Model California Ordinance

Regulating Electronic
Smoking Devices
(with Annotations)

Updated June 2015

(Originally published October 2013)

Developed by ChangeLab Solutions

This material was made possible by funds received from Grant Number 14-10214
with the California Department of Public Health, California Tobacco Control
Program.

2015 California Department of Public Health. This material may not be

reproduced or disseminated without prior written permission from the California
Department of Public Health.

ChangeLabSolutionsisanonprofitorganizationthatprovideslegalinformationonmattersrelating
topublichealth.Thelegalinformationprovidedinthisdocumentdoesnotconstitutelegaladviceor
legalrepresentation.Forlegaladvice,readersshouldconsultalawyerintheirstate.

changelabsolutions.org/tobaccoquestions
Introduction

ChangeLab Solutions developed this Model Ordinance to help local governments regulate the
use and sale of Electronic Smoking Devices (also known as electronic cigarettes, e-cigarettes, or
electronic nicotine delivery systems) and their component parts.By restricting the use of
electronic smoking devices in places where smoking is prohibited, cities and counties can
protect their residents from involuntary exposure to the secondhand byproducts of electronic
smoking devices, such as vapor; reduce the likelihood that children will associate the use of
electronic smoking devices with healthy behavior;and reduce the likelihood that smoking in
public places and places of employment will become re-normalized.By regulating how
electronic smoking devices and their component parts are sold, cities and counties can help
promote compliance with local laws regulating business practices, and reduce youth access to
electronic smoking devices.

In the most recent update of this Model Ordinance (June 2015), the definition of Electronic
Smoking Device was revised to omit the exemption for products approved by the United States
Food and Drug Administration (FDA) for use in the mitigation, treatment, or prevention of
disease. This Model Ordinance now prohibits the use of Electronic Smoking Deviceswith no
exception for FDA-approved productsin any place where smoking is prohibited by law.
However, FDA-approved products remain exempt from the sales requirements and prohibitions
contained in this Model Ordinance.

Note: Many jurisdictionsin California already have local laws restricting the use of tobacco
products in public places and places of employment.Similarly, many jurisdictions in California
already have local laws regulating the sale of tobacco products, such as local tobacco retailer
licensing laws or local prohibitions on tobacco sampling. Communities that already have these
local laws in place should consider regulating electronic smoking devicesby amending their
existing tobacco control laws to treat electronic smoking devices like traditional tobacco
products. Please see ChangeLab Solutions flowchart, How to Regulate E-Cigarettes and Other
Electronic Smoking Devices in Your Community,to determine whether amending existing local
laws is the best approach for your community.ChangeLab Solutions can assist you with this
customization. Jurisdictions that do not currently have local laws regulating tobacco products
but stillwish to regulate electronic smoking devices can use this Model Ordinance.

The Model Ordinance offers a variety of options. In some instances, blanks (e.g., [ ____ ] )
prompt you to customize the language to fit your communitys needs. In other cases, the
ordinance offers you a choice of options (e.g., [ choice one / choice two ] ). Some options are
followed by a comment describing the legal provisions in more detail. Some degree of
customization is always necessary in order to make sure the ordinance is consistent with a
communitys existing laws. Your city attorney or county counsel will likely be the best person to
check this for you.

If you have questions about how to adapt this ordinance for your community, please contact
ChangeLab Solutions through our website at www.changelabsolutions.org/tobaccoquestions for
assistance.

Model California Ordinance Regulating Electronic Smoking Devices 2

AN ORDINANCE OF THE [ CITY / COUNTY ] OF [ ____ ]
AMENDING THE [ ____ ] MUNICIPAL CODE TO REGULATE
ELECTRONIC SMOKING DEVICES

The [ City Council of the City / Board of Supervisors of the County ] of [ ____ ] does ordain as
follows:

COMMENT: This is introductory boilerplate language that should be adapted to the conventional form
used in the jurisdiction.

SECTION I. FINDINGS.

The [ City Council of the City / Board of Supervisors of the County ] of [ ____ ] hereby finds
and declares as follows:

WHEREAS, electronic smoking devices, commonly known as electronic cigarettes, e-

cigarettes, e-cigars, e-cigarillos, e-pipes, e-hookahs, electronic nicotine delivery
systems, etc., are battery operated devices designed to deliver nicotine, flavor, and/or other
substances through a vapor inhaled by the user1; and

WHEREAS, use of electronic smoking devices has increased significantly in recent years, as
evidenced by the fact that:

Between 2011 and 2012 the percentage ofall youth in grades 6 to 12 who had tried
electronic smoking devices doubled;2
6.8% of all youth between 6th and 12th grade report trying electronic smoking devices;3
10% of high school students have tried electronic smoking devices;4
9.3% of youth who have used electronic smoking devices have never smoked
conventional cigarettes;5
Between 2010 and 2011, rates of both awareness and use of unregulated electronic
smoking devices by adults also increased significantly;6 and

WHEREAS, existing studies on electronic smoking devices vapor emissions and cartridge
contents have found a number of dangerous substances including:

