O 702
ORDINANCE NO. 702
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ARROYO GRANDE AMENDING CHAPTER 8.36 OF THE
ARROYO GRANDE MUNICIPAL CODE TO PROHIBIT THE
SALE AND DISTRIBUTION TO ANY PERSON IN ARROYO
GRANDE ELECTRONIC CIGARETTES AND VAPING
PRODUCTS THAT REQUIRE, BUT HAVE NOT RECEIVED,
A FOOD AND DRUG ADMINISTRATION ORDER
APPROVING THEIR MARKETING
WHEREAS, based upon its concerns about use of tobacco products, the City Council of
the City of Arroyo Grande has previously adopted Arroyo Grande Municipal Code
Chapters 8.36 – Tobacco Products and Chapter 8.38 – Licensing of Tobacco Retailers;
and
WHEREAS, the federal government has enacted numerous tobacco related laws that
include, but are not limited to the Family Smoking Prevention and Tobacco Control Act
(“Tobacco Control Act”), enacted in 2009, that prohibited candy and fruit-flavored
cigarettes, largely because these flavored products are marketed to youth and young
adults, and younger smokers were more likely than older smokers to have tried these
products. Among other things, the Tobacco Control Act authorized the U.S. Food and
Drug Administration ("FDA") to set national standards governing the manufacture of
tobacco products, to limit levels of harmful components in tobacco products and to require
manufacturers to disclose information and research relating to the products' health
effects; and
WHEREAS, a central requirement of the Tobacco Control Act is premarket review of all
new tobacco products. Specifically, every "New Tobacco Product" which is defined by
federal law to be any tobacco product not on the market in the United States as of
February 15, 2007, must be authorized by the FDA for sale in the United States before it
may enter the marketplace; and
WHEREAS, a New Tobacco Product may not be marketed until the FDA has found that
the product is: (1) appropriate for the protection of the public health upon review of a
premarket tobacco application; (2) substantially equivalent to a grandfathered product; or
(3) exempt from substantial equivalence requirements; and
WHEREAS, in determining whether the marketing of a tobacco product is appropriate for
the protection of the public health, the FDA must consider the risks and benefits of the
product to the population as a whole, including users and nonusers of the product, and
taking into account the increased or decreased likelihood that existing users of tobacco
products will stop using tobacco products and the increased or decreased likelihood that
those who do not use tobacco products will start using them. Where there is a lack of
showing that permitting the sale of a tobacco product would be appropriate for the
protection of the public health, the Tobacco Control Act requires that the FDA deny an
application for premarket review; and
ORDINANCE NO. 702
PAGE 2
WHEREAS, it has been reported that nearly all electronic cigarettes and vaping products
that are sold today entered the market after 2007, but have not been reviewed by the
FDA to determine if they are appropriate for the public health; and
WHEREAS, in 2017, the FDA issued guidance that purports to give electronic cigarette
manufacturers until August 8, 2022 to submit their application for premarket review. That
guidance further purports to allow unapproved products to stay on the market indefinitely,
until such time as the FDA complies with its statutory duty to conduct a premarket review
to determine whether a new tobacco product poses a risk to public health. In March 2019,
the FDA issued draft guidance in which it considered moving the premarket application
deadline up by one year for certain flavored electronic cigarette products. It is not known
when, if ever, this narrow adjustment will become final or will take effect; and
WHEREAS, on July 11, 2019, the United States District Court for the District of Maryland
in the case American Academy of Pediatrics v. FDA issued a ruling to advance the
submission deadlines for premarket review of certain tobacco products, including
electronic cigarettes. As a function of that ruling, the deadline for applications for FDA
premarket review of electronic cigarettes would have been shortened to May 11, 2020.
However, on October 24, 2019, the Justice Department appealed the Judge’s decision to
shorten the product approval deadline, thus creating greater uncertainty as to when such
review will occur; and
WHEREAS, even based on the 2017 FDA guidance, by the time electronic cigarette
manufacturers will be required to submit their pre-market review applications, electronic
cigarettes will have been on the market for nearly fifteen years without any FDA analysis
of their safety and alleged benefit. Recent reports of illness and death caused by
unregulated vaping devices is a public health crisis. In response, the City and County of
San Francisco, the City of Richmond and the City of Livermore have passed Ordinances
that prohibit the sale of any electronic cigarette or vaping device that has not received an
order from the FDA approving their marketing. The State of Massachusetts has also
enacted emergency legislation to ban the sale of all vaping products for four months in
response to this public health emergency; and
WHEREAS, the City of Arroyo Grande is also not content to wait and do nothing given
the health issues associated with unregulated electronic cigarettes and vaping devices
and therefore desires to adopt an ordinance that will prohibit the sale of all electronic
cigarettes and vaping devices until such devices are approved by the FDA and deemed
safe.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE DOES
ORDAIN AS FOLLOWS:
SECTION 1. The above recitals and findings are true and correct and are incorporated
herein by this reference.
SECTION 2. Section 8.36.050 is hereby added to Chapter 8.36 of Title 8 of the Arroyo
Grande Municipal Code, to read in its entirety as follows:
ORDINANCE NO. 702
PAGE 3
Section 8.36.050 – Sale and Distribution of Electronic Cigarettes and Vaping
Products that Require, But Have Not Received, a Food and Drug Administration
Order Approving Their Marketing.
