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For purposes of this Article 19S, the following terms have the following meanings:
“Characterizing Flavor” has the meaning set forth in Health Code Section 19Q.2.
“Cigarette” has the meaning set forth in Health Code Section 19Q.2.
“City” means the City and County of San Francisco.
“Constituent” has the meaning set forth in Health Code Section 19Q.2.
“Director” means the Director of Health, or the Director’s designee.
“Distinguishable” has the meaning set forth in Health Code Section 19Q.2.
“Distribute” or “Distribution” means the transfer, by any Person other than a common carrier, of a Tobacco Product at any point from the place of Manufacture or thereafter to the Person who sells the Tobacco Product to an individual for personal consumption.
“Electronic Cigarette” has the meaning set forth in Section 30121 of the California Revenue and Taxation Code, as may be amended from time to time.
“Flavored Tobacco Product” has the meaning set forth in Health Code Section 19Q.2.
“Labeling” has the meaning set forth in Health Code Section 19Q.2.
“New Tobacco Product” has the meaning set forth in 21 U.S.C. § 387j(a)(1), as may be amended from time to time.
“Packaging” has the meaning set forth in Health Code Section 19Q.2.
“Person” has the meaning set forth in Health Code Section 19H.2.
“Sell,” “Sale,” and “to Sell” mean any transaction where, for any consideration, ownership of a Tobacco Product is transferred from one Person to another, including but not limited to any transfer of title or possession for consideration, exchange, or barter, in any manner or by any means.
“Tobacco Product” has the meaning set forth in Health Code Section 19H.2.
(a) No Person shall Sell or Distribute any Flavored Tobacco Product to a Person in San Francisco. There shall be a rebuttable presumption that a Tobacco Product, other than a Cigarette, is a Flavored Tobacco Product if a manufacturer or any of the manufacturer’s agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the Tobacco Product has or produces a Characterizing Flavor, including, but not limited to, text, color, and/or images on the product’s Labeling or Packaging that are used to explicitly or implicitly communicate that the Tobacco Product has a Characterizing Flavor.
(b) No Person shall Sell or Distribute an Electronic Cigarette to a Person in San Francisco where the Electronic Cigarette:
(1) Is a New Tobacco Product;
(2) Requires premarket review under 21 U.S.C. § 387j, as may be amended from time to time; and
(3) Does not have a premarket review order under 21 U.S.C. § 387j(c)(1)(A)(i), as may be amended from time to time.
The Director may adopt rules, regulations, or guidelines for the implementation of this Article 19S.
(a) Violations of this Article 19S or of any rule or regulation issued under this Article shall be punishable by administrative fines imposed pursuant to administrative citations. Administrative Code Chapter 100 “Procedures Governing the Imposition of Administrative Fines,” as amended from time to time, shall govern the issuance and enforcement of administrative citations, and collection and review of administrative fines, to enforce this Article and any rule or regulation adopted pursuant to this Article.
(b) The City Attorney may at any time institute civil proceedings for injunctive and monetary relief including civil penalties, against any Person for violations of this Article 19S, without regard to whether the Director has assessed or collected administrative penalties.
(c) At any time, the Director may refer a case to the City Attorney’s Office for civil enforcement, but a referral is not required for the City Attorney to bring a civil action under subsection (b).
(d) Any Person that violates any provision of this Article 19S shall be subject to injunctive relief and a civil penalty in an amount not to exceed $1,000 for each violation, which penalty shall be assessed and recovered in a civil action brought in the name of the people of the City and County of San Francisco by the City Attorney in any court of competent jurisdiction. In assessing the amount of the civil penalty, the court shall consider any one or more of the relevant circumstances presented by any of the parties to the case, including but not limited to, the following: the nature and seriousness of the misconduct giving rise to the violation, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the misconduct, and the defendant’s assets, liabilities, and net worth.
(e) The City may recover reasonable attorneys’ fees and costs for civil actions brought pursuant to this Section 19S.4.
(f) Remedies under this Section 19S.4 are non-exclusive and cumulative to all other remedies available at law or equity.
Nothing in this Article 19S shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law.
If any section, subsection, sentence, clause, phrase, or word of this Article 19S, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of the Article. The Board of Supervisors hereby declares that it would have passed this ordinance and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Article or application thereof would be subsequently declared invalid or unconstitutional.