Loading...
10.11.19 (Special)CITY OF CUPERTINO PUBLIC SAFETY COMMISSION AGENDA 10300 Torre Avenue, City Hall Conference Room A Friday, October 11, 2019 5:30 PM Special Meeting NOTICE AND CALL FOR A SPECIAL MEETING OF THE CUPERTINO PUBLIC SAFETY COMMISSION NOTICE IS HEREBY GIVEN that a special meeting of the Public Safety Commission is hereby called for Friday, October 11 , 2019, commencing at 5 :30 p.m. in City Hall Conference Room A, 10300 Torre Ave., Cupertino, California 95014 . Said special meeting shall be for the purpose of conducting business on the subject matters listed below under the heading, “Special Meeting ." SPECIAL MEETING PLEDGE OF ALLEGIANCE ROLL CALL APPROVAL OF MINUTES 1.Subject: Approve Minutes from September 12, 2019 Recommended Action: Approve Minutes from September 12, 2019 A - Draft Minutes POSTPONEMENTS ORAL COMMUNICATIONS This portion of the meeting is reserved for persons wishing to address the commission on any matter not on the agenda. Speakers are limited to three (3) minutes. In most cases, State law will prohibit the commission from making any decisions with respect to a matter not listed on the agenda WRITTEN COMMUNICATIONS OLD BUSINESS 2.Subject: Discuss policy options to prevent youth access to tobacco products, including flavored tobacco products, and to reduce the density of tobacco retailers . Recommended Action: Recommend that Council adopt the proposed tobacco policies to prevent youth access to tobacco products. Page 1 Public Safety Commission Agenda October 11, 2019 Staff Report A - Tobacco Free Communities Policies Santa Clara County B - Healthy Cities Program 2018 Cupertino Dashboard C - American Lung Association Report Card D - Letter to Cupertino City Council from FUHSD E - FUHSD Resolution 1819-21 F - Matrix of 35 Local Ordinances Restricting Flavored Tobacco G - Healthy Stores for a Healthy Community 2016 Survey H - Tough Questions on Flavored Tobacco Products NEW BUSINESS STAFF AND COMMISSION REPORTS ADJOURNMENT In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend the next meeting who is visually or hearing impaired or has any disability that needs special assistance should call the City Clerk's Office at 408-777-3223, 48 hours in advance of the meeting to arrange for assistance. Upon request, in advance, by a person with a disability, meeting agendas and writings distributed for the meeting that are public records will be made available in the appropriate alternative format. Also upon request, in advance, an assistive listening device can be made available for use during the meeting. Any writings or documents provided to a majority of the members after publication of the agenda will be made available for public inspection. Please contact the City Clerk’s Office in City Hall located at 10300 Torre Avenue during normal business hours. IMPORTANT NOTICE: Please be advised that pursuant to Cupertino Municipal Code 2.08.100 written communications sent to the Cupertino City Council, Commissioners or City staff concerning a matter on the agenda are included as supplemental material to the agendized item. These written communications are accessible to the public through the City’s website and kept in packet archives. You are hereby admonished not to include any personal or private information in written communications to the City that you do not wish to make public; doing so shall constitute a waiver of any privacy rights you may have on the information provided to the City . Members of the public are entitled to address the members concerning any item that is described in the notice or agenda for this meeting, before or during consideration of that item. If you wish to address the members on any other item not on the agenda, you may do so during the public comment . Page 2 CUPERTINO PUBLIC SAFETY COMMISSION  DRAFT MEETING MINUTES  Thursday September 12, 2019, 6:00 p.m.  Cupertino City Hall, Conference Room C    CALL TO ORDER    Commission Chair McCoy called to order this regular meeting of the Cupertino Public Safety  Commission at approximately 6:02 pm on Thursday September 12, 2019 in the Cupertino City  Hall, Conference Room C, located at 10300 Torre Avenue, Cupertino, California 95014.    ROLL CALL    Commissioner Present: Robert McCoy      Neha Sahai      Hymanand Nellore                              Yvonne Chao    Commissioner Absent:   Andy Huang         Staff Present: Captain Rich Urena, Santa Clara County Sheriff’s Office        Battalion Chief Wally Fink, Santa Clara County Fire District       Clare Francavilla, Cupertino Emergency Services Coordinator             Others Present:  Katy Nomura, Assistant to the City Manager   Leslie Zeller, Santa Clara County Public Health   Carrie Scott, Resident   John Mumy, Resident    APPROVAL OF MINUTES    1. Subject:  Approve August 8, 2019 Minutes  Recommended Action:  Approval of the August 8, 2019 Minutes     Commissioner Nellore motioned to approve minutes of the August 8, 2019 meeting;  Commissioner Sahai seconded the motion; Ayes: McCoy, Chao, Sahai, Nellore. Noes: None.  Abstain: None. Absent: Huang       POSTPONEMENTS    Public Safety Commission Minutes September 12, 2019  2       None    ORAL COMMUNICATION     None        WRITTEN COMMUNICATION      None    OLD BUSINESS    2. Subject: Participation in AlertSCC and Pulse Point Including Migration Progress from  Cupertino Alert System to AlertSCC (Huang/McCoy)  Recommended Action: Discuss AlertSCC sign ups    Ms. Francavilla gave a brief update on the amount of residents signed up through AlertSCC  and Nixle as follows:    AlertSCC 2291, Nixle 1910    3. Subject: Public Safety Education and Outreach  a. Public Safety Forum (McCoy/Huang)  b. Senior Safety Forums with focus on mental health (Sahai/Chao)  c. Potential distracted driving campaign with Bike‐Ped Commission (Nellore)  Recommended Action: Receive updated reports and discuss proposals for future  forums/workshops    Commissioner McCoy shared with the group the details of the upcoming Safety Forum.  Steins Beer Garden will be catering the event. Raffle tickets will be handed out at the door  upon arrival. The Public Safety Forum will take place on Friday October 11, 2019 from 6:30  pm ‐ 9pm as follows:  6:30pm Dinner  7pm‐7:05pm Mayor’s Remarks  7:05pm‐7:20pm Flavored Tobacco Awareness  7:30pm‐7:40pm Sheriff‐Vehicle Burglaries   7:40pm‐8pm Fire  8pm‐8:10pm Break  8:10pm‐ 8:40pm Sheriff‐Cyber Security   8:40pm‐9pm Q&A    Public Safety Commission Minutes September 12, 2019  3 Commissioner Sahai shared with the group that the Senior Safety Forum will be held on  Monday September 23, 2019 from 11am‐12pm at the Indian Community Center.  El Camino  Hospital Mental Health Department staff will be present to provide a presentation.     Commissioner Nellore does not have an update on the distracted driving campaign.   However, he will be drafting a proposal with concerns and suggestions to share with the  Bike‐Ped Commission.     PUBLIC COMMENT:    Ms. Carrie Scott shared her concern regarding the traffic speeding in the area of Linda Vista  Dr. and Columbus Avenue during commute hours.     NEW BUSINESS    4. Subject:  Discuss policy options to prevent youth access to tobacco products, including  flavored tobacco products, and to reduce the density of tobacco retailers.  Recommended Action: Provide input on policy options to prevent youth access to tobacco  products, including flavored tobacco products, and to reduce the density of tobacco  retailers.    Katy Nomura, Assistant to the City Manager, along with Leslie Zeller (via telephone),  Consultant Expert with County Department of Public Health, gave a presentation on  tobacco. Ms. Nomura went on to share that they are drafting tobacco ordinances that would  include access to tobacco from youth. Many cities in the region are participating in the  Healthy Cities Program which includes tobacco related measures. Cupertino has received a  grant from the county to explore options and evaluate policies.  Ms. Nomura added that  there is an epidemic of middle and high school age kids using vaping devices. She showed  the group a slideshow with all the different types of tobacco products.     She continued to present information including how statistics show that children using  tobacco products were introduced to tobacco through flavored brands. Within Santa Clara  County, there are 35 agencies evaluating their own policies. The current proposals include a  1,000 foot buffer around schools and 500 foot buffer around retail stores as well as banning  tobacco sales at pharmacy stores. An online survey link was provided to get feedback, to  participate in the survey, residents can visit www.Opentownhall.com/7851     Commissioner Nellore asked if retail companies are limited to how much tobacco products  they are allowed to have on hand, Ms. Zeller responded that they currently do not have a  limit. At the current moment the law states that tobacco cannot be sold to anyone under the  age of 21 and must check proper identification of anyone that looks under the age of 27.  Public Safety Commission Minutes September 12, 2019  4 Another law that is currently in place is that all tobacco must be kept behind the counter  and not in an open area where anyone from the public my pick it up themselves.     