HomeMy WebLinkAboutItem 04 and 05 Proposed Changes to Springfield Municipal Code 5.300 and 7.450-452 to Address Recent Changes in State Law Regarding E-Cigarettes
AGENDA ITEM SUMMARY Meeting Date: 3/21/2016
Meeting Type: Regular Meeting
Staff Contact/Dept.: Mary Bridget Smith,
City Attorney’s Office Staff Phone No: 541.746.9621
Estimated Time: Consent Calendar
S P R I N G F I E L D C I T Y C O U N C I L Council Goals: Promote and Enhance our Hometown Feel
while Focusing on Livability and Environmental Quality ITEM TITLE: PROPOSED CHANGES TO SPRINGFIELD MUNICIPAL CODE 5.300 AND
7.450-452 TO ADDRESS RECENT CHANGES IN STATE LAW REGARDING
E-CIGARETTES.
ACTION
REQUESTED:
Adopt/not adopt the following ordinances:
AN ORDINANCE AMENDING THE SPRINGFIELD MUNICIPAL CODE SECTION 5.300 REGARDING SALE AND DISTRIBUTION OF TOBACCO,
TOBACCO PRODUCTS, AND INHALANT DELIVERY SYSTEMS TO MINORS.
AN ORDINANCE AMENDING THE SPRINGFIELD MUNICIPAL CODE SECTION 7.450 and 7.452 REGARDING TOBACCO AND INHALANT DELIVERY SYSTEM VENDING.
ISSUE STATEMENT: Update the Municipal Code to reflect state changes in regulating nicotine products and e-cigarettes, specifically by amending SMC 5.300 and SMC 7.450-452 to
define “inhalant delivery systems” and regulate them in the same manner as
tobacco products.
ATTACHMENTS: Attachment 1 – Council Briefing Memo
Attachment 2 – Proposed Ordinance amending SMC 5.300 Attachment 3 – Proposed Ordinance amending SMC 7.450-452
DISCUSSION/
FINANCIAL IMPACT:
Changes SMC 5.300 to include “inhalant delivery products” and updates the
definition of “tobacco products”; changes SMC 7.450-452 to include “inhalant delivery products.
The proposed ordinances close the loophole that currently does not require e-cigarette vendors to obtain a city business license or pay a license fee. It is
unknown how many e-cigarette retailers and e-cigarette vending machine operators would be required to obtain a license.
M E M O R A N D U M City of Springfield 3/17/2016Page 1
M E M O R A N D U M City of Springfield
Date: 3/10/2016
To: Gino Grimaldi COUNCIL
From: Mary Bridget Smith
Kristina Kraaz
BRIEFING
Subject: Proposed Code Changes to Address E-Cigarettes MEMORANDUM
ISSUE: Update the Municipal Code to reflect state changes in regulating nicotine products and
e-cigarettes? The purpose of the change would be to regulate e-cigarettes (inhalant delivery
devices that deliver nicotine) in the same way that the City regulates traditional tobacco products.
COUNCIL GOALS/
MANDATE:
Promote and Enhance our Hometown Feel While Focusing on Livability and Environmental
Quality
BACKGROUND: During the 2015 Regular Session, the Oregon Legislature passed HB 2546, which effectively equates regulation of e-cigarettes (“inhalant delivery systems”) with regulation
of tobacco. HB 2546 amended the existing Indoor Clean Air Act (ICCA) to include e-cigarettes.
The legislation added a definition for “inhalant delivery system,” which includes devices and products intended to deliver nicotine or cannabinoids to an individual through “vaping.” The
new law allows the state to prohibit use of e-cigarettes and “vaping” in the same places that it prohibits traditional smoking and other tobacco use. The state is responsible for charging and prosecuting violations of the ICAA.
Currently, the Oregon Health Authority is developing administrative rules that are meant to reduce tobacco and e-cigarette sales to minors related to child resistant packaging, packaging
that is not attractive to minors, and labeling requirements. A separate rule advisory committee is
addressing e-cigarettes and the Indoor Clean Air Act (ICAA). These rules will focus on keeping workplaces and other public areas smoke free, including vapor from e-cigarettes.
Lane County has proposed significant changes to its tobacco retailer code, and is encouraging
cities in the county to follow its lead by adopting similar regulations because the county code provisions only apply to the unincorporated areas of the County. For example, Lane County is
prohibiting any new tobacco retailers from obtaining a county operating license for tobacco or e-
cigarette sales within 1,000 feet of a school. Additionally, the County’s new code provisions allow Lane County Health and Human Services to seize and destroy tobacco products offered
for sale without a license.
