16 Staff Report
PREPARED BY: Robert Schultz
Town Attorney
Reviewed by: Town Manager, Assistant Town Manager, and Finance Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 11/05/2019
ITEM NO: 16
DATE: October 31, 2019
TO: Mayor and Town Council
FROM: Robert Schultz, Town Attorney
SUBJECT: First Reading and Introduction of An Ordinance of the Town of Los Gatos
Amending Chapter 18, Article VI, Section 18.60.020 of the Los Gatos Town
Entitled Permits for Retailers of Tobacco Products to Prohibit the Sale of
Electronic Cigarettes
RECOMMENDATION:
Staff recommends that Town Council accept public comment and then move for introduction
and first reading of an Ordinance, by title only, amending Chapter 18, Article VI, Section
18.60.020 of the Town Code to prohibit the sale of electronic cigarettes and all flavored tobacco
products, and modify other provisions of the prior Ordinance relating to permits for retailers of
tobacco products (Attachment 2).
BACKGROUND:
In 2016, the Town Council recognized the dangers of smoking and secondary smoke and
adopted amendments to the Town’s Smoking Regulations to prohibit smoking in the Town's
public spaces, including outdoor dining areas, entryways, public events, recreation areas, and
service areas and multi-family residential units. In addition, in 2017, the Town Council adopted
an ordinance (Attachment 1) to address regulating the sales of tobacco by businesses in Los
Gatos. After the Tobacco Retailers Ordinance was adopted by the Town Council, the Town
entered into an Agreement with the County of Santa Clara that allowed the County of Santa
Clara to administer the ordinance and collect the annual permit fees.
On October 1, 2019, the Town Council discussed potential amendments to the Tobacco
Retailers Ordinance due to the concerns associated with the growth in sales of e-cigarettes,
electronic smoking devices and electronic smoking device paraphernalia, such as vaping
PAGE 2 OF 6
SUBJECT: Amendments to the Tobacco Retailers Ordinance
DATE: October 29, 2019
BACKGROUND (Continued):
devices. While the Town’s efforts to reduce underage tobacco use have proven successful, the
growing availability of e-cigarettes has reversed those positive trends. In addition to the
problems associated with underage use, according to many studies, the sale of electronic
cigarettes poses a broad risk to public health in general.
Based on the Council’s direction on October 1, 2019, staff in coordination with the County of
Santa Clara recommends the following set of updates to our Ordinance (Attachment 2) in order
to better prevent and reduce the use of tobacco products and electronic smoking products,
especially by youth under the age of 21:
1. Repeal and reenact The Town’s Tobacco Retail Licensee (TRL) Ordinance to conform
with the County’s TRL Ordinance since the County is the Town’s designee to implement and
enforce the Town’s TRL Ordinance;
2. Amend the TRL Ordinance to prohibit the sale and distribution of all electronic cigarette
products;
3. Amend the TRL Ordinance to eliminate the exemption allowing certain retailers (i.e.
Cigar Shops) to sell flavored tobacco products and add “mint, menthol” to the list of
flavors; and
4. Modify other provisions of the prior Ordinance relating to permits for retailers of
tobacco products and to conform with the County’s TRL Ordinance.
DISCUSSION:
Youth at Risk
The Surgeon General has declared e-cigarette use among youth an epidemic. While youth use
of combustible cigarettes has decreased dramatically, e-cigarette use—or “vaping”—among
middle and high school students nationally increased by 78 percent between 2017 and 2018,
with over 3.6 million youth currently using e-cigarettes in 2018. 1 The proportion of current e-
cigarette users in high school who reported use on 20 days or more in the past 30 -day period
increased from 20 percent in 2017 to 27.7 percent in 2018. In 2019, the national prevalence of
1 Cullen KA, Ambrose BK, Gentzke AS, Apelberg BJ, Jamal A, King BA. Use of Electronic Cigarettes and Any Tobacco
Product Among Middle and High School Students — United States, 2011–2018. MMWR Morb Mortal Wkly Rep.
2018;67(45):1276-1277.
