equalization, January 2014. 02.27.15

Contra Costa Tobacco Prevention Coalition

Protecting Youth from Tobacco Influences: Policy Options to Address the Retail Environment

December, 2014

With information from the “Model California Ordinance Requiring a Tobacco Retailer License” and other model tobacco control policies published by ChangeLab Solutions

This paper was adapted from the paper A Tool for Reducing Youth Access to Tobacco: The Tobacco Retailer License, originally distributed in March, 2005, and updated in 2011 and 2013. It has most recently been updated in November, 2014, to reflect new findings and tobacco prevention policy options related to the Retail Environment.

Made possible by funds received from the Tobacco Health Protection Act of 1988- Proposition 99, under Contract Numbers 04-07, 10-07, and 13-07 with the California Department of Public Health, Tobacco Control Program.

I. The Problem of Youth Tobacco Use and the Retail Environment

While we have made good progress in Contra Costa in reducing both adult and youth tobacco use, youth are still exposed to tobacco industry influences in their communities, almost 700 children under 18 years of age begin smoking daily in the US,1 and 3.9 million Californians still smoke. In 2011, the tobacco industry spent $605 million2 advertising and promoting tobacco products in California, with 90% of its marketing budget spent in the retail store environment.3 Exposure to tobacco marketing in stores increases tobacco experimentation and use by youth4 and is more powerful than peer pressure.5 Research also shows that the number of stores selling tobacco in a community can lead to higher rates of youth smoking. In addition to advertising and marketing influences, some Contra Costa cities have illegal tobacco sales rates to youth that are as high as 26%.6

In summer, 2013, in order to get a picture of what tobacco industry influences look like in Contra Costa, the Tobacco Prevention Coalition participated in a county-wide tobacco store survey. Over 300 stores were surveyed, and these included convenience, supermarket, liquor, tobacco, small market, discount, drug and big box stores, except for stores that prohibit youth from entry or stores that require membership.

The Contra Costa Store Survey7 findings confirmed that tobacco is still being promoted to youth and that:  Seven in 10 stores in Contra Costa have exterior advertising for unhealthy products like tobacco, alcohol and sugary drinks. This compares with 1 in 10 stores with exterior advertising for healthy items including fruits, vegetables and non-fat/low-fat milk.

 Over 80% of stores near schools in Contra Costa sell flavored (non- cigarette) tobacco products like “watermelon” and “tropical blast” flavored cigarillos and little cigars. Many of these products sell for under a dollar, making them very attractive and affordable for youth.

1 Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies. Results from the 2013 National Survey on Drug Use and Health: Summary of National Findings. Available at: http://www.samhsa.gov/data/sites/default/files/NSDUHresultsPDFWHTML2013/Web/NSDUHresults2013.pdf 2 Based on the 2011 Federal Trade Commission Report and California state estimate methodology used by Campaign For Tobacco Free Kids: http://www.tobaccofreekids.org/facts_issues/toll_us/california 3 U.S. Federal Trade Commission (FTC), Cigarette Report for 2007 and 2008, 2011, http://www.ftc.gov/os/2011/07/110729cigarettereport.pdf. FTC, Smokeless Tobacco Report for 2007 and 2008, 2011, http://www.ftc.gov/os/2011/07/110729smokelesstobaccoreport.pdf. Data for top 6 manufacturers only. 4 DiFranza, J.R., Wellman, R.J., Sargent, J.D., Weitzman, M., Hipple, B.J., Winickoff, J.P., Tobacco promotion and the initiation of tobacco use: assessing the evidence for causality. Pediatrics, 2006. 117(6): p. e1237-1248. http://pediatrics.aappublications.org/content/117/6/e1237.abstract%20(25 and National Cancer Institute, The Role of the Media in Promoting and Reducing Tobacco Use: TobaccoControl Monograph No. 19, 2008, U.S. Department of Health and Human Services, National Institutes of Health: Bethesda, MD. http://cancercontrol.cancer.gov/brp/tcrb/monographs/19/index.html 5 Campaign for Tobacco-Free Kids. Toll of Tobacco in the United States of America. 2011. http://www.tobaccofreekids.org/research/factsheets/pdf/0072.pdf. 6 California Department of Public Health, Food and Drug Branch, youth decoy operation results 2009. 7 2013 Healthy Stores for a Healthy Community (HSHC) Survey, California Department of Public Health. 2

 Over eight in 10 stores sell packs of 5 or less of cigarillos/little cigars, and close to 70% of stores sell these products as "singles". These products are also available very cheaply, making them affordable for youth. Eighty-five percent of tobacco retailers sell the most popular brand of cigarillos for under $1.

 Close to half of all stores in Contra Costa sell e-cigarettes. The number of stores that are selling e-cigarettes statewide has quadrupled in the last two years, from just over 10% in 2011 to over 45% in 2013. The percentage of high school students who reported ever using e-cigarettes doubled between 2011 and 2012. Many of these products are attractive to youth because they are relatively cheap and come in flavors like cherry-limeade and mint.

Location and Density. In addition to the Store Survey, information on the location and density of stores selling tobacco was collected and mapped. This information found that:

 34% of stores selling tobacco throughout the County are located within 1000 feet of a school. One-third of youth who buy tobacco purchase their products within 1000 feet of school.8  Every school day, youth are exposed to tobacco influences such as advertising and product promotions on their way to and from school.

 Many of the Contra Costa communities with high numbers of stores selling tobacco near schools are low-income. Low-income communities have high rates of smoking and tobacco-related diseases like heart disease, cancers and stroke. The Campaign for Tobacco Free Kids estimates that 441,000 kids now under the age of 18 in CA will ultimately die prematurely from smoking.

Illegal Tobacco Sales to Minors. Despite long-standing state laws prohibiting tobacco sales to minors, youth continue to obtain cigarettes and other tobacco products at alarming rates. Each day, nearly 2900 children in the US under 18 years of age smoke their first cigarette, and almost 700 children under 18 years of age begin smoking daily.9 According to the California Health Department’s Food and Drug Branch, the sales rate to minors in Contra Costa County overall is 20%; it is as high as 27% in cities without implementation of a strong tobacco retailer licensing ordinance.10 In other words, stores in some Contra Costa communities sell tobacco to youth one in every four times youth attempt to buy cigarettes.

8 Lipton R, Banerjee A, Levy D, Manzanilla N, Cochrane M., The spatial distribution of underage tobacco sales in Los Angeles. Subst Use Misuse. 2008;43(11):1594-614. 9 Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies. Results from the 2013 National Survey on Drug Use and Health: Summary of National Findings. Available at: http://www.samhsa.gov/data/sites/default/files/NSDUHresultsPDFWHTML2013/Web/NSDUHresults2 013.pdf 10 California Department of Health Services Food and Drug Branch Compliance Checks, 2010. 3

Ninety percent of people who smoke as adults begin before the age of 18.11 Policies to improve the health of our communities and to reduce youth smoking must address both youth exposure to tobacco influences in the retail environment and youth access to tobacco products.

II. Policy Efforts in Contra Costa County

Contra Costa policymakers, youth and adult advocates, and government officials have been working to address the problem of youth tobacco use since the mid-1990’s. In 1997, the Mayor’s Conference and Board of Supervisors asked the Contra Costa Tobacco Prevention Project and Tobacco Prevention Coalition to recommend policy options to reduce youth tobacco use. Between 1998 and 2001, the Tobacco Prevention Coalition and TIGHT (Tobacco Industry Gets Hammered by Teens), spearheaded successful efforts to encourage the Board of Supervisors and 17 of Contra Costa’s 19 City Councils to adopt Tobacco-Free Youth Ordinances (TFYO) and Tobacco Retailer Licensing Ordinances (TRLO) in order to reduce the demand for tobacco by minors and to decrease youth access to tobacco products. Since then, the Tobacco Prevention Coalition has worked with other youth groups, including ETA (Empowerment Through Action), and the Contra Costa County Youth Commission, to advocate for strong, model Tobacco Retailer Licensing policies to reduce illegal tobacco sales to minors across the County.

The TFYO restricted tobacco advertising and promotions and banned self-service displays of tobacco products, requiring tobacco products to be sold with employee assistance.12 Self- service displays were typically located on or near the counter and allowed the customer to get his or her own tobacco products, making it less likely that the store clerk would ask for identification. The TFYO contained a provision to license tobacco retailers in all but one city.13 In 1995, the California STAKE Act banned the display of any tobacco product or paraphernalia through self-service displays, but this policy does not apply to electronic smoking devices.

The model tobacco retailer licensing ordinance required that all tobacco retailers purchase a local license before they may sell tobacco in the community, and provided for suspension of that license if a violation of any local, state or federal law occurred. This has proven to be the only effective model of tobacco retailer licensing and reducing illegal sales to minors, and has been adopted and implemented by the County.

The 2013 Contra Costa Store Survey provided concrete, scientific evidence on how the tobacco industry continues to target youth and lower-income communities through the retail

11 SAMHSA, Calculated based on data in 2012 National Survey on Drug Use and Health. 12 The Supreme Court ruled in 2001 that local government cannot restrict tobacco advertising because such restrictions were pre-empted by the Federal Cigarette Labeling and Advertising Act. As a result, the County and the cities stopped enforcing this provision of the TFYO. 13 The Town of Moraga did not adopt a licensing ordinance. 4

environment. In addition to Tobacco Retailer Licensing, the Tobacco Prevention Coalition recently prioritized the following retail environment policies for action:  Prohibit the sale of tobacco within 1000 feet of schools and other youth sensitive areas;  Prohibit the location of new tobacco retailers within 500 feet of each other and existing retailers;  Prohibit the sale of flavored (non-cigarette) tobacco products near schools and other youth sensitive areas;  Require minimum pack sizes for cigars, including cigarillos and little cigars; and  Prohibit the sale of menthol flavored cigarettes and other menthol flavored tobacco products near schools and other youth sensitive areas.

IV. Policies to Reduce Tobacco Influences in the Community

Since 1998, the Contra Costa Tobacco Prevention Coalition (TPC) has recommended that cities adopt and enforce strong tobacco retailer licensing ordinances in order to reduce the rate of illegal tobacco sales to minors and to encourage compliance with all local, state and federal tobacco laws. As strong tobacco retailer licensing laws include compliance checks and enforcement, as well as suspension for violations of tobacco laws, it is also a mechanism for effective management of other tobacco regulations that protect youth from tobacco influences, such as those discussed here. The benefits and provisions of licensing are further discussed later in this paper.

The following policy provisions are recommended to reduce youth tobacco influences in the community:

A. Prohibit the sale of tobacco within at least 1000 feet of schools and other area youth sensitive areas. Research has demonstrated that youth are more likely to experiment with tobacco products when retailers are located near schools, and that the number of tobacco retailers in a community affects youth smoking behaviors as well as access to tobacco products.14 The density of tobacco retailers, particularly in neighborhoods surrounding schools, has been associated with increased youth smoking rates.15 Restricting the location of all tobacco retailers near schools and other youth sensitive areas, as well as within a certain distance to each other, creates tobacco-free zones and reduces tobacco influences in the community. Twenty-three California cities and counties have adopted similar laws, including Santa Clara County and Union City.

B. Reduce the density of tobacco retailers by prohibiting the location of new tobacco retailers within 500 feet of existing tobacco retailers (density relative to other retailers), or capping the total number of tobacco retailer licenses issued. High density of tobacco retailers has been associated with increased smoking rates, particularly

14 McCarthy, W.J., Mistry, R., Lu, Y., Patel, M., Zheng, H., Dietsch, B., Density of tobacco retailers near schools: effects on tobacco use among students. American Journal of Public Health, 2009. 99(11): p. 2006 2013. 15 Henriksen L, Feighery EC, Schleicher NC, et al. 2008. “Is Adolescent Smoking Related to Density and Proximity of Tobacco Outlets and Retail Cigarette Advertising Near Schools?” Preventive Medicine 47: 210-214. 5

among youth.16 A study of California neighborhoods found that the density and proximity of tobacco retailers influence smoking behaviors, including number of cigarettes smoked per day.17 Of additional concern, widespread presence of tobacco in retail settings normalizes the use of tobacco products and triggers smoking urges among former smokers and those attempting to quit.18 California law limits alcohol licenses based on density, and this policy applies that same rationale to tobacco retailers. Nine cities and counties in CA have adopted similar laws.19

C. Prohibit the sale of flavored (non-cigarette) tobacco products, such as candy, fruit and spice characterizing flavors in little cigars, hookah tobacco and dissolvable tobacco products, as well as in electronic smoking devices and vapor solutions for these devices. Under the federal Family Smoking Prevention and Tobacco Control Act, it is illegal for manufacturers to make cigarettes that contain “characterizing flavors” other than that of tobacco, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa or chocolate. (Menthol flavoring in cigarettes was exempted and is discussed below.) The Act was enacted in 2009 largely because these flavored products were marketed to youth and young adults,20 and younger smokers were more likely to have tried these products than older smokers.21

Flavored non-cigarette tobacco products have become increasingly common and are available in a variety of flavors that appeal to children and young adults.22 The U.S. Food and Drug Administration and the U.S. Surgeon General have stated that flavored tobacco products are considered to be “starter” products for youth and help establish

16 Henriksen L, Feighery EC, Schleicher NC, et al. 2008. “Is Adolescent Smoking Related to Density and Proximity of Tobacco Outlets and Retail Cigarette Advertising Near Schools?” Preventive Medicine 47: 210-214. 17 Chuang YC, Cubbin C, Ahn D, et al. 2005. “Effects of Neighbourhood Socioeconomic Status and Convenience Store Concentration on Individual Level Smoking.” Journal of Epidemiology and Community Health 59: 568-573. 18 McDaniel PA and Malone RE. 2011. “Why California Retailers Stop Selling Tobacco Products, and What Their Customers and Employees Think About It When They Do.” BMC Public Health 11: 848. 19 “Matrix of Local Ordinances Restricting Tobacco Retailers Near Schools, July 2013”, Center for Tobacco Policy and Organizing. 20 Carpenter CM, Wayne GF, Pauly JL, et al. 2005. “New Cigarette Brands with Flavors that Appeal to Youth: Tobacco Marketing Strategies.” Health Affairs. 24(6): 1601–1610; Lewis M and Wackowski O. 2006. “Dealing with an Innovative Industry: A Look at Flavored Cigarettes Promoted by Mainstream Brands.” American Journal of Public Health. 96(2): 244–251; Connolly GN. 2004. “Sweet and Spicy Flavours: New Brands for Minorities and Youth.” Tobacco Control. 13(3): 211–212; U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 537, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf. 21 U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 539, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco- use/full-report.pdf. 22 U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 164, 205, www.surgeongeneral.gov/library/reports/preventing-youth- tobacco-use/full-report.pdf; Morris DS and Fiala SC. 2013. “Flavoured, Non-cigarette Tobacco for Sale in the USA: An Inventory Analysis of Internet Retailers.” Tobacco Control. [Electronic publication ahead of print], http://tobaccocontrol.bmj.com/content/early/2013/08/08/tobaccocontrol-2013-051059.full. 6

smoking habits that can lead to long-term addiction.23 Adding flavorings to tobacco products such as little cigars, cigarillos, and smokeless tobacco can mask the natural harshness and taste of tobacco, making these products easier to use and increasing their appeal among youth.24

The U.S. Centers for Disease Control and Prevention has reported that electronic cigarette use among middle and high school students doubled from 2011 to 2012.25 Nicotine solutions, which are consumed via electronic smoking devices such as electronic cigarettes, are sold in dozens of flavors that appeal to youth, such as cotton candy and bubble gum.26 The California Attorney General has stated that electronic cigarette companies have targeted minors with fruit-flavored products.27

In the Bay Area, Santa Clara County and Hayward have adopted similar laws, and Berkeley and El Cerrito are currently considering such regulations.