Chemicals known to the State of California to cause cancer7 such as formaldehyde,

acetaldehyde, lead, nickel, and chromium;8,9
PM2.5,acrolein,tin, toluene, and aluminum,10,11,12,13 which are associated with a range of
negative health effects such as skin, eye, and respiratory irritation,14,15,16,17 neurological
effects,18 damage to reproductive systems,19and even premature death from heart attacks
and stroke;20
Inconsistent labeling of nicotine levels in electronic smoking device products;21 and
In one instance, diethylene glycol, an ingredient used in antifreeze and toxic to
humans;22 and

Model California Ordinance Regulating Electronic Smoking Devices 3

WHEREAS, more than one study hasconcluded that exposure to vapor from electronic smoking
devices may cause passive or secondhandvaping;23,24,25 and

WHEREAS, some cartridges used by electronic smoking devices can be re-filled with liquid
nicotine solution, creating the potential for exposure to dangerous concentrations of nicotine,26
and as a result:

Poisonings from electronic smoking devices have increased dramatically in the last
three and half years from one [a month] in September 2010 to 215 a month in February
2014;27
Analysis of reports of poisonings from electronic smoking devices finds that calls
reporting exposure to electronic smoking devices are much more likely to involve
adverse health effects when compared to calls reporting exposure to conventional
cigarettes;28and

WHEREAS,clinical studies about the safety and efficacy of these products have not been
submitted to the FDA29for the more than 400 brands of electronic smoking devices that are on
the market30and for this reason, consumers currently have no way of knowing:31

Whether electronic smoking devices are safe;

What types or concentrations of potentially harmful chemicals the products contain; and
What dose of nicotine the products deliver;and

WHEREAS, the World Health Organization has strongly advised consumers against the use of
electronic smoking devices until they are deemed safe and effective and of acceptable quality
by a competent national regulatory body;32 and

WHEREAS, the World Medical Association has determined that electronic smoking devices
are not comparable to scientifically-proven methods of smoking cessation and that neither
their value as therapeutic aids for smoking cessation nor their safety as cigarette replacements is
established;33 and

WHEREAS, the State of Californias Tobacco Education and Research Oversight Committee
(TEROC) opposes the use of e-cigarettes in all areas where other tobacco products are
banned.34

WHEREAS, a study published in the Journal of Environmental and Public Health suggests that
electronic smoking devices may have the capacity to re-normalize tobacco use in a
demographic that has had significant denormalization of tobacco use previously;35 and

WHEREAS, electronic smoking devices often mimic conventional tobacco products in shape,
size, and color,36 with the user exhaling a smoke-like vapor similar in appearance to the exhaled
smoke from cigarettes and other conventional tobacco products;37 and

WHEREAS, the use of electronic smoking devices in smokefree locations threatens to

undermine compliance with smoking regulations and reverse the progress that has been made in

Model California Ordinance Regulating Electronic Smoking Devices 4

establishing a social norm that smoking is not permitted in public places and places of
employment;38

WHEREAS, more than59 jurisdictions within California require retailers to obtain a license to
sell electronic smoking devices39 and at least 44 local jurisdictions in California prohibit the use
of electronic smoking devices in specific locations.40

NOW THEREFORE, it is the intent of the [ City Council / County Board of Supervisors ], in
enacting this ordinance, to provide for the public health, safety, and welfare by discouraging the
use ofelectronic smoking devices around non-users, especially children; by protecting the public
from exposure to secondhand byproducts of electronic smoking devices where they live, work,
and play; by facilitating uniform and consistent enforcement of smokefree air laws; by reducing
the potential for re-normalizing smoking in public places and places of employment; by
reducing the potential for children to associate the use of electronic smoking devices with a
normative or healthy lifestyle; and by prohibiting the sale or distribution of electronic smoking
devices to minors.

SECTION II. [ Article / Chapter ] of the [ ____ ] Municipal Code is hereby amended to read as
follows:

Sec. [ ____ (*1) ]. DEFINITIONS. The following words and phrases, whenever used in this
[ article / chapter ] shall have the meanings defined in this section unless the context clearly
requires otherwise:

(a)Business means any sole proprietorship, partnership, joint venture, corporation,

association, or other entity formed for profit-making purposes.

(b) Electronic Smoking Device means an electronic device that can be used to deliver
an inhaled dose of nicotine, or other substances, including any component, part, or
accessory of such a device, whether or not sold separately. Electronic Smoking
Device includes any such device, whether manufactured, distributed, marketed, or
sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an
electronic pipe, an electronic hookah, or any other product name or descriptor.

COMMENT:This definition is broad enough to cover all Electronic Smoking Devices that are
used to deliver nicotine or other substances. Regulating the use of all varieties of Electronic
Smoking Devices, regardless of their nicotine content, protects bystanders from exposure to
the hazardous substances found in Electronic Smoking Device vapor, reduces the risk that
children may view the use of Electronic Smoking Devices in smokefree areas as normative,
and facilitates uniform enforcement.Should a jurisdiction wish to limit its regulation of
Electronic Smoking Devicesales to only those products that contain nicotine, there is
optional language in section [ ____ (*3)(e) ] below.

