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[SECOND COMMITTEE SUBSTITUTE FOR] ORDINANCE NO. 240897
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Sponsor: Mayor Pro Tem Ryana Parks-Shaw
2ND COMMITTEE SUBSTITUTE
Amending Chapter 20, Code of Ordinances, entitled “Cigarettes,” by renaming it “Tobacco and Nicotine;” repealing Sections 20-1, 20-2, 20-8, 20-18, and 20-19 and replacing them with sections of like number and subject matter; enacting a new Section 20-4, “Sale or distribution of flavored products prohibited,” and new Section 20-5, “Medical and recreational marijuana exempt,”; and amending Chapter 50, Code of Ordinances by repealing Section 50-235 and replacing it with a section of like number and subject matter for the purpose of prohibiting the sale of flavored tobacco, nicotine, and vapor products within the City.
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WHEREAS, scientific review by the Tobacco Products Scientific Advisory Committee (TPSAC) and the U.S. Food and Drug Administration (FDA) found marketing of menthol cigarettes likely increases the prevalence of smoking among the entire population, and especially among youth, African Americans, and possibly Hispanic and Latino individuals; and
WHEREAS, 15.3% of adults in Missouri smoke; and
WHEREAS, 21.3% of Missouri high school students report currently using e-cigarettes; and
WHEREAS, although smokers are most likely to use electronic smoking devices such as e-cigarettes, almost a third of current adult users are nonsmokers, suggesting that e-cigarettes contribute to primary nicotine addiction and to the renormalization of tobacco use; and
WHEREAS, youth reported product flavoring as a top reason for using tobacco within the past 30 days; and
WHEREAS, by adding menthol and other flavorings to tobacco and nicotine products, companies mask the natural harshness and taste of such products, and therefore make it easier to use, harder to quit, and more appealing to youth and new users; and
WHEREAS, the addition of menthol and other flavorings to tobacco and nicotine products increases the risk of addiction for youth; and
WHEREAS, Kansas City seeks to protect the public health and welfare by reducing access to flavored tobacco and alternative nicotine products, making it easier to quit and more difficult to start; NOW, THEREFORE
BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:
Section 1. That Chapter 20, Code of Ordinances of the City of Kansas City, is hereby amended by changing the title of said chapter to “Tobacco and Nicotine.”
Section 2. That Chapter 20, Code of Ordinances of the City of Kansas City, is hereby amended by repealing Section 20-1, Definitions, Section 20-2, License required for dealers and manufacturers; registration fee; amount of tax, Section 20-8, Issuance of license; restrictions on license; suspension or revocation of license, Section 20-18, Penalty for violation of chapter, and Section 20-19, Manager of regulated industries to enforce compliance and enacting in lieu thereof new sections of like name, number, and subject matter, enacting a new Section 20-4, entitled “Sale or distribution of flavored products prohibited,” and Section 20-5, entitled “Medical and recreational marijuana exempt,” to read as follows:
Sec. 20-1. Definitions
The following words, terms, and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Alternative nicotine product means non-combustible product containing nicotine that is intended for human consumption whether chewed, absorbed, dissolved, or ingested by any other means. Alternative nicotine product does not include any vapor product, tobacco product, or any other product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug, and Cosmetic Act.
Cigarette means any roll for smoking made wholly or in part of tobacco, irrespective of size or shape and whether or not such tobacco is flavored, adulterated or mixed with any other ingredient, the wrapper or cover of which is made of paper or any other substance or material except tobacco.
Electronic smoking device means any device that many be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. Electronic smoking device does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.
Flavored alternative nicotine product means any alternative nicotine product that imparts a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption or use of an alternative nicotine product, including, but not limited to, any taste or smell relating to menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, or any candy, fruit, dessert, alcoholic beverage, herb, or spice, or imparts a cooling or numbing sensation distinguishable by an ordinary consumer during consumption. An alternative nicotine product shall be presumed to be a flavored alternative nicotine product if a retailer, manufacturer, or the agent or employee of a retailer or manufacturer has made a statement or claim directed to consumers or the public, whether expressed or implied, that the product or device imparts a distinguishable taste or smell other than the taste or smell of tobacco, imparts a cooling or numbing sensation, or uses text, images, or coloring on the alternative nicotine product’s labeling or packaging to explicitly or implicitly indicate that the alternative nicotine product imparts a taste or smell other than the taste or smell of tobacco.