Ms. Nomura would like to know if the commission would support this tobacco policy as it  was explained. All four commissioners agreed to support the tobacco policy.      PUBLIC COMMENT    Mr. John Mumy, Cupertino resident, would like to know how much of tax payer money  will be used for this enforcement? Ms. Nomura responded that the fees will be covered by  retailers selling tobacco products.    Ms. Carrie Scott, Cupertino resident, inquired if this would eventually be state wide as  anyone selling tobacco on the black market can take advantage of the ban.        5. Subject: Discuss recommendations for future work program items for upcoming fiscal year.  Recommended Action: Provide recommendations for future work program items for  upcoming fiscal year    Deferred to next meeting.    6. Subject:  Future Agenda Items   Recommended Action: Discuss Future Agenda Items     Commissioner Nellore shared that Wildlife Safety should be added to the agenda since  there has been an increase in coyote sightings.     STAFF AND COMMISSION REPORTS     7. Subject: Report by the Santa Clara County Fire District  Recommended Action: Receive Report by the Santa Clara County Fire District liaison    Battalion Fire Chief Fink reported that there were no significant events that occurred. He  went on to report that for the month of August there were a total of 308 call for service, out  of which were broken down as follows: 177 EMS, 78 service calls, 39 fire alarms, 7 fire  (3  structure 4 other) 5 hazardous conditions, 2 rescue.    Battalion Fire Chief Fink also shared that during the month of August six Community  Education Events were held with approximately 5,603 attendees.     8. Subject: Report by the Santa Clara County Sheriff’s Office  Recommended Action: Receive Report by the Santa Clara County Sheriff’s Office liaison  Public Safety Commission Minutes September 12, 2019  5   Captain Urena went on to report that during the month of August, the West Valley Motor  Unit participated in the Distracted Driving Campaign which was a county wide campaign  targeting distracted driving.  The campaign included officers from many law enforcement  agencies in the county.  The campaign resulted in issuing 825 cell phone violations, 25 other  violations and 78 warnings. The total for the week was 852 citations and total enforcement  stops during the week of 930.     Captain Urena also went on to share that the Sheriff’s Office is undergoing a tobacco decoy  operation while the meeting is occurring. The operation consists of four deputies and an  under aged young adult trying to buy tobacco products.  If a vendor sells tobacco to a  minor, they will be issued a citation.    Captain Urena also shared that on September 25, 2019 County Communications will be  launching their campaign related to a new service of using text messaging to communicate  with 9‐1‐1.     9. Subject: Report by the City of Cupertino  Recommended Action: Receive report by the City of Cupertino staff liaison    Ms. Francavilla shared that Mr. Mestizo informed her that the Teen Commission will be  holding a Bobateeno event geared towards providing Teens with wellness health support.  They are considering having face painting and a character balloon making person.  The  Teen Commission would like to know if the commission would like to help with expenses.    Commissioners discussed helping the Teen Commission and Vice Chair Sahai would  coordinate with Ms. Francavilla to determine how much the Public Safety Commission  would be able to donate.     Ms. Francavilla shared that she has accepted a new job with FEMA and her last day with  the City will be on September 27, 2019.  Everyone wished her well on her new job.     10. Subject: Commissions Report  Recommended Action: Receive Commissioners’ Report     Commissioner McCoy announced that the October 10th Public Safety Meeting will be    Cancelled in lieu of the Safety Forum that will be held on October 11th.    ADJOURNMENT    Commission Chair McCoy adjourned the meeting at 8:33 pm    Public Safety Commission Minutes September 12, 2019  6 NEXT MEETING    The next Regular Meeting is scheduled for Thursday, November 14, 2019 at 6:00 p.m.     SUBMITTED BY:  Veronica Lara  West Valley Patrol Division  Santa Clara County Office of the Sheriff  September 26, 2019    APPROVED BY:    _________________________________               ______________________  Robert McCoy Chair                                                          Date    PUBLIC SAFETY COMMISSION STAFF REPORT Meeting: October 11, 2019 Subject Discuss policy options to prevent youth access to tobacco products, including flavored tobacco products, and to reduce the density of tobacco retailers. Recommended Action Recommend that Council adopt the proposed tobacco policies to prevent youth access to tobacco products. Background Tobacco use remains the number one preventable cause of death and disease in California, causing nearly 40,000 deaths in California every year. In Santa Clara County, one in eight deaths annually is attributed to smoking-related illness or diseases, such as cancer, heart disease, and respiratory diseases. More than one in ten youth in the County currently use tobacco products, including electronic smoking devices. The Santa Clara County’s Healthy Cities Program seeks to address these tobacco-related health concerns by promoting policies and practices to provide tobacco-free and smoke-free communities. Currently, Cupertino has adopted four out of 14 recommended tobacco prevention strategies in the Healthy Cities Program (Attachment B). Although the City prohibits smoking in many outdoor areas, it does not require a local tobacco retailer license, prohibit the sale of flavored tobacco products, or place limits on where tobacco retailers may locate. The American Lung Association provides an evaluation of local tobacco control policies through a State of Tobacco Control Report (Attachment C). Cupertino currently has an overall “D” grade on this report, including an “F” grade in the category of reducing sales of tobacco products. The Santa Clara County Public Health Department (PHD) has provided funding to cities to support tobacco prevention strategies known to have the highest impact on reducing tobacco - related disparities and inequities. As part of this funding, the City of Cupertino received a $48,608 grant from the PHD to: 1. Explore restricting the sale of flavored tobacco products, including menthol cigarettes. 2. Decrease youth access to tobacco products, such as by prohibiting new businesses from selling tobacco near schools. 2 3. Explore policies to reduce the density of tobacco retailers. These tobacco prevention policies have been shown to reduce youth access and exposure to tobacco products. As part of the current grant, the PHD is also providing technical assistance to help Cupertino explore and implement these policies. The grant from the PHD will enable Cupertino to potentially prevent youth access and exposure to flavored tobacco products and reduce the number of tobacco retailers, while improving the City’s tobacco control “grade”. Exploring these tobacco control policies is also part of the current City Work Program. Support from Local Schools In March, the Fremont Union High School District sent a letter to the City Council requesting that the City pass an ordinance to prohibit retailers near schools from selling e -cigarettes (Attachment D). In May, the Fremont Union High School District (FUHSD) Board of Trustees passed a resolution indicating that they support and encourage local cities to restrict the sale of tobacco products in order to prevent youth access and use (Attachment E). The resolution specifically encourages prohibiting the sale of flavored tobacco products and reducing the concentration and density of tobacco retailers, particularly near schools and other youth-sensitive areas. Discussion To reduce youth access to tobacco products, staff is exploring the following best practices: 1. Prohibiting the sale of flavored tobacco products, including menthol cigarettes, throughout the City 2. Reducing the availability of tobacco by: • Prohibiting new tobacco retailers from locating within a certain distance from schools or other youth-sensitive areas (e.g. 1,000 feet). • Prohibiting new tobacco retailers from locating within a certain distance from existing tobacco retailers (e.g. 500 feet) or capping the total number of tobacco retailers by population. • Prohibiting the sale of tobacco products at pharmacies. These options are discussed in more detail below with information regarding health impacts, existing laws in other jurisdictions, potential arguments from opposing viewpoints, and options for implementation and enforcement. It is worth noting that some jurisdictions have recently passed more comprehensive restrictions on the sale of tobacco products. In June 2019, Beverly Hills voted to prohibit the sale of all tobacco products (with an exception for hotels and high-end cigar clubs/lounges). In San Francisco and Livermore, the sale of all e-cigarettes will be prohibited in 2020, not just flavored products. While these more restrictive options are available, the focus of this report will be on the options outlined above which are more common and are endorsed by the PHD’s Healthy Cities campaign. 