D. Requiring a minimum pack size for sale of cigars, including cigarillos and little cigars. Small packages of tobacco products make these products more accessible to youth, who are generally a more price-sensitive market. Although federal and state law ban the sale of individual cigarettes, neither restrict the sale of individual little cigars, cigarillos and cigars. Many retailers sell little cigars and cigars individually, making them more affordable and appealing to youth.28

E. Prohibit the sale of menthol flavored cigarettes. Due to intense lobbying from the tobacco industry, menthol flavored cigarettes were excluded from the federal ban on flavored cigarettes. However, studies show that 50% of youth start smoking with menthol flavored cigarettes, and that these are “starter” cigarettes for many youth to go on to become regular smokers. Youth who smoke menthol cigarettes are significantly

23 Food and Drug Administration. 2011. Fact Sheet: Flavored Tobacco Products, www.fda.gov/downloads/TobaccoProducts/ProtectingKidsfromTobacco/FlavoredTobacco/UCM183214.pdf; U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 539, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco- use/full-report.pdf. 24 King BA, Dube SR, and Tynan MA. 2013. “Flavored Cigar Smoking Among U.S. Adults: Findings from the 2009–2010 National Adult Tobacco Survey.” Nicotine & Tobacco Research. 15(2): 608–614; Nelson DE, Mowery P, Tomar S, et al. 2006. “Trends in Smokeless Tobacco Use Among Adults and Adolescents in the United States.” American Journal of Public Health. 96(5): 897–905. 25 Centers for Disease Control & Prevention. 2013. “Electronic Cigarette Use Among Middle and High School Students—United States, 2011–2012,” Morbidity and Mortality Weekly Report (MMWR) 62(35): 729–730. 26 Cameron JM, Howell DN, White JR, et al. 2013. “Variable and Potentially Fatal Amounts of Nicotine in E- cigarette Nicotine Solutions.” Tobacco Control. [Electronic publication ahead of print], http://tobaccocontrol.bmj.com/content/early/2013/02/12/tobaccocontrol-2012-050604.full; U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 549, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf. 27 Press Release, State of California Department of Justice, Office of the Attorney General, Brown Announces Electronic Cigarette Maker's Agreement to Stop Deceptive Marketing and Sales to Minors (Aug. 3, 2010), oag.ca.gov/news/press-releases/brown-announces-electronic-cigarette-makers-agreement-stop-deceptive-marketing. 28 California Department of Public Health. (2012). Tobacco in the Retail Environment, www.cdph.ca.gov/programs/tobacco/Documents/Tobacco%20Retail%20Environment%20Fact%20Sheet_Easy%20Print.pdf 7

more likely to show signs of nicotine addiction than their peers who smoke non-menthol brands.29

There are several other provisions that communities can adopt to strengthen tobacco prevention in the retail sales environment. These include:

 Requiring retailers to check the age of customers who appear to be under the age of 27.

 Prohibiting new “Significant Tobacco Retailers”, a business that primarily sells tobacco products, from obtaining a tobacco retailer license. The definition of “Significant Tobacco Retailer” can be based on either amount of floor space or percentage of sales devoted to tobacco products. Over 8 percent of all tobacco retailers statewide were witnessed unlawfully selling to minors in 2012, and tobacco stores (defined as businesses in which at least 80 percent of merchandise was tobacco products) sold to minors at a much higher rate than the statewide average, as high as 20.5 percent.30

 Making violations of state laws regarding drug paraphernalia or controlled substances a violation of a tobacco retailer license. any cigarette, tobacco, and head shops sell items that are commonly known to be drug paraphernalia, including bongs and pipes used to smoke methamphetamine and other illicit drugs, and claim that such items are intended for tobacco use.

IV. Benefits of Tobacco Retailer Licensing

A universal licensing ordinance that requires all businesses within a city or county to obtain a license if they plan to sell tobacco products is a tool that is proven to reduce illegal tobacco sales to minors and increase compliance with local, state and federal tobacco laws. The illegal sales rate in the unincorporated areas of the County decreased from 37% to 7% upon adoption and enforcement of its tobacco retailer licensing ordinance.

As strong Tobacco Retailer Licensing laws include compliance checks and enforcement including suspension for violations of tobacco laws, it is also a mechanism for effective management of other tobacco regulations, such as those discussed in this paper. Location and density restrictions, as well as regulations on products that can be sold, can be a condition of the license. Enforcement of these regulations has been most effective under tobacco retailer licensing laws, rather than a combination of regulatory mechanisms.

Other inherent benefits of licensing include:

29 Hersey JC, Ng SW, Nonnemaker JM, et al. Are menthol cigarettes a starter product for youth? Nicotine & Tobacco Research. 2006;8:403-413. 30 Chapman R. 2012. State Health Officer’s Report on Tobacco Use and Promotion in California. California Department of Public Health, California Tobacco Control Program, p. 8, www.cdph.ca.gov/Documents/EMBARGOED%20State%20Health%20Officers%20Report%20on%20Tobacco.pdf 8

A. Identification of retailers: A local licensing ordinance can generate an accurate list of tobacco retailers in a community on an annual basis that can be used to educate, monitor and encourage retailers to comply with tobacco laws. The list can be updated when new businesses apply for local licenses, and when businesses renew their licenses.

B. Education of retailers: The licensing process can be used to conduct merchant education regarding the rules and regulations surrounding tobacco sales in a community. The licensing authority can send out a letter or other educational materials each year to an accurate list of tobacco retailers.

C. Monitoring of retailers: Licensing can establish a fair, methodical, and ongoing process to monitor compliance with tobacco laws.

D. Encouragement of compliance: A local tobacco retailer’s license is a powerful tool for encouraging retailers to comply with all existing tobacco-related laws, including state no-sales-to-minors-laws, and local and state laws regulating sales of tobacco products. Such an ordinance can provide for the suspension or revocation of the license if the merchant sells tobacco to minors or violates other local, state, or federal laws related to tobacco. In this way, a licensing ordinance creates a greater deterrent than does a small fine to discourage retailers from violating the law. For many merchants, tobacco sales make up a substantial portion of their revenue. Temporarily losing the authority to sell tobacco products costs far more than the state law fine of several hundred dollars—which, in fact, is usually levied against the clerk, and not the store. Put another way, the threat of license suspension or revocation encourages compliance with state and local tobacco laws because licensing makes compliance matter.

Key Provisions of Licensing

At a minimum, the following provisions should be incorporated into a local licensing ordinance:

A. All retailers selling tobacco products (including retailers of Electronic Smoking Devices (ESDs) such as electronic or e-cigarettes) must obtain an annual nontransferable license.

B. An annual licensing fee fully covers all program costs, including administration and enforcement. Jurisdictions in California are charging between $30 to over $600 depending upon their unique costs, with the majority of fees set between $200 - $350 annually.

C. Violating any tobacco law is also a violation of the license—including all state laws regulating tobacco and electronic smoking device sales to youth and prohibiting self- service displays of tobacco products.

D. Each licensing violation results in a temporary suspension or revocation of the privilege to sell tobacco. The length of the suspension periods and the time period 9

reviewed for prior violations of the license vary among local ordinances. Most licensing ordinances have a progressive suspension schedule, with the model ordinance recommending the following: 1. First violation: suspension of the license for 30 days. 2. Second violation within 60 months of the first violation: suspension of the license for 90 days. 3. Third violation within 60 months of the first violation: suspension of the license for one year.

E. A minimum number of annual enforcement operations are required to be conducted by the designated local enforcement agency or agencies, including site inspections for the presence of the local and state license; the presence of required point-of-sale warning signs; and the use of self -service displays.

F. A minimal number of undercover compliance checks (youth decoy operations) are required. Jurisdictions in California are conducting between one and six undercover buying operations per store every two years, and between one and two site inspections per year.

G. All tobacco products, advertising and paraphernalia must be removed for for the duration of the suspension period when the license is suspended or revoked.

VI. Conditions of the License

A tobacco retailer’s license ordinance primarily encourages retailer compliance with all local, state and federal tobacco laws, including laws that prohibit the sale of tobacco products and electronic smoking devices to minors and other regulations to reduce tobacco influences on youth in the Retail Environment. However, Tobacco Retailer License ordinances also can require retailers to meet certain additional conditions in order to maintain the license. Other possible conditions of the license include:  Violation of local or state storefront signage laws is a license violation.  Violation of non-tobacco age-of-purchase laws is a license violation (e.g., selling alcohol to a minor).  Prohibiting licenses for a restaurant or a bar.  Prohibiting licenses for a business that allows smoking anywhere on the premises (e.g., no hookah bars or vapor lounges).  Prohibiting licenses for retailers operating a pharmacy.  Clerks must be old enough to purchase tobacco under state law (e.g., 18 years old) to sell tobacco.  The enforcing agency may seize and destroy tobacco products offered for sale without a license.

VII. Enforcement

Enforcing the tobacco licensing ordinance is essential to increasing compliance with tobacco sales laws and other retail environment regulations. This point cannot be overstated. In unincorporated Contra Costa County, the illegal sales rate of tobacco to minors decreased from 37% to 7% with the enforcement of the universal licensing ordinance. According to the California Department of Health Services Food and Drug Branch, some cities in Contra Costa County had sales rates of up to 27% in 2010.31

Costs associated with implementing and enforcing a tobacco retailer licensing ordinance include:

A. Administration of the license. An entity of the local jurisdiction must develop and implement the application process and the distribution of the licenses themselves. For unincorporated Contra Costa, the Tax Collector’s Office administers the tobacco retailer license in concert with application for and renewal of the annual business license.

B. Site inspections to check for posting of the license and compliance with other tobacco sales laws. An entity of the local jurisdiction, such as a health department, code enforcement, or finance department, should conduct site inspections to verify that the license is posted and that other laws are being obeyed, including the ban on self-service displays of tobacco products and signage laws. Law enforcement does not need to be involved in this aspect of enforcement, but it can be.

C. Undercover buying operations to monitor compliance with no-sales-to-minors laws. In the unincorporated areas of Contra Costa County, the Sheriff’s Department is monitoring compliance by enforcing and prosecuting PC308(a), the state law that makes it illegal for businesses to sell tobacco products to minors. Contra Costa Health Services uses the evidence of a PC308(a) citation as a basis for conducting tobacco retailer license suspension hearings. Some jurisdictions outside Contra Costa County are using other legal tools to test compliance with no-sales-to- minors laws and linking them with the tobacco retailer license ordinance, such as the Business and Professions Code. Others are forgoing criminal prosecution altogether and moving directly into administrative enforcement of the licensing ordinance using the same evidence of illegal sales that would otherwise be used to prosecute the clerk criminally.

D. Data collection. The entity charged with overseeing the program must be prepared to keep records of the names and locations of tobacco retailers, details about site inspections and undercover buying operations, and the prosecution of violations.

31 Department of Health Services, FDB, 2010 STAKE operation data for the cities of Concord, Danville, Pinole, Pittsburg, and San Pablo. 11

Overall, the licensing fees themselves can cover the costs of implementing and enforcing a licensing ordinance. California law allows local elected officials to establish fees to cover the costs associated with administering and maintaining compliance with local ordinances.32

VIII. Resources

Over 110 cities in California have adopted and are enforcing strong tobacco retailer license ordinances.33 These are proving to be an effective tool in increasing merchant compliance with tobacco sales laws, notably no-sales-to minors-laws and other tobacco sales regulations. A model licensing ordinance with annotations, as well as supplementary options for further regulating tobacco retailers, is available on-line at http://changelabsolutions.org/tobaccocontrol. This model, and its supporting documents, is a good start for discussion about licensing policies.

Contra Costa Health Services Tobacco Prevention Project (TPP) staff are also available for consultation on ordinance development and implementation. The County’s tobacco retailer licensing ordinance, implementation protocols and merchant education materials are available from the TPP as well. They can be reached at 925-313-6214 or [email protected].

32 Sinclair Paint Co. v. Board of Equalization, 15 Cal. 4th 866 (1997); Griffith v. City of Santa Cruz, 207 Cal. App. 4th 982 (2012). 33 “Matrix of Strong Local Tobacco Retailer Licensing Ordinances, 2013”, Center for Tobacco Policy and Organizing. 12

ChangeLab Solutions has developed model language for a Tobacco Retailer Licensing tobacco retailer licensing law in California cities and counties. The An Effective Tool for Public Health model language offers a variety of policy options that can be tailored Communities are adopting tobacco retailer licensing laws as one way to ensure to the specific goals and needs of compliance with tobacco laws and to combat the public health problems your community. associated with tobacco use. In this fact sheet, we explain how tobacco retailer In addition to the core provisions, licensing works, why many communities are pursuing this policy, and what ChangeLab Solutions has goes into creating and implementing a strong tobacco retailer licensing law. drafted supplementary “plug- in” provisions, which offer What is tobacco retailer licensing? additional policy options that can be incorporated into the Licensing is a common policy tool that state and local governments use to regulate law. For more information, businesses like alcohol retailers, pharmacists, or restaurants. A local government may please see our resources on want to similarly license tobacco retailers in order to protect public health and safety Tobacco Retailer Licensing at by ensuring that retailers comply with responsible retailing practices. www.changelabsolutions.org/ Under a local tobacco retailer licensing law, the city or county government requires publications/model-TRL-ordinance. all businesses that sell tobacco products to obtain a license from the government in exchange for the privilege of selling these products to consumers.1 Local governments may require licensed retailers to pay an annual fee, which can fund administration and enforcement activities such as store inspections and youth purchase compliance checks. Increasingly, tobacco retailer licensing is being used to promote other innovative policy solutions as well, including controlling the location and density of tobacco retailers and imposing additional restrictions on the sale and promotion of tobacco products.2 As of June 2012, more than 100 cities and counties in California had adopted a local tobacco retailer licensing law.3 The Center for Tobacco Policy & Organizing (The Center) classifies 94 of these as “strong,”4 meaning the laws have at a minimum: • a requirement that all tobacco retailers obtain a license and renew it annually; • an annual licensing fee high enough to fund sufficient enforcement; • meaningful penalties for violators through fines and penalties, including the suspension and revocation of the license;5 and • a provision stating that any violation of existing local, state or federal tobacco While ChangeLab Solutions’ model laws constitutes a violation of the local law. language for a tobacco retailer licensing law was designed for California communities, the model can be adapted for use in other states as well. It is important to carefully check the existing law in your state to learn if local tobacco retailer licensing is allowed. Consult with an attorney licensed in your jurisdiction.

changelabsolutions.org/tobacco-control September 2012 Why adopt a tobacco retailer licensing law? Many communities adopt tobacco retailer licensing laws because they are effective tools for limiting the negative public health consequences of tobacco use. While this tool provides many benefits, there are three main advantages to a tobacco retailer licensing law. First, these laws have been shown to be effective at limiting youth access to tobacco. Second, strong laws with annual fees create self financing programs that allow for regular enforcement. Third, a tobacco retailer licensing law facilitates comprehensive local enforcement of all tobacco related laws. Each of these points is discussed below.

Protecting youth Despite state laws prohibiting sales of tobacco to minors, a 2007 survey found that nearly three-quarters of youth access enforcement agencies statewide issued warnings to merchants selling tobacco products to minors during the prior year.6 Fortunately, strong local tobacco retailer licensing laws—that is, laws that meet the criteria above—have proven effective at reducing illegal tobacco sales to minors. The Center has found that local tobacco retailer licensing is extremely effective at reducing illegal sales to underage youth: the organization surveyed 31 municipalities that have implemented and enforced a strong tobacco retailer licensing law and found that the rates of illegal sales to minors decreased, often significantly, in all communities surveyed.7

A self-financing program An important strength of licensing is that the government may impose a licensing fee that is sufficient to cover the costs of enforcement. Because funding enforcement is often the best way to ensure compliance with a policy, ChangeLab Solutions recommends that the fee be calculated to include all enforcement activities. For more information on how to calculate a fee for a local tobacco retailer license, see our tobacco licensing cost worksheet at: www.changelabsolutions.org/publications/tobacco-licensure-costs.