Flavored non-nicotine vapor product means any non-nicotine vapor product that imparts a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption or use of a non-nicotine vapor product, including, but not limited to, any taste or smell relating to menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, or any candy, fruit, dessert, alcoholic beverage, herb, or spice, or imparts a cooling or numbing sensation distinguishable by an ordinary consumer during consumption. An alternative nicotine product shall be presumed to be a flavored non-nicotine vapor product if a retailer, manufacturer, or the agent or employee of a retailer or manufacturer has made a statement or claim directed to consumers or the public, whether expressed or implied, that the product or device imparts a distinguishable taste or smell other than the taste or smell of tobacco, imparts a cooling or numbing sensation, or uses text, images, or coloring on the non-nicotine vapor product’s labeling or packaging to explicitly or implicitly indicate that the non-nicotine vapor product imparts a taste or smell other than the taste or smell of tobacco.
Flavored tobacco product means any tobacco product that imparts a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption of, a tobacco product, including, but not limited to, any taste or smell relating to menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, or any candy, fruit, dessert, alcoholic beverage, herb, or spice, or imparts a cooling or numbing sensation distinguishable by an ordinary consumer during consumption. A tobacco product shall be presumed to be a flavored tobacco product if a retailer, manufacturer, or the agent or employee of a retailer or manufacturer has made a statement or claim directed to consumers or the public, whether expressed or implied, that the product or device imparts a distinguishable taste or smell other than the taste or smell of tobacco, imparts a cooling or numbing sensation, or uses text, images, or coloring on the tobacco product’s labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a taste or smell other than the taste or smell of tobacco.
Flavored vapor product means any vapor product that imparts a taste or smell, other than the taste or smell of tobacco that is distinguishable by an ordinary consumer either prior to, or during the use of a vapor product, including, but not limited to, any taste or smell relating to menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, or any candy, fruit, dessert, alcoholic beverage, herb, or spice, or imparts a cooling or numbing sensation distinguishable by an ordinary consumer during consumption. A vapor product shall be presumed to be a flavored vapor product if a retailer, manufacturer, or the agent or employee of a retailer or manufacturer has made a statement or claim directed to consumers or the public, whether expressed or implied, that the product or device imparts a distinguishable taste or smell other than the taste or smell of tobacco, imparts a cooling or numbing sensation, or uses text, images, or coloring on the vapor product’s labeling or packaging to explicitly or implicitly indicate that the vapor product imparts a taste or smell other than the taste or smell of tobacco.
Flavor or sensation enhancer means any product designed, manufactured, produced, marketed, or sold to produce a flavored tobacco product, flavored vapor product, flavored alternative nicotine product, or flavored non-nicotine vapor product when added to any tobacco product, vapor product, non-nicotine vapor product or alternative nicotine product.
Marijuana means Cannabis indica, Cannabis sativa, and Cannabis ruderalis, hybrids of such species, and any other strains commonly understood within the scientific community to constitute marijuana, as well as resin extracted from the marijuana plant and marijuana-infused products. “Marijuana” does not include industrial hemp as defined by Missouri statute, or commodities or products manufactured from industrial hemp.
Marijuana accessories means any equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, ingesting, inhaling, or otherwise introducing marijuana into the human body.
Marijuana facility means a comprehensive marijuana cultivation facility, comprehensive marijuana dispensary facility, marijuana testing facility, comprehensive marijuana-infused products manufacturing facility, microbusiness wholesale facility, microbusiness dispensary facility, or any other type of marijuana-related facility or business licensed or certified by the Missouri Department of Health and Senior Services pursuant to Article 14, Section 2 of the Missouri Constitution, but shall not include a medical facility licensed under Article 14, Section 1 of the Missouri Constitution.
Marijuana-infused products means products that are infused, dipped, coated, sprayed, or mixed with marijuana or an extract thereof, including, but not limited to, products that are able to be vaporized or smoked, edible products, ingestible products, topical products, suppositories, and infused prerolls.
Medical facility means any medical marijuana cultivation facility, medical marijuana dispensary facility, or medical marijuana-infused products manufacturing facility, as defined Article 14, Section 1 of the Missouri Constitution, and duly licensed to operate as a medical facility by the Missouri Department of Health and Senior Services.
Non-nicotine vapor product means any vapor cartridge in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device that does not contain nicotine. A non-nicotine vapor product does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act. For purposes of this chapter, non-nicotine vapor products shall not include vapor cartridges containing extract from the cannabis plant that is composed of no more than three-tenths percent tetrahydrocannabinol by weight, provided that the product does not contain nicotine or tobacco.