3 1. Prohibiting the Sale of Flavored Tobacco Products The most comprehensive approach to addressing the availability of flavored tobacco and nicotine products is to prohibit the sale of such products in the City. Such a prohibition would apply to flavored e-cigarettes, e-liquids, flavored cigars, little cigars, flavored hookah, and menthol cigarettes. E-liquids are nicotine solutions that are used with e-cigarettes. These liquid solutions are available in dozens of flavors that are attractive to youth, such as gummy bear and cotton candy. As of May 2019, 35 communities in California have passed laws to restrict the sale of flavored tobacco products (Attachment F). Most of the recently-adopted laws include a complete prohibition on the sale of flavored tobacco products, including menthol cigarettes. In Santa Clara County, Los Gatos, Palo Alto, Saratoga, and the unincorporated County prohibit the sale of flavored tobacco products. Morgan Hill and Sunnyvale have received funding from the Santa Clara County Department of Public Health to consider flavored tobacco bans during the next two years. However, some local governments have adopted less comprehensive laws, making concessions that limit the impact of the laws (Attachment F). These exceptions include: • Exempting menthol cigarettes. • Exempting tobacco stores that do not allow minors. • Grandfathering existing retailers. • Limiting the restriction on flavored tobacco products to areas around youth -oriented locations, such as schools are parks. In Santa Clara County, Los Gatos, Palo Alto, and the unincorporated County exempt tobacco stores that do not allow minors. In Saratoga, menthol cigarettes are exempted. From a public health perspective, none of these less comprehensive options are recommended for various reasons. In particular: • Menthol cigarettes are widely used by youth and young adults and are considered a “starter” product for minors. • Exempting tobacco stores that do not allow minors creates an uneven playing field for retailers. Data indicates that specialty tobacco stores illegally sell to minors at rates higher than other types of retailers. • Grandfathering existing tobacco retailers undermines the effectiveness of the policy since it would not address the current availability of flavored tobacco products in the City. • Limiting flavored tobacco restrictions to stores around schools also creates an uneven playing field for retailers and does not account for the reality that minors live and spend time throughout the community, not just near schools. As mentioned above, recent laws passed by California communities typically include a complete prohibition on the sale of flavored tobacco products in the jurisdiction. 4 Flavored tobacco products are considered “starter” products for youth who begin to use tobacco, establishing tobacco habits that can lead to long-term addiction. Nearly 81% of youth ages 12 to 17 who use tobacco products report that the first product they used was flavored. Although federal law prohibits the sale of candy- and fruit-flavored cigarettes, this law does not prohibit the sale of menthol cigarettes or flavored, non-cigarette tobacco products, such as cigars, little cigars, smokeless tobacco, hookah tobacco, electronic smoking devices, and the e-liquid used in these devices. In Santa Clara County, 93% of tobacco retailers sell menthol cigarettes and nearly 80% of tobacco retailers (including those near schools) sell flavored, non-cigarette tobacco products. In a 2016 survey, 62% of Santa Clara residents surveyed would support banning the sale of flavored tobacco products such as menthol cigarettes and fruit-flavored little cigars (Attachment G). 2. Reducing the Availability of Tobacco Products Many communities are looking for strategies to reduce the availability of tobacco products in order to reduce youth access to such products. These restrictions can also help target enforcement of tobacco control laws and reduce perceptions that tobacco use is normal. The City could apply one or more strategies to gradually reduce the number of licensed tobacco retailers. A. Limiting Tobacco Retailer Density One of the strategies is to limit tobacco retailer density. This can be done by prohibiting new tobacco retailers within a certain distance of schools or other youth-oriented facilities. For example, a potential regulation could be that tobacco retailers may not locate within 1,000 feet of schools or playgrounds. Another option is to prohibit new tobacco retailers within a certain distance of existing tobacco retailers. A limit could be placed on the total number of tobacco retailers either as a citywide cap or according to population size. For example, a potential regulation could be that no more than one tobacco retailer per 2,500 people is allowed. As of September 2016, 51 local governments in California restrict the location of tobacco retailers within a certain distance of schools. The most common buffer zone in such laws is 1,000 feet. However, some communities have customized the policy by choosing a different buffer zone and/or adding additional youth-oriented locations, such as childcare facilities, youth centers, libraries, playgrounds, parks, and recreational facilities. In Santa Clara County, Gilroy, Los Gatos, Palo Alto, Saratoga, and the unincorporated County restrict the location of new tobacco retailers. All of these jurisdictions require that tobacco retailers have a 1,000-foot buffer from schools. Saratoga extends the 1,000-foot buffer to City-owned parks as well. With the exception of Gilroy, these jurisdictions also require that new tobacco retailers must be at least 500 feet away from other tobacco retailers. 5 Research has shown that the density of tobacco retailers is associated with increased youth smoking rates, particularly in neighborhoods around schools. Tobacco retailers near schools with high smoking rates have also been shown to have lower cigarette prices and more in-store promotions. A high density of tobacco retailers has been associated with increased smoking rates, particularly among youth. A study of California neighborhoods found that the density and proximity of tobacco retailers influenced smoking behaviors, including number of cigarettes smoked per day. Excessive tobacco retailer density may exacerbate disparities in tobacco use and tobacco-related harm. Research also shows that the presence of tobacco in retail settings normalizes the use of tobacco products and triggers smoking urges among former smokers and those attempting to quit. A 2016 survey of Santa Clara County residents found that nearly 88% of respondents would support a policy to prevent stores near schools from selling tobacco products, including e-cigarettes, and that 75% would support a limit on where tobacco retailers can be located (e.g., at least 500 feet from existing tobacco retailers) (Attachment G). B. Prohibiting Tobacco Sales in Pharmacies Another strategy to reduce the availability of tobacco products is to prohibit the sale of tobacco products by a certain type of retailer, such as pharmacies. Twenty-three communities across the state prohibit the sale of tobacco in pharmacies. In Santa Clara County, Los Gatos, Palo Alto, Saratoga, and the unincorporated County prohibit the sale of tobacco products in pharmacies. Notably, CVS discontinued the sale of tobacco in pharmacies in 2014. Research has shown that cigarette purchases declined nationally after CVS implemented its policy change and that smokers who had previously purchased their cigarettes exclusively at CVS were more likely to stop buying cigarettes entirely. Sales of tobacco products in pharmacies may present an inherent conflict of interest and send mixed messages about the health risks posed by tobacco. By selling tobacco products, pharmacies reinforce positive social perceptions of smoking, convey implied approval of tobacco use, and may send a message that it is safe to smoke. The Tobacco Education and Research Oversight Committee for California, the American Pharmacists Association, the California Pharmacists Association, and the California Medical Association have called for the adoption of state and local prohibitions of tobacco sales in drug stores and pharmacies. Research has shown that more than 95% of consumers have said they would continue shopping at drugstores that became tobacco-free much or more often. A 2016 survey found that 80% of Santa Clara residents would support a ban on the sale of tobacco products in pharmacies (Attachment G). Communities that have adopted policies prohibiting tobacco sales in pharmacies have experienced up to three times greater reduction in tobacco retailer density compared with communities without such policies, even after controlling for the presence of policies restricting tobacco density and location. 