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September 24, 2013 Page 2 DISCUSSION Currently the City's definition of "TOBACCO OR TOBACCO PRODUCTS" includes the word "nicotine" (see below). "TOBACCO OR TOBACCO PRODUCTS" as "any substance or item containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco; hookah tobacco; snuff; fine cut or other chewing granulated, plug cut, crimp cut; snus; bidis, or any other preparation of tobacco; cheroots; stogies; perique; formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product approved by the United States Food and Drug Administration for use as a medical treatment to reduce and eliminate nicotine or tobacco dependence ". The City Code prohibits the "lighting, inhaling, exhaling or combination thereof of tobacco, tobacco products, or tobacco related devices by any person in any retail establishment ...... (see below). §111.057 "SMOKING PROHIBITED" STATES THAT "It shall be unlawful for the lighting, inhaling, exhaling or combination thereof of tobacco, tobacco products, or tobacco related devices by any person in any retail establishment and for any person that owns, leases, manages, operates or otherwise controls the retail establishment to allow such to occur ". Interpretation #1: One way to interpret the City's Code would be to infer that 1) since the City prohibits the "lighting, inhaling, exhaling or combination of tobacco, etc. "; and 2) the definition of "TOBACCO or TOBACCO PRODUCTS" includes the word "nicotine" and "introducing into the human body"; and 3) electronic delivery devices are filled with liquid nicotine; that the City prohibits the "lighting, inhaling, exhaling or combination of electronic delivery devices (e- cigarettes). Interpretation #2: Another way to interpret the City's Code would be to infer that the City only prohibits "smoking" and that it may not clearly prohibit "vaping" and therefore may not prohibit vaping lounges, which are places where customers sample and use electronic delivery devices (e- cigarettes). LANGUAGE TO CONSIDER Definitions to Potentially Include in the City Code "ELECTRONIC DELIVERY DEVICE" shall mean any product containing or delivering nicotine, lobelia, or any other substance intended for human consumption that can be used by a person to simulate smoking in the delivery of nicotine or any other substance through inhalation of vapor from the product. Electronic delivery device shall include any component part of such a product whether or not sold separately. Electronic delivery device shall not include any product that has been approved or otherwise certified by the United States Food and Drug Administration for legal sales for use in tobacco cessation treatment or other medical purposes, and is being marketed and sold solely for the approved purpose. "SMOKING" shall mean inhaling or exhaling smoke from any lighted or heated cigar, cigarette, pipe, or any other lighted or heated tobacco or plant product, or inhaling or exhaling vapor from any electronic delivery device. Smoking shall include carrying a lighted or heated cigar, cigarette, pipe, or any other lighted or heated tobacco or plant product intended for inhalation. City staff would also need to go through § 111.045 — § 111.057 and update pertinent provisions accordingly if the City Council elects to make changes to the City Code to incorporate the electronic delivery device language as discussed in this memo. Page 2