Occupation license tax means the tax imposed by the city under this chapter upon the business and for the privilege of selling cigarettes at retail in the city.
Package means a quantity of cigarettes wrapped and sealed in paper, tinfoil, or otherwise by the manufacturer of cigarettes prior to being placed in cartons for shipment from the manufacturer.
Retail dealer means any person other than a wholesale dealer, jobber, or manufacturer engaged in the business of selling or disposing of cigarettes, by personal handling or through a vending machine, to the ultimate consumer or agent.
Sale means any transfer of title or possession, or both, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, for a consideration or any agreement therefor.
Stamp. A stamp shall not only include a small piece of paper with such printing thereon as may be prescribed by the manager of regulated industries, which, when affixed to a package of cigarettes and cancelled, shall evidence payment of the occupation tax thereon, but shall also include the impression or printing of a meter machine when used in lieu of a stamp.
Tobacco product means any substance containing tobacco leaf including but not limited to blunt wraps, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, or dipping tobacco.
Vapor product means any non-combustible product containing nicotine that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, that can be used to produce vapor from nicotine in a solution or other form. Vapor product includes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and any vapor cartridge or container of nicotine in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device. Vapor product does not include any alternative nicotine product or tobacco product and does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.
Vending machine means a mechanical, electric, or electronic, self-service device which, upon insertion of money, tokens, or any other form of payment, dispenses tobacco products, alternative nicotine products, vapor products, or non-nicotine vapor products.
Wholesale dealer means any person authorized to sell, distribute, deliver, convey, or give away cigarettes to retail dealers or other persons in the city, for the purpose of resale only.
Sec. 20-2. License required for dealers and manufacturers; registration fee; amount of tax.
(a) License; registration fee. Every wholesale dealer, jobber, retail dealer, manufacturer, or other person engaged in selling cigarettes or other tobacco products, electronic smoking devices, alternative nicotine products, vapor products, or non-nicotine vapor products, or offering, delivering, or displaying cigarettes or other tobacco products, electronic smoking devices, alternative nicotine products, vapor products, or non-nicotine vapor products for sale within the city shall procure a tobacco and nicotine license for each place the products are sold, offered, or displayed, and at the same time such license is issued shall pay to the manager of regulated industries a registration fee of $1.00 for each such place of business.
(b) Occupation license tax. In addition to the registration fee, every retailer shall pay an occupation license tax at the rate of $5.00 per 1,000 for all cigarettes sold, offered for sale, delivered, displayed for sale, or otherwise disposed of, and for all cigarettes in his possession.
(c) Use of additional revenues. The additional revenues realized by the passage of this section shall be designated for use in hazardous material and emergency response activities of the city.
Sec. 20-4. Sale or distribution of flavored products prohibited.
No person shall sell, offer, deliver, or display any flavored tobacco products, flavored alternative nicotine products, flavored vapor products, flavored non-nicotine vapor products, or flavor or sensation enhancers within the city.
Sec. 20-5. Medical and recreational marijuana exempt.
Nothing in this section shall be construed to regulate the sale or distribution of marijuana, marijuana-infused products, or marijuana accessories at a medical facility or marijuana facility duly licensed by the State of Missouri and authorized by the Missouri Department of Health and Senior Services to sell or distribute marijuana, marijuana-infused products, and marijuana accessories at such medical facility or marijuana facility.
Sec. 20-8. Issuance of license; restrictions on license; suspension or revocation of license.
(a) Application; issuance. Every application for a tobacco and nicotine license shall be made upon a form prescribed, prepared and furnished by the manager of regulated industries, and shall set forth such information as he shall require. Upon approval of the application, the manager of regulated industries shall grant and issue to the applicant a tobacco and nicotine license as provided in this chapter.
(b) Transfer; display; term. Tobacco and nicotine licenses shall not be assignable and shall be valid only for the persons in whose names issued, and for the transaction of business in the places designated therein, and shall at all times be conspicuously displayed at the places for which issued. All licenses shall expire on December 31 in each and every year, unless sooner suspended, surrendered or revoked for cause by the manager of regulated industries.
(c) Duplicates. Whenever any license issued under the provisions of this section is defaced, destroyed or lost, the manager of regulated industries shall issue a duplicate license for the defaced, destroyed or lost license upon the payment of a fee of $1.00.