6 Legal Authority California local governments have the legal authority to prohibit the sale of flavored tobacco products, restrict the location of tobacco retailers, and prohibit the sale of tobacco products in pharmacies. Three communities outside of California were sued after adopting laws to prohibit the sale of flavored tobacco products: Providence, Rhode Island; New York, New York; and Chicago, Illinois. Courts in all three of these cases upheld local laws, finding that the laws were not preempted by the Family Smoking Prevention and Tobacco Control Act. No communities in California have been sued over a flavored tobacco product restriction. After the City and County of San Francisco adopted a prohibition on the sale of flavored tobacco products, the tobacco industry sponsored a ballot initiative requiring voters to ratify and uphold the law. This initiative was approved by voters in June 2018 and San Francisco’s law is currently in effect. In California, there have been three legal challenges to laws prohibiting the sale of tobacco products in pharmacies. In 2009, the City and County of San Francisco was sued by both Philip Morris and Walgreens after adopting a tobacco pharmacy law that contained an exemption for grocery stores and big box stores. The Philip Morris lawsuit, which claimed that a prohibition on tobacco sales in pharmacies violated their freedom of speech , was dismissed. In the Walgreens lawsuit, the court agreed that the law’s exemptions violated the Equal Protection clause of the U.S. Constitution. After the court’s decision, San Francisco amended its law to include grocery and big box stores in the pharmacy ban. Following this amendment, Safeway filed a lawsuit against San Francisco under the Due Process Clause of the Fourteenth Amendment, arguing that the City’s prohibition on the sale of tobacco products in all pharmacies deprived Safeway from property rights by forcing its pharmacy business to discontinue tobacco sales. However, the court determined that San Francisco’s ordinance was a permissible use of the City’s police power and did not violate the Fourteenth Amendment. There have been no subsequent legal challenges to local bans on tobacco sales in pharmacies. Similarly, the City is not aware of any legal challenges to local laws restricting the location of tobacco retailers. Potential Opposition Arguments The tobacco control policies being considered by Cupertino are part of a comprehensive tobacco control strategy recommended by the PHD and adopted by dozens of other cities and counties across California. Although some communities have received opposition to proposed policies, elected officials ultimately adopted the laws in order to protect public health and , in particular, to protect youth from the trends of vaping and e-cigarettes. Three of the most common opposition arguments to these policies are listed below, along with potential responses. 1. Argument: Additional government regulation is not needed in this area. 7 Response: Despite existing state and federal laws, there is an epidemic of youth e-cigarette use. Schools are seeing the effects of e-cigarette use by teenagers and calling on the City to take action. 2. Argument: E-cigarettes are an important tool to help adults quit smoking. Response: • The proposed policies are limited to the sale of flavored tobacco products. While flavors can appeal to people of all ages, children and adolescents have a higher preference for sweet flavors and use flavored e-cigarettes more than adults. • E-cigarettes are not approved by the Food and Drug Administration (FDA) as a smoking cessation device and no manufacturer of e-cigarettes has applied to be an approved and effective smoking cessation treatment. • Adult e-cigarette users will still have access to non-flavored e- liquids, and those wishing to quit have a range of FDA-approved cessation therapies to choose from. 3. Argument: The proposed policies would hurt local businesses Response: • Retailers in permissible areas will still be able to sell tobacco products, just not the flavored tobacco products that have been proven to appeal to youth. • Existing retailers located within the restricted buffer zones around schools, etc., would be allowed to continue to operate (although such stores would no longer be able to sell flavored tobacco products, as mentioned above). For additional information on these and other topics, see Tough Questions on Flavored Tobacco Products from the Center for Tobacco Policy and Organizing (Attachment H). Implementation and Enforcement Typically, communities adopt a restriction on the sale of flavored tobacco products and on the location and type of tobacco retailers as a condition of a l ocal tobacco retailer license (TRL). Although the State of California requires a license to sell tobacco products, more than 150 cities and counties also require a local TRL. A local TRL is generally adopted to: • Create more comprehensive restrictions than State law on the sale or marketing of tobacco products in the retail environment; • Allow for meaningful penalties for violation of tobacco control laws, such as license suspension; and • Help fund local enforcement of tobacco control laws through the local licensing fee. 8 Cupertino does not currently require a TRL. Although it is possible to adopt a prohibition on the sale of flavored tobacco products without a local TRL, the City would not have a dedicated source of funding to monitor compliance with the flavored tobacco restrictions. Currently, all but two of the 35 California communities that restrict the sale of flavored tobacco products also require a tobacco retailer license. Restrictions on the location of tobacco retailers may be adopted as a component of a local tobacco retailer license or as independent requirements, such as amendments to the zoning code. New retailers within prohibited areas (e.g. 1,000 feet of schools) would be ineligible for a tobacco retailer license. Attrition would be required to reduce the number of existing tobacco retailers based on location or density. As existing businesses close or change the nature of their business, new businesses in those locations would not be eligible for a license. A prohibition on the sale of tobacco products in pharmacies could also be included as a condition of a local tobacco retailer license or as a stand-alone requirement. Existing pharmacies would be given a grace period to discontinue the sale of tobacco products. Most communities that have adopted a restriction on the sale of flavored tobacco products delay the effective date of the ordinance by approximately six months. This grace period gives the cities an opportunity to educate retailers and to allow retailers to sell their existing inventory of flavored tobacco products. As of the ordinance’s effective date, retailers would no longer be able to sell flavored tobacco products. A violation of the law would also constitute a violation of the retailer’s tobacco license, if a local license is required. Santa Clara County is willing to partner with the City of Cupertino to administer, implement, and monitor its tobacco retailer licensing law if the City adopts a TRL that mirrors the County’s requirements below. To cover the costs of the program, the County typically collects a $425 license fee paid by tobacco retailers. The cost of the license in Cupertino would be calculated to reflect the costs to administer and enforce the program. To participate, Cupertino’s TRL ordinance must include the following: 1. Require retailers to obtain and annually renew a tobacco retailer license. 2. Require retailers to post a notice saying that the sale of tobacco products to anyone under 21 years of age is illegal and subject to penalties. 3. Require retailers to check the identification for any purchaser who appears to be under 30 years of age 4. Prohibit the sale of tobacco products from a vending machine. 5. Prohibit retailers from covering more than 15% of windows and clear doors with any type of ads or signs. 6. Prohibit the sale of flavored tobacco products, including menthol cigarettes 9 7. Prohibit new tobacco retailers from locating within 1,000 feet of a school (existing retailers within this radius may continue to sell tobacco products assuming they are operating lawfully, renew their TRL on time, and do not transfer ownership). 8. Prohibit new tobacco retailers from locating within 500 feet of another tobacco retailer (existing retailers in these locations may continue to sell tobacco products assuming they are operating lawfully, renew their TRL on time, and do not transfer ownership). 9. Prohibit the sale of tobacco products from pharmacies. 