A comprehensive enforcement mechanism for local communities A number of federal and California state laws already regulate tobacco sales and establish penalties for illegal sales to minors. But these laws each have separate enforcement mechanisms and penalty structures, making it difficult to enforce them at the local level. A local tobacco retailer licensing law, on the other hand, empowers local law enforcement to impose meaningful penalties for illegal sales to minors and ensure compliance with all existing laws—ensuring that local communities can prioritize enforcement even when state and federal authorities are unable to do so. Meanwhile, some of these state and federal laws fail to address important public health concerns related to tobacco. For example, the federal regulations authorized by the 2009 Tobacco Control Act currently apply only to cigarettes and smokeless tobacco products—they do not apply to little cigars or other tobacco products that are aggressively marketed to youth. A local tobacco retailer licensing law is a tool communities can use to help bridge these gaps and address public health concerns in their communities.

What is a tobacco product? When people think of tobacco products, they may think of cigarettes, cigars, and chewing tobacco, but there are other products communities may want to restrict. Our model language defines tobacco products broadly to include all products containing tobacco leaf (including hookah, snuff, snus, and dissolvables) as well as nicotine-only products such as electronic cigarettes. This definition is written to restrict emerging tobacco industry products without An electronic cigarette with charger. interfering with FDA-approved cessation devices—like nicotine patches. 2 What else can a tobacco retailer licensing law do? While a tobacco retailer licensing law may be the best tool to prevent sales to minors, it can also promote other innovative policy solutions, controlling the location and density of tobacco retailers, imposing additional restrictions on the sale of other tobacco products like little cigars, and preventing the sale of drug paraphernalia.

Zoning: Location and density of retailers location and density of retailers Local governments can use tobacco retailer licensing to control both the Another common way to limit location and density of tobacco retailers in their communities. A licensing law where tobacco retailers can locate is could, for example, prohibit licenses for any businesses operating too close through land use laws, also known to a school or other area frequented by youth. Because tobacco sales near as zoning laws. For a comparison schools and child-oriented areas have been shown to increase youth smoking8, between land use laws and licens- this policy can be used to keep tobacco retailers out of areas where youth ing laws, see ChangeLab Solutions’ typically congregate. A tobacco retailer licensing law also could cap the total factsheet, Licensing & Zoning: Tools number of licenses issued based on population, controlling the overall density for Public Health, available at: www. of tobacco retailers in a community. California law limits alcohol licenses based changelabsolutions.org/publica- on density, and this policy applies that same rationale to tobacco retailers. tions/licensing-zoning.

Little cigars and cigarillos A tobacco retailer licensing law can also prohibit the sale of individual or small packages of low-priced cigars, including little cigars and cigarillos. Due to their low prices and candy flavoring, these products are particularly appealing to youth, and though they are often similar to cigarettes, they are not subject to the same restrictions against selling the product individually or in small quantities. This policy allows communities to close this loophole and regulate a product that is increasingly used by youth. For more on this policy, see our fact sheet at: www.changelabsolutions.org/publications/limiting-teen-friendly-cigars.

Drug paraphernalia Many communities are using tobacco retailer licensing laws to address the sale Cigarillos in grape, strawberry and of drug paraphernalia in their neighborhoods. Through this provision, a retailer blueberry flavors, sold for under a dollar found to have violated state laws regarding drug paraphernalia will also be in a piece. violation of the local tobacco retailer license, and the penalties of the licensing ordinance will apply. In this way, the tobacco retailer licensing law becomes an additional tool for local law enforcement to combat sales of drug paraphernalia. For more information on this policy option, see our fact sheet on this topic at: www.changelabsolutions.org/publications/drug-paraphernalia. These are just a few examples of cutting-edge policy solutions for tobacco control. These innovative policy solutions—referred to as “plug-in” provisions— can be incorporated into our model language for a tobacco retailer licensing law. For more information about plug-in provisions, including the ones mentioned here, see: www.changelabsolutions.org/publications/policy-provisions-trl. Implementation and enforcement It’s up to individual communities to decide who will implement and enforce a tobacco retailer licensing law. Multiple agencies might be involved: one agency Meth pipes for sale at a smoke shop in San Francisco, California. may issue the license (the city manager, for example, or the agency that issues general business licenses), while another agency, such as the environmental health or police department, may monitor compliance. There is no one right way to implement and enforce a local tobacco retailer licensing program. That said, successful programs share some characteristics.

changelabsolutions.org 3 1 In California, local tobacco retailer licensing For one thing, they are overseen by a single government agency with dedicated laws are specifically authorized by the state staff members. They also plan early for enforcement that engages all the key tobacco retailer licensing law, which says that “[l]ocal licensing laws may provide for the players. And they require a license fee that is large enough to cover the full costs suspension or revocation of the local license of administering and enforcing the program. To assist agencies in coordinating for any violation of a state tobacco control and planning, ChangeLab Solutions created a checklist that includes all the law.” Cal. Bus. & Prof. Code § 22971.3. recommended elements of a successful program. The checklist is available at: 2 See generally McLaughlin I. License to Kill?: www.changelabsolutions.org/publications/implementation-checklist-TRL. Tobacco Retailer Licensing as an Effective Enforcement Tool. Tobacco Control Legal To help understand the variety of local approaches to tobacco retailer licensing, Consortium, 2010. Available at: http:// in 2006 we studied four communities that are effectively enforcing their local publichealthlawcenter.org/sites/default/files/ resources/tclc-syn-retailer-2010.pdf tobacco retailer licensing laws: Contra Costa County, Santa Barbara County, the City of Willits, and the City of Los Angeles. We chose these communities because 3 American Nonsmokers’ Rights Foundation. California Municipalities with Laws Restricting they were among the first in California to suspend the tobacco licenses of retail Youth Access to Tobacco. 2011. Available at: outlets that violated sales-to-youth or other tobacco control laws. Read our review www.changelabsolutions.org/publications/ of these programs (visit: www.changelabsolutions.org/publications/case-studies- anrf-list (List includes only those laws which local-trl-ords) to see how, despite their differences, they all achieve the goal of provide for suspension or revocation of a license). holding retailers accountable for violations of tobacco sales laws. 4 The Center. Table of Strong Locaal Tobacco Retailer Licensing Ordinances. 2012. Available at: Licensing for healthy food retailers www.center4tobaccopolicy.org/localpolicies- Communities can use licensing to licensing. improve public health in other ways 5 The threat of license suspension creates a by ensuring that retailers are not only greater financial deterrent to retailers than a simple fine. For many stores, especially complying with existing laws but also convenience stores, tobacco sales make up a benefiting the communities they serve. substantial portion of their revenue. Losing the For example, in neighborhoods with authority to sell tobacco products for a month limited access to fresh produce and can cost retailers far more than the largest fines that can be imposed under existing staple foods, a licensing system could California laws, like Penal Code section 308 require food retailers to carry these or the STAKE Act. See Cal. Penal Code § 308 items. For more information on healthy (violators can be fined $200, $500, or $1000 for food retailer licensing, see our Model first, second, or third violations, respectively); Cal. Bus. & Prof. Code 22958 (violators can Licensing Ordinance for Healthy Food be fined $400-600 for a first violation and Retailers at: www.changelabsolutions. are subject to harsher penalties for each org/publications/HFR-licensing-ord. additional violation in a 5-year period). 6 Rogers T, Feighery EC, Haladjian HH. Current Practices in Enforcement of California Laws For more information Regarding Youth Access to Tobacco Products and Exposure to Secondhand Smoke. For support with model language and legal issues: Sacramento, CA: California Department of ChangeLab Solutions Public Health, 2008. Available at: www.cdph. ca.gov/programs/tobacco/Documents/ www.changelabsolutions.org CTCPEnforcementReport08-05.pdf. For support with campaign issues: 7 The Center. Tobacco Retailer Licensing Is Effective. 2011. Available at: www. The Center for Tobacco Policy & Organizing, a project of the American Lung center4tobaccopolicy.org/CTPO/_files/_file/ Association in California (The Center) Tobacco%20Retailer%20Licensing%20is%20 www.Center4TobaccoPolicy.org Effective%20March%202011.pdf. 8 Henriksen et al. “Is Adolescent Smoking Related to the Density and Proximity of Tobacco Outlets and Retail Cigarette Advertising Near Schools?” Preventative Medicine, 47(210): 210-214, 2008. Abstract only is available at: www.sciencedirect.com/ science/article/pii/S0091743508002089. changelabsolutions.org

This material was developed by ChangeLab Solutions with funds received from the California Department of Public Health, under contract #09-11182. ChangeLab Solutions formerly existed under the name Public Health Law & Policy (PHLP), which included the Technical Assistance Legal Center (TALC).

Photos: Lydia Daniller (cover, top of page 2), ChangeLab The legal information provided in this document does not constitute legal advice or legal representation. For Solutions (bottom of page 2, top of page 3), SFCityAttorney on legal advice, readers should consult a lawyer in their state. flickr.com (bottom of page 3), and Flickr Creative Commons DC Central Kitchen (page 4) © 2012 ChangeLab Solutions 4 dŽďĂĐĐŽZĞƚĂŝůĞƌ>ŝĐĞŶƐŝŶŐ/ƐīĞĐƟǀĞ SEPTEMBER 2013 DŽƌĞƚŚĂŶϭϬϬĐŽŵŵƵŶŝƟĞƐŝŶĂůŝĨŽƌŶŝĂŚĂǀĞĂĚŽƉƚĞĚƐƚƌŽŶŐůŽĐĂůƚŽďĂĐĐŽƌĞƚĂŝůĞƌůŝĐĞŶƐŝŶŐŽƌĚŝŶĂŶĐĞƐŝŶĂŶĞīŽƌƚƚŽƌĞĚƵĐĞŝůůĞŐĂů ƐĂůĞƐŽĨƚŽďĂĐĐŽƉƌŽĚƵĐƚƐƚŽŵŝŶŽƌƐ͘dŚŝƐƚĂďůĞŝŶĐůƵĚĞƐƐƚƌŽŶŐƉŽůŝĐŝĞƐĚĞĮŶĞĚĂƐŽŶĞƚŚĂƚŝŶĐůƵĚĞƐƚŚĞĨŽůůŽǁŝŶŐĨŽƵƌĐŽŵƉŽŶĞŶƚƐ͗ ͻ>ŝĐĞŶƐĞƚŚĂƚĂůůƌĞƚĂŝůĞƌƐŵƵƐƚŽďƚĂŝŶŝŶŽƌĚĞƌƚŽƐĞůůƚŽďĂĐĐŽƉƌŽĚƵĐƚƐĂŶĚƚŚĂƚŵƵƐƚďĞƌĞŶĞǁĞĚĂŶŶƵĂůůǇ͘ ͻĨĞĞƐĞƚŚŝŐŚĞŶŽƵŐŚƚŽƐƵĸĐŝĞŶƚůǇĨƵŶĚĂŶĞīĞĐƟǀĞƉƌŽŐƌĂŵŝŶĐůƵĚŝŶŐĂĚŵŝŶŝƐƚƌĂƟŽŶŽĨƚŚĞƉƌŽŐƌĂŵĂŶĚĞŶĨŽƌĐĞŵĞŶƚ ĞīŽƌƚƐ͘ŶĞŶĨŽƌĐĞŵĞŶƚƉůĂŶ͕ƚŚĂƚŝŶĐůƵĚĞƐĐŽŵƉůŝĂŶĐĞĐŚĞĐŬƐ͕ƐŚŽƵůĚďĞĐůĞĂƌůǇƐƚĂƚĞĚ͘ ͻŽŽƌĚŝŶĂƟŽŶŽĨƚŽďĂĐĐŽƌĞŐƵůĂƟŽŶƐƐŽƚŚĂƚĂǀŝŽůĂƟŽŶŽĨĂŶǇĞǆŝƐƟŶŐůŽĐĂů͕ƐƚĂƚĞŽƌĨĞĚĞƌĂůƚŽďĂĐĐŽƌĞŐƵůĂƟŽŶǀŝŽůĂƚĞƐ ƚŚĞůŝĐĞŶƐĞ͘ ͻĮŶĂŶĐŝĂůĚĞƚĞƌƌĞŶƚƚŚƌŽƵŐŚĮŶĞƐĂŶĚƉĞŶĂůƟĞƐŝŶĐůƵĚŝŶŐƚŚĞƐƵƐƉĞŶƐŝŽŶĂŶĚƌĞǀŽĐĂƟŽŶŽĨƚŚĞůŝĐĞŶƐĞ͘&ŝŶĞƐĂŶĚ ƉĞŶĂůƟĞƐƐŚŽƵůĚďĞŽƵƚůŝŶĞĚŝŶƚŚĞŽƌĚŝŶĂŶĐĞ͘ dŚĞƚĂďůĞďĞůŽǁůŝƐƚƐŝůůĞŐĂůƐĂůĞƐƌĂƚĞƐƚŽŵŝŶŽƌƐďĞĨŽƌĞĂŶĚĂŌĞƌĂƐƚƌŽŶŐůŝĐĞŶƐŝŶŐůĂǁǁĂƐĞŶĂĐƚĞĚŝŶĐŽŵŵƵŶŝƟĞƐǁŚĞƌĞĚĂƚĂŝƐ ĂǀĂŝůĂďůĞĂŶĚĞŶŽƵŐŚƟŵĞ;ƵƐƵĂůůǇĂƚůĞĂƐƚĂǇĞĂƌͿŚĂƐƉĂƐƐĞĚĂŌĞƌƚŚĞŽƌĚŝŶĂŶĐĞǁĂƐĞŶĂĐƚĞĚƚŽĚĞƚĞƌŵŝŶĞƌĞƐƵůƚƐ͘dŚĞƐĞƐĂůĞƐƌĂƚĞƐ ǁĞƌĞĚĞƚĞƌŵŝŶĞĚďǇǇŽƵƚŚƚŽďĂĐĐŽƉƵƌĐŚĂƐĞƐƵƌǀĞǇƐĂĚŵŝŶŝƐƚĞƌĞĚďǇůŽĐĂůĂŐĞŶĐŝĞƐ͘/ƚŝƐŝŵƉŽƌƚĂŶƚƚŽŶŽƚĞƚŚĂƚƌĞƐƵůƚƐĨƌŽŵƚŚĞǇŽƵƚŚ ƚŽďĂĐĐŽƉƵƌĐŚĂƐĞƐƵƌǀĞǇƐĂƌĞƐŽŵĞǁŚĂƚĚĞƉĞŶĚĞŶƚŽŶĐĞƌƚĂŝŶĨĂĐƚŽƌƐƚŚĂƚĚŝīĞƌŝŶĞĂĐŚĐŽŵŵƵŶŝƚǇ͕ƐƵĐŚĂƐƚŚĞĂŐĞŽĨƚŚĞǇŽƵƚŚĂŶĚ ƚŚĞŶƵŵďĞƌŽĨƐƚŽƌĞƐƐƵƌǀĞǇĞĚ͘ dŚĞƌĞƐƵůƚƐŽǀĞƌǁŚĞůŵŝŶŐůǇĚĞŵŽŶƐƚƌĂƚĞƚŚĂƚůŽĐĂůƚŽďĂĐĐŽƌĞƚĂŝůĞƌůŝĐĞŶƐŝŶŐŽƌĚŝŶĂŶĐĞƐǁŝƚŚƐƚƌŽŶŐĞŶĨŽƌĐĞŵĞŶƚƉƌŽǀŝƐŝŽŶƐĂƌĞ ĞīĞĐƟǀĞ͘ZĂƚĞƐŽĨŝůůĞŐĂůƚŽďĂĐĐŽƐĂůĞƐƚŽŵŝŶŽƌƐŚĂǀĞĚĞĐƌĞĂƐĞĚ͕ŽŌĞŶƐŝŐŶŝĮĐĂŶƚůǇ͕ŝŶĂůůŵƵŶŝĐŝƉĂůŝƟĞƐǁŝƚŚĂƐƚƌŽŶŐƚŽďĂĐĐŽƌĞƚĂŝůĞƌ ůŝĐĞŶƐŝŶŐŽƌĚŝŶĂŶĐĞǁŚĞƌĞƚŚĞƌĞŝƐďĞĨŽƌĞĂŶĚĂŌĞƌǇŽƵƚŚƐĂůĞƐƌĂƚĞĚĂƚĂĂǀĂŝůĂďůĞ͘,ŽǁĞǀĞƌ͕ĂůŝĐĞŶƐŝŶŐŽƌĚŝŶĂŶĐĞďǇŝƚƐĞůĨǁŝůůŶŽƚ ĂƵƚŽŵĂƟĐĂůůǇĚĞĐƌĞĂƐĞƐĂůĞƐƌĂƚĞƐ͖ƉƌŽƉĞƌĞĚƵĐĂƟŽŶĂŶĚĞŶĨŽƌĐĞŵĞŶƚĂďŽƵƚƚŚĞůŽĐĂůŽƌĚŝŶĂŶĐĞĂŶĚƐƚĂƚĞǇŽƵƚŚĂĐĐĞƐƐůĂǁƐĂƌĞ ĂůǁĂǇƐŶĞĞĚĞĚ͘ ĞĨŽƌĞĂŶĚĂŌĞƌǇŽƵƚŚƐĂůĞƐƌĂƚĞĚĂƚĂŝƐĂǀĂŝůĂďůĞĨŽƌƚŚĞĨŽůůŽǁŝŶŐϯϯĂůŝĨŽƌŶŝĂĐŽŵŵƵŶŝƟĞƐǁŝƚŚƐƚƌŽŶŐůŝĐĞŶƐŝŶŐŽƌĚŝŶĂŶĐĞƐ - ĂŶŶŝŶŐ͕ĂůĚǁŝŶWĂƌŬ͕ĞĂƵŵŽŶƚ͕ĞƌŬĞůĞǇ͕ƵƌďĂŶŬ͕ĂůĂďĂƐĂƐ͕ŽĂĐŚĞůůĂ͕ŽŶƚƌĂŽƐƚĂŽƵŶƚǇ͕ŽƌŽŶĂ͕ĂǀŝƐ͕ĞůĂŶŽ͕ĞƐĞƌƚ,Žƚ ^ƉƌŝŶŐƐ͕ůĂũŽŶ͕ůŬ'ƌŽǀĞ͕'ƌĂƐƐsĂůůĞǇ͕'ƌŽǀĞƌĞĂĐŚ͕<ĞƌŶŽƵŶƚǇ͕>ĂĂŶĂĚĂ&ůŝŶƚƌŝĚŐĞ͕>ŽƐŶŐĞůĞƐŽƵŶƚǇ͕DƵƌƌŝĞƚĂ͕EŽƌĐŽ͕ WĂƐĂĚĞŶĂ͕ZŝǀĞƌƐŝĚĞ͕^ĂĐƌĂŵĞŶƚŽ͕^ĂĐƌĂŵĞŶƚŽŽƵŶƚǇ͕^ĂŶ&ĞƌŶĂŶĚŽ͕^ĂŶ&ƌĂŶĐŝƐĐŽ͕^ĂŶ>ƵŝƐKďŝƐƉŽ͕^ĂŶƚĂĂƌďĂƌĂŽƵŶƚǇ͕dĞŚĂĐŚĂƉŝ͕ sŝƐƚĂĂŶĚzŽůŽŽƵŶƚǇ͘ &ŽƌŵŽƌĞƌĞƐŽƵƌĐĞƐŽŶƚŚĞƐĞŽƌĚŝŶĂŶĐĞƐ͕ŝŶĐůƵĚŝŶŐƚŚĞDĂƚƌŝǆŽĨ^ƚƌŽŶŐ>ŽĐĂůdŽďĂĐĐŽZĞƚĂŝůĞƌ>ŝĐĞŶƐŝŶŐKƌĚŝŶĂŶĐĞƐǁŝƚŚƉŽůŝĐǇĂŶĚ ĞŶĨŽƌĐĞŵĞŶƚĚĞƚĂŝůƐĨŽƌĞǀĞƌǇƐƚƌŽŶŐŽƌĚŝŶĂŶĐĞŝŶƚŚĞƐƚĂƚĞ͕ǀŝƐŝƚ ǁǁǁ͘ĞŶƚĞƌϰdŽďĂĐĐŽWŽůŝĐǇ͘ŽƌŐͬůŽĐĂůƉŽůŝĐŝĞƐͲůŝĐĞŶƐŝŶŐ͘ &ŽƌŵŽĚĞůƚŽďĂĐĐŽƌĞƚĂŝůĞƌůŝĐĞŶƐŝŶŐŽƌĚŝŶĂŶĐĞůĂŶŐƵĂŐĞ͕ǀŝƐŝƚŚĂŶŐĞ>Ăď^ŽůƵƟŽŶƐĂƚĐŚĂŶŐĞůĂďƐŽůƵƟŽŶƐ͘ŽƌŐ͘