PAGE 3 OF 6
SUBJECT: Amendments to the Tobacco Retailers Ordinance
DATE: October 29, 2019
DISCUSSION (continued):
e-cigarette use during the previous 30 days was more than 1 in 4 students in the 12th grade,
more than 1 in 5 in the 10th grade, and more than 1 in 11 in the 8th grade.2 Use of e-cigarettes
among undergraduate college students increased from 4.9 percent to 10.2 percent between
2017 and 2018.3
In addition, nearly 1 in 3 Santa Clara County teens – 31.6 percent – report that they have used
an e-cigarette at least once. E-cigarettes were the most popular tobacco product, with
approximately one out of seven high school students (13.2%) currently using them in Santa
Clara County. Susceptibility of future e-cigarette use among Santa Clara County teens is high: 2
in 5 students (40.1%) who had never used a tobacco product said they would use one if offered
by a best friend and more than 1 in 4 high school students (28.0%) had been offered a tobacco
product in the past month.
Much of the growth in youth usage is attributable to e-cigarette companies’ marketing directly
to youth. In 2014, 18 million (7 out of 10) middle and high school students were exposed to e -
cigarette ads. E-cigarettes are also marketed in a variety of flavors, more than 15,000, that
appeal to youth, including gummy bear, birthday cake, cotton candy, and fruit punch. Most
current tobacco users in Santa Clara County reported using a flavored tobacco product (82.3%),
with use of flavored e-cigarettes among County teens at 82.6%. Flavored tobacco product use
was high across all genders, races/ethnicities, and grades.
Youth report purchasing e-cigarettes in stores, online, and obtaining products from friends.
More than 2 in 5 teens in Santa Clara County (45.4%) reported purchasing their own e-
cigarettes, with over a quarter of this group saying they buy them directly from a local store.
Among those who purchased e-cigarettes in a local store, 62.5% purchased them at a vape
shop. In 2019, the number of violations for sales to minors at tobacco retailers in the
unincorporated area increased to 12 violations (out of 43 undercover enforcement checks), up
from only 1 violation (out of 34 undercover enforcement checks) in 2018. This included one
violation at an adult-only tobacco store in the unincorporated area. 4
2 Miech R, Johnston L, O’Malley PM, Bachman JG, Patrick ME. Trends in Adolescent Vaping, 2017–2019. N Engl J
Med. September 2019:NEJMc1910739.
3 American College Health Association. American College Health Association -National College Health Assessment II:
Undergraduate Student Reference Group Executive Summary. Silver Spring, MD; 2017-2018.
4 Zhu S-H, Lee J, Zhuang YL, Branden K, Cole A, Wolfson T, Gamst A (2019). Tobacco use among high school
students in Santa Clara County: Findings from the 2017 -18 California Student Tobacco Survey. San Diego,
California: Center for Research and Intervention in Tobacco Control (CRITC), University of California, San Diego; and
Centers for Disease Control and Prevention. E-cigarette Ads and Youth (2017).
https://www.cdc.gov/vitalsigns/ecigarette-ads/index.html.
PAGE 4 OF 6
SUBJECT: Amendments to the Tobacco Retailers Ordinance
DATE: October 29, 2019
DISCUSSION (continued):
General Health Risks
Also, according to the Surgeon General, “most e-cigarettes contain nicotine – the addictive drug
in regular cigarettes, cigars, and other tobacco products. Nicotine exposure during adolescence
can harm the developing brain – which continues to develop until about age 25. Nicotine
exposure during adolescence can impact learning, memory, and attention. Using nicotine in
adolescence can also increase risk for future addiction to other drugs. In addition to nicotine,
the aerosol that users inhale and exhale from e-cigarettes can potentially expose both
themselves and bystanders to other harmful substances, including heavy metals, volatile
organic compounds, and ultrafine particles that can be inhaled deeply into the lungs.”5
E-cigarette use can also play a role in adolescent social maladjustment, including poor learning
and academic performance, increased aggressive and impulsive behavior, poor sleep quality,
attention deficits, impaired memory, cognition, and increased depression and suicidal ideation.6
Daily e-cigarette use is associated with increased risk of irreversible cardiovascular and lung
disease through the inhalation of harmful chemicals.7 Secondhand emissions from e-cigarettes
are also dangerous because they contain nicotine; ultrafine particles; fla vorings such as
diacetyl, a chemical linked to serious lung disease; volatile organic compounds such as benzene,
which is found in car exhaust; and heavy metals, such as nickel, tin, and lead.