(d) Suspension or revocation. The manager of regulated industries shall have the authority to suspend for a period not to exceed 90 days, or to revoke a tobacco and nicotine license whenever the manager finds that the holder of the license or his employee:
(1) Has failed to comply with any of the provisions of this chapter or any rules or regulations of the manager of regulated industries prescribed or promulgated under this chapter;
(2) Has been convicted of an ordinance violation for violating any of the provisions of sections 20-2, 20-3, 20-4, and 20-6 to 20-13 inclusive of this chapter;
(3) Has sold or distributed tobacco products, rolling papers, alternative nicotine products, vapor products, or non-nicotine vapor products to any person under the age of 21 in violation of law;
(4) Has permitted or allowed any person under the age of 21 to purchase or obtain tobacco products, rolling papers, alternative nicotine products, vapor products, or non-nicotine vapor products from vending machines located on the premises, in violation of law;
(5) Has sold, distributed or displayed drug paraphernalia on the licensed premises in violation of law;
(6) Has sold, distributed, delivered, manufactured, produced or possessed a controlled substance or controlled substance analogue in violation of state law on the licensed premises;
(7) Has possessed an imitation controlled substance in violation of state law on the licensed premises.
Upon suspending or revoking any tobacco and nicotine license, the manager of regulated industries shall request the holder thereof to surrender to him immediately all license cards or tokens, or duplicates thereof, and the holder shall surrender promptly all such license cards or tokens to the manager of regulated industries as requested, together with all stamps, if any, in his possession which he has not affixed to packages of cigarettes, and the manager of regulated industries is hereby authorized to refund all money paid for such stamps.
(e) Notice; hearing. Before suspending or revoking any tobacco and nicotine license, the manager of regulated industries shall send notice in writing at least ten days before the proposed suspension or revocation date by certified mail to the license holder's last known address. If the license holder disputes the proposed suspension or revocation, he shall submit a written request for hearing to the manager of regulated industries, which request must be received before the proposed suspension or revocation date. If the license holder fails to make a timely request for a hearing or fails to appear for a requested hearing, the license shall be suspended or revoked. Upon receipt of a timely request for hearing, the manager of regulated industries shall stay the suspension or revocation pending the hearing, and shall hold a hearing without unnecessary delay. The manager of regulated industries shall make a record of the hearing and shall notify the license holder in writing of the decision.
(f) Judicial review. Pursuant to RSMo ch. 536, the license holder may seek judicial review of a decision by the manager of regulated industries to suspend or revoke the cigarette license.
(g) Informal disposition. Nothing contained in this section or in this chapter shall preclude the informal disposition of contested cases by stipulation, consent order or default, or by agreed settlement.
Sec. 20-18. Penalty for violation of chapter.
(a) In addition to any other penalties provided under law, any tobacco and nicotine licensee found guilty of a violation of any provision of this chapter shall be subject to the penalties and fees established herein.
(b) If any tobacco and nicotine licensee, or its agent, representative or employee, has been found guilty of a violation of this article, such licensee shall be subject to the following penalties:
(1) For a first violation, a reinspection fee equal to $300.00. Each day that a violation continues shall constitute a separate and distinct offense.
(2) For a second violation in a 24-month period, any licensee who violates any provision of this chapter shall be subject to a fine of $1,000.00 for each offense, and any license issued under this chapter shall be suspended for a period of fifteen days, according to the process provided for in Section 20-8.
(3) For a third violation in a 24-month period, any licensee who violates any provision of this chapter shall have its tobacco and nicotine license revoked, according to the process provided for in Section 20-8.
Sec. 20-19. Manager of regulated industries to enforce compliance.
(a) To perform mandatory, annual investigations to determine that the licensee is complying with the requirements of this chapter, and is not engaging in sales of tobacco products, electronic smoking devices, rolling papers, alternative nicotine products or vapor products to minors or other illegal activities on the licensed premises;
(b) To inspect, at any reasonable time, the licensed premises, including all portions of the building thereof used in connection with the operations carried on under the cigarette tobacco and nicotine license and which are in the possession and control of the licensee, and all places where the licensee may keep or store cigarettes, including all rooms, cellars, outbuildings, passageways, closets, vaults, yards and attics;
(c) To seize any and all objects, which may appear to be in violation of any provision of this chapter and to hold such objects in custody as evidence until any matter pertaining thereto is finally adjudicated;
(d) To testify and present evidence in hearings concerning the suspension or revocation of a cigarette license issued under this chapter;
(e) To conduct informal dispositions of contested cases by stipulation, consent order or default, or by agreed settlement.