The Center for Tobacco Policy & Organizing |ŵĞƌŝĐĂŶ>ƵŶŐƐƐŽĐŝĂƟŽŶŝŶĂůŝĨŽƌŶŝĂ 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 © 2013. California Department of Public Health. Funded under contract #09-11173. www.Lung.org/California | www.Center4TobaccoPolicy.org THE CENTER FOR TOBACCO POLICY & ORGANIZING Page 2 of 2 dĂďůĞŽĨǇŽƵƚŚƐĂůĞƐƌĂƚĞƐďĞĨŽƌĞĂŶĚĂŌĞƌƚŚĞĂĚŽƉƟŽŶ of a strong tobacco retailer licensing ordinance

zŽƵƚŚ^ĂůĞƐZĂƚĞ Most Recent ŝƚǇͬŽƵŶƚǇ Date Passed ŶŶƵĂů&ĞĞ Before Ordinance zŽƵƚŚ^ĂůĞƐZĂƚĞ ĂŶŶŝŶŐ ƵŐƵƐƚϮϬϬϲ $350 77% Ϯϭй ĂůĚǁŝŶWĂƌŬ KĐƚŽďĞƌϮϬϬϴ ΨϯϰϮ ϯϰй 9% Beaumont ĞĐĞŵďĞƌϮϬϬϲ $350 ϲϯй ϮϬй ĞƌŬĞůĞǇ ĞĐĞŵďĞƌϮϬϬϮ ΨϰϮϳΎ ϯϴй ϰ͘Ϯй ƵƌďĂŶŬ &ĞďƌƵĂƌǇϮϬϬϳ ΨϮϯϱ Ϯϲ͘ϳй ϰй ĂůĂďĂƐĂƐ :ƵŶĞϮϬϬϵ $0* ϯϬ͘ϴй 5% ŽĂĐŚĞůůĂ :ƵůǇϮϬϬϳ $350 ϲϵй 11% ŽŶƚƌĂŽƐƚĂŽƵŶƚǇ :ĂŶƵĂƌǇϮϬϬϯ ΨϭϲϬΎ 37% ϯ͘ϴй ŽƌŽŶĂ KĐƚŽďĞƌϮϬϬϱ $350 50% 17% ĂǀŝƐ ƵŐƵƐƚϮϬϬϳ Ψϯϰϰ ϯϬ͘ϱй ϳ͘ϴй ĞůĂŶŽ :ƵŶĞϮϬϬϴ Ψϭϲϱ Ϯϯй ϱ͘ϲй ĞƐĞƌƚ,Žƚ^ƉƌŝŶŐƐ ƵŐƵƐƚϮϬϬϳ $350 ϰϴй ϰй ůĂũŽŶ :ƵŶĞϮϬϬϰ Ψϲϵϴ ϰϬй 1% ůŬ'ƌŽǀĞ ^ĞƉƚĞŵďĞƌϮϬϬϰ ΨϮϳϬ 17% ϭϲ͘ϳй 'ƌĂƐƐsĂůůĞǇ EŽǀĞŵďĞƌϮϬϬϵ $100 Ϯϳй 0% 'ƌŽǀĞƌĞĂĐŚ ^ĞƉƚĞŵďĞƌϮϬϬϱ ΨϮϮϰ ϰϲй 0% <ĞƌŶŽƵŶƚǇ EŽǀĞŵďĞƌϮϬϬϲ Ψϭϲϱ ϯϰй ϭϯ͘ϯй >ĂĂŶĂĚĂ&ůŝŶƚƌŝĚŐĞ :ƵŶĞϮϬϬϵ $50* ϰϳ͘ϭй 0% >ŽƐŶŐĞůĞƐŽƵŶƚǇ ĞĐĞŵďĞƌϮϬϬϳ ΨϮϯϱ ϯϬ͘ϲй ϴй Murrieta DĂǇϮϬϬϲ $350 31% 7% EŽƌĐŽ DĂƌĐŚϮϬϬϲ $350 ϰϬй ϲй WĂƐĂĚĞŶĂ :ĂŶƵĂƌǇϮϬϬϰ ΨϮϮϱ ϮϬй 0% ZŝǀĞƌƐŝĚĞ DĂǇϮϬϬϲ $350 ϲϱй 31% Sacramento DĂƌĐŚϮϬϬϰ ΨϯϮϰ Ϯϳй ϭϱ͘ϭй ^ĂĐƌĂŵĞŶƚŽŽƵŶƚǇ DĂǇϮϬϬϰ ΨϮϴϳ Ϯϭй ϳ͘ϭй ^ĂŶ&ĞƌŶĂŶĚŽ KĐƚŽďĞƌϮϬϬϴ ΨϮϱϬ ϯϴ͘ϱй 3% ^ĂŶ&ƌĂŶĐŝƐĐŽ EŽǀĞŵďĞƌϮϬϬϯ $175* ϮϮ͘ϯй ϭϯ͘ϰй ^ĂŶ>ƵŝƐKďŝƐƉŽ ƵŐƵƐƚϮϬϬϯ ΨϮϱϱ 17% ϭϱ͘ϱй ^ĂŶ>ƵŝƐKďŝƐƉŽŽƵŶƚǇ KĐƚŽďĞƌϮϬϬϴ ΨϯϰϮ ϯϯ͘ϯй 5% ^ĂŶƚĂĂƌďĂƌĂŽƵŶƚǇ EŽǀĞŵďĞƌϮϬϭϬ ΨϮϯϱ Ϯϭй 9% dĞŚĂĐŚĂƉŝ &ĞďƌƵĂƌǇϮϬϬϳ Ψϭϲϱ ϴй ϭϲ͘ϳй sŝƐƚĂ DĂǇϮϬϬϱ ΨϮϱϬ 39% ϭ͘ϵй zŽůŽŽƵŶƚǇ DĂǇϮϬϬϲ Ψϯϰϰ Ϯϴй ϭϭ͘ϭй

ΎŝƚǇŽƌŽƵŶƚǇĨĞĞĚŽĞƐŶŽƚĨƵůůǇĐŽǀĞƌĂĚŵŝŶŝƐƚƌĂƟŽŶĂŶĚĞŶĨŽƌĐĞŵĞŶƚŽĨƚŚĞƚŽďĂĐĐŽƌĞƚĂŝůĞƌůŝĐĞŶƐĞ͘ZĂƚŚĞƌ͕ƚŚĞĨĞĞŝƐƐƵƉƉůĞŵĞŶƚĞĚǁŝƚŚĂŶŽƚŚĞƌƐƚĂďůĞƐŽƵƌĐĞ ŽĨĨƵŶĚƐ͕ƐƵĐŚĂƐDĂƐƚĞƌ^ĞƩůĞŵĞŶƚŐƌĞĞŵĞŶƚ;D^ͿĨƵŶĚƐŽƌŐĞŶĞƌĂůĨƵŶĚƐ͘^ĞĞƚŚĞĞŶƚĞƌ͛ƐDĂƚƌŝǆŽĨ^ƚƌŽŶŐ>ŽĐĂůdŽďĂĐĐŽZĞƚĂŝůĞƌ>ŝĐĞŶƐŝŶŐKƌĚŝŶĂŶĐĞƐĨŽƌĨƵůů ĚĞƚĂŝůƐĂďŽƵƚƚŚĞĂĚŵŝŶŝƐƚƌĂƟŽŶĂŶĚĞŶĨŽƌĐĞŵĞŶƚŽĨƚŚĞƐĞŽƌĚŝŶĂŶĐĞƐ͘

www.Lung.org/California | www.Center4TobaccoPolicy.org EMERGING PRODUCT: ELECTRONIC CIGARETTES

Over the last decade, the tobacco industry has developed novel products targeting a new generation of tobacco users. One such product that has increased in use and advertising is electronic cigarettes, or e-cigarettes. According to the US Food and Drug Administration (FDA), an e-cigarette is a battery powered device that allows users to inhale an emission containing nicotine or other substances. The safety of these devices is still unknown, and initial studies have found carcinogens and toxic chemicals in the emissions produced by these products, including ingredients used to make antifreeze. The FDA has not found e-cigarettes to be safe and effective in helping smokers quit and has proposed regulations that will extend basic regulatory authority found in the Tobacco Control Act to e-cigarettes.

In fact, new evidence indicates that kids may be at-risk users of electronic cigarettes. ‐E cigarettes are often available in flavors 18 that may appeal to children and teens, including cotton candy, million bubble gum, chocolate, strawberry and mint. There are almost 470 different brands of e‐cigarettes on the market today, and Californians are covered by e-cigarette policies = over 40% of the general population in California is e‐cigarettes come in 7,700 different flavors. Demonstrating covered by an e-cigarette policy that this has become an appealing product for kids, youth usage rates for electronic cigarettes have tripled,1 with a recent study reporting that more teens use electronic cigarettes than traditional, tobacco cigarettes or any other tobacco product.2

California cities and counties have taken note of these concerns and proactively moved to regulate e-cigarettes, passing ordinances to capture these products in secondhand smoke and tobacco retailer licensing laws. In 2014, 75 cities and counties recognized the harmful effects of these unregulated products in their communities, and implemented local policies to protect their residents.3 This is a sharp increase from previous years. The cities and counties who have taken action on e-cigarettes in 2014 and in prior years receive a bonus point in the Emerging Issues section in the revised methodology. Cities can earn one point for including e-cigarettes in their secondhand smoke laws and one point for regulating the sale of e-cigarettes. Electronic Cigarette Policies Implemented by Cities and Counties

0 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 1. Arrazola, Rene A. et al., “Tobacco use among middle and high school students – United States, 2013.” MMWR Morb Mortal Wkly Rep 2014;63:1021-1041. 2. University of Michigan. Monitoring the Future Study. “E-Cigarettes surpass tobacco cigarettes among teens.” December 16, 2014 News Release. 3. See Appendix A for the list of all the cities and counties who have enacted e-cigarette policies.