(c) Electronic Smoking Device Paraphernalia means cartridges, cartomizers, e-liquid,

smoke juice, tips, atomizers, Electronic Smoking Device batteries, Electronic
Smoking Device chargers, and any other item specifically designed for the
preparation, charging, or use of Electronic Smoking Devices.

Model California Ordinance Regulating Electronic Smoking Devices 5

 COMMENT: This definition is meant to cover only those products that are exclusively
designed for use with Electronic Smoking Devices. Products that are designed for general
use with other types of devices, such as standard format USB cables, standardized
batteries, etc., would not be covered because such devices are not specifically designed for
use with Electronic Smoking Devices.

(d)Employee means any Person who is employed or retained as an independent

contractor by any Employer in consideration for direct or indirect monetary wages or
profit, or any Person who volunteers his or her services for an Employer.

COMMENT: This definition makes clear that volunteers and independent contractors are
Employees for purposes of this section.

(e) Employer means any Business or Nonprofit Entity that retains the service of one or
more Employees.

(f) Nonprofit Entity means any entity that meets the requirements of California
Corporations Code section 5003 as well as any corporation, unincorporated
association or other entity created for charitable, religious, philanthropic, educational,
political, social or similar purposes, the net proceeds of which are committed to the
promotion of the objectives or purposes of the entity and not to private gain. A
government agency is not a Nonprofit Entity within the meaning of this [ article /
chapter ].

COMMENT: This definition is broader than the IRS designation of a nonprofit organization in
order to cover more informal groups and associations.

(g) Nominal Cost means the cost of any item imposed for the transfer from one person
to another for less than the total of: (1) [ twenty-five percent (25%) ] of the fair
market value of the item exclusive of taxes and government fees; plus (2) all taxes
and government fees previously paid and all taxes and government fees still due on
the item at the time of transfer.

COMMENT: Nominal cost is used in the definition of nonsale distribution below.This

definition provides a bright-line rule as to what price is so low for Electronic Smoking
Devices as to be prohibited by this ordinance.

(h) Nonsale Distribution means to give, furnish, or cause or allow to be given or

furnished within the jurisdictional limits of the [ city / county ], an Electronic
Smoking Device or Electronic Smoking Device Paraphernalia at no cost or at
Nominal Cost to a Person who is not a Retailer.

(i) Person means any natural person, cooperative association, Employer, personal
representative, receiver, trustee, assignee, or any other legal entity including a

Model California Ordinance Regulating Electronic Smoking Devices 6

 government agency.

COMMENT: The Municipal Code may already contain a definition of person; review any
existing definition of person in the Municipal Code to determine whether to include the
abovedefinition in your ordinance.

Note: If Section [ (*5)(g) ]private citizen enforcementis included in the ordinance, keep
this specific definition of Person.

This definition incorporates numerous entities including Business, Employer, Nonprofit

Entity, landlord, and individual. In addition, it includes the City or County.

(j) [Public Place means any place within the [ city / county ], public or private, that is
open to the general public regardless of any fee or age requirement, including, for
example, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, and
buses [ and means any place used by a membership association or club at which non-
member guests are present or permitted, including, for example and without
limitation, fraternity and sorority houses ] ].

COMMENT:This entire definition is optional and, if added, can be used to limit the ban on
Electronic Smoking Device sampling to sampling that occurs in public places only. Without
this provision, all nonsale distributions of Electronic Smoking Devices with a business
purpose, even if on private property not open to the public, will be restricted (e.g., private
parties such as raves). Note that nonsale distributions that are not for a business purpose,
such as friends giving friends Electronic Smoking Devices, are not prohibited by this
ordinance.

If a public place limitation on Electronic Smoking Device sampling is desired, then the
jurisdiction must choose whether to regulate membership organizations. To regulate
membership organizations, include the phrase that is underlined and bracketed above.
However, if membership organizations are to be excluded from coverage, omit that
language. Note that membership organizations are covered if the public place limitation is
not imposed (i.e., no part of this definition is included).

(k) Retailer means any Person who sells, offers for sale, or does or offers to exchange
for any form of consideration, Electronic Smoking Devices or Electronic Smoking
Device Paraphernalia. Retailing means the doing of any of these things. This
definition is without regard to the quantity of the Electronic Smoking Devices or
Electronic Smoking Device Paraphernalia sold, offered for sale, exchanged, or
offered for exchange.

(l) Self-Service Display means the open display or storage of Electronic Smoking
Devices or Electronic Smoking Device Paraphernalia in a manner that is physically
accessible in any way to the general public without the assistance of aRetailer or
Employee of aRetailer and a direct person-to-person transfer between aRetailer or
Employee of aRetailer and any other Person. A vending machine is a form of Self-
Service Display.

Model California Ordinance Regulating Electronic Smoking Devices 7

 (m)Smoking means inhaling, exhaling, burning, or carrying any lighted, heated, or
ignited cigar, cigarette, cigarillo, pipe, hookah, Electronic Smoking Device, or any
plant product intended for human inhalation.

