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HomeMy WebLinkAboutItem 8.2 - 2944 Flavored Tobacco Ban Page 1 of 4 STAFF REPORT CITY COUNCIL DATE: November 19, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Flavored Tobacco Prohibitions Prepared by: John Stefanski, Assistant to the City Manager EXECUTIVE SUMMARY: The City Council will consider providing direction on regulations to restrict or ban the sale of flavored tobacco. STAFF RECOMMENDATION: Receive the report and provide direction, if any, on regulations to restrict or ban the sale of flavored tobacco. FINANCIAL IMPACT: None. DESCRIPTION: This report is in response to the October 1, 2019 City Council request for Staff to research and provide recommendations to the City Council on a flavored tobacco ban. Policy Context Over the last three years there has been a surge in the number of middle school and high school students using tobacco products, primarily e -cigarettes. According to the 2018 National Youth Tobacco Survey (NYTS) 20.8% of high school students reported using e-cigarettes, a 78% increase from the prior year. Similarly, 4.9% of middle school students reported using e-cigarettes, up 48% from 2017. Survey data from the 2016 NYTS attributed the rise in use of e-cigarettes to the following reasons: Friend or family member used an e-cigarette (39%) Availability of flavors such as mint, candy, fruit, or chocolate (31%) Belief that e-cigarettes are less harmful than other forms of tobacco like cigarettes (17%) Page 2 of 4 In addition to the rise in youth tobacco usage, the Centers for D isease Control (CDC) reports that there have been over 2,000 lung injury cases and 39 deaths associated with the use of e-cigarettes, or vaping products as of November 5, 2019. Earlier this month the CDC identified Vitamin E acetate as an ingredient that may be contributing to the lung injury cases. However, the U.S. Food and Drug Administration (FDA) and the CDC are continuing to study potential causes and state that the only commonality among the cases is the reported use of an e-cigarette or vaping product. Facing increased scrutiny from public health officials, JUUL ceased its sales of its mango, fruit, crème, and cucumber-flavored products last year. Following this, JUUL users switched to the mint flavored product, increasing sales of mint products fro m 33% of JUULs total retail sales to 67%. Earlier this month, JUUL announced that it would halt the sale of its mint flavored products but would continue to sell menthol flavored products. Federal Regulatory Action The Federal Government bans the sale of all flavored cigarettes except for menthol flavored cigarettes. Currently, other forms of flavored tobacco products are available for purchase, such as cigars, hookahs, and e-cigarettes. The FDA maintains responsibility to regulate all tobacco products. The FDA utilizes pre-market authorizations to review and determine the individual and public health impacts of new tobacco products (i.e. products not on the market as of February 15, 2007) prior to those products being sold legally on the market. Tobacco companies are required to submit new tobacco products for pre-market authorizations; however, many e-cigarette producers have not done so since the FDA deferred enforcement on those lacking pre-market authorizations. As a result, nearly all e- cigarettes on the market today have not undergone a pre-market authorization review. In September 2019, in response to the rising number of youth tobacco users and the emergence of an apparent e-cigarette related lung injury, the FDA announced it was finalizing a policy to ban flavored e-cigarettes. Specifically, the FDA would prioritize pre- market authorizations for non-tobacco flavored e-cigarettes. The FDA is moving quickly to introduce new regulations which may result in flavored e - cigarette products being removed from the market. However, there is no set time frame for when these new regulations will be enacted. State Regulatory Action Earlier this year, the State Assembly and Senate considered companion bills AB 739 (McCarthy) and SB 38 (Hill) which would have prohibited the sale of flavored tobacco products throughout the State. These bills stalled after Governor Newsom issued Executive Order N-18-19 on September 16. The Executive Order directed the California Department of Public Health to develop recommendations to reduce e-cigarette usage by teens and young adults, including warning signs at retailers and an e-cigarette/vaping awareness campaign on the health risks of vaping. The Executive Order also directed the California Department of Tax and Page 3 of 4 Fee Administration to increase enforcement to remove illegal or counterfeit products from stores. Furthermore, Governor Newsom signed SB 39 (Hill) which requires stricter age verification requirements for any tobacco products sold online. Local Government Legislation Over the last year, six Bay Area cities have initiated bans on the sale of flavored tobacco and e-cigarette products to varying degrees: Municipality Flavored Tobacco Sales Prohibition E-Cigarette (Device and Cartridge) Sales Prohibition City of Alameda Yes No City of Fremont Yes No City of Livermore Yes Yes* City of Richmond Yes Yes* City of San Leandro Yes** No City and County of San Francisco Yes Yes* *Unless approved by the FDA and not flavored. **Except for menthol-flavored cigarettes. Existing City Regulations The City of Dublin’s Tobacco Retail License program (DMC Chapter 4.40) is the main vehicle for regulating the sale of tobacco products within the City. Tobacco retailers are currently able to sell tobacco products (i.e. any substance containing tobacco or derived from tobacco) regardless of the product’s flavor. This includes more established forms of tobacco like cigars, cigarettes, and chewing tobacco as well as electronic smoking devices and products containing synthetically produced nicotine. Retailers are also able to sell tobacco paraphernalia (i.e. electronic smoking device cartridges, liquids, and any item designed for the smoking, preparation, storing, consumption, or use of tobacco products or electronic smoking devices). Any business wishing to sell tobacco products must acquire a Tobacco Retailer’s License and be located in the C-1 or C-2 Zoning District or certain Planned Development Zoning Districts. Tobacco retailers shall be at least 1,000 feet from any school as well as any other licensed tobacco retailer. Additionally, tobacco retailers shall be 500 feet from any park, library, city-owned recreational facility, youth center, and playground. Retailers must examine the identification of any individual who appea rs to be under the age of 27. Tobacco products and related paraphernalia must be kept out of public view. Furthermore, retailers cannot display any advertisement promoting the sale or distribution of tobacco products and related paraphernalia. Page 4 of 4 Local Policy Alternatives Staff is seeking direction, if any, on regulations to restrict or ban the sale of flavored tobacco. Staff has prepared the following options for the City Council to consider: 1. Ban the sale of flavored tobacco products, except mint or me nthol flavored products. 2. Ban the sale of all flavored tobacco products. 3. Take no action and rely on upcoming FDA policy on e-cigarettes. 4. Other City Council direction. Next Steps If directed by the City Council, Staff will prepare any necessary am endments to the Dublin Municipal Code for City Council adoption. Should the City Council decide to ban flavored tobacco products, Staff would initiate a community engagement program for the City’s existing licensed tobacco retailers and the larger Dublin community. STRATEGIC PLAN INITIATIVE: None. NOTICING REQUIREMENTS/PUBLIC OUTREACH: None. ATTACHMENTS: None.