18 www.lung.org/california 1-800-LUNG-USA 1-800-586-4872 APPENDIX A: LIST OF MUNICIPALITIES THAT REGULATE ELECTRONIC CIGARETTES SHS = Secondhand smoke – electronic cigarettes are regulated through SHS laws TRL = Tobacco Retailer License – electronic cigarettes are regulated through TRL laws

Municipality County SHS TRL Municipality County SHS TRL Albany Alameda X Culver City Los Angeles X X Berkeley Alameda X Duarte Los Angeles X Dublin Alameda X X El Monte Los Angeles X X Emeryville Alameda X Gardena Los Angeles X X Fremont Alameda X Glendale Los Angeles X X Hayward Alameda X X Hawaiian Gardens Los Angeles X X Oakland Alameda X Hawthorne Los Angeles X Piedmont Alameda X Huntington Park Los Angeles X X Pleasanton Alameda X Inglewood Los Angeles X X San Leandro Alameda X Lakewood Los Angeles X Union City Alameda X X Lancaster Los Angeles X Alpine County Alpine X Lomita Los Angeles X X Oroville Butte X X Long Beach Los Angeles X X Concord Contra Costa X X Los Angeles Los Angeles X X Contra Costa County Contra Costa X X Lynwood Los Angeles X El Cerrito Contra Costa X Malibu Los Angeles X Martinez Contra Costa X Manhattan Beach Los Angeles X Oakley Contra Costa X Montebello Los Angeles X Pittsburg Contra Costa X X Monterey Park Los Angeles X X Richmond Contra Costa X X Norwalk Los Angeles X Walnut Creek Contra Costa X Palmdale Los Angeles X X Crescent City Del Norte X Pico Rivera Los Angeles X Firebaugh Fresno X San Fernando Los Angeles X Selma Fresno X Santa Monica Los Angeles X X Orland Glenn X South Pasadena Los Angeles X X Arcata Humboldt X Corte Madera Marin X Eureka Humboldt X Fairfax Marin X Arvin Kern X Larkspur Marin X California City Kern X Marin County Marin X Delano Kern X Mill Valley Marin X X Kern County Kern X Novato Marin X Wasco Kern X San Anselmo Marin X Susanville Lassen X Sausalito Marin X Alhambra Los Angeles X Tiburon Marin X Arcadia Los Angeles X Carmel-By-The-Sea Monterey X Baldwin Park Los Angeles X X Gonzales Monterey X Bellflower Los Angeles X Greenfield Monterey X Beverly Hills Los Angeles X X Monterey Monterey X Burbank Los Angeles X Monterey County Monterey X Calabasas Los Angeles X X American Canyon Napa X Cerritos Los Angeles X Grass Valley Nevada X Compton Los Angeles X X Nevada City Nevada X

American Lung Association in California | State of Tobacco Control 2015 – California Local Grades 29 Municipality County SHS TRL Municipality County SHS TRL Anaheim Orange X San Luis Obispo County San Luis Obispo X Buena Park Orange X Belmont San Mateo X Garden Grove Orange X Daly City San Mateo X Laguna Hills Orange X Foster City San Mateo X Laguna Niguel Orange X Menlo Park San Mateo X Santa Ana Orange X Pacifica San Mateo X Seal Beach Orange X San Mateo County San Mateo X X Westminster Orange X South San Francisco San Mateo X Banning Riverside X Buellton Santa Barbara X Beaumont Riverside X Carpinteria Santa Barbara X Coachella Riverside X Goleta Santa Barbara X X Corona Riverside X Lompoc Santa Barbara X Desert Hot Springs Riverside X Santa Barbara Santa Barbara X Eastvale Riverside X Santa Barbara County Santa Barbara X Hemet Riverside X Santa Maria Santa Barbara X Lake Elsinore Riverside X Cupertino Santa Clara X Menifee Riverside X Gilroy Santa Clara X Moreno Valley Riverside X Los Altos Santa Clara X Murrieta Riverside X X Milpitas Santa Clara X Norco Riverside X Morgan Hill Santa Clara X X Perris Riverside X Mountain View Santa Clara X Riverside Riverside X Santa Clara County Santa Clara X X San Jacinto Riverside X Saratoga Santa Clara X X Temecula Riverside X X Sunnyvale Santa Clara X Wildomar Riverside X Campbell Santa Clara X Folsom Sacramento X Santa Cruz County Santa Cruz X X Rancho Cordova Sacramento X X Scotts Valley Santa Cruz X X Hollister San Benito X Watsonville Santa Cruz X X Apple Valley San Bernardino X Shasta County Shasta X San Bernardino County San Bernardino X Benicia Solano X Carlsbad San Diego X Healdsburg Sonoma X X Del Mar San Diego X Petaluma Sonoma X El Cajon San Diego X X Santa Rosa Sonoma X Encinitas San Diego X Sebastopol Sonoma X La Mesa San Diego X Sonoma County Sonoma X Oceanside San Diego X Windsor Sonoma x Poway San Diego X Oxnard Ventura X San Diego San Diego X X Davis Yolo X X San Diego County San Diego X Woodland Yolo X San Marcos San Diego X Yolo County Yolo X Solana Beach San Diego X X Vista San Diego X X San Francisco San Francisco X X Arroyo Grande San Luis Obispo X Grover Beach San Luis Obispo X

30 www.lung.org/california 1-800-LUNG-USA 1-800-586-4872 DUFFY LAW OFFICE, PLC 20118 N 67TH AVE• SUITE 300 -4 5 3 GLENDALE, AZ 85308 P H O N E : 6 2 3 - 5 4 7 -7310 • FAX: 623 - 5 6 1 -7 7 4 4 STEVEN J. DUFFY [email protected]

January 14, 2015

VIA EMAIL: [email protected] Ms. Margaret Kavanaugh-Lynch Development Services Manager El Cerrito Planning Division 10890 San Pablo Ave. El Cerrito, CA 94530

Subject: Comments on Tobacco Sales Restrictions and E-Cigarettes

Dear Ms. Kavanaugh-Lynch:

As legal counsel for the National Association of Tobacco Outlets, Inc. (NATO), a national retail tobacco trade association with its principal office in the State of Minnesota (for more information please see www.natocentral.org), I am submitting this letter on behalf of the association and the NATO retail store members located in El Cerrito. It is our understanding that at the Planning Commission’s hearing of January 21, the Commission will be provided with an update on proposed changes to the City’s existing tobacco ordinances. Although we do not know the specific language of these revisions, we understand that a number of areas of revision are under consideration, and based on that understanding, we would like to provide comments on the subject matter so that the Commission can understand the impact of certain kinds of changes on NATO members.

At the outset, we would note that NATO’s members are responsible retailers of tobacco products, including e-cigarettes. They have no interest in selling these products to minors. The U.S. Food and Drug Administration compiles information regarding compliance inspections of retailers that sell tobacco products. These compliance inspections include having an underage decoy attempt to buy tobacco products from retailer. According to the FDA’s website which reports the outcome of compliance inspections, in 2012 (the only year for which data was found) compliance was checked in 13 retailers in El Cerrito over a two month period. In each case, no violations were found. (A spreadsheet derived from the FDA’s data is attached.) The current regulations and enforcement process are working; El Cerrito’s tobacco retailers are not the direct source of tobacco products getting in the hands of minors and they should be commended, not saddled with additional regulations.

The remainder of these comments address certain specific items we understand are being considered by the Commission.

Ms. Margaret Kavanaugh-Lynch Development Services Manager El Cerrito Planning Commission January 14, 2015 Page 2

Prohibiting the Sale of Flavored Tobacco Products is Unfounded and Would Negatively Impact Retailers and Eliminate Pipe Tobacco Sales

A ban on the sale of all flavored tobacco products will cause irreparable financial harm to El Cerrito retailers because such a ban affects literally hundreds of legal flavored tobacco products. The sale of flavored tobacco products is a very important revenue source for these retailers; El Cerrito’s retailers will lose customers and sales of not only tobacco products but other staples if they are required to remove several hundred different kinds of flavored cigars, pipe tobacco and smokeless tobacco products from their store shelves.

Such a ban will only cause adults to travel outside the City to purchase their preferred flavored tobacco products (and no doubt purchase other items as well in those jurisdictions.) In addition, since virtually all pipe tobacco is flavored, a blanket flavor ban provision will effectively eliminate the sale of pipe tobacco by these retailers. The average age of a pipe smoker is over 50, so a ban on the sale of pipe tobacco will have no impact whatsoever on youth tobacco usage. If the purpose of the ban is to prevent sales to minors, there is no data to suggest minors buy and use pipe tobacco, so there is no justification for banning such flavored tobacco products.

Moreover, if the interest is in deterring youth, it is one thing to prohibit flavors that may be particularly attractive to young people. It is quite another to prohibit flavors which do not particularly appeal to youth and have been a part of the characteristic flavoring of chewing tobacco and similar products, or the wide range of flavorings that have been traditional in pipe tobaccos for many years.

The FDA has not banned flavors of other tobacco products, as contrasted with the limitation in federal law that cigarettes may have no characterizing flavors other than tobacco and menthol. However, that limitation was long thought through, and the FDA having not asserted a similar ban should be followed by local governments as the best science has to offer.

For these reasons, we would respectfully ask that if you consider any ban of flavored products that you follow the FDA’s example.

Cigar Package Size Restrictions

NATO and its retail member stores have a serious concern with a prohibition of the sale of single cigars. We understand that the Commission may be considering allowing the sale of cigars over $5.00. The effect of such a law would be to require adults who now purchase single cigars to buy two cigars instead, which may lead to them smoking more cigars, not fewer. If the intent of the ordinance is to reduce cigar smoking, the package size restriction could have the opposite effect. Also, adult customers will travel to a neighboring town or city and buy their preferred single cigars (and whatever other items they may be interested in purchasing at the time,) which will result in a negative impact on the law-abiding retailers in El Cerrito. The practical outcome of this restriction is that many single cigar products will be unsellable due to the pricing and packing restrictions. For these reasons, on behalf of NATO and its members we respectfully ask

Ms. Margaret Kavanaugh-Lynch Development Services Manager El Cerrito Planning Commission January 14, 2015 Page 3 that you consider not adding the cigar sales regulation section to your existing tobacco control ordinance.

Ban on Tobacco Coupons

Prohibiting retailers from redeeming tobacco product coupons would have no impact on distribution of tobacco products to minors. As noted above, El Cerrito retailers are remarkably compliant in not selling to minors in the first place, but a minor who is trying to circumvent state law by purchasing tobacco products from a retailer is extremely unlikely to prolong the purchase process, and the possibility of detection, by trying to redeem a coupon. If this restriction is designed to protect minors, does the Commission have any data, even a single report, of minors attempting to redeem a coupon? Moreover, the proposed regulations contain no substantiating evidence to support a ban on adults redeeming manufacturer coupons on tobacco products. For over a century, consumers have been redeeming coupons for all kinds of products, including tobacco. However, the regulation indirectly attempts to control the price of tobacco products, an action beyond the City’s authority.

Any Ban on Self Service Displays Needs to Accommodate Adult Environments

In general, there are some locations where having a self-service display ban makes no particular sense. Age-restricted environments, for example, smoke shops where persons under 18 are not allowed to enter, should be allowed to choose to provide self-service. In those premises controlled by an adult and where minors are not allowed access, these bans should not apply.

Requiring Clerks to be Older than the Minimum Legal Sales Age is Unclear and may be Unnecessary

We understand that there may be a proposal to require “clerks” to be older than the Minimum Legal Sales Age (MLSA,) which is 18 in California. However, we simply do not understand what is being proposed. First, what is meant by “older than” the MLSA? Does this mean the “clerk” must be at least 18, or does this mean the “clerk” must be 19 or more? Second, who is the “clerk?” Is it the employee or store owner selling tobacco products, or does it include other employees who are not allowed to sell tobacco products? If it is proposed only that those selling tobacco products are at least 18, NATO has no objection. If the proposal, however, requires sellers to be older than 19 or more, or that all employees of a business that sells tobacco products, regardless of the employees’ duties, be at least 18 or older than 18, this would have a significant impact on the operations of NATO members and on the employment prospects of younger people. Because of the vague nature of the proposal without the specific language, we cannot definitively take a position on this issue at this time, but ask that care be taken in the drafting of any such requirement.

Ms. Margaret Kavanaugh-Lynch Development Services Manager El Cerrito Planning Commission January 14, 2015 Page 4

Prohibiting Smoking in Cigar Shops, Hookah Lounges and Vapor Bars Significantly Impacts These Businesses and Commercial Property

Extending the current prohibition on smoking in public places to cigar lounges, hookah lounges and vapor bars would effectively put any of these out of business. We understand that there are no such businesses currently in El Cerrito, so no impact would be felt on any existing retailer. However, by effectively preventing their entry into the City, commercial property owners must forego the income from these potential tenants, effectively taking some value from their properties to the benefit of property owners in surrounding areas. A total ban on such activity is not in the City’s best interest.

Ban on E-Cigarette Use in Public Places

If the Commission is considering a ban on the use of e-cigarettes in those places where smoking is banned, NATO would suggest to the Commission that any actions regarding e-cigarettes (other than prohibiting minors from possessing them) is simply premature. The U.S. Food and Drug Administration is currently in the process of considering the appropriate regulatory framework for e-cigarettes, and the City would prejudge the result of that process by regulating a product that is under federal review. In August 2014, the agency closed its comment period on its pending regulations, and tens of thousands of comments must be considered before the FDA acts. In addition, on December 10-11, 2014, the FDA held a public workshop on the subject “Electronic Cigarettes and the Public Health,” and recently the agency gave notice that it will hold two more workshops on the subject, the first March 9-10, 2015. (Notice of the second workshop may be accessed here: http://www.fda.gov/TobaccoProducts/NewsEvents/ucm428317.htm?source=govdelivery&utm_ medium=email&utm_source=govdelivery)

Until the FDA has had time to consider the information gleaned from this series of workshops and the thousands of comments to the regulatory framework, any proposal restricting the use of electronic cigarettes in public places is premature. Restrictions on smoking in public places were adopted after numerous studies were conducted and a significant body of scientific evidence was compiled on secondhand smoke. Now, however, there appears to be a rush to judgment about electronic cigarettes.

It is very important to allow the FDA to pursue its scientific research on electronic cigarettes and for other studies to be conducted on these products. Sound public policy should be based on scientific data and factual information, not on unsubstantiated claims. Specifically, a study released in November, 2013 by Dr. Konstantinos Farsalinos concludes that electronic cigarette “vapor poses no risk to heart cells” and that the existing body of evidence attests to “the phenomenal harm reduction potential of e-cigarettes” (see accompanying study article).

Ms. Margaret Kavanaugh-Lynch Development Services Manager El Cerrito Planning Commission January 14, 2015 Page 5

Moreover, a study conducted by researchers at the Roswell Park Cancer Institute in Buffalo, New York released in December, 2013 concludes that people standing near someone using an electronic cigarette will be exposed to nicotine, but “not to other chemicals found in tobacco cigarette smoke” and that this study data weakens the case for expanding smoking bans to include electronic cigarettes (see accompanying study article).

Most recently, a study published in the July 2014 journal Addiction concluded as follows:

Allowing EC [Electronic Cigarettes] to compete with cigarettes in the market-place might decrease smoking-related morbidity and mortality. Regulating EC as strictly as cigarettes, or even more strictly as some regulators propose, is not warranted on current evidence. Health professionals may consider advising smokers unable or unwilling to quit through other routes to switch to EC as a safer alternative to smoking and a possible pathway to complete cessation of nicotine use.

(emphasis added)

Therefore, not only may regulation of e-cigarettes not help the public health, it may actually harm public health. The science is clearly still out on that issue, providing yet another reason to postpone actions regarding them.

Requiring Use Permits Will Not Solve Access by Minors

As noted above, El Cerrito retailers have shown remarkable compliance. Requiring them to obtain Administrative or Conditional Use Permits will not improve that, but only add administrative burdens on your retailers. Further, a proposal that exempts some retailers from the requirements tilts the playing field toward these retailers to the detriment of others.

We are aware of a definition presented to the Commission of Significant Tobacco Retailer (STR) that simply makes no sense. The City’s current ordinance puts additional restrictions on retailers with a majority of their business from tobacco. However, the proposed definition of an STR would include these retailers plus those who devote as little as 20% of their display area to tobacco products or associated articles. Such a business hardly qualifies as one “for which the principal or core business is selling tobacco products.” To the contrary, a business using only 20% of their display area for tobacco is almost certainly not “principally” selling tobacco products. Yet these businesses would be considered the same as those whose revenue, transactions, or merchandise were at least 50% of their business. Such a definition defies logic.

Permit Setbacks Must Be Carefully Tailored and Allow Businesses to Continue

We understand that there is consideration of buffers around certain areas such as schools and parks and to even require retailers not to be too close to one another. Without a specific proposal, we cannot comment definitively, but would like to make some general observations, as we understand the proposal may create restrictive areas with 1000 to 1500 foot radii.

Ms. Margaret Kavanaugh-Lynch Development Services Manager El Cerrito Planning Commission January 14, 2015 Page 6

A 1000’ zone restriction creates a prohibited area encircled by at least a 3 million square foot zone in which permits are prohibited. A 1500’ restriction creates an area of over 7 million square feet per retailer. This area is calculated by using the formula for determining the area of a circle as follows:

1000 ft: Area = π x r2 = (3.14 x 10002) = 3.14 x 1,000,000 = 3,140,000 sq. ft. 1500 ft: Area = π x r2 = (3.14 x 15002) = 3.14 x 2,250,000 = 7,065,000 sq. ft.