COMMENT:This is a conventional definition of smoking, which does not explicitly include

the vapors produced by Electronic Smoking Devices. This definition is appropriate for
jurisdictions that do not have a local smokefree air law but nevertheless want to adopt a
local law in order to restrict the use of electronic cigarettes in places covered by the
California Smoke Free Workplace Law. This model ordinance achieves this goal by
prohibiting the use of Electronic Smoking Devices in all places where smoking, as that term
is conventionally defined, is prohibited.

Jurisdictions that wish to adopt a local smokefree air law that prohibits the use of
combustible tobacco products andElectronic Smoking Devices in locations that are not
covered by the California Smoke Free Workplace Law, or that wish to amend such a law,
should use the definition of Smokingcontained in ChangeLab Solutions Comprehensive
Smokefree Places Ordinance.

Sec. [ ____ (*2) ]. PROHIBITION OF ELECTRONIC SMOKING DEVICE USE IN

SMOKE-FREE PLACES

(a) It shall be a violation of this [ article / chapter ] to use an Electronic Smoking Device
in any place within the [ City / County of____ ] where Smoking of tobacco products
is prohibited by law.

COMMENT: This provision makes it unlawful for a person to use an Electronic Smoking
Device in all places where smoking is prohibited by law, including all places of employment
subject to the Californias Smoke Free Workplace Law (Labor Code Section 6404.5).

(b) No Person, Employer, or Nonprofit Entity shall knowingly permit the use of
Electronic Smoking Devices in an area under the legal or de facto control of that
Person, Employer or Nonprofit Entity and in which Smoking is prohibited by law.

COMMENT: This provision makes anyone who is in control of an area responsible for
Electronic Smoking Device use in violation of this and other no-smoking laws. Thus,
enforcement actions can be taken against a Business, landlord, Employer, or Nonprofit
Entity, in addition to an individual user, who knowingly breaks the law.

Sec. [ ____ (*3) ]. RETAILING REQUIREMENTS AND PROHIBITIONS

(a) Sale to minors prohibited. It shall be a violation of this [ article / chapter ] to sell, give
or furnish, or cause to be sold, given or furnished, an Electronic Smoking Deviceor
Electronic Smoking Device Paraphernalia to a natural Person under 18 years of age in
any place within the [ City / County of____ ].

Model California Ordinance Regulating Electronic Smoking Devices 8

 COMMENT: California Health and Safety Code Section 119405 prohibits the sale of e-
cigarettes containing nicotine to anyone under the age of 18. This provisioncovers a broader
range of products because it also includes e-cigarettes that do not contain nicotine. This
provision gives a city or county additional enforcement options with regard to e-
cigarettes;the jurisdiction can enforce Health and Safety Code section 119405 (pursuant to
Penal Code section 830.1) and/or use the enforcement mechanisms created by this
ordinance depending on the type of violation.

(b) Positive identification required. No Retailer shall sell, give or furnish an Electronic
Smoking Deviceor Electronic Smoking Device Paraphernalia to anatural Person who
appears to be under the age of [twenty-seven (27)] years without first examining
identification to confirm that the recipient is at least 18 years of age.

COMMENT: This provision eliminates the excuse that a purchaser arguably looked to be 18
years old. Perhaps more importantly, it allows compliance checks to be conducted with
persons who are 18 or 19 years old, which eliminates the need to seek immunity from the
district attorney for youth who act as decoys in operations testing a Retailers compliance
with youth access laws.It alsoeliminates the issue of potentially putting minors in harms
way.

(c) Self-Service Displaysof Electronic Smoking Devices or Electronic Smoking Device

Paraphernalia are prohibited.

COMMENT: This provision prohibits retailers from storing Electronic Smoking Devices and
Paraphernalia in places where they are easily accessible to youth, such as on counter
tops.It also prohibits the sale of Electronic Smoking Devices or Electronic Smoking Device
Paraphernalia through vending machines, because the definition of Self-Service Display
includes vending machines.

(d) Nonsale Distribution Prohibited. No Person, motivated by an economic or a business

purpose, shall engage in the Nonsale Distribution of any Electronic Smoking
Deviceor Electronic Smoking Device Paraphernalia [in any Public Place.]

COMMENT:This provision prohibits Nonsale Distribution throughout an entire jurisdiction by

default.The prohibition can be limited to Public Places by including the underlined text. If
such language is included, the Public Place definition noted in the Definitions section must
also be included.

(e) Exception. No provision in this Sec. [ ____ (*3) ] shall apply to any product
specifically approved by the United States Food and Drug Administration for use in
the mitigation, treatment, or prevention of disease.

COMMENT:Although to date no Electronic Smoking Device has been approved by the FDA
as a cessation product, this exception exempts Electronic Smoking Devices from the
requirements and prohibitions in this section should FDA approval be granted in the future.

Model California Ordinance Regulating Electronic Smoking Devices 9

 (f) [ Subsections (a) - (d) above do not apply to any product that does not contain
nicotine andis not customarily used to deliver nicotine. ]

COMMENT:By default, section [ ____ (*3) ] is designed to regulate the sale of all Electronic
Smoking Devices, regardless of whether they are being used to deliver nicotine or other
substances. This allows for consistency in application of the ordinance.This optional
provision provides an exemption for jurisdictions that do not wish to regulate the sale of
Electronic Smoking Devices that do not contain nicotine and are not used to deliver nicotine.