10. Prohibit mobile tobacco retailing or tobacco retailing at a temporary event. Conclusion The City has the opportunity to help prevent youth from using tobacco by prohibiting the sale of flavored tobacco products and reducing the availability of tobacco in the City. These policies would demonstrate the City’s commitment to protecting the health of its residents , and would improve the City’s performance on the County’s Healthy Cities Initiative and the American Lung Association’s State of Tobacco Control grades. Sustainability Impact No impact. Fiscal Impact The City has been awarded $48,608 to cover the costs of developing the proposed regulations and conducting the associated outreach. There may be additional funding requirements for implementation and enforcement depending which policy options the Council chooses. Additional allocation of resources will be proposed based on Council’s preference for a specific program, if needed. If the City adopts the County’s regulations, the County will implement and enforce the City’s program at no cost to the City. The County would recover costs through charging a fee of approximately $425 for the Tobacco Retailer License. _____________________________________ Prepared by: Leslie Zellers, JD, Consultant, Santa Clara County Department of Public Health Katy Nomura, Assistant to the City Manager Reviewed by: Dianne Thompson, Interim Assistant City Manager Approved for Submission by: Deborah Feng, City Manager Attachments: A – Tobacco Free Communities Policies in Santa Clara County B – Healthy Cities Program 2018 Cupertino Dashboard C – American Lung Association Report Cad D – Letter to Cupertino City Council from FUHSD E – FUHSD Resolution 1819-21 F – Matrix of 35 Local Ordinances Restricting Flavored Tobacco G – Healthy Stores for a Healthy Community 2016 Survey H – Tough Questions on Flavored Tobacco Products ATTACHMENT A Tobacco-Free Communities Policies: Santa Clara County Jurisdiction Require a tobacco retailer license1 Restrict sale of flavored tobacco products Limit tobacco sales near schools Limit retailer density or proximity Prohibit tobacco sales in pharmacies County of Santa Clara Yes Yes 2 Yes (1,000 foot limit) Yes (500 foot limit from existing tobacco retailers) Yes Campbell Yes Cupertino Gilroy Yes Yes (1,000 foot limit) Los Altos Los Altos Hills Los Gatos Yes Yes 3 Yes (1,000 foot limit) Yes (500 foot limit from existing tobacco retailers) Yes Milpitas Monte Sereno Morgan Hill Yes Mountain View Palo Alto Yes Yes 4 Yes (1,000 foot limit) Yes (500 foot limit from existing tobacco retailers) Yes San Jose Santa Clara Saratoga Yes Yes (exempts menthol cigarettes) Yes (1,000 foot limit from schools and City parks) Yes (500 foot limit from existing tobacco retailers) Yes Sunnyvale 1 The tobacco retailer licensing laws in Los Gatos and Palo Alto are enforced by the Santa Clara County Department of Environmental Health. These cities adopted a licensing law that mirrors the county’s law and, in return, the county entered into an agreement to implement and enforce the cities’ tobacco retailer licensing laws. 2 The county exempts retailers that primarily sell tobacco products, which specifically requires that the store: generates more than 60% of annual gross revenues from the sale of tobacco products; does not permit anyone under the age of 21 to enter and posts a sign outside the premises indicated the age restrictions/requirements; and does not sell alcohol or food for consumption on the premises. 3 Los Gatos provides the same exemption as Santa Clara County and Palo Alto for retailers that primarily sell tobacco products. See note 2 for more detail. 4 Palo Alto provides the same exemption as Santa Clara County and Los Gatos for retailers that primarily sell tobacco products. See note 2 for more detail. Healthy Cities Program, 2018 Dashboard Cupertino Active & Safe Communities Total Strategies Achieved 11 of 13 Promote Healthy Recreation & Transportation Vision Zero Plan Complete Streets Endorse NACTO Street Design Guidelines Bike/Ped/Trails Master Plan Parks and Rec Master Plan Achieve Bike and/or Walk Friendly Designation  Safe Routes to School Resolution  Multi-Disciplinary SRTS Collaborative/Task Force  Dedicated SRTS and/or Bike/Ped Coordinator Conduct Annual Assessment of Student Travel Mode Support Healthy Commutes  Incentives for Use of Public Transit and Ridesharing  Incentives for Walking and/or Biking  Transportation Demand Management Policies Healthy Food & Beverage Environments Total Strategies Achieved 3 of 9 Increase Healthy Food & Water Access   Procurement Standards for City-Sponsored Meetings and Celebrations  Procurement Standards for City-Sponsored Events Procurement Standards for Vending on City Properties Procurement Standards for City-Sponsored Programming Procurement Standards for City-Run Food Establishments Water Access Policy Maintain Community Gardens on City Property/Parks Reduce Exposure to Sugary Drinks Require Warning Labels on Sugary Drink Advertisements Resolution to Decline Funding from the Beverage Industry Tobacco-Free Communities Total Strategies Achieved 4 of 14 Reduce Exposure to Secondhand Smoke Smoke-Free Multi-Unit Housing Smoke-Free Parks, Trails, and Recreation Areas Smoke-Free Outdoor Dining Areas Smoke-Free Entryways Smoke-Free Service Lines and Areas Smoke-Free Public Events Reduce Youth Access to Tobacco Adopt and Implement a Tobacco Retail License Reduce Density of Tobacco Outlets Limit Sales of Tobacco Near Schools Flavored Tobacco Restrictions (Including Menthol Cigarettes) Prohibit Sale of Tobacco in Pharmacies Price-Discounting Restrictions Limit Tobacco Sales to Adult Tobacco Stores Only Conduct Enforcement to Verify Retailers Are Not Selling Tobacco to Minors Cross-Cutting Strategies Total Strategies Achieved 4 of 4 Support Healthy Environments  Health Language in General Plan  Climate Action Plan Workplace Wellness Policies Achieve Age-Friendly Designation City Spotlight Cupertino is developing a Parks and Recreation Master Plan. Major goals for the plan have been developed based on community input, supported by objectives and specific actions. The plan emphasizes elements that support a healthy community, such as connectivity, nature experience, youth and teen empowerment, and embracing cultural diversity. Adoption is expected in 2019. Legend NA Strategy not applicable to jurisdiction Strategy not achieved Strategy not achieved, model possible Strategy achieved Strategy achieved but model possible Model strategy achieved ATTACHMENT B 77 Overall Tobacco Control Grade A: 11-12 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 Smokefree Outdoor Air Grade A: 18+ B: 13-17 C: 8-12 D: 3-7 F: 0-2 Smokefree Housing Grade A: 10+ B: 7-9 C: 4-6 D: 1-3 F: 0 Reducing Sales of Tobacco Products Grade A: 4 B: 3 C: 2 D: 1 F: 0 STATE OF TOBACCO CONTROL 2019 - CALIFORNIA LOCAL GRADES CampbellMonte SerenoLos AltosSan JoseSunnyvaleMountain ViewLos GatosSaratogaCupertinoMorgan HillLos Altos HillsSanta ClaraGilroyPalo AltoMilpitasSanta Clara County UnincorporatedOverall Tobacco Control Grade B D C D F A D n/a C D A B F A B A TOTAL POINTS 8 2 5 4 0 12 2 7 2 13 8 1 11 8 13 Smokefree Outdoor Air A C D A F A C n/a B C A B F A A A Dining 4 4 2 4 0 4 4 2 4 4 4 0 4 4 4 Entryways 4 4 0 2 0 4 0 4 4 4 2 0 4 4 4 Public Events 4 0 0 4 0 4 0 3 2 4 2 0 2 4 2 Recreation Areas 4 4 2 4 0 4 4 3 2 4 4 0 4 4 4 Service Areas 4 0 0 4 0 4 0 4 0 4 4 0 4 4 4 Sidewalks 0 0 0 1 0 1 0 0 0 1 0 0 0 1 0 Worksites 0 0 0 0 0 1 0 0 0 1 0 0 1 0 1 TOTAL POINTS 20 12 4 19 0 22 8 16 12 22 16 0 19 21 19 Smokefree Housing F F F F F B F n/a F F A C D C A A Nonsmoking Apartments 0 0 0 0 0 4 0 0 0 4 0 0 1 4 4 Nonsmoking Condominiums 0 0 0 0 0 0 0 0 0 4 0 0 0 4 4 Nonsmoking Common Areas 0 0 0 0 0 4 0 0 0 4 4 2 4 4 4 TOTAL POINTS 0 0 0 0 0 8 0 0 0 0 12 4 2 5 12 12 Reducing Sales of Tobacco Products A F A F n/a A F n/a A F A B F A F A Tobacco Retailer Licensing 4 0 4 0 4 0 4 0 4 3 0 4 0 4 TOTAL POINTS 4 0 4 0 4 0 4 0 4 3 0 4 0 4 Emerging Issues Bonus Points Emerging Products Definition - Secondhand Smoke 1 1 0 1 0 1 1 1 1 1 0 1 1 1 1 Emerging Products Definition - Licensing 1 0 1 0 0 1 0 1 0 1 0 0 1 0 1 Retailer Location Restrictions 0 0 1 0 0 1 0 0 1 1 0 0 1 0 1 Sale of Tobacco Products in Pharmacies 0 0 0 0 0 1 0 0 0 1 0 0 1 0 1 Flavored Tobacco Products 0 0 0 0 0 1 0 0 0 1 0 0 1 0 1 Minimum Pack Size of Cigars 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 TOTAL POINTS 2 1 2 1 0 5 1 2 2 5 0 1 5 1 5 Santa Clara County ATTACHMENT C 589 W. Fremont Avenue, PO Box F, Sunnyvale, CA 94087 | TEL (408) 522-2200 | FAX (408) 245-5325 | WEB www.fuhsd.org SUPERINTENDENT: Polly M. Bove | BOARD OF TRUSTEES: Rosa Kim, Jeff Moe, Naomi Nakano-Matsumoto, Roy Rocklin, Bill Wilson March 19, 2019 Dear Honorable Cupertino Councilmembers, Thank you so much for all your services, which make Cupertino a great city for our students and families. Recently, we heard that parents are becoming increasingly concerned about the significant rise in e- cigarette usage by teenagers. Our district has hosted workshops at our school sites to inform parents about this issue. At one such workshop, we heard that parents are particularly concerned about retailers located close to our school sites that sell e-cigarettes, which might encourage students to become more interested in using tobacco and other nicotine delivery products. We would like to request that the City of Cupertino consider passing an ordinance to prohibit retailers near schools from selling e-cigarettes. We hope that you take this under consideration, as we feel strongly that it will benefit our students and keep them from developing habits and behavior that may be harmful to their health. As an example of the communications we are having with our families, please see