Section 3. That Chapter 50, Code of Ordinances of the City of Kansas City, is hereby amended by repealing Section 50-235, Sale or distribution of tobacco products, rolling papers, alternative nicotine products or vapor products to those under the age of 21; possession by those under the age of 18, and replacing it with a section of like number and subject matter, entitled “Sale or distribution of tobacco products, rolling papers, alternative nicotine products, vapor products, or non-nicotine vapor products to those under the age of 21,” to read as follows:
Sec. 50-235. Sale or distribution of tobacco products, electronic smoking devices, rolling papers, alternative nicotine products, vapor products, or non-nicotine vapor products to those under the age of twenty-one
(a) Definitions. As used in this section, the following terms shall mean:
(1) Alternative nicotine product means any non-combustible product containing nicotine that is intended for human consumption whether chewed, absorbed, dissolved, or ingested by any other means. Alternative nicotine product does not include any vapor product, tobacco product or any product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug, and Cosmetic Act.
(2) Blunt wrap means an individual tobacco wrapper, by whatever name known, that is designed to be sold to the public and is made wholly or in part from tobacco, including reconstituted tobacco, whether in the form of a tobacco leaf, sheet, or tube.
(3) Distribute means a conveyance to the public by sale, barter, gift or sample.
(4) Electronic smoking device means any device that many be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. Electronic smoking device does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.
(5) Marijuana means Cannabis indica, Cannabis sativa, and Cannabis ruderalis, hybrids of such species, and any other strains commonly understood within the scientific community to constitute marijuana, as well as resin extracted from the marijuana plant and marijuana-infused products. “Marijuana” does not include industrial hemp as defined by Missouri statute, or commodities or products manufactured from industrial hemp.
(6) Marijuana accessories means any equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, ingesting, inhaling, or otherwise introducing marijuana into the human body.
(7) Marijuana facility means a comprehensive marijuana cultivation facility, comprehensive marijuana dispensary facility, marijuana testing facility, comprehensive marijuana-infused products manufacturing facility, microbusiness wholesale facility, microbusiness dispensary facility, or any other type of marijuana-related facility or business licensed or certified by the Missouri Department of Health and Senior Services pursuant to Article 14, Section 2 of the Missouri Constitution, but shall not include a medical facility licensed under Article 14, Section 1 of the Missouri Constitution.
(8) Marijuana-infused products means products that are infused, dipped, coated, sprayed, or mixed with marijuana or an extract thereof, including, but not limited to, products that are able to be vaporized or smoked, edible products, ingestible products, topical products, suppositories, and infused prerolls.
(9) Medical facility means any medical marijuana cultivation facility, medical marijuana dispensary facility, or medical marijuana-infused products manufacturing facility, as defined Article 14, Section 1 of the Missouri Constitution, and duly licensed to operate as a medical facility by the Missouri Department of Health and Senior Services.
(10) Non-nicotine vapor product means any vapor cartridge in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device that does not contain nicotine. A non-nicotine vapor product does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act
(11) Person means an individual, partnership, co-partnership, firm, company, public or private corporation, association, joint stock company, trust, estate, political subdivision or any agency, board, department or bureau of the state or federal government, or any other legal entity which is recognized by law as the subject of rights and duties.
(12) Proof of age means a driver's license or other generally accepted means of identification that contains a picture of the individual and appears on its face to be valid.
(13) Rolling papers means paper designed, manufactured, marketed, or sold for use primarily as a wrapping or enclosure for tobacco, which enables a person to roll loose tobacco into a smokable cigarette.
(14) Sample means a product distributed to members of the general public at no cost for product promotional purposes.
(15) Tobacco product means any substance containing tobacco leaf including but not limited to blunt wraps, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, or dipping tobacco.
(16) Vapor Product means any non-combustible product containing nicotine that employs a heating element, power source, electronic circuit, or other electronic, chemical or mechanical means, regardless of shape or size, that can be used to produce vapor from a solution or other form. Vapor product includes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and any vapor cartridge or container of nicotine in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device. Vapor product does not include any alternative nicotine product or tobacco product and does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.
(17) Vending machine means mechanical electric or electronic, self-service device which, upon insertion of money, tokens or any other form of payment, dispenses tobacco products, alternative nicotine products, vapor products, or non-nicotine vapor products.