Sec. [ ____ (*4) ]. NON-RETALIATION.

No Person, Employer, or Nonprofit Entity shall intimidate, threaten any reprisal, or effect
any reprisal, for the purpose of retaliating against another Person who or which seeks to
attain compliance with this [ article / chapter ].

Sec. [ ____ (*5) ]. PENALTIES AND ENFORCEMENT.

(a) The remedies provided by this [ article / chapter ] are cumulative and in addition to
any other remedies available at law or in equity.

COMMENT: The following provisions are designed to offer a variety of enforcement options
to the drafter and the enforcing agency. Drafters may choose to include some or all of these
options. Once the ordinance is enacted, the enforcing agency will have the discretion to
choose which enforcement tools to use in general and in a particular case. As a practical
matter, these enforcement options would not be applied simultaneously, although multiple
remedies might be used against a particularly egregious violator over time. If the City or
County Code already includes comprehensive enforcement provisions that apply generally
to violations of the Code, these sections of the model ordinance can be replaced with a
cross reference to the general enforcement chapter: A violation of this [ article / chapter ] is
punishable as provided in [ article/ chapter] of this Code.

(b) Each use of an Electronic Smoking Device in violation of this [ article / chapter ] is an
infraction subject to a [ one hundred dollar ($100) ] fine [ or otherwisepunishable
pursuant to section ___ of this code ]. Other violations of this [ article / chapter ] may,
in the discretion of the [ City Prosecutor / District Attorney ], be prosecuted as
infractions or misdemeanors when the interests of justice so require. Enforcement of
this chapter shall be the responsibility of [ ____ ]. In addition, any peace officer or
code enforcement official also may enforce this chapter.

COMMENT: The first sentence establishes the penalty for using Electronic Smoking
Devices where they are prohibited. The fine amount can be modified but cannot exceed
$100 for a first infraction. (See California Government Code section 36900(b).) It is
separated from the main enforcement provision that follows, so that law enforcement
officers can simply write a ticket for illegal Electronic Smoking Device use.

The second sentence, sometimes called a wobbler, affords the prosecuting attorney
discretion whether to pursue other types of violations as infractions (like a parking ticket) or
misdemeanors (punishable by up to a $1,000 fine and/or six months in County Jail).

Model California Ordinance Regulating Electronic Smoking Devices 10

 Alternatively, violations can be set as either an infraction or a misdemeanor in all
circumstances. Misdemeanors are more serious crimes for which a jury trial is available to
defendants. Fines and other criminal penalties are established by the Penal Code and are
typically reflected in the general punishments provision of a local code.

This provision also designates a primary enforcement agency, which is recommended, but
remains flexible by permitting any enforcement agency to enforce the law.

(c) Violations of this [ article / chapter ] are subject to a civil action brought by the
[ City / County of ____ ], punishable by a civil fine not less than [ two hundred fifty
dollars ($250) ] and not exceeding [ one thousand dollars ($1,000) ] per violation.

COMMENT: This provision provides civil fines for violating the ordinance. It requires that the
city or county file a traditional civil suit. The fine amounts can be adjusted but cannot exceed
$1,000 per violation. Government Code section 36901.

(d) Causing, permitting, aiding, abetting, or concealing a violation of any provision of

this [ article / chapter ] shall also constitute a violation of this [ article / chapter ].

COMMENT: This is standard language that is typically included in a city or county code and
may be omitted if duplicative of existing code provisions.

(e) Any violation of this [ article / chapter ] is hereby declared to be a nuisance.

COMMENT: By expressly declaring a violation of this ordinance to be a nuisance, this

provision allows enforcement by the city or county via the administrative nuisance
abatement procedures commonly found in municipal codes. It also facilitates injunctive relief
(where a court ordersthat a defendant do certain things or refrain from doing certain things,
such as selling Electronic Smoking Devices to minors).

(f) In addition to other remedies provided by this [ article / chapter ] or by other law, any
violation of this [ article / chapter ] may be remedied by a civil action brought by the
[ City Attorney / County Counsel ], including, but not limited to, administrative or
judicial nuisance abatement proceedings, civil or criminal code enforcement
proceedings, and suits for injunctive relief.

COMMENT: It is common to provide that the local governments lawyers may go to court to
seek injunctions and other penalties in addition to fines. The express provision for injunctive
relief reduces the showing required to obtain a preliminary or permanent injunction as
described in IT Corp. v. County of Imperial, 35 Cal. 3d 63 (1983).

Think carefully about the nuisance abatement procedure you choose. A local government
may provide for treble damages for the second or subsequent nuisance abatement
judgment within a two-year period, as long as the ordinance is enacted pursuant to
Government Code section 38773.5. Treble damages are not available, however, under the
alternative nuisance abatement procedures in Government Code section 38773.1 and

Model California Ordinance Regulating Electronic Smoking Devices 11

 Health & Safety Code section 17980. Government Code section 38773.7 (authorizing treble
damages) establishes a procedure for nuisance abatement where the cost of the abatement
can be collected via the property tax roll as a special assessment against the property on
which the violation occurs.