This calculation does not take into account the fact that the school or tobacco retailer will have some dimensions in length and width, thereby expanding the zone considerably, although we recognize that overlaps may already exist. As there are 18 tobacco retailers in the City, using the smaller radius potentially takes over 54 million square feet of potential space out of the possible locations for retailers; the larger radius would mean about 126 million square feet are removed from the market. Given that retail operations of any kind are restricted to certain zones, this may well make it impossible to actually locate a new store in a properly zoned retail area, so this may act as a de facto prohibition on new businesses in the guise of regulation. In turn, this will impact the value of commercial real estate in the City, and may expose the City to litigation and liability for diminishing the value of real property without just compensation.

We know of no studies that suggest how such a restriction will assist in either reducing youth access to tobacco products or improving the public health or safety of El Cerrito; thus the distance restriction is arbitrary and capricious.

It is also unclear as to how current businesses are to be treated. At a minimum, NATO believes that existing retailers should be allowed to continue their operation and be able to transfer their rights to continue their operations to others, whether they be family members through gifts or handing down the business from generation to generation, or by sales of businesses. Failing to provide such opportunities significantly deprives these retailers of the value of their property. In many instances, retailers are mom-and-pop operators whose entire life savings may consist of their business. To take away their potential retirement by not providing a proper grandfathering provision would subject the City to possible litigation by these owners.

Thank you for your consideration of these comments.

Sincerely,

Steven J. Duffy

For National Association of Tobacco Outlets, Inc.

Cc: Ms. Suzanne Iarla, Community Outreach Specialist (via email: [email protected])

Ms. Margaret Kavanaugh-Lynch Development Services Manager El Cerrito Planning Commission January 14, 2015 Page 7

Attachments: Spreadsheet Farsalinos article Roswell Park article

Compliance Check Inspections of Tobacco Product Retailers Through 12/31/14 - Search Results

You searched for: City contains: El Cerrito State is CA

Retailer Name Street Address City State Zip BLUE MOON SALOON 9937 SAN PABLO AVE EL CERRITO CA 94530 DEL NORTE LIQUOR 11299 SAN PABLO AVE STE P EL CERRITO CA 94530 CHEVRON # 1750 11319 SAN PABLO AVE EL CERRITO CA 94530 SAFEWAY STORE #2940 11450 SAN PABLO AVE EL CERRITO CA 94530 ATLAS LIQUORS 11382 SAN PABLO AVE EL CERRITO CA 94530 CVS/PHARMACY #03053 10650 SAN PABLO AVE EL CERRITO CA 94530 BEST GAS & CAR WASH 10602 SAN PABLO AVE EL CERRITO CA 94530 JAY VEE LIQUORS 10560 SAN PABLO AVE EL CERRITO CA 94530 GOODY DONUTS 10963 SAN PABLO AVE EL CERRITO CA 94530 CVS/PHARMACY #09086 670 EL CERRITO PLZ EL CERRITO CA 94530 LUCKY #709 1000 EL CERRITO PLZ EL CERRITO CA 94530 PIC-N-PAC LIQUORS 10012-14 SAN PABLO AVE. EL CERRITO CA 94530 SAN PABLO DISCOUNT CIGARETTE 10382 SAN PABLO AVE EL CERRITO CA 94530 Decision Type Minor Involved Sale to Minor Decision Date Link No Violations Observed No No 11/27/2012 No Violations Observed No No 11/9/2012 No Violations Observed No No 11/9/2012 No Violations Observed No No 11/9/2012 No Violations Observed No No 11/9/2012 No Violations Observed No No 11/9/2012 No Violations Observed No No 11/9/2012 No Violations Observed No No 11/9/2012 No Violations Observed No No 11/9/2012 No Violations Observed No No 10/19/2012 No Violations Observed No No 10/19/2012 No Violations Observed No No 10/19/2012 No Violations Observed No No 10/19/2012 Int. J. Environ. Res. Public Health 2013, 10, 5146-5162; doi:10.3390/ijerph10105146 OPEN ACCESS International Journal of Environmental Research and Public Health ISSN 1660-4601 www.mdpi.com/journal/ijerph Article Comparison of the Cytotoxic Potential of Cigarette Smoke and Electronic Cigarette Vapour Extract on Cultured Myocardial Cells

Konstantinos E. Farsalinos 1,*, Giorgio Romagna 2, Elena Allifranchini 2, Emiliano Ripamonti 2, Elena Bocchietto 2, Stefano Todeschi 2, Dimitris Tsiapras 1, Stamatis Kyrzopoulos 1 and Vassilis Voudris 1

1 Onassis Cardiac Surgery Center, Sygrou 356, Kallithea 17674, Greece; E-Mails: [email protected] (D.T.); [email protected] (S.K.); [email protected] (V.V.) 2 ABICH S.r.l, Biological and Chemical Toxicology Research Laboratory, Via 42 Martiri, 213/B-28924 Verbania (VB), Italy; E-Mails: [email protected] (G.R.); [email protected] (E.A.); [email protected] (E.R.); [email protected] (E.B.); [email protected] (S.T.)

* Author to whom correspondence should be addressed; E-Mail: [email protected]; Tel.: +306-977-454-837; Fax: +302-109-493-373.

Received: 16 August 2013; in revised form: 30 September 2013 / Accepted: 12 October 2013 / Published: 16 October 2013

Abstract: Background: Electronic cigarettes (ECs) have been marketed as an alternative- to-smoking habit. Besides chemical studies of the content of EC liquids or vapour, little research has been conducted on their in vitro effects. Smoking is an important risk factor for cardiovascular disease and cigarette smoke (CS) has well-established cytotoxic effects on myocardial cells. The purpose of this study was to evaluate the cytotoxic potential of the vapour of 20 EC liquid samples and a base liquid sample (50% glycerol and 50% propylene glycol, with no nicotine or flavourings) on cultured myocardial cells. Included were 4 samples produced by using cured tobacco leaves in order to extract the tobacco flavour. Methods: Cytotoxicity was tested according to the ISO 10993-5 standard. By activating an EC device at 3.7 volts (6.2 wattsall samples, including the base liquid) and at 4.5 volts (9.2 wattsfour randomly selected samples), 200 mg of liquid evaporated and was extracted in 20 mL of culture medium. Cigarette smoke (CS) extract from three tobacco cigarettes was produced according to ISO 3308 method (2 s puffs of 35 mL volume, one puff every 60 s). The extracts, undiluted (100%) and in four dilutions Int. J. Environ. Res. Public Health 2013, 10 5147

(50%, 25%, 12.5%, and 6.25%), were applied to myocardial cells (H9c2); percent-viability was measured after 24 h incubation. According to ISO 10993-5, viability of <70% was considered cytotoxic. Results: CS extract was cytotoxic at extract concentrations >6.25% (viability: 76.9 ± 2.0% at 6.25%, 38.2 ± 0.5% at 12.5%, 3.1 ± 0.2% at 25%, 5.2 ± 0.8% at 50%, and 3.9 ± 0.2% at 100% extract concentration). Three EC extracts (produced by tobacco leaves) were cytotoxic at 100% and 50% extract concentrations (viability range: 2.2%39.1% and 7.4%66.9% respectively) and one (Cinnamon-Cookies flavour) was cytotoxic at 100% concentration only (viability: 64.8 ± 2.5%). Inhibitory concentration 50 was >3 times lower in CS extract compared to the worst-performing EC vapour extract. For EC extracts produced by high-voltage and energy, viability was reduced but no sample was cytotoxic according to ISO 10993-5 definition. Vapour produced by the base liquid was not cytotoxic at any extract concentration. Cell survival was not associated with nicotine concentration of EC liquids. Conclusions: This study indicates that some EC samples have cytotoxic properties on cultured cardiomyoblasts, associated with the production process and materials used in flavourings. However, all EC vapour extracts were significantly less cytotoxic compared to CS extract.

Keywords: electronic cigarette; smoking; tobacco; nicotine; cytotoxicity; myocardial cell; public health

1. Introduction

Smoking is a major risk factor for cardiovascular disease [1]. Although several pharmaceutical products are currently available for smoking cessation, long term quit-rates are relatively low [2,3]. Tobacco harm reduction is a strategy of reducing smoking-relating harm by using safer sources of nicotine for smokers unable or unwilling to quit [4]. Electronic cigarettes (ECs) have been introduced to the market in recent years as an alternative-to-smoking habit. They usually consist of a battery and an atomiser where liquid is stored and vaporises by activating the battery. They are the only products in tobacco harm reduction that do not contain tobacco, excluding nicotine replacement therapies which are currently approved for short term use and with the goal to treat nicotine addiction. Awareness and use of these products have increased significantly [5], and this has raised global debate and controversy [6]. Several organisations such as World Health Organisation and Food and Drug Administration have expressed concerns about the health effects of using ECs [7,8]. There is significant evidence of the cytotoxic potential of tobacco cigarettes. Oxidative stress is an important associated mechanism, with each puff of smoke containing 1015 molecules of free radicals [9]. This can have direct toxic effects on a variety of cells, including myocardial cells [10]. Several chemicals causing oxidative stress are produced during cigarette smoking by the combustion process. No combustion is involved in EC use; the liquid is heated by delivering electrical current to a resistance inside the atomiser, and the resulting vapour is subsequently inhaled by the user. In recent years, new generation devices have been developed, producing more vapour mainly by using higher-capacity batteries and by delivering higher energy (wattage) to the resistance. However, it is Int. J. Environ. Res. Public Health 2013, 10 5148 unknown whether free radicals are present in EC vapour, and the cytotoxic potential of EC liquids has not been adequately studied. Therefore, the purpose of this study was to evaluate the cytotoxic potential of EC vapour from a variety of liquid samples on cultured cardiomyoblasts, and to examine whether higher wattage has any effect in their cytotoxic potential.

2. Experimental Section

2.1. Materials

A commercially available tobacco cigarette with 0.8 mg nicotine, 10 mg tar and 10 mg carbon monoxide yields was used for this experiment (Marlboro, Philip Morris Italia S.r.l., Rome, Italy). Twenty commercially-available liquids used for ECs were obtained from the market in sealed bottles, manufactured or distributed by five different companies. Nicotine concentrations varied from 6 mg/mL to 24 mg/mL (Table 1). Seventeen of them were tobacco flavours, and three were sweet or fruit flavours. The liquids were mainly composed of propylene glycol, glycerol, nicotine and a variety of substances usually approved for use in food flavouring industry. Most of the companies reported using tobacco absolute extract (also called natural tobacco extract) as additive in tobacco-flavoured liquids. This flavouring is not approved for use in food. One manufacturer (House of Liquid, Nottingham, UK) uses a different production method. Cured tobacco leaves are inserted into bottles containing propylene glycol and glycerol, and are allowed to rest for several days. Subsequently, the leaves are removed and the liquid is filtered and bottled for use with ECs. The same process but different tobacco blends are used for producing the four samples tested (according to manufacturers website: www.houseofliquid.com). Additionally, a base EC sample, consisting of 50% propylene glycol and 50% glycerol (without nicotine or any flavouring) was tested. In order to choose the samples for the analysis, an online poll in an EC users forum about the popularity of liquids from four major manufacturers/retailers in Greece was organized by the researchers; additionally, data on sales volume were requested from the retailers. The tobacco leaves-produced liquids were chosen because the procedure used in the production process is unique and such liquids are popular in the Greek market and abroad. Two sets of experiments were performed; one using regular voltage and a second using higher voltage for EC vapour production. For the first set, a commercially available EC device consisting of a lithium battery (eGo, Joyetech, Shenzhen, China), a 2.2-Ohms atomiser (510 T, Omega Vape, Manchester, UK) and a tank-type cartridge where liquid is stored were used (Figure 1). The battery was fully charged before each extract production and was measured to deliver 3.7 volts with the atomiser attached. A new atomiser was used for each vapour extract production. Before use, the atomiser was cleaned with ultrasound and distilled water, to remove the liquid substance that is used during the manufacturing process. Subsequently, its resistance was measured by a digital multimeter and it was discarded if it was found to differ by more than 0.1 Ohm from the nominal value. The total energy applied to the atomiser for the first set of experiments was 6.2 watts. For the second setting, a variable-voltage device was used (Lavatube, Shenzhen, China). It consists of an aluminium tube where a rechargeable lithium battery is inserted, and incorporates an electronic circuit by which the voltage can be manually adjusted by pressing buttons (Figure 1). The atomiser-type used was similar to the first setting. The device was adjusted so that 4.5 volts were delivered to the atomiser. Thus, the total Int. J. Environ. Res. Public Health 2013, 10 5149 energy applied for vapour production in the second experimental setting was 9.2 watts. Before initiating the experiments, four samples were randomly chosen to be additionally tested using the high-voltage device. For every sample, a brand new atomiser and cartridge were used, to avoid contamination between samples. The batteries were fully-charged before each extract preparation. An important issue that needs to be clarified before proceeding with laboratory experiments is the determination of the dry puff phenomenon [11]. It occurs when insufficient liquid is supplied to the wick of the atomiser, leading to temperature elevation. This is detected by the user as an unpleasant burning taste which is avoided by reducing puff duration and increasing interpuff interval. Therefore, if this phenomenon is reproduced in the laboratory setting it does not represent EC use in realistic conditions. Since no laboratory method has been developed to detect it, one of the researchers (who is an experienced EC user) was assigned to test both devices in order to detect the dry puff phenomenon.

Table 1. Electronic cigarette liquids tested in this study.

Nicotine concentration Samples Main ingredients a Distributor/Manufacturer (mg/mL) City 6 30% VG/60% PG Alter Ego/El Greco Americano 9 30% VG/60% PG Alter Ego/El Greco Tribeca 12 VG/PG * Alter Ego/Halo Classic 18 30% VG/60% PG Alter Ego/El Greco Cinnamon & Cookies 6 50% VG/50% PG Atmos Lab RY69 6 50% VG/50% PG Atmos Lab Green apple 12 50% VG/50% PG Atmos Lab Bebeka 18 50% VG/50% PG Atmos Lab Base b 0 50% VG/50% PG Flavourart MaxBlend 9 85% VG Flavourart RY4 9 85% VG Flavourart Virginia 18 85% VG Flavourart El Toro Cigarrillos (1) c 12 VG/PG * House Of Liquid El Toro Cigarrillos (2) c 12 VG/PG * House Of Liquid Silverberry 12 VG/PG * House Of Liquid El Toro Guevara c 18 VG/PG * House Of Liquid El Toro Puros c 24 VG/PG * House Of Liquid Golden Margy 6 20% VG/80% PG Nobacco Golden Virginia 8 90% VG/10% PG Nobacco American Tobacco 11 90% VG/10% PG Nobacco Tobacco Echo 18 20% VG/80% PG Nobacco Abbreviations: VG, vegetable glycerol; PG, propylene glycol; a Approximate concentrations, according to manufacturers reports; b Sample consisting of propylene glycol and glycerol, without nicotine or flavourings; c Electronic cigarette samples made by using tobacco leaves; * Exact percentages were not disclosed by the manufacturers. Int. J. Environ. Res. Public Health 2013, 10 5150

Figure 1. Electronic cigarette devices used in this study. The low voltage device delivered 3.7 volts to the atomiser while the high-voltage device integrates an electronic circuit by which the voltage applied to the atomiser can be adjusted. For the high-voltage experiments it was set to 4.7 volts. The cartridge is the part where liquid is stored, while the atomiser is the part where the resistance and wick are placed and evaporation of the liquid takes place.

Both EC devices were tested on 4 s puffs [12]. It was found that the dry-puff phenomenon was consistently reproduced with the high-voltage device at 4 and 3 s puff duration. Therefore 2.5 s puffs were used with the high-voltage device, while 4 s puffs were used with the regular-voltage device.

