Berkeley looks to limit electronic and flavored cigarettes

Local merchants came out Tuesday night to ask council to reconsider proposed legislation to limit tobacco sales. Photo: Emilie Raguso
Local merchants came out Tuesday night to ask council to reconsider proposed legislation to limit tobacco sales. Photo: Emilie Raguso

After hearing emotional pleas from many local retailers, the Berkeley City Council voted Tuesday night to limit the scope of proposed legislation regarding nicotine product sales, at least for now.

Council voted 8-1 in favor of a new ordinance that would prohibit the sale of flavored cigarettes, cartridges for electronic cigarettes, and e-cigarettes pre-loaded with cartridges within 1,000 feet of Berkeley schools and parks. Mayor Tom Bates suggested the compromise, and Councilman Kriss Worthington was the lone vote in opposition to it.

Approximately 10 merchants told council that the staff recommendation — to ban tobacco sales within 1,000 feet of schools and parks — would have put them out of business, impacting not only them and their families, but also their employees. According to the city, there are 84 licensed tobacco retailers within Berkeley; all but 11 of them would have had to stop selling tobacco under the staff proposal

They said there is no data to show that the sale of tobacco to youth in Berkeley is a common occurrence, and cited a federal operation last year that found just one sale to a minor. They said the city should focus on educational outreach to youth rather than requiring merchants to stop selling a product that makes up a large portion of their sales. One man estimated that 70% of his business comes from tobacco sales.


“There are better ways to solve the problem,” said Sanjiv Patel, who runs the 76 gas station on University Avenue, “than trying to blame innocent retailers trying to sell legal products.”

In addition, retailers said shoppers often pick up other items or purchase gasoline in addition to buying cigarettes; if they can no longer sell tobacco, they said, retailers will lose out on the other sales as well, because customers will go elsewhere.

Polly Armstrong, who runs the Berkeley Chamber of Commerce, said an estimated 700 merchants and their employees would be affected if the staff recommendation went through.

“These are real people with real businesses… all of whom are trying to live the American dream,” she said. “The problem is teen smoking. The problem is not teens buying cigarettes from these stores.”

Approximately eight other speakers told council they were in favor of the staff proposal, and said the city should act quickly to get tobacco products off the shelves. Whether or not cigarettes are sold to minors, Paul Cummings told council, “they’re still exposing our young people to the idea that tobacco is OK, that it’s normal. I don’t want my son to be exposed to that. I would rather support a store that does not sell tobacco.”

Council agreed to focus on e-cigarettes — or ENDS — because they are increasingly attractive to youth. According to a 2014 survey cited by the city, e-cigarettes are more popular with youth than traditional tobacco products.

E-cigarettes are more popular than tobacco products, according to a survey cited by the city. (Click to see the May 12 staff presentation.) Source: City of Berkeley
E-cigarettes are more popular with youth than tobacco products. (Click to see the May 12 staff presentation.) Source: City of Berkeley

City officials — many of whom said they were former smokers — said they were in a difficult position Tuesday night, because they wanted to be sensitive to the concerns of the merchants, but needed to address the broader public health problem of youth smoking, too.


“This is a tough issue for us,” said Councilwoman Linda Maio. “We’re weighing the health of our kids against the livelihood of these families.”

Several council members said they felt the staff proposal needed to be narrowed before they could support it.

“There’s no doubt in my mind that tobacco is bad,” said Councilwoman Susan Wengraf, adding, of the staff recommendation, “I just think this is a little extreme.”

Council members suggested decreasing the buffer zone to a 600 foot radius to parallel city rules for medical cannabis dispensaries; the potential of grandfathering in existing businesses; limiting the buffer zone to middle and high schools; and having city staff work with merchants to rethink their product mix to rely less on tobacco sales.

Councilman Max Anderson criticized his fellow officials for not taking a stronger position, and said he would have liked to see more of a “moral conscience” from the merchants who had spoken.

“How can it be that the health of this community is less important than somebody making money?” he asked. “How does that work?”


Council appeared set to pass on their suggestions to the city manager for future consideration, when Bates brought forward his proposal to move ahead now to ban e-cigarettes and flavored cigarettes within the 1,000 foot buffer zone around schools and parks. He said after the meeting that he did not intend for his proposal to include menthol cigarettes or flavored tobacco products beyond cigarettes.

“These e-cigarettes and these flavored cigarettes are just downright bad,” he said, and asked the city to look into whether they could be banned outright citywide. He also asked staff to look at an alternative buffer zone for other tobacco products in the future.

Council was careful to respond to concerns raised in a letter from the Berkeley Patients Group regarding vaporizers, which can be used for medical cannabis. Officials specified that e-cigarettes and paraphernalia for vaping can be sold as long as nicotine-infused products are not available or included.

Staff noted that enforcement of this could be difficult because there are no regulations regarding what substances are actually in pre-loaded e-cigarettes or their cartridges. Another open question relates to stores focused only on e-cigarettes and cartridges, because those stores do not currently need a tobacco retailer license in Berkeley. It was unknown Tuesday night how many of those stores currently operate in Berkeley, or how many of them operate within the proposed buffer zone. None of the speakers who addressed council said they ran that type of business.

Bates also specified that, if the city is legally able to ban flavored cigarettes and e-cigarettes throughout Berkeley, the city would make sure to carve out protections for the latter when intended for medical cannabis use.

Staff will now have to craft a draft version of the ordinance, which will come back to council for review before it can become law.

Sanjiv Patel, who has run the 76 gas station on University Avenue for nearly a decade, said Wednesday that he appreciated how city officials had taken the concerns of the merchants seriously. He said, too, that he hopes the city will look closely at the possibility of grandfathering in existing businesses, and work with the merchants to get their input as the proposal moves forward.

But he said, as he understands it, the Bates proposal seemed to be a good compromise.

“Retailers will not be impacted too much and, at the same time, the city will be able to control smoking by controlling e-cigarettes,” he said.

Related:
Council to consider broad limits on tobacco sales (05.12.15)
Berkeley tackles kid-tempting tobacco products (03.07.14)
Berkeley bans tobacco smoking in apartments, condos (12.5.13)
Report highlights racial disparities in Berkeley health (11.01.13)
Alcohol, marijuana use decline in Berkeley schools (11.21.12)

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