(g) Any Person acting in the interests of him-, her- or itself, its members, or the general
public (hereinafter Private Enforcer) may bring a civil action in any court of
competent jurisdiction, including small claims court, to enforce this [ article /
chapter ] against any Person who has violated this [ article / chapter ] two or more
times. Upon proof of the violations, a court shall grant all appropriate relief,
including: (1) awarding damages; and (2) issuing an injunction or a conditional
judgment. [ If there is insufficient or no proof of actual damages for a violation, the
court shall award [ one-hundred and fifty dollars ($150) ]for that violation as statutory
damages. ]

COMMENT: This provision enables private citizens (Private Enforcers) to go to court

including a trial court or small claims courtto seek compliance with the ordinance through
an injunction (a trial court order to do or not do something) or a conditional judgment (a
small claims court order requiring the defendant to pay money or to do or refrain from doing
something). Monetary damages are available to compensate for actual financial losses.If the
optional last sentence is included, a court could award statutory damages of $150 per
violation when actual damages are difficult or impossible to prove. The amount of statutory
damages can be adjusted but should not exceed $1,000 to avoid an argument that it is a
fine in excess of the City of Countys authority under Government Code section 36901.

A private citizen may bring a lawsuit against an individual or organization only for alleged
repeated violations of the law. This limitation is intended to address concerns about the
potential for abusive lawsuits.

Note: It is recommended that the term Person be included in the list of definitions in
Section [ ____(*1)], even if the Municipal Code already contains another definition of
person, because this subsection relies on the broadly inclusive definition of Person in
Section [ ____(*1)],

[ (h) Notwithstanding any other provision of this [ article / chapter ], a Private Enforcer
may bring a civil action to enforce this [ article / chapter ] only if the following
requirements are met:

(1) The Private Enforcers civil action is begun more than [ sixty (60) ] days after the
Private Enforcer has given written notice of the alleged violations of this [ article /
chapter ] to the [ City Attorney / County Counsel ] and to the alleged violator.

(2) On the date the Private Enforcers civil action is filed, no other Person acting on
behalf of the [ City / County ] or the state has commenced or is prosecuting an
administrative, civil, or criminal action based upon, in whole or in part, any
violation which was the subject of the Private Enforcers notice.

[(3) A Private Enforcer shall provide a copy of his, her, or its action to the [ City
Attorney / County Counsel ] within [ seven (7) ] days of filing it. ]

Model California Ordinance Regulating Electronic Smoking Devices 12

Model California Ordinance Regulating Electronic Smoking Devices 13
Upon a settlement or judgment based upon, in whole or in part, any violation which was the
subject of the Private Enforcers notice, the Private Enforcer shall give the [ City Attorney /
County Counsel ]notice of the settlement or judgment and final disposition of the case within
[ thirty (30) ] days of the date of the settlement or judgment. No settlement by a Private
Enforcer of a violation of this [ article / chapter ] shall be valid or enforceable if, within [ thirty
(30) ] days of receiving notice of the settlement, the [ City Attorney / County Counsel ]
determines the settlement to be unreasonable in light of the purposes of this [ article / chapter ].
Any settlement or judgment that does not meet the requirements of this subsection may be set
aside upon motion to a court of competent jurisdiction by the [ City Attorney / County
Counsel ]. ]

COMMENT: This optional provision enables a City Attorney or County Counsel to exercise oversight
of private citizen enforcement actions permitted in Section [ ____(*5)(g)], above. If included, this
provision allows a City Attorney or County Counsel to track and monitor Private Enforcer lawsuits, and
if desired, pursue local government enforcement instead. This oversight provision is intended to
address concerns about the potential for abusive lawsuits or collusive settlements by which a Private
Enforcer lets a violator off too easily.

This provision requires a Private Enforcer to notify the City Attorney or County Counsel prior to filing
the lawsuit. If the optional double-underlined language is included, it would also require the Private
Enforcer to share a copy of the complaint with the City Attorney or County Counsel. No affirmative
action is required by the City Attorney or County Counsel upon receipt of any of these documents;
response is optional.

The last part of this subsection requires the Private Enforcer to submit a copy of the final settlement or
judgment to the City Attorney or County Counsel. The City Attorney or County Counsel then has the
opportunity to review and evaluate settlement agreements (but not court-issued judgments) to assess
whether or not such agreements reasonably address the violation. This is designed to avoid
potentially collusive or otherwise abusive settlement agreements (i.e., sweetheart deals). Finally, the
City Attorney or County Counsel also has the authority to ask a court to set aside a court judgment if a
Private Enforcer fails to comply with the requisite notice requirements.

SECTION III. STATUTORY CONSTRUCTION & SEVERABILITY. It is the intent of the

[ City Council / Board of Supervisors ] of the [ City / County ] of [ ____ ] to supplement
applicable state and federal law and not to duplicate or contradict such law and this ordinance
shall be construed consistently with that intent. If any section, subsection, subdivision,
paragraph, sentence, clause or phrase of this ordinance, or its application to any person or
circumstance, is for any reason held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect the validity or enforceability of the remaining sections,
subsections, subdivisions, paragraphs, sentences, clauses or phrases of this ordinance, or its
application to any other person or circumstance. The [ City Council / Board of Supervisors ] of
the [ City / County ] of [ ____ ] hereby declares that it would have adopted each section,
subsection, subdivision, paragraph, sentence, clause or phrase hereof independently, irrespective
of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences,
clauses or phrases hereof be declared invalid or unenforceable.