2.2. Cell Cultures

Cytotoxicity was measured by MTT assay on monolayer-cultured H9c2 cardiomyoblast cells (ATCC CRL-1446), according to the ISO 10993-5 standard [13]. The reason for choosing this cell line was based on the better culture stability and reproducibility compared to human cardiomyocytes. Additionally, they have similar characteristics to adult cardiomyocytes [14] and have been extensively used as an in vitro model to study smoking-induced pathology [1517]. Cells were grown in Dulbeccos modified Eagles medium (Sigma-Aldrich, St. Louis, MO, USA), supplemented with fetal bovine serum (Euroclone, Milano, Italy), penicillin-streptomycin 0.1 g/mL (Euroclone) and kanamycin 0.1 g/mL (Sigma-Aldrich, St. Louis, MO, USA). The doubling time of the cell line was 24 ± 5 h. All related extracts, solutions and media were prepared using sterile laboratory conditions, components and ingredients. Routine checks for bacterial contamination were applied, in terms of both bacterial cultures and microscopic observation of the cell cultures after incubation for the presence of morphological changes typical of bacterial contamination.

2.3. Production of Extracts

Vapour extract was produced by simulating EC use. The EC atomiser cartridge was filled with 400 mg of liquid. The vapour was bubbled through an impinger by activating a vacuum pump and the EC device, resulting in 200 mg of liquid consumed (evaporated) and extracted in 20 mL of cultured medium Int. J. Environ. Res. Public Health 2013, 10 5151

(Dulbeccos basal medium plus 10% fetal bovine serum). The vacuum pump was set so that each activation would consume approximately 45 mg of liquid, representing real use [12]. Weighing of the EC cartridge was performed before and during the experiment by a precision scale (Mettler, model AB104-S, precision of 0.1 mg) to make sure that 200 mg of liquid were consumed, leading to a final extract concentration of 1% (as dictated by ISO 10993-5 standard). The resulting solution was denoted as 100% EC vapour extract. For the regular-voltage experiments, each inhalation simulation lasted 4 s, with 60 s between inhalations; for the high-voltage experiments, each puff lasted 2.5 s. CS extract was produced by using the ISO 3308 standard (2 s puffs of 35 mL, one puff every 60 s) [18]. Three cigarettes were consumed, since it was previously found that this is a comparative measure to 200 mg of liquid [12]. The resulting solution was denoted as 100% CS extract. Immediately after preparation, all EC vapour and CS extracts were used in cell cultures.

2.4. Treatment and Exposure

Cells were seeded in 96-wells plate with Dulbeccos basal medium plus 10% fetal bovine serum and maintained in culture for 24 h (5% CO2, 37 °C, >90% humidity) in order to form a semi-confluent monolayer. In each well, 100 ȝL of a cell suspension of 1 u 105 cells/mL was dispensed. A different plate was prepared for each extract testing. On the next day, each plate was examined under the microscope to ensure that cell attachment was even across the plate. Subsequently, the medium was aspirated and replaced by medium containing the CS and EC liquid extracts in one undiluted (100%) and 4 diluted samples (50%, 25%, 12.5% and 6.25%). For the EC extract, 100% EC extract equals to a vapour extract concentration of 1%. Three different wells were treated with each dilution and columns 2 and 11 were used to culture cells with normal medium (without extract, untreated cells); then, they were incubated for 24 h at 37 °C. Subsequently, cells were tested for viability by MTT assay. Untreated cells were used as controls.

2.5. MTT Assay

The assay was performed according to the method developed by Mossman [19]. After incubation, the culture medium was removed and replaced with 10 ȝL of 1 mg/mL MTT. The cells were then incubated for 2 h. MTT (3-[4,5-dimethylthiazol-2-yl]-2,5-diphenyltetrazolium bromide) is cleaved by the mitochondrial dehydrogenases of viable cells leading to the formation of purple crystals, representing formazan metabolism, which are insoluble in aqueous solutions. The solution was then removed and replaced with 200 µL/well of isopropanol to extract and solubilize the formazan. It was incubated for 30 min at room temperature under medium speed shaking. Then, the solution was measured spectrophotometrically. The absorbance at 570 nm was measured with a microplate reader (Tecan, model Sunrise Remote, Männedorf, Switzerland) and background subtraction was adjusted with absorbance readings at 690 nm. The absorbance values were normalized by setting the negative control group (untreated cells) in each row to 100%. Subsequently, the viability of the treated cells was expressed as a percent of untreated cells. Int. J. Environ. Res. Public Health 2013, 10 5152

2.6. Quality Check of Assay

According to the ISO 10993-5 standard, a test meets acceptance criteria if the left (column 2) and the right (column 11) mean of the blanks do not differ by more than 15% from the mean of all blanks; this criterion was met in all our experiments. Additionally, the standard deviation of the untreated and each treated sample should not exceed 18%. The highest standard deviation observed was 12.9% for the regular-voltage experiments and 10% for the high-voltage experiments. Finally, the absolute value 4 of optical density, OD570, obtained in the untreated wells indicates whether the 1 u 10 cells seeded per well have grown exponentially with normal doubling time during the two days of the assay. The OD570 of untreated cells were 0.2 in all experiments, meeting the acceptance criteria of ISO 10993-5.

2.7. Statistical Analysis

All data are reported as mean ± standard deviation. One-way analysis of variance (ANOVA) was used for comparison of percent viability between different extract concentrations of the same sample. If statistically significant differences were found, post-hoc analysis was performed with Bonferroni test to determine which extract concentrations had different effects on viability. Paired t-test was used to examine the difference in viability between low-voltage and high-voltage experiments. Independent sample t-test was used to assess whether nicotine concentration was associated with differences in viability, with EC samples divided into two categories: low-nicotine (611 mg/mL, 9 samples) and high nicotine (1224 mg/mL, 11 samples); the analysis was performed only for the low-voltage samples, since the number of samples tested in the high-voltage experiments was not sufficient to show any significant differences. Inhibitory concentration 50 (IC50, the concentration of extract that produced 50% viability) was estimated from regression plots. No observed adverse effects level (NOAEL) was defined as the highest extract concentration that showed statistically insignificant difference in viability compared to the 6.25% extract concentration. According to UNI ISO 10993-5 standard definition, viability of less than 70% by MTT assay was considered cytotoxic. All analyses were performed with commercially available software (SPSS v18.0, Chicago, IL, USA) and a two-tailed P value of 0.05 was considered statistically significant.

3. Results

3.1. Cell Viability from Exposure to CS and EC Vapor Generated at Low Voltage

For the low-voltage experiments, myocardial cell viability measurements for each EC vapour and CS extracts at different dilutions are displayed in Table 2. From the 20 samples tested, four samples exhibited a cytotoxic effect in the 3.7 volts experiments: Cinnamon-Cookies flavour was slightly cytotoxic at the highest extract concentration, while both samples of El Toro Cigarillos and El Toro Puros were cytotoxic at both 100% and 50% extract concentration. The range of myocardial cell survival for all EC samples at 3.7 volts was: 89.7%112.1% at 6.25%, 90.6%115.3% at 12.5%, 81.0%106.6% at 25%, 7.4%106.8% at 50% and 2.2%110.8% at 100% extract concentration. The base sample was not cytotoxic at any extract concentration. CS extract was significantly Int. J. Environ. Res. Public Health 2013, 10 5153 cytotoxic at concentrations above 6.25%, with viability rate being: 76.9 ± 2.0% at 6.25%, 38.2 ± 0.6% at 12.5%, 3.082 ± 0.2% at 25%, 5.2 ± 0.8% at 50% and 3.9 ± 0.2% at 100% extract concentration.

Table 2. Myocardial cell viability in cigarette smoke extract and in electronic cigarette vapour extracts produced at 3.7 volts.

Dilutions Samples-nicotine (mg/mL) 100% a 50% b 25% c 12.5% d 6.25% e p * Base-0 105.1 ± 1.2 103.5 ± 1.9 101.3 ± 4.2 100.7 ± 3.4 100.4 ± 2.3 0.251 Golden Margy-6 89.2 ± 0.2 93.0 ± 2.2 92.1 ± 1.3 95.3 ± 3.6 93.0 ± 6.3 0.361 RY69-6 98.9 ± 4.6 101.2 ± 5.4 96.0 ± 13.0 100.5 ± 2.7 100.2 ± 9.2 0.932 City-6 93.6 ± 2.5 89.4 ± 4.2 94.6 ± 2.3 93.3 ± 2.3 93.8 ± 2.8 0.282 Cinnamon Cookies-6 64.8 ± 2.5 100.8 ± 2.0 97.2 ± 2.9 99.3 ± 1.7 99.2 ± 3.8 <0.001 Golden Virginia-8 86.6 ± 1.8 89.1 ± 1.094.2 ± 3.0 95.5 ± 0.7 97.1 ± 1.4 <0.001 RY4-9 73.8 ± 3.7 106.6 ± 1.1 104.4 ± 1.9 103.6 ± 4.0 100.7 ± 0.8 <0.001 MaxBlend-9 104.4 ± 1.6 102.4 ± 2.0 102.4 ± 2.8 101.2 ± 7.6 102.7 ± 2.0 0.901 Americano-9 85.0 ± 2.0 98.3 ± 1.7 90.9 ± 4.4 94.7 ± 3.5 94.1 ± 5.9 0.017 American Tobacco-11 109.0 ± 1.6 106.8 ± 0.5 104.9 ± 1.0 101.3 ± 3.1 103.6 ± 2.5 0.007 Tribeca-12 110.8 ± 2.8 103.9 ± 5.5 106.6 ± 7.9 102.4 ± 5.1 101.7 ± 3.0 0.268 Green apple-12 106.6 ± 2.0 106.8 ± 2.0 105.2 ± 3.3 103.6 ± 4.5 99.2 ± 2.5 0.060 El Toro Cigarrillos-12(1) f 39.1 ± 1.2 52.5 ± 1.8 81.0 ± 2.0 92.6 ± 0.4 99.2 ± 1.0 <0.001 El Toro Cigarrillos-12(2) f 22.3 ± 4.0 66.9 ± 6.2 104.1 ± 5.8 109.9 ± 6.0 112.0 ± 8.8 <0.001 Silverberry-12 108.2 ± 8.5 107.2 ± 2.7 106.0 ± 1.7 103.2 ± 0.7 100.3 ± 2.0 0.200 Virginia-18 82.1 ± 0.8 95.8 ± 8.6 95.1 ± 3.0 90.6 ± 7.0 93.3 ± 8.5 0.136 Classic-18 95.0 ± 5.1 104.0 ± 9.1 101.1 ± 12.9 107.3 ± 8.3 89.7 ± 6.4 0.176 Tobacco echo-18 96.1 ± 5.0 96.4 ± 7.7 101.7 ± 3.1 102.7 ± 4.7 96.3 ± 7.3 0.479 Bebeka-18 75.7 ± 8.6 87.5 ± 2.2 90.8 ± 1.6 95.9 ± 1.9 99.0 ± 2.3 <0.001 El Toro Guevara-18 f 84.5 ± 3.0 91.0 ± 3.594.6 ± 1.3 98.8 ± 2.0 102.5 ± 1.7 <0.001 El Toro Puros-24 f 2.2 ± 0.6 7.4 ± 3.9 84.5 ± 6.5 115.3 ± 11.7 111.9 ± 7.4 <0.001 CS g 3.9 ± 0.2 5.2 ± 0.8 3.1 ± 0.2 38.2 ± 0.6 76.9 ± 2.0 <0.001 Values are presented as mean ± standard deviation. Viability is expressed as percent, compared to untreated cells; ae For electronic cigarette liquid extracts, dilutions represent (w/v): a, 1%; b, 0.5%; c, 0.25%; d, 0.125%; e, 0.0625%; f Electronic cigarette samples made by using tobacco leaves; g CS = cigarette smoke; * For every sample, a separate ANOVA was performed to compare survival between different extract dilutions of the sample.

Examples of microscopic images of the cells after 24 h incubation in control medium, CS extract (100% concentration) and EC vapour extract (100% concentration) are displayed in Figure 2. Cells cultured in clear medium (Figure 2(A)) showed no sign of relevant mortality nor morphological alterations. Cells exposed to CS extract (Figure 2(B)) suffered from large scale cell death, as visible from the several apoptotic bodies and the absence of any surviving, morphologically stable cardiomyoblasts. Cells exposed to EC vapour extract-saturated medium (Figure 2(C)American Tobacco) showed similar morphology to cells cultured in clear cell medium. Cell viability was determined to be approximately 100% for both clear medium culture and the EC vapour extract sample shown in the image. Int. J. Environ. Res. Public Health 2013, 10 5154

Figure 2. Microscopic images of cell cultures after 24 h treatment with: (A) untreated culture medium; (B) cigarette smoke extract at 100% extract concentration; (C) electronic cigarette vapour extract at 100% extract concentration (American Tobacco).

3.2. Cell Viability from Exposure to EC Vapor Generated at High Voltage

For the high-voltage experiments, myocardial cell viability measurements for the EC vapour samples (n = 4) are displayed in Table 3. Range of viability at 4.5 volts was: 85.0%97.7% at 6.25%, 83.5%104.9% at 12.5%, 81.6%105.7% at 25%, 83.4%103.6% at 50% and 72.9%95.4% at 100% extract concentration. The absolute mean difference in viability between 3.7 and 4.5 volts experiments was: 7.1 ± 4.1% at 6.25%, 5.0 ± 5.3% at 12.5%, 4.2 ± 4.8% at 25%, 5.0 ± 3.8% at 50% and 17.0 ± 12.2% at 100% extract concentration. Only the difference at 6.25% extract concentration was statistically significant (p = 0.039). None of the 4 samples was considered cytotoxic.

Table 3. Comparison of myocardial cell viability between regular and high voltage-produced electronic cigarette vapour extracts.

Samples-nicotine Dilutions Voltage (mg/mL) 100% a 50% b 25% c 12.5% d 6.25% e 3.7 89.2 ± 0.2 93.0 ± 2.2 92.1 ± 1.3 95.3 ± 3.6 93.0 ± 6.3 Golden Margy-6 4.5 82.2 ± 1.2 83.4 ± 3.6 81.6 ± 1.3 83.5 ± 2.4 85.0 ± 3.1 3.7 104.4 ± 1.6 102.4 ± 2.0 102.4 ± 2.8 101.2 ± 7.6 102.7 ± 2.0 MaxBlend-9 4.5 95.4 ± 2.0 97.7 ± 1.8 100.6 ± 2.1 96.4 ± 2.5 97.7 ± 5.5 3.7 110.8 ± 2.8 103.9 ± 5.5 106.6 ± 7.9 102.4 ± 5.1 101.7 ± 3.0 Tribeca-12 4.5 92.7 ± 2.7 103.6 ± 2.6 101.6 ± 3.0 97.7 ± 1.7 89.3 ± 4.7 3.7 106.6 ± 2.0 106.8 ± 2.0 105.2 ± 3.3 103.6 ± 4.5 99.2 ± 2.5 Green apple-12 4.5 72.9 ± 3.5 101.3 ± 10.0 105.7 ± 3.3 104.9 ± 0.9 96.2 ± 0.7 p value * 0.069 0.080 0.175 0.156 0.039 Values are presented as mean ± standard deviation. Viability is expressed as percent, compared to untreated cells; ae Dilutions represent (w/v): a, 1%; b, 0.5%; c, 0.25%; d, 0.125% ; e, 0.0625%; * p value for comparison between different voltages at each dilution. For every extract dilution, separate paired t-tests were performed to compare cell survival between low and high voltage. Int. J. Environ. Res. Public Health 2013, 10 5155

3.3. Nicotine Effects on Myocardial Cell Viability

The effects of nicotine concentration on cell survival are displayed in Table 4. No statistical significant difference in viability was observed according to nicotine concentration of the EC samples, indicating that nicotine content had no effect on myocardial cell survival.

Table 4. Myocardial cell viability according to nicotine concentration of the electronic cigarette samples tested at 3.7 volts (6.2 watts).