A. Definitions: The following words and phrases, whenever used in this chapter, shall
have the meanings defined in this section unless the context clearly requires
otherwise:
"Distribute" or "distribution" means the transfer, by any person other than a
common carrier, of an electronic cigarette or vaping project at any point from the
place of manufacture or thereafter to the person who sells the electronic cigarette
or vaping product to an individual for personal consumption, including but not
limited to such transfers by licensed tobacco retailers, excluding online
transactions.
“Electronic cigarette” and “vaping product” shall mean: 1) any product intended for
human consumption by inhalation regardless of nicotine content, whether for one-
time use or reusable, that relies on vaporization or aerosolization, including but not
limited to electronic cigarettes, electronic cigars, electronic cigarillos, electronic
pipes, electronic vaping product delivery pens, hookah pens, and any other similar
devices that rely on vaporization or aerosolization; and 2) any component, part, or
accessory of a product or device defined in 1 above, including flavored vape juices
and liquids used in such devices, even if sold separately. “Electronic cigarette” and
“vaping product” does not include any product that has been approved by the
federal Food and Drug Administration either as a tobacco use cessation product
or for other medical purposes and which is being marketed and sold or prescribed
solely for the approved purpose.
“New Tobacco Product” shall have the meaning set forth in 21 U.S.C. § 387j(a)(1),
as may be amended from time to time.
"Sell,” "Sale, " and "to Sell" mean any transaction where, for any consideration,
ownership of an electronic cigarette or vaping product is transferred from one
person to another, including but not limited to any transfer of title or possession for
consideration, exchange, or barter, in any manner or by any means, including but
not limited to such transactions by licensed tobacco retailers, excluding online
transactions.
In addition, “Person” and "Tobacco retailer" shall have the meanings defined in
Arroyo Grande Municipal Code Section 8.38.020.
B. Sale of electronic cigarettes and vaping products prohibited.
1. No person shall sell or distribute an electronic cigarette or vaping product in
retail establishments, excluding online, including all non-flavored and flavored
vaping products, including mint and menthol, to a person in the City of Arroyo
Grande where the electronic cigarette or vaping product is:
a. is a New Tobacco Product;
ORDINANCE NO. 702
PAGE 4
b. requires premarket review under 21 U.S.C. § 387j, as may be amended
from time to time; and
c. does not have a premarket review order under 21 U.S.C. § 387j(c)(1)(A)(i),
as may be amended from time to time.
C. Violations. Persons violating any provisions of this section shall be deemed guilty
of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to
exceed one thousand ($1,000) dollars or by imprisonment in the county jail for a
period not to exceed six months or by both such fine and imprisonment. Any
violations of these provisions shall constitute a separate offense for each and every
day during which such violation is committed or continued. In addition to any other
penalty authorized by law, violations by licensed tobacco retailers shall also be
subject to suspension or revocation of their license in accordance with the
provisions of AGMC Section 8.38.110.”
SECTION 3. This ordinance is exempt from CEQA pursuant to CEQA Guidelines
Section15061 (b)(3) which is the general rule that CEQA applies only to projects that have
the potential for causing a significant effect on the environment and CEQA does not apply
where it can be seen with certainty that there is no possibility that the activity may have a
significant effect on the environment.
SECTION 4. A summary of this Ordinance shall be published in a newspaper published
and circulated in the City of Arroyo Grande at least five (5) days prior to the City Council
meeting at which the proposed Ordinance is to be adopted. A certified copy of the full text
of the proposed Ordinance shall be posted in the office of the City Clerk. Within fifteen
(15) days after adoption of the Ordinance, the summary with the names of those City
Council members voting for and against the Ordinance shall be published again, and the
City Clerk shall post a certified copy of the full text of such adopted Ordinance.
SECTION 5. This Ordinance shall take effect and be in full force and effect three months
after its passage.
SECTION 6. If any section, subsection, sentence, clause, or phrase of this Ordinance is
for any reason held to be invalid or unconstitutional by a decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions
of this Ordinance. The City Council hereby declares that it would have passed this
Ordinance and each and every section, subsection, sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether any portion of the ordinance
would be subsequently declared invalid or unconstitutional.
On motion by Mayor Ray Russom, seconded by Council Member George, and by the
following roll call vote to wit:
AYES: Mayor Ray Russom and Council Members George, Paulding, Storton, Barneich
NOES: None
ABSENT: None
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the foregoing Ordinance was adopted this 26 day of November, 2019.
ORDINANCE NO. 7o2-
PAGE 5
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CAREN RAY - U., SOM, MAYOR
ATTEST:
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KELLY E RE, CITY CLERK
APPROVED AS TO CONTENT:
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JAMES AN, CITY MANAGER
APPROVED AS TO FORM:
TIMOTHY J. CARMEL, CITY ATTORNEY
OFFICIAL CERTIFICATION
I, KELLY WETMORE, City Clerk of the City of Arroyo Grande, County of San
Luis Obispo, State of California, do hereby certify under penalty of perjury, that
the attached Ordinance No. 702 which was introduced at a regular meeting of the
City Council on November 12, 2019; was passed and adopted at a regular
meeting of the City Council on the 26th day of November 2019; and was duly
published in accordance with State law (G.C. 40806).
WITNESS my hand and the Seal of the City of Arroyo Grande affixed this 27th
day of November 2019.
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KELLY ET RE, CITY CLERK