COMMENT: This is standard language. Often this boilerplate is found at the end of an ordinance,
but its location is irrelevant.

Model California Ordinance Regulating Electronic Smoking Devices 14

1 U.S. Food and Drug Administration. (2001). Electronic Cigarettes. Retrieved on
September 22, 2013 from
www.fda.gov/newsevents/publichealthfocus/ucm172906.htm.

2Corey, C., Johnson, S., Apelberg, B., et al. (2013). Notes from the Field: Electronic
Cigarette Use Among Middle and High School Students - United States, 2011- 2012.
Morbidity and Mortality Weekly Report (MMWR). 62(35):729730. Available at:
www.cdc.gov/mmwr/preview/mmwrhtml/mm6235a6.htm.

3 Ibid.

4 Ibid.

5Ibid.

6 King, B., Alam S., Promoff, G., et al. (2013). Awareness and Ever Use of Electronic
Cigarettes Among U.S. Adults, 2010-2011. Nicotine and Tobacco Research, doi:
10.1093/ntr/ntt013, 2013.

7 State of California Environmental Protection Agency, Office of Environmental Health

Hazard Assessment, Safe Drinking Water and Toxic Enforcement Act of 1986. (2013)
Chemicals known to the State of California to cause cancer or reproductive toxicity.
Available at: http://oehha.ca.gov/prop65/prop65_list/files/P65single091313.pdf.

8German Cancer Research Center. (2013). Electronic Cigarettes - An Overview Red

Series Tobacco PRevention and Control. Available at:
www.dkfz.de/de/tabakkontrolle/download/Publikationen/RoteReihe/Band_19_e-
cigarettes_an_overview.pdf.

9Goniewicz M, Knysak J, Gawron M, et al. Levels of selected carcinogens and toxicants

in vapour from electronic cigarettes. Tob. Control. 2013;1:18. Available at:
www.ncbi.nlm.nih.gov/pubmed/23467656. Accessed August 2, 2013.

10 German Cancer Research Center. (2013). Electronic Cigarettes - An Overview Red

Series Tobacco Prevention and Control. Available at:
www.dkfz.de/de/tabakkontrolle/download/Publikationen/RoteReihe/Band_19_e-
cigarettes_an_overview.pdf.

11Goniewicz M, Knysak J, Gawron M, et al. (2013). Levels of selected carcinogens and

toxicants in vapour from electronic cigarettes. Tob. Control. 1:18. Available at:
www.ncbi.nlm.nih.gov/pubmed/23467656.

12Williams, M., Villarreal, A., Bozhilov, K., Lin, S., & Talbot, P. (2013). Metal and silicate
particles including nanoparticles are present in electronic cigarette cartomizer fluid
and aerosol. PloS one, 8(3), e57987. doi:10.1371/journal.pone.0057987

13Schober W, Szendrei K, Matzen W, et al. (2013). Use of electronic cigarettes (e-

cigarettes) impairs indoor air quality and increases FeNO levels of e-cigarette
consumers. Int. J. Hyg. Environ. Health. Available at:
http://dx.doi.org/10.1016/j.ijheh.2013.11.003

14 Agency for Toxic Substances and Disease Registery (ATSDR). (2008). Toxic
Substances Portal Aluminum. Available at:www.atsdr.cdc.gov/phs/phs.asp?
id=1076&tid=34.

15 Agency for Toxic Substances and Disease Registery (ATSDR). (2005). Toxic
Substances Portal Tin. Available at:www.atsdr.cdc.gov/phs/phs.asp?id=541&tid=98.

16 United States Environmental Protection Agency. (N.d.) EPA Schools Monitoring

Initiative Fact Sheet. Available at:www.epa.gov/air/sat/pdfs/acroleinupdate.pdf.

17 Agency for Toxic Substances and Disease Registery (ATSDR). (2007). Toxic
Substances Portal Acrolein. Available at:www.atsdr.cdc.gov/PHS/PHS.asp?
id=554&tid=102.

18State of California Environmental Protection Agency Office of Environmental Health

Hazard Assessment. (n.d.). Chronic Toxicity Summary: Toluene. CAS Registry Number:
108-88-3. Available at: http://oehha.ca.gov/air/chronic_rels/pdf/108883.pdf.

19State of California Environmental Protection Agency Office of Environmental Health

Hazard Assessment. (n.d.). Chronic Toxicity Summary: Toluene. CAS Registry Number:
108-88-3. Available at: http://oehha.ca.gov/air/chronic_rels/pdf/108883.pdf.

20 Environmental Protection Agency. (2012). Particle Pollution and Health. Available at:
www.epa.gov/pm/2012/fshealth.pdf.

21Department of Health and Human Servics Food and Drug Administration. (2009).
FDA Evaluation of E-Cigarettes. Available
at:www.fda.gov/downloads/drugs/Scienceresearch/UCM173250.pdf.