the attached message that Fremont High School sent to all parents regarding the use of e-cigarettes. Thank you in advance for your consideration. Please do not hesitate to contact us sh ould you have any questions. Best regards, Polly Bove Roy Rocklin Superintendent Board President ATTACHMENT D FREMONT UNION HIGH SCHOOL DISTRICT Cupertino High School | Fremont High School | Homestead High School | Lynbrook High School | Monta Vista High School | Adult School ATTACHMENT E ATTACHMENT E CENTER4TOBACCOPOLICY.ORG LUNG.ORG/CALIFORNIA The Center for Tobacco Policy & Organizing | American Lung Association in California 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 ©2019. California Department of Public Health. Funded under contract #14-10213. MAY 2019 The tobacco industry has a long history of using flavored tobacco to target youth and communities of color. The majority of youth who start experimenting with tobacco begin with flavored tobacco.1 These products come in a variety of candy-like flavors including bubble gum, grape, menthol and cotton candy and include e-cigarettes, hookah tobacco, cigars, smokeless tobacco, and even flavored accessories such as blunt wraps. Since 2009, the United States Food and Drug Administration (FDA) has banned flavored cigarettes nationwide. However, this ban included an exemption for menthol flavored cigarettes and doesn't extend to non-cigarette tobacco products. There are currently no state laws in California restricting the sale of flavored tobacco products. It is up to local communities to take action to protect their youth from the lure of enticing flavored tobacco. The first community to restrict the sale of flavored tobacco in California was Santa Clara County in 2010. Since then, thirty- five communities have passed similar policies. What products may be included? 1. E-Cigarettes – Restricts the sale of flavored electronic cigarettes. 2. Menthol – Restricts the sale of tobacco products labelled as menthol, including cigarettes, smokeless tobacco, little cigars, etc. 3. Little Cigars – Restricts the sale of flavored little cigars, which are small, usually filtered cigars wrapped in brown paper containing tobacco leaf. Little cigars became a popular alternative following the FDA's ban on flavored cigarettes. 4. Smokeless Tobacco – Restricts the sale of flavored smokeless tobacco such as chewing tobacco, dip, snus and snuff. 5. Components & Accessories – Restricts the sale of flavored accessory products such as blunt wraps and e-juice additives. These products cannot be smoked alone and serve as a delivery system for smoked products. 6. Products Marketed as Flavored – Tobacco companies sometimes try to circumvent flavor restrictions by marketing products as flavored without directly labelling them as such. This policy option allows communities to broaden the definition of flavored tobacco to include these products. What exemptions are allowed? 1. Adult-Only Stores Exempted – Adult-only retailers are limited to customers who are 21 and over. This limits sales of flavored tobacco to stores that youth do not have access to. 2. Grandfathered Retailers Exempted – Allows retailers that were in operation prior to a specifed date to continue selling flavored tobacco products. 3. Limited to Youth-Populated Areas – Retailers are required to be a certain distance away from schools, parks, or other youth-oriented locations. Since many flavored tobacco products target youth, including buffer zones is a way to limit their access to flavored products. Resources The Center has additional resources on tobacco retailer licensing ordinances, plug-in policies, and ordinances restricting menthol tobacco available at: http:// center4tobaccopolicy.org/tobacco-policy/tobacco-retail- environment/ . ChangeLab Solutions has model ordinance language available for ordinances restricting flavored tobacco at: http://changelabsolutions.org. © 2013 California Department of Public Health Matrix of Local Ordinances Restricting the Sale of Flavored Tobacco Products ATTACHMENT F THE AMERICAN LUNG ASSOCIATION IN CALIFORNIA THE CENTER FOR TOBACCO POLICY & ORGANIZING Page 2 of 3 CENTER4TOBACCOPOLICY.ORG LUNG.ORG/CALIFORNIA The Center for Tobacco Policy & Organizing | American Lung Association in California 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 ©2019. California Department of Public Health. Funded under contract #14-10213. City/County Date Passed Products Included Exemptions E-Cigs Menthol Little Cigars Smokeless Components & Accessories Products marketed as flavored Adult-Only Stores Exempted Grandfathered Retailers Exempted? Limited to Youth- Populated Areas? San Carlos April 2019 X X X X X X Larkspur April 2019 X X X X X X Sacramento April 2019 X X X X X X Albany April 2019 X X X X X X Corte Madera March 2019 X X X X X X Hermosa Beach Jan 2019 X X X X X X X San Pablo Dec 2018 X X X X X X Alameda Nov 2018 X X X X X X Santa Cruz Nov 2018 X X X X X X Marin County Nov 2018 X X X X X X Saratoga Oct 2018 X X X X X Half Moon Bay Oct 2018 X X X X X X Portola Valley Sep 2018 X X X X X X Beverly Hills August 2018 X X X X X X Richmond July 2018 X X X X X X Sausalito July 2018 X X X X X San Mateo County June 2018 X X X X X X San Francisco June 2018 X X X X X X Mono County July 2018 X Windsor March 2018 X X**X X X ATTACHMENT F THE AMERICAN LUNG ASSOCIATION IN CALIFORNIA THE CENTER FOR TOBACCO POLICY & ORGANIZING Page 3 of 3 CENTER4TOBACCOPOLICY.ORG LUNG.ORG/CALIFORNIA The Center for Tobacco Policy & Organizing | American Lung Association in California 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 ©2019. California Department of Public Health. Funded under contract #14-10213. City/County Date Passed Products Included Exemptions E-Cigs Menthol Little Cigars Smokeless Components & Accessories Products marketed as flavored Adult-Only Stores Exempted Grandfathered Retailers Exempted? Limited to Youth- Populated Areas? Cloverdale Dec 2017 X X X X Fairfax Dec 2017 X X**X X X San Leandro Oct 2017 X X X X X Palo Alto Oct 2017 X X X X X X X Oakland Sep 2017 X X X X X X X Contra Costa County July 2017 X X X X X X X 1000 ft Los Gatos May 2017 X X X X X X X Novato Jan 2017 X X**X X X Santa Clara County Oct 2016 X X X X X X X Yolo County Oct 2016 X X X X X Manhattan Beach Dec 2015 X X X X X X El Cerrito Oct 2015 X X*X X X X Berkeley Sep 2015 X X X X X X X 600 ft Sonoma June 2015 X X**X X X Hayward July 2014 X X*X X X X X X 500 ft 1 Ambrose, B.K., et al., Flavored Tobacco Product Use Among US Youth Aged 12-17 Years, 2013-2014. JAMA,2015: p.1-3. *Does not include menthol cigarettes **Exempts packages of at least 5 or more ***Doesn't apply to pipe tobacco ATTACHMENT F Healthy Stores for a Healthy Community 2016 Data Findings for Santa Clara County Public Opinion Poll Data Findings - Santa Clara County (SCC) i Easy Difficult Don’t know Availability of products 2013 2016 2013 2016 2013 2016 Cigarettes 84.1% 93.1% 6.9% 4.3% 9.1% 2.6% E-cigarettes 44.1% 63.8% 22.9% 21.0% 33.1% 15.1% Cigarillos 57.5% 71.9% 15.3% 13.7% 27.2% 14.4% Chewing tobacco 61.8% 51.3% 15.8% 29.8% 22.4% 18.9% Flavored tobacco 42.5% 54.1% 20.1% 30.0% 37.5% 15.9% Beer 85.9% 94.6% 10.1% 4.3% 4.1% 1.2% Malt liquor 77.0% 71.6% 13.0% 17.3% 10.1% 11.1% Alcopops 61.5% 80.9% 17.2% 11.4% 21.3% 7.8% Novelty alcoholic beverages n/a 38.1% n/a 40.4% n/a 21.5% Water n/a 99.3% n/a 0.7% n/a 0.0% Sugary drinks 98.8% 99.8% 0.7% 0.2% 0.5% 0.0% Sports drinks 97.1% 97.2% 0.7% 2.4% 2.2% 0.5% Energy drinks 96.2% 97.2% 0.7% 1.0% 3.1% 1.9% Non-fat/low-fat milk 94.5% 78.3% 4.8% 20.8% 0.7% 1.0% 100% juice 77.8% 68.8% 18.7% 30.5% 3.6% 0.7% Whole grain products 86.6% 74.9% 10.8% 24.8% 2.6% 0.2% Fresh fruit 89.2% 91.0% 10.3% 9.0% 0.5% 0.0% Fresh vegetables 89.2% 86.3% 10.8% 13.5% 0.0% 0.2% Canned or frozen fruit 90.1% 93.6% 7.5% 4.7% 2.4% 1.7% Canned or frozen vegetables 92.3% 94.3% 6.8% 4.3% 1.0% 1.4% n/a = not asked in 2013 Product Types Always allowed Allowed only on the inside of the store Allowed only on the outside of the store Allowed, but only in places that are hard for children to see Not allowed at all Don’t know 2013 2016 2013 2016 2013 2016 2013 2016 2013 2016 2013 2016 Tobacco 12.5% 5.7% 16.3% 22.7% 1.7% 0.7% 36.9% 34.5% 30.7% 35.9% 1.9% 0.5% Alcohol 13.0% 9.0% 21.8% 28.4% 1.9% 0.5% 41.5% 39.2% 20.4% 22.9% 1.4% 0.0% Sugary drinks 34.3% 29.6% 23.0% 30.5% 2.9% 2.8% 23.5% 20.8% 14.4% 15.6% 1.9% 0.7% Junk food 30.6% 27.7% 24.8% 32.2% 2.9% 2.8% 22.1% 19.9% 18.2% 17.0% 1.5% 0.5% ATTACHMENT G Healthy Stores for a Healthy Community 2016 Data Findings for Santa Clara County Public Opinion Poll Data Findings - Santa Clara Countyi Policy Support Oppose Don’t know 2013 2016 2013 2016 2013 2016 Ban pharmacies from selling tobacco n/a 80.4% n/a 18.2% n/a 1.4% Ban price discounts on tobacco products such as two packages for the price of one 56.7% 67.4% 33.3% 30.5% 10.0% 2.1% Requiring storeowners to buy a local license to sell tobacco products including e-cigarettes. 71.7% 87.7% 17.7% 11.4% 10.7% 1.0% Ban the sale of flavored tobacco products like menthol cigarettes and fruit flavored little cigars. 51.1% 62.0% 33.6% 33.1% 15.3% 5.0% Prevent stores near schools from selling tobacco products including e-cigarettes. 