Eugene has not yet adopted any changes to its current tobacco code to include e-cigarettes or non-traditional nicotine products. But, Eugene does have a license requirement for tobacco
retailers and an administrative enforcement process for violations.
CURRENT SPRINGFIELD CODE:
There are two existing Code sections that address tobacco sales: SMC 5.300 – Sale and
Distribution of Tobacco and Tobacco Products to Minors, and SMC 7.450-452 – Tobacco Vending. The definition of “tobacco products” is found in SMC 5.300(1). The current definition does not currently include any language that encompasses e-cigarettes. In addition,
SMC 7.450-452 currently only extends to “tobacco” as defined in SMC 5.300 and also does not
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MEMORANDUM 3/17/2016 Page 2
include e-cigarettes. Because e-cigarettes are not considered tobacco, vendors of e-cigarettes are currently not regulated by the City in the way that traditional tobacco retailers are regulated.
PROPOSED ORDINANCES:
Attached are two proposed ordinances drafted in response to the recent state legislation. The first ordinance adopts the state’s definition of “inhalant delivery system” and includes this
definition in SMC 5.300 – Sale and Distribution of Tobacco and Tobacco Products to Minors.
The proposed ordinance also updates the definition of “tobacco products” to mirror the current definition under state law, which is more explicit about the types of products that are covered.
The second ordinance adds “inhalant delivery system” to SMC 7.450-452, the city’s regulations regarding tobacco vending machines. By adding those provisions, the City will be able to regulate the use and sale of e-cigarettes in the same way it regulates the sale of tobacco products.
Changing the municipal code to include e-cigarettes means that e-cigarette retailers would be required to obtain a license from the city and pay the license fee. In addition, local law enforcement would be able to enforce the municipal code provisions that prohibit tobacco sales
to minors against retailers of e-cigarettes. The proposed ordinances are consistent with the new changes in state law. The code changes close existing loopholes that allow e-cigarette vendors to operate in the City without the same protections required of traditional tobacco retailers.
ENFORCEMENT AND PREVENTING SALES TO MINORS:
Currently, SMC 5.300(3) prohibits sales of tobacco products to minors. SMC 5.300(8)-(12)
provide a civil enforcement mechanism to prosecute violations, including civil penalties and
forfeitures. The proposed ordinance includes e-cigarettes in the prohibition of sales to minors and enables the City to prosecute e-cigarette retailers who sell to minors for municipal code
violations.
In addition, the state currently runs two inspection programs for preventing tobacco sales to minors that are “decoy” programs using minors and retired state police officers. OHA conducts
random, unannounced annual enforcement inspections through its Tobacco Retailer Compliance
Program. OHA predicts that it will conduct approximately 1,500 of these inspections out of around 3,000 tobacco retailers statewide. These inspections are funded through the state general
fund and through the beer and wine tax revenue. In addition, OHA conducts random inspections through the Synar Program purely for data collection and reporting requirements; the results of the survey are reported as Oregon’s Retailer Violation Rate annually by the federal Substance
Abuse and Mental Health Services Administration. Under the new changes to state law, these two state inspection programs will include e-cigarette retailers.
The FDA also conducts inspections of tobacco retailers. FDA records show 76 inspections
conducted in Springfield since March 2015, all of which involved minors attempting to purchase tobacco products (9 inspections resulted in a warning letter). Currently, however, these
inspections extend only to retailers of cigarettes and smokeless tobacco products; e-cigarettes
retailers are not subject to inspections by the FDA.
FISCAL IMPACTS:
Currently, e-cigarette retailers who do not also sell traditional tobacco products do not have to
obtain a City business license or pay the license fee. The proposed ordinances close that loophole, and would require vendors of both traditional tobacco products and e-cigarettes to
obtain a business license and pay the license fee. The fee is currently $88.20 per year for initial
tobacco retail licenses and $57.75 for renewal, and $35.70 per year for tobacco vending licenses. It is unknown how many e-cigarette retailers or vending machine operators would be required to
obtain licenses under the ordinance.
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MEMORANDUM 3/17/2016 Page 3
Also, please note that the City currently receives a portion state tobacco and cigarette tax
revenues that are put into the general fund. In FY 15 the City received $80,139. The amount
that the City receives is partially based upon the taxes collected in Lane County and partially based upon the Springfield’s population. E-cigarettes are not currently taxed by the state, but
there were several bills introduced in the 2015 legislature that would have taxed e-cigarettes.
RECOMMENDED ACTION: Adopt the two proposed ordinances that amend the Springfield
Municipal Code 5.300 and 7.450-452 to include “inhalant delivery systems” and to be consistent
with state law.
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