In addition to these negative long-term health effects, e-cigarette use is now associated with a
wave of dangerous, life-threatening illnesses. As of October 15, 2019, 1,479 cases of lung injury
associated with the use of e-cigarette or vaping products in 49 states and one U.S. territory
have been reported to the Center for Disease Control (CDC). Thirty-three deaths have been
confirmed in 24 states. The California Department of Public Health issued a health advisory
urging everyone to refrain from vaping due to public health risks posed by vaping any product,
including the use of electronic cigarettes, as vaping has recently been linked to severe breathing
problems, lung damage, and even death. Since the CDC’s August 30, 2019 Health Advisory,
there have been two reported cases of lung injury associated with e-cigarette use in Santa Clara
County. One of these cases was in an adolescent, and both individuals required hospitalization.
5 Surgeon General’s Advisory on E-cigarette Use Among Youth (2008). https://e-
cigarettes.surgeongeneral.gov/documents/surgeon-generals-advisory-on-e-cigarette-use-among-youth-2018.pdf.
6 Tobore TO. On the potential harmful effects of E -Cigarettes (EC) on the developing brain: The relationship
between vaping-induced oxidative stress and adolescent/young adults social maladjustment. J Adolesc.
2019;76:202-209.
7 American Lung Association. The Impact of E-Cigarettes on the Lung (2011). https://www.lung.org/stop-
smoking/smoking-facts/impact-of-e-cigarettes-on-lung.html; Bein K, Leikauf GD. Acrolein - a pulmonary hazard.
Mol Nutr Food Res 55(9):1342-60.
PAGE 5 OF 6
SUBJECT: Amendments to the Tobacco Retailers Ordinance
DATE: October 29, 2019
DISCUSSION (continued):
Regulatory Recommendations
Based upon Council direction on October 1, 2019, staff in coordination with the County
discussed banning the sale and distribution of e-cigarettes in the Town of Los Gatos. The
proposed additions to the Tobacco Permitting Ordinance respond to Council’s request by: (1) a
ban on the sale of electronic cigarette products; and (2) the elimination of the exemption that
allows qualifying adult stores to sell flavored tobacco products. These additional provisions will
be phased in as retailers’ permits expire. Retailers with existing permits will be allowe d to sell
tobacco products pursuant to the current version of the ordinance until either the end of their
permit term or July 1, 2020, whichever occurs earlier. All new permits and permit renewals will
be issued subject to the proposed ordinance.
The proposed ordinance also increases the “look-back” period for permit suspension from 24
months to 60 months. Under the current ordinance, a retailer’s permit is suspended for 30
calendar days after a first violation. If a second violation occurs within a 24 -month period after
the first violation, the retailer’s permit is suspended for 90 days. For subsequent violations
within a 24-month period, the retailer’s permit is suspended for up to one year. Consistent
with look-back provisions in several other tobacco ordinances adopted by cities within Santa
Clara County, the amended ordinance increases these 24 -month look-back periods to 60-month
periods.
Finally, the proposed ordinance includes several additional modifications to improve the clarity
of the Tobacco Permitting Ordinance and its consistency with the County’s Ordinance Code.
Notable additions include:
• New definitions of key terms and incorporation of definitions applicable throughout the
Ordinance Code;
• Clarification that the Tobacco Permitting Ordinance applies to both sale and distribution
of tobacco products;
• Clarification that flavored tobacco products include mint and menthol products;
• Clarification of the enforcement and appeals process to standardize with current
practice in enforcement matters.
CONCLUSION:
Council should move for introduction and first reading of an Ordinance, by title only, amending
Chapter 18, Article VI, Section 18.60.020 of the Town Code to prohibit the sale of electronic
cigarettes and all flavored tobacco products, and modify other provisions of the prior
Ordinance relating to permits for retailers of tobacco products.
PAGE 6 OF 6
SUBJECT: Amendments to the Tobacco Retailers Ordinance
DATE: October 29, 2019
Attachments:
1. Ordinance No. 2259
2. Draft Ordinance