84.7% 87.9% 11.9% 10.2% 3.4% 1.9% Only allow the sale of tobacco products in adult-only tobacco stores. n/a 82.7% n/a 15.6% n/a 1.7% Illegal to sell small amounts of tobacco like single cigarillos or other tobacco products in packs of one. n/a 61.2% n/a 34.8% n/a 4.0% Limits where stores that sell tobacco can be located within a community (ex. within 500 ft. from existing tobacco retailers). 73.0% 74.5% 20.0% 19.9% 7.1% 5.7% Ban marketing of unhealthy products in stores to children 74.3% 75.7% 20.8% 21.0% 4.9% 3.3% Incentivize stores that adopt healthy changes such as reducing the number of unhealthy products and increasing health products. 78.3% 85.3% 11.9% 12.5% 9.7% 2.1% Require a government safety warning label to be placed on beverages with added sugars? n/a 91.7% n/a 7.3% n/a 1.0% n/a = not asked in 2013 If a government safety warning label was included on all sugary drinks would you purchase fewer of those beverages? Definitely yes Probably yes Probably no Definitely no Don’t know 2013 n/a n/a n/a n/a n/a 2016 28.6% 49.2% 18.0% 3.1% 1.2% n/a = not asked in 2013 If stores were rated for instance by giving 5 stars to the healthiest stores and 0 stars to the unhealthiest stores would you be more likely to shop at a store with a high rating? Yes, I would be more likely to shop there No, I would not be more likely to shop there I am not sure if I would pay attention 2013 65.3% 8.1% 26.7% 2016 61.2% 8.8% 30.0% i Only Santa Clara County residents participated in the survey. Surveys were collected in public places throughout Santa Clara County which included shopping plazas, libraries, and parks. ATTACHMENT G Answering Tough Questions on Flavored Tobacco Products @ 2019 California Department of Public Health The Center for Tobacco Policy & Organizing | American Lung Association in California 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 ©2019. California Department of Public Health. Funded under contract #14-10213. CENTER4TOBACCOPOLICY.ORG LUNG.ORG/CALIFORNIA May 2019 As California communities take the lead on restricting the sale of flavored tobacco products, they are facing significant skepticism and opposition. The tobacco industry, along with the retail industry groups they frequently fund, is actively engaged in local-level opposition to policies, especially when the policies seek to restrict menthol products along with other flavors. Below are some common questions and beliefs, which have arisen during local flavored tobacco campaigns. The suggested answers are meant to help effectively address opponents’ arguments against prohibiting the sale of flavored tobacco products. Coupling these responses with personal stories from community members is the most effective way to counter these arguments. The Center has additional resources on prohibiting flavored tobacco product sales and tobacco retailers licensing ordinances available at www.Center4TobaccoPolicy.org. Prohibiting the sale of flavored tobacco products is not effective and will not keep tobacco out of the hands of minors. •More than 80% of youth who have used a tobacco product started with a flavored tobacco product. 82% of teens report flavors as being the reason they use electronic cigarettes.1 •Flavors, including menthol, reduce or mask the natural harshness and taste of tobacco, making it easier for youth to initiate and sustain tobacco use. 2 •Menthol users in the U.S. that are below 18 years of age have already indicated that 66% of them would stop using these products if a ban was placed.3 •In 2013, New York City adopted a ban on the sale of flavored tobacco products that showed positive results. After the policy went into effect, a study found that teens in the city had lower odds of trying a flavored tobacco product and of using any type of tobacco product.4 Flavors are not just for kids; adults also like flavors in electronic cigarettes and it helps adults quit smoking cigarettes. •E-cigarettes are not approved by the Federal Food and Drug Administration as a smoking cessation device and not a single company that manufactures e-cigarettes has applied to be an approved and effective smoking cessation treatment. 4 •The 2016 Surgeon General Report on e-cigarettes concluded that flavors are among the most commonly cited reasons for using e-cigarettes among youth and young adults.4 •While flavors can appeal to people of all ages, children and adolescents have a higher preference for sweet flavors and use flavored e-cigarettes more than adults.5 •Studies show that candy, fruit, and menthol flavored e-cigarettes appeal to adolescents more than tobacco flavored or alcohol flavored e-cigarettes.6 ATTACHMENT H THE CENTER FOR TOBACCO POLICY & ORGANIZING Page 2 of 4 The Center for Tobacco Policy & Organizing | American Lung Association in California 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 ©2019. California Department of Public Health. Funded under contract #14-10213. CENTER4TOBACCOPOLICY.ORG LUNG.ORG/CALIFORNIA • 80% of youth in middle and high school who have used flavored tobacco products ended up using tobacco later in life.7 • Allowing harmful flavored tobacco products, which are proven to encourage initiation of youth tobacco use, to stay on the market in the hope that adults will use them to quit smoking cigarettes is not a defensible public health strategy. • Adult e-cigarette users will still have access to non- flavored e-liquids, and those wishing to quit have a range of FDA-approved cessation therapies to choose.7 There are already laws in place that prevent youth from having access to tobacco products, such as the statewide law that increased the minimum sale age to 21 and local laws that prohibited tobacco sales near schools. We do not need to ban more products; we just need to do a better job enforcing existing laws. • Our existing laws are effective; however, public health threats are far-reaching and entrenched, as tobacco prevention requires using multiple approaches to save lives. 8 • While raising the age to purchase tobacco is expected to significantly reduce youth access to tobacco, the reality is that enforcement varies and can be particularly difficult in the low-income urban and rural areas where youth tobacco use is highest. 8 • Enforcement is difficult to measure. It is widely reported that youth purchase surveys underestimate youth access because retailers will sell to youth they personally know, which shows that the minimum sales age is not enough enforcement.8 • Data from the county-level tobacco youth purchase surveys shows that illegal tobacco sales to minors still occurs at high rates. 8 • The restriction of sales in menthol and flavored tobacco in conjunction with other tobacco control policies is the best approach to save lives. Many of these convenience stores only sell snacks to the youth; the adults are mostly the ones buying tobacco products. • The best way for local communities to reduce underage purchases of flavored and e-cigarette products is to specifically include these products in retail licensing ordinances. • 152 cities and counties throughout the state have taken steps to regulate these products through local tobacco retail law. These jurisdictions have seen reductions in youth purchase rates as high as 58%. 12 • For example, many African American and low-income neighborhoods tend to have more tobacco retailers. A 2010 research study even found that there were more tobacco stores near schools, attracting youth to experiment with tobacco. 8 • The 2015 rate of illegal sales to minors across the state was 14.8% at tobacco-only stores. Convenience stores that sell gasoline sold to minors 8.8% of the time and convenience stores without gasoline sold tobacco to minors nearly 10% of the time. These are numbers we can change. 8 • The best way for local communities to reduce underage purchases of flavored tobacco products is to specifically include these products in their local retail licensing ordinances. Youth are more likely to access tobacco products through a “social source” or the internet instead of at local stores. • The tobacco industry has a history of shifting the attention from retailers profiting off sales to youth by framing the issue of youth access as a “social” problem of youth sharing tobacco products, careless parents, and unconcerned bystanders buying cigarettes for minors. 9 • Many of these tobacco products are now being promoted on social media and shared among friends, increasing the use of these e-cigarettes.9 • By restricting the sale of flavored tobacco products, this makes these products less enticing to youth and fewer youth will be interested in purchasing these products. Illegal sales to minors are not the only source minors use to obtain tobacco, but are still the highest— this is a public health issue, and tobacco retailers can be a part of the solution. Flavored tobacco users will simply order products online or visit neighboring communities that have not prohibited the sale of flavored tobacco. • Online sales are only a part of the issue, and we have to start by fixing these issues in our own backyard. • Although many users have accessibility to making ATTACHMENT H THE CENTER FOR TOBACCO POLICY & ORGANIZING Page 3 of 4 The Center for Tobacco Policy & Organizing | American Lung Association in California 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 ©2019. California Department of Public Health. Funded under contract #14-10213. CENTER4TOBACCOPOLICY.ORG LUNG.ORG/CALIFORNIA e-cigarette purchases online, the 2018 National Youth Tobacco Survey states that, 14.8% of middle and high school e-cigarette users under 18 report obtaining e-cigarettes from a vape shop in the past month and 8.4% from a gas station or convenience store.10 Clerks should not be punished if they sell to minors. • Storeowners claim that mistakes are made because clerks are busy and cannot check everyone’s ID. This is an argument that would be unacceptable for illegal alcohol or gun sales and should be just as unacceptable for illegal tobacco sales. 