Special Notice / Hearing: None__
Vote Required: Majority
To: Honorable Board of Supervisors
From: Colleen Chawla, Chief, San Mateo County Health
Heather Forshey, Director, Environmental Health Services
Subject: Implementation of County Ordinance Code Ch. 4.98, Strengthening Tobacco Retailer Requirements, Since Its Adoption in May 2023
RECOMMENDATION:
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Receive the report regarding implementation of County Ordinance Code Chapter 4.98.
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BACKGROUND:
In 1998, the San Mateo County Board of Supervisors enacted Chapter 4.98 of the County Ordinance Code, establishing one of California's earliest Tobacco Retailer Permit Programs. On May 23, 2023, this Board updated the Tobacco Retailer Permit Ordinance to promote compliance with recent changes to State tobacco control laws, implement new retailer requirements and restrictions set by this Board, protect the health of San Mateo County residents, and encourage regulatory alignment by cities. Under the County’s updated Tobacco Retailer Permit Ordinance, the Environmental Health Services Division (EHS) of San Mateo County Health is designated as the enforcement authority.
The following are some key provisions of the updated ordinance:
• It restricts the location of new retailers may be located: no new Tobacco Retailer Permit will be issued to a location within 1,000 feet of a Youth-Populated Area or within 500 feet of a location already occupied by another tobacco retailer. “Youth-Populated Areas” include college campuses.
• It increases fines to up to five hundred dollars ($500) for the first violation of the ordinance and up to one thousand dollars ($1,000) for all subsequent violations within a sixty (60) month period.
• It requires that a permit be suspended if a business is found to have sold tobacco products to persons under the age of 21.
• It requires two inspections per year of each tobacco retailer to monitor compliance with applicable laws.
• It states that the County will implement the ordinance for those cities that adopt this comprehensive ordinance in its entirety.
DISCUSSION:
Since the adoption of the ordinance in May 2023, nine cities have adopted the County’s Tobacco Retailer Permit Ordinance: Brisbane, Colma, South San Francisco, San Bruno, Millbrae, San Mateo, San Carlos, Menlo Park, and East Palo Alto. When a city adopts the County’s ordinance, EHS conducts outreach to the affected businesses to ensure they understand the requirements of the ordinance and the consequences of non-compliance. Additionally, EHS follows up with onsite education to retailers regarding the statewide prohibition of flavored tobacco products and the local ordinance’s ban on electronic smoking devices. Educational materials detailing the requirements of the ordinance, frequently asked questions, and a list of prohibited flavored tobacco products are reviewed with operators. Staff believe this educational approach develops trust with the retailers and further reduces confusion regarding what products are legal to offer for sale.
Currently, EHS has 206 permitted businesses that sell tobacco in the unincorporated county and in cities that have adopted the ordinance. EHS has conducted 453 routine inspections since the adoption of the County ordinance. During routine inspections, the most common violations noted are the sale of flavored tobacco products and electronic smoking devices.
|
Violation |
Number of Violations Observed (Since Adoption of the Ordinance) |
|
Sale of Flavored Tobacco Product |
180 |
|
Sale of Electronic Smoking Devices |
83 |
|
Operating without a Valid County Permit |
45 |
During FY 2024-2025, 83% of businesses received two routine inspections. EHS did not inspect 100% of businesses largely due to the timing of when businesses obtained a permit during the inspection cycle. Once a business starts the fiscal year immediately after obtaining a permit, the expectation is that a business will receive its two inspections per year moving forward.
Since the adoption of the County ordinance, EHS has assessed 62 administrative fines totaling $60,000, largely from sales of flavored tobacco products. The ordinance allows for an appeals process on the fines issued. These hearings serve as opportunities for retailers to raise concerns, ask questions, and highlight gaps in communication or understanding. Ten administrative hearings have been conducted to date. Nine of the hearings upheld the administrative fines issued. One administrative fine was rescinded due to demonstrated correction of the violation. The most common appeal is related to flavored tobacco.
The flavored tobacco ban remains one of the more challenging components of the ordinance. Retailers frequently state that they rely on distributors to provide them with legally compliant tobacco products, underscoring the need for continued oversight and education. The State Attorney General is developing a list of legally allowable (non-flavored) tobacco products to further clarify what tobacco products can be sold in California. This list will be critical to providing further clarity for distributors, retailers, and enforcement agencies, since tobacco products and labeling have changed significantly in recent years in response to tightening restrictions statewide. Once available, EHS will distribute this list to retailers to provide a clearer pathway for compliance.
COMMUNITY IMPACT:
This ordinance positively impacts the health of San Mateo County residents through the establishment of strong public health-oriented policies. Implementation of a retail tobacco permitting program and monitoring of retailer compliance will help reduce youth tobacco sales and may help address inequities in the location and distribution of tobacco retailers throughout the County. The Tobacco Retailer Permit Program has significantly impacted the County by providing outreach to all tobacco retailers in our jurisdiction, removing unauthorized products from sale and display at these retailers, and restricting new retailers from areas that are frequented by youth.
FISCAL IMPACT:
There is no fiscal impact as a result of the acceptance of this report.