(b) Required sign stating violation of law to sell tobacco to persons under age 21; display of sign required on tobacco displays and vending machines; control of tobacco products.
(1) The owner of an establishment at which tobacco products, electronic smoking devices, alternative nicotine products, vapor products, or non-nicotine vapor products are sold at retail or through vending machines shall cause to be prominently displayed in a conspicuous place at every display from which tobacco products, alternative nicotine products, vapor products, or non-nicotine vapor products are sold and on every vending machine where tobacco products, alternative nicotine products, vapor products, or non-nicotine vapor products are purchased a sign that shall:
a. Contain in red lettering at least one-half-inch high on a white background the following: "It is a violation of law for cigarettes, other tobacco products, electronic smoking devices, alternative nicotine products, vapor products, or non-nicotine vapor products to be sold to any person under the age of 21 or for such person to purchase or attempt to purchase cigarettes, other tobacco products, alternative nicotine products, vapor products, or non-nicotine vapor products”; and
b. Include a depiction of a pack of cigarettes at least two inches high defaced by a red diagonal diameter of a surrounding red circle, and the words "Under 21."
(2) Further, all such vending machines shall be located where persons under the age of twenty-one are denied access.
(3) It shall be unlawful for any business proprietor, manager or other person in charge or control of a retail business of any kind to stock or display any tobacco product in any way which allows a customer to access such tobacco products, electronic smoking devices, alternative nicotine products, vapor products, or non-nicotine vapor products without first securing the physical assistance of an employee, except that adult customers may be allowed to enter walk-in humidors for the purpose of selecting for purchase cigars displayed therein.
(c) Proof of age required, when; defense to action for violation is reasonable reliance on proof; liability.
(1) A person selling or distributing tobacco products, rolling papers, electronic smoking devices, alternative nicotine products, vapor products, or non-nicotine vapor products, or product samples thereof, shall require proof of age from a prospective purchaser or recipient.
(2) Reasonable reliance on proof of age shall be a defense to any action for a violation of subsections (d)(1), (d)(2), and (d)(3) hereof.
(d) Unlawful to sell or distribute tobacco products, rolling papers, electronic smoking devices, alternative nicotine products, vapor products, or non-nicotine vapor products to persons under age of 21, failure to display required signs, penalties; what persons are liable; when.
(1) It shall be unlawful for any person to sell or distribute any tobacco products, rolling papers, electronic smoking devices, alternative nicotine products, vapor products, or non-nicotine vapor products to any person under the age of twenty-one or to allow such sale or distribution.
(2) It shall be unlawful for any employee or owner of an establishment where any vending machine is located to permit or allow any person under the age of twenty-one to purchase or otherwise obtain any tobacco products, rolling papers, electronic smoking devices, alternative nicotine products, vapor products, or non-nicotine vapor products from such vending machine.
(3) It shall be unlawful for any person to distribute any tobacco products, rolling papers, electronic smoking devices, alternative nicotine products, vapor products, or non-nicotine vapor products, or samples thereof, in or on any public street, sidewalk, school ground, or park, or on private property open to the public without the property owner’s permission.
(e) Medical and recreational marijuana exemption. Nothing in this section shall be construed to regulate the sale or distribution of marijuana, marijuana-infused products, or marijuana accessories at a medical facility or marijuana facility duly licensed by the State of Missouri and authorized by the Missouri Department of Health and Senior Services to sell or distribute marijuana, marijuana-infused products, and marijuana accessories at such medical facility or marijuana facility.
(f) Penalty; continuing violations. Any person who violates any provision of subsections (b) or (d) of this section shall, for each offense, be fined not less than $100.00 and not more than $1,000.00 or be punished by imprisonment not to exceed six months, or be punished by both fine and imprisonment. Each violation of, or failure, refusal, or neglect to comply with, any provision subsections (b) or (d) of this section shall constitute a separate and distinct offense.
Section 4. That this ordinance shall become effective as of January 1, 2025.
Section 5. That the City Manager is hereby directed to raise public awareness of the health risks associated with the consumption of tobacco products, alternative nicotine products, vapor products, and non-nicotine vapor products and to promote available resources to help individuals address addiction.
Section 6. That the City Manager is hereby directed to evaluate the implementation and enforcement of the provisions of this ordinance and report back to the City Council in 90 days with a comprehensive plan for any additional City resources or funding required for the effective enforcement of this ordinance.
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Approved as to form:
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Andrew Bonkowski
Assistant City Attorney