10 • The fact is that storeowners, not clerks, are responsible for what happens in their stores. Everybody is accountable for selling to underage patrons and storeowners must train clerks to ask for ID and must enforce minimum age requirements, even during busy times. By limiting product access, it limits the opportunity for youth to attain these products. 10 • Clerks must have the proper training to ensure they do not sell to minors. Tobacco products, especially flavored tobacco products, are a key source of income for many convenience stores who risk going out of business if they lose this revenue. • According to the National Association of Convenience Stores, sale from tobacco accounted for the highest percentage of sales, but the products only accounted for a small percentage of actual profits compared to other products. 11 • Foodservice accounted for 33.9% of gross profits, which show that these retailers do not have rely entirely on tobacco. 11 • While tobacco products were 34.1% of instore sales, they only account for 17.1% of gross profit. 11 • Many of these purchases made in-store are for food and drinks, and more than 65% of the food bought is consumed right after purchase. 11 • Tobacco retailers and communities should work together to build partnerships that support healthy retail environments from relying on harmful tobacco products as well as properly enforcing the minimum age for acquiring tobacco products.11 Banning flavors is really a federal or state issue and should be left up to the FDA or the State Legislature. • The federal government cannot regulate the manufacturing of tobacco products, but the states and local governments can govern tobacco retail practices. • Local elected officials can and should take action to reduce sales of these deadly products. • In 2009, the FDA banned flavored cigarettes, excluding menthol, which still left a large number of flavored products on the market, such as cigarillos and e-cigarettes. Now, nine years later, the FDA announced intentions to take further steps in reducing the death and disease caused by flavored tobacco use in our nation. Many cities and counties in California have already taken initiative in adopting flavor bans due to a strong need and other places should follow to ensure safety for minors and others.12 • It took the legislature 20 years and dozens of attempts before it was able to move any significant tobacco control legislation prior to 2016. We cannot wait, as more youth get addicted to tobacco, for the legislature to act. 12 People have the right to use these products regardless of their health impacts, and it should not be up to the government to tell people what to do. If someone wants to kill themselves by using these products, that is their right. • According to the 2014 Surgeon General Report, over 90% of smokers started smoking before the age of 21.4 We are not talking about adults; we are talking about youth who may not fully recognize the consequences of their actions. • The industry uses deceptive marketing to lure new users, especially youth, to use these products. It should be left up to parents, not stores and storeowners, to ensure that kids are not accessing these products. Where are parents in all of this? • In 2016, the tobacco industry spent $9.5 billion dollars marketing their products.13 Parents are doing the best they can, but they cannot single handedly push back against a billion dollar industry that seeks to hook their kids. ATTACHMENT H THE CENTER FOR TOBACCO POLICY & ORGANIZING Page 4 of 4 The Center for Tobacco Policy & Organizing | American Lung Association in California 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 ©2019. California Department of Public Health. Funded under contract #14-10213. CENTER4TOBACCOPOLICY.ORG LUNG.ORG/CALIFORNIA If the sale of flavored tobacco products is prohibited, local black markets will emerge to fulfill demand via illegal sales of flavored tobacco. • There is no evidence of black markets forming in communities that have adopted these policies. • The argument that black markets will form is one that is consistently used against tobacco control policies, but is often very overstated. History shows us that this just doesn’t pan out. 14 • Evidence shows that smuggling and other tax evasion only reduces the total amount of net new additional revenues the state receives from cigarette tax increases—they do not come close to eliminating revenue gains or making tax increases unproductive. 14 • The National Research Council and Institute of Medicine’s (NRC-IOM) 2015 report found that the vast majority of states with lower actual or proposed cigarette tax rates have little to worry with smuggling infrastructures or tax evasions patterns.14 Citations 1. Ambrose, B.K., et al., Flavored tobacco product use among US youth aged 12- 17 years, 2013-2014. Journal of the American Medical Association, 2015. 314(17): p. 1871-1873. 2. Farley, S.M. and M. Johns, New York City flavored tobacco product sales ban evaluation. Tobacco control, 2016: p. tobaccocontrol-2015-052418. 3. King, B.A., S.R. Dube, and M.A. Tynan, Flavored cigar smoking among US adults: findings from the 2009–2010 National Adult Tobacco Survey. Nicotine & Tobacco Research, 2012. 15(2): p. 608-614. 4. Youth, E.-C.U.A., U.D.o. Health, and H. Services, A Report of the Surgeon General—Executive Summary. Atlanta, GA: US Department of Health and Hu- man Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2016. 5. Hoffman, A.C., et al., Flavour preferences in youth versus adults: a review. Tobacco Control, 2016. 25(Suppl 2): p. ii32-ii39. 6. Villanti, A.C., et al., Flavored tobacco product use among US young adults. American Journal of Preventive Medicine, 2013. 44(4): p. 388-391. 7. Delnevo, C.D. and M. Hrywna, “A whole’nother smoke” or a cigarette in disguise: how RJ Reynolds reframed the image of little cigars. American Journal of Public Health, 2007. 97(8): p. 1368-1375. 8. California Department of Public Health. https://www.cdph.ca.gov/Pro- grams/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/Re- searchandEvaluation/FactsandFigures/2018YATPSChartsADA.pdf African American tobacco users overwhelmingly prefer menthol. Prohibiting these products unfairly singles out African American tobacco users. • The tobacco industry has been using menthol to target the African American community for decades. They sponsor events, lower tobacco prices, and increase point of sale advertising in communities with larger African American populations.15 • Many African American smokers are addicted to menthol products, which have been associated with increased health risks and a greater difficulty quitting.15 • Support for prohibition of menthol products is strongest among the populations who used menthol the most.16 • Tobacco companies have also used these tactics to target other communities such as the Lesbian, Gay, Bisexual, Transgender and Queer Hispanic/Latino, and Asian Pacific Islander communities. 16 9. Jidong Huang, Zongshuan Duan, Julian Kwok, Steven Binns, Lisa E Vera, Yoonsang Kim, Glen Szczypka, Sherry L Emery, “Vaping versus JUULing: how the extraordinary growth and marketing of JUUL transformed the US retail e- cigarette market”. Tobacco Control, 2018. 10. FDA, “Modifications to Compliance Policy for Certain Deemed Prod- ucts: Guidance for Industry, Draft Guidance,” March 13, 2019 11.Inside the Store. www.convenience.org/Research/FactSheets/Inside- theStore. 12. American Lung Assocation, the Center. Matrix of Local Ordinances Restric- itng Flavored Tobacco 2018. https://center4tobaccopolicy.org/wp-content/ uploads/2018/11/Matrix-of-Local-Ordinances-Restricting-Flavored-Tobac- co-2018-11-14.pdf 13. Federal Trade Commission. Federal Trade Commission Cigarette Report for 2016 Cdc-pdf[PDF–589 KB]External. Washington: Federal Trade Com- mission, 2018 14. Tobacco Free Kids, “Reponses to Tobacco Company Arguemnts Against State Cigarette Tax Increases” 2018. 15. Yerger VB, Malone RE. African American leadership groups: smoking with the enemy. Tobacco Control 2002;11:336-345. 16. American Lung Association, the Center. Countering Arguments in Opposi- tion to Flavored Tobacco Restrictions 2017. https://center4tobaccopolicy. org/wp-content/uploads/2017/08/Countering-Arguments-in-Opposition- to-Flavored-Tobacco-Restrictions-2017-08.pdf ATTACHMENT H