Viability according to nicotine concentration (mg/mL) Extract concentrations 611 (n = 9) 1224 (n = 11) p * 100% 89.5 ± 14.1% 74.8 ± 37.1% 0.247 50% 98.6 ± 6.7% 83.6 ± 30.6% 0.141 25% 97.4 ± 5.2% 97.3 ± 8.9% 0.981 12.5% 98.3 ± 3.7% 102.0 ± 7.3% 0.181 6.25% 98.1 ± 3.7% 100.5 ± 6.8% 0.357 Values are presented as mean ± standard deviation. Viability is expressed as percent, compared to untreated cells. * p value for comparison between different nicotine concentrations in each extract concentration. For every extract dilution, separate independent-sample t-tests were performed to compare cell survival between different nicotine concentrations groups at each extract dilution.

3.4. IC50 and NOAEL for EC and CS

IC50 and NOAEL for EC and CS samples are shown in Table 5. IC50 could be determined only for CS extract and for El Toro Cigarrillos and El Toro Puros, since for every other EC sample viability was higher than 50% at all extract concentrations. For 12 of the 20 samples at 3.7 volts, the base sample and two of the four samples at 4.5 volts, viability was not statistically different between 6.25% and any other extract concentrations; thus, NOAEL for these samples was defined as 100% extract concentration. The lowest NOAEL and IC50 were observed in CS extract.

Table 5. Inhibitory concentration 50 (IC50) and no adverse effect level (NOAEL) for each electronic cigarette extract and for cigarette smoke extract.

Dilutions

Samples-nicotine (mg/mL) IC50 NOAEL Base-0 >100% 100% Golden Margy-6 >100% 100% Golden Margy-6 * >100% 100% RY69-6 >100% 100% City-6 >100% 100% Cinnamon Cookies-6 >100% 50% Golden Virginia-8 >100% 25% RY4-9 >100% 50% MaxBlend-9 >100% 100% MaxBlend-9 * >100% 100% Americano-9 >100% 100% Int. J. Environ. Res. Public Health 2013, 10 5156

Table 5. Cont.

Dilutions

Samples-nicotine (mg/mL) IC50 NOAEL American Tobacco-11 >100% 100% Tribeca-12 >100% 100% Tribeca-12 * >100% 12.5% Green apple-12 >100% 100% Green apple-12 * >100% 50% El Toro Cigarrillos-12(1) a 52% 6.25% El Toro Cigarrillos-12(2) a 69% 25% Silverberry >100% 100% Virginia-18 >100% 100% Classic-18 >100% 100% Tobacco echo-18 >100% 100% Bebeka-18 >100% 50% El Toro Guevara-18 a >100% 12.5% El Toro Puros-24 a 36% 12.5% CS b 11% 6.25% a Electronic cigarette samples made by using tobacco leaves; b CS = cigarette smoke; * Electronic cigarette vapour samples prepared at 4.5 volts.

4. Discussion

This is the first study that has evaluated the cytotoxic potential of EC vapour on cultured myocardial cells. High-voltage vaping, which is increasingly popular in EC users [20], was also tested for the first time. Importantly, a standardized protocol was used (ISO 10993-5), which defines cytotoxicity as viability <70% compared to untreated cells. EC samples were tested in vapour form which was produced by activating a commercially-available device, simulating the way ECs are used by every user. Finally, the same methodology was used to examine CS cytotoxicity. This is important since ECs are marketed for smokers only, as an alternative habit; therefore, the purpose of this study was to address the main scientific question which is whether ECs are less harmful compared to tobacco cigarettes. The main findings were that four out of 20 EC samples were cytotoxic on cultured myocardial cells, with most (but not all) tobacco-produced samples showing the lowest cell survival rate. Although samples of vapour produced with high voltage were not cytotoxic, cell viability was reduced compared to vapour produced with regular voltage. Overall, CS was significantly more cytotoxic, with toxicity observed even when CS extract was diluted to 12.5% of original concentration. Several studies have shown that CS extract has direct necrotic and apoptotic effects on cardiac myocytes [10,21]. The main mechanism responsible is oxidative stress [22] and inflammation [23]. Mitochondrial dysfunction and DNA damage also play an important role in causing cell damage [2426]. CS is a complex suspension containing more than 4,000 chemicals [27]. Several of them have been studied separately and were found responsible for cytotoxic effects, such as acrolein [28], acetaldehyde [29], formaldehyde [30], and heavy metals [31]. The results of this study are in line with previous observations about the cytotoxic effects of CS extract. Int. J. Environ. Res. Public Health 2013, 10 5157

Propylene glycol and glycerol are the main ingredients of EC liquids. Both are classified by Food and Drug Administration (FDA) and by the Flavor and Extracts Manufacturers Association (FEMA) as additives that are generally recognized as safe for use in food (FEMA GRAS numbers 2,940 and 2,525 respectively). They are also used in tobacco cigarettes as humectants; however they may be pyrolyzed to acrolein and formaldehyde [32,33]. Goniewicz et al. found acrolein and formaldehyde in EC vapour [34]; however, the levels detected were lower compared to CS by orders of magnitude, probably because the temperature of evaporation of EC liquid is lower compared to the temperature of combustion in tobacco cigarettes. Similar observations were made by Lauterbach and Laugesen [35]. Even if such chemicals were released during vapour production in this study, the amount was probably not enough to produce any significant cytotoxic effect on cultured cells. Nicotine, at levels commonly found in cigarettes, does not induce cell death and may even have anti-apoptotic properties in myocardial [36] and other cell lines [37,38]. In this study, cell viability was independent of the nicotine concentration in EC liquid samples. Out of 20 EC samples tested at regular voltage, four were found to be cytotoxic on the tested cell line. Cell survival after exposure to Cinnamon and Cookies EC extract was just below the level defined as cytotoxic. Studies have shown that cinnamon oils may have anti-oxidative and anti-inflammatory properties [39]. However, there are several reports in internet EC user forums that cinnamon flavours may have some irritant effects when inhaled; this may be due to an allergic reaction [40] rather than a cytotoxic effect. No studies have evaluated the effect of cinnamon extracts on cardiomyocyte survival. Cinnamaldehyde, the main ingredient of cinnamon flavouring, is heat unstable. Benzaldehyde can be produced if heated above 60 °C [41], which may have cytotoxic properties on cultured cells [42]. Cells survival was significantly reduced from exposure to El Toro Cigarrillos and El Toro Puros EC extracts. It is reasonable to assume that the cytotoxicity observed may be due to the use of cured tobacco leaves in the production process. The possibility that several tobacco impurities may be present in the final sample, despite being filtered before bottled, cannot be excluded. The two samples of El Toro Cigarrillos liquid tested were equally cytotoxic, therefore excluding the possibility of experimental error or material dysfunction. However, no cytotoxicity was observed in another sample (El Toro Guevara) produced by the same company with similar methodology. According to the companys website (www.houseofliquid.com), different blends of tobacco leaves are used in these liquids. The difference in cell viability could be attributed to differences in tobacco blends, possibly related to the curing process or pesticides used during cultivation of tobacco [43]. Although other manufacturers reported the use of industrially-produced tobacco extracts in several of the samples tested, none of them was found to be cytotoxic on cultured cells. Further studies need to be conducted in order to determine qualitative or quantitative differences in chemical composition of the vapour of these EC liquids that could be associated with differences in cell survival; no such analysis was performed in this study. EC devices using higher voltage and wattage for vapour production have been developed in recent years. Consumers report perceiving additional pleasure from high-voltage EC use [20], probably due to more vapour production and different flavour of the resulting vapour. Results from the limited number of samples tested showed that cell viability was reduced; the difference was not statistically significant for most extract concentrations, but this should probably be attributed to the low number of samples tested. It is expected that higher energy applied to the resistance of the EC device will result in Int. J. Environ. Res. Public Health 2013, 10 5158 higher evaporation rate of the liquid; this can result in temperature elevation, especially if the liquid supply to the wick and resistance is not sufficient [12]. Vapour was produced by lower puff duration compared to regular-voltage experiments because that was the duration that could be used in realistic settings without reproducing the dry-puff phenomenon. Further studies are needed to clarify the cytotoxic potential of high-voltage EC use, by examining more samples and using more efficient atomisers. The results of this study raise the possibility that cytotoxicity depends on flavourings rather than other ingredients of EC liquid. A previous study by our group showed that one of 21 liquids had cytotoxic properties on cultured fibroblasts [11]. In that study, all samples were produced by the same manufacturer and had the same main ingredients (propylene glycol, glycerol and nicotine in similar concentrations). Therefore, the difference in cell viability could only be attributed to the flavouring. Although some of the flavourings are approved for use in foods, their effects are unknown when heated and evaporated. Moreover, manufacturers use different quantities of flavourings in the EC liquids, thus it cannot be excluded that cytotoxicity may depend on the quantity rather than on the flavouring itself. Unfortunately, there is no way to predict which flavourings may have a cytotoxic effect unless they are specifically examined. Considering the huge variety of liquids currently available in the market, it may be essential to test all flavourings and determine the flavouring concentrations that can be considered safe. A study by Bahl et al. also found an association between EC liquid cytotoxicity and flavourings [44]. However, they evaluated the samples in liquid form. Such tests should preferentially be done in vapour form, produced by activation of an EC device, since this represents the pragmatic way these liquids are used by consumers. Despite the findings of cytotoxicity in some of the flavours, eliminating all flavourings from ECs would be controversial, since they seem to play an important role in ECs acceptance [20]; liquids containing just glycerol, propylene glycol and nicotine would be virtually flavourless, making them less appealing to smokers as a smoking substitute. Some limitations apply to this study. Cytotoxicity studies on cultured cells have been developed in order to reduce the use of experimental animals. Extrapolating these results to the human in vivo toxicity should be done with caution; clinical studies are necessary in order to confirm findings from cytotoxic studies. However, a comparative measure of toxicity with CS extract was provided, which has well-established in vivo toxic effects. There is no consensus on the methodology of preparing and testing EC vapour extracts; therefore, a standardised method was used, which specifically defines the cell survival rate that is considered cytotoxic. Nicotine levels in the extracts were not measured. However, the purpose of the study was to evaluate the effects of EC vapour by simulating realistic conditions of use rather than by setting a pre-specified level of nicotine content in the extract. Therefore, commercially available EC batteries and atomiser were used to produce vapour, and they were previously evaluated by an experienced user in order to ensure that the experimental conditions would not represent unrealistic situations (such as the dry puff phenomenon). Although there is no established comparative measure between EC and tobacco cigarette use and no method to standardise the vapour extracts of EC liquids in a similar way to CS extracts, the decision to compare extract from three tobacco cigarettes with 200 mg of liquid was based on previous observations from our group indicating that 5 min of EC use by experienced consumers (which is the time needed to smoke one tobacco cigarette) leads to consumption of approximately 60 mg of liquid [12]. Additionally, it should be emphasized that the results are not applicable to every EC liquid available to the market. It is possible that cell survival may be dependent on nicotine concentration if low-quality nicotine is used Int. J. Environ. Res. Public Health 2013, 10 5159 for EC liquid production, which would contain significant amounts of tobacco impurities. The same applies for other liquid constituents [45]. Finally, studies on the underlying causes for the difference in cytotoxic potential of EC samples should be undertaken, evaluating the quality and quantity of flavourings used among other factors. This study examined only the end-result of exposure, without evaluating the cause for the differences in cell survival.

5. Conclusions

In conclusion, from 20 commercially-available EC liquids that were tested in vapour form, four were found to be cytotoxic on cultured cardiomyoblasts. Cytotoxicity was mainly observed in most (but not all) samples produced by using tobacco leaves, while one sample using food-approved flavouring was marginally cytotoxic. EC vapour production by using higher-voltage devices caused a decrease in cell survival. Overall, EC vapour extracts showed significantly higher cell viability compared to CS extract, based on a realistic-use rather than a standardized comparative level of exposure. This supports the concept that ECs may be useful as tobacco harm reduction products; however, more studies are needed, especially in clinical level, in order to evaluate the effects of EC use on human health.

Acknowledgments

Funding: The study was funded in part by the Greek Association of E-cigarette Businesses (SEEHT). Role of the funding source: The study was investigator-initiated and investigator-driven. The sponsor funded the expenses of the laboratory (ABICH S.r.l, Verbania, Italy) where the experiments were performed. The sponsor had no involvement in the study design, data collection, analysis and interpretation, writing or approving the manuscript and decision to submit the manuscript for publication.

Conflicts of Interest

None reported by all authors. No author has received any financial or other compensation for this study.

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E-cigarette vapor contains nicotine, not other toxins

January 03, 2014

People standing near someone using an e-cigarette will be exposed to nicotine, but not to other chemicals found in tobacco cigarette smoke, according to a new study.

E-cigarettes, or electronic cigarettes, create a nicotine-rich vapor that can be inhaled, or 'vaped.'

Researchers and regulators have questioned whether e-cigarettes are a smoking cessation aid or may lure more young people toward smoking, as well as what effects they have on health.

"There is ongoing public debate whether e-cigarettes should be allowed or prohibited in public spaces," study co- author Maciej Goniewicz told Reuters Health in an email.

Goniewicz is a cancer researcher in the Department of Health Behavior at the Roswell Park Cancer Institute in Buffalo, New York.

"E-cigarettes contain variable amounts of nicotine and some traces of toxicants. But very little is known to what extent non-users can be exposed to nicotine and other chemicals in situations when they are present in the same room with users of e-cigarettes," Goniewicz said.

He and his colleagues conducted two studies of secondhand exposure to e-cigarette vapors in a laboratory. Their results were published in Nicotine and Tobacco Research.

In the first study, the researchers used an electronic smoking machine to generate vapor in an enclosed space. They measured the amount of nicotine as well as carbon monoxide and other potentially harmful gases and particles in the chamber.

The second study included five men who regularly smoked both tobacco cigarettes and e-cigarettes. Each man entered a room and smoked his usual brand of e-cigarette for two five-minute intervals over an hour while the researchers measured air quality. The room was cleaned and ventilated and the experiment was repeated with tobacco cigarettes.

The researchers measured nicotine levels of 2.5 micrograms per cubic meter of air in the first study. Nicotine levels from e-cigarettes in the second study were slightly higher at about 3.3 micrograms per cubic meter. But tobacco cigarette smoking resulted in nicotine levels ten times higher at almost 32 micrograms per cubic meter.

"The exposure to nicotine is lower when compared to exposure from tobacco smoke. And we also know that nicotine is relatively safer when compared to other dangerous toxicants in tobacco smoke," Goniewicz said.

E-cigarettes also produced some particulate matter, but regular cigarettes produced about seven times more. E- cigarettes didn't change the amount of carbon monoxide or other gases in the air.

"What we found is that non-users of e-cigarettes might be exposed to nicotine but not to many toxicants when they are in close proximity to e-cigarette users," said Goniewicz. "It is currently very hard to predict what would be the health impact of such exposure," he added.

He said more research is needed to find out how the current findings correspond to "real-life" situations, when many people might be using e-cigarettes in a room with restricted ventilation.

"This is an interesting piece and points in the direction that a number of other studies are pointing, though it begins to expand the evidence on the potential effects to others," Amy Fairchild told Reuters Health in an email.

Fairchild was not involved in the new research, but has studied how e-cigarette use might impact views on regular cigarettes at the Columbia University Mailman School of Public Health in New York.

She said the study suggests e-cigarettes are far safer, both in terms of toxins and nicotine, than tobacco cigarettes when it comes to the health effects on bystanders - although more research is needed to know for sure.

"In locales considering extending smoking bans to e-cigarettes, I think that these data weaken the case for more sweeping bans," Fairchild said. "And so this begins to answer the question about why e-cigarettes are considered better: they reduce risks to both the user and to the bystander when compared to tobacco cigarettes."

Fairfield said the concern about vaping ultimately revolves around whether e-cigarettes are going to change broader patterns of smoking at the population level.

"There are potential harms, including promoting continued smoking of cigarettes and renormalizing cigarette smoking behaviors," Goniewicz said. "Regulatory agencies around the world will need to make a number of regulatory decisions about product safety that could have major effects on public health."

Goniewicz has received funding from a drug company that makes medications to aid smoking cessation. Another study author has received funds from an e-cigarette manufacturer.