22Department of Health and Human Services Food and Drug Administration. (2009).
FDA Evaluation of E-Cigarettes. Available
at:www.fda.gov/downloads/drugs/Scienceresearch/UCM173250.pdf.

23 German Cancer Research Center. (2013). Electronic Cigarettes - An Overview Red

Series Tobacco PRevention and Control. Available at:
www.dkfz.de/de/tabakkontrolle/download/Publikationen/RoteReihe/Band_19_e-
cigarettes_an_overview.pdf.

24Schripp, T., Markewitz, D., Uhde, E., &Salthammer, T. (2013). Does e-cigarette
consumption cause passive vaping? Indoor Air.23(1), 2531. Doi:10.1111/j.1600-
0668.2012.00792.x

25Schober W, Szendrei K, Matzen W, et al. (2013). Use of electronic cigarettes (e-

cigarettes) impairs indoor air quality and increases FeNO levels of e-cigarette
consumers. Int. J. Hyg. Environ. Health. Available at:
http://dx.doi.org/10.1016/j.ijheh.2013.11.003.

26Yamin C, Bitton A, and Bates D. (2010). E-Cigarettes: A Rapidly Growing Internet

Phenomenon. Annals of Internal Medicine, 153:607-609.

27 Chatham-Stephens, K., Law, R., Taylor, E., Melstrom, P., Bunnell, R., Wang, B.,
&Apelberg, B. (2014). Calls to Poison Centers for Exposures to Electronic Cigarettes -
United States, September 2010 February 2014. Morbidity and Mortality Weekly
Report (MMWR), 63(13), 292294.
28 Chatham-stephens, K., Law, R., Taylor, E., Melstrom, P., Bunnell, R., Wang, B.,
&Apelberg, B. (2014). Calls to Poison Centers for Exposures to Electronic Cigarettes -
United States, September 2010 February 2014. Morbidity and Mortality Weekly
Report (MMWR), 63(13), 292294.

29 U.S. Food and Drug Administration. (2009) FDA Warns Of Health Risk Posed By E-
Cigarettes. Available at:
www.fda.gov/downloads/forconsumers/consumerupdates/UCM173430.pdf.

30Chen, L. (2013). FDA Summary of Adverse Events on Electronic Cigarettes.

Nicotine & Tobacco Research: Official Journal of the Society for Research on Nicotine
and Tobacco. 15(2): 6156. Doi:10.1093/ntr/nts145.

31 U.S. Food and Drug Administration. (2009). FDA Warns Of Health Risk Posed By E-
Cigarettes. Available
at:www.fda.gov/downloads/forconsumers/consumerupdates/UCM173430.pdf.

32 World Health Organization. (2013). Questions and Answers on Electronic Cigarettes

or Electronic Nicotine Delivery Systems (ENDS). Available
at:www.who.int/tobacco/communications/statements/eletronic_cigarettes/en/.

33 World Medical Association. (2012). Statement on Electronic Cigarettes and Other

Electronic Nicotine Delivery Systems. Available at:
www.wma.net/en/30publications/10policies/e19/index.html.pdf?print-media-
type&footer-right=[page]/[toPage].

34 State of California Tobacco Education and Research Oversight Committee.(2013).

Position on Electronic Cigarettes (e-cigarettes). Available at:
www.cdph.ca.gov/services/boards/teroc/Documents/Positions/TEROC%20Official
%20Position%20of%20E-Cigs_June%202013_final.pdf.

35McMillen R, Maduka J and Winickoff J. (2011). Use of Emerging Tobacco Products in

the United States. Journal of Environmental and Public Health.
Doi:10.1155/2012/989474.

36 Legacy Foundation. (2012). Tobacco Fact Sheet: Electronic Cigarettes (E-

Cigarettes). Available at:
www.legacyforhealth.org/PDFPublications/ECIGARETTE_0909_temp.pdf.

37Kuschner WG, Reddy S, Mehrotra N, et al. (2011). Electronic Cigarettes and

Thirdhand Smoke: Two Emerging Health Care Challenges for the Primary Care
Provider. International Journal of General Medicine. 4: 115120. Available at:
www.ncbi.nlm.nih.gov/pmc/articles/PMC3068875/.

38 American Cancer Society Cancer Action Network, American Heart Association,

Campaign for Tobacco Free Kids, American Lung Association. (2011). Policy Guidance
Document Regarding ECigarettes. Available at: www.acscan.org/content/wp-
content/uploads/2013/06/Policy-Guidance-on-E-Cigarettes-.pdf.

39 American Lung Association in California, the Center for Tobacco Policy and
Organizing. (2013). Tobacco Retailer Licensing and Electronic Cigarettes. Available at:
http://center4tobaccopolicy.org/wp-content/uploads/2013/08/E-cigarettes-in-TRL-
8.9.13.pdf.

40 American Lung Association in California, the Center for Tobacco Policy and
Organizing. (2013). Local Policies on the use of Electronic Cigarettes. Available at:
http://center4tobaccopolicy.org/wp-content/uploads/2013/11/Local-Policies-on-Use-of-
E-Cigs-Nov-2013.pdf.