IPCPR Legislative | Restrictions in California

Restrictions in California

california

Smoking, Age and Sampling Restrictions in California

California law prohibits smoking: in enclosed spaces at a place of employment, including lobbies, lounges, waiting areas, elevators, stairwells, and restrooms; in indoor common areas of apartment and condominium complexes, including hallways, stairwells, laundry rooms, and recreation rooms; in public buildings owned and occupied, or leased and occupied, by the state, a county, a city, or a California community college district; in outdoor areas within 20 feet of a main exit, entrance, or operable window of a public building; in passenger vehicles owned by the state; within 25 feet of a playground or tot lot sandbox area; on the premises of a licensed day care center or in a licensed family day care home during the hours of operation; in group homes, foster family agencies, small family homes, transitional housing placement providers, and crisis nurseries and in vehicles regularly used to transport children; in any motor vehicle in which there is a minor, regardless of whether the vehicle is in motion or at rest; on public transportation systems and in any vehicle of an entity receiving transit assistance from the state; on any aircraft or Amtrak train, except to the extent permitted by federal law; by drivers of a youth bus or operators of general public paratransit vehicles. A pediatric day health and respite care facility is authorized to implement policies and procurements that prohibit smoking by patients, parents, staff, visitors, or consultants within the facility or on the premises, if the prohibition is clearly stated in the admission agreement and notices are posted at the facility.

Effective, July 1, 2016, the prohibition on smoking in a place of employment is expanded to include owner-operated businesses defined as businesses with no employees, independent contractors or volunteers, in which the owner-operator of the business is the only worker.  In addition, most exemptions that previously permitted smoking in certain work environments have been eliminated.  California 2015 A.B. X2 7

Cal. Lab. Code § 6404.5(b): Responsibilities and Duties of Employers and Employees
Cal. Gov. Code §§ 7596-7598: Smoking in Public Buildings
Cal. Health & Safety § 104495: Tobacco Control
Cal. Health & Safety § 1596.795: General Provisions and Definitions
Cal. Health & Safety Code § 1530.7: Regulations
Cal. Health & Safety Code §§ 118947–118949: Smoking in Motor Vehicles
Cal. Health & Safety Code §§ 118925–118945: Smoking in Private and Public Transportation
Cal. Veh. Code §§ 12523(d)(2), 12523.5(d)(2): Issuance of Licenses, Expiration,and Renewal
Cal. Health & Safety Code § 1760. 9: Pediatric Day Health and Respite Care Facilities

 

An employer who permits any nonemployee access to his or her place of employment on a regular basis has not acted knowingly or intentionally in violation of the smoking prohibition if he or she has taken the following reasonable steps to prevent smoking by a nonemployee:

  • Posted clear and prominent signs, as follows:
    • Where smoking is prohibited throughout the building or structure, a sign stating “No smoking” must be posted at each entrance to the building or structure.
    • Where smoking is permitted in designated areas of the building or structure, a sign stating “Smoking is prohibited except in designated areas” must be posted at each entrance to the building or structure.

 

Cal. Lab. Code § 6404.5(c)

 

The Legislature has declared its intent not to preempt the field of regulation of the smoking of tobacco. A local governing body may ban completely the smoking of tobacco, or may regulate smoking in any manner not inconsistent with state law.

 

Cal. Health & Safety § 118910

 

The state law on smoking prohibitions in places of employment constitutes a uniform statewide standard for regulating the smoking of tobacco products in enclosed places of employment and supersedes and renders unnecessary the local enactment or enforcement of local ordinances regulating the smoking of tobacco products in enclosed places of employment.

 

Cal. Lab. Code § 6404.5(g)

 

State law on smoking in public buildings does not preempt the authority of any county, city, city and county, California Community College campus, campus of the California State University, or campus of the University of California to adopt and enforce additional, more restrictive smoking and tobacco control ordinances, regulations, or policies.

 

Cal. Gov. Code §§ 7596-7598

 

State law does not preempt the authority of any county, city, or city and county to regulate smoking around playgrounds or tot lot sandbox areas. Any county, city, or city and county may enforce any ordinance adopted prior to January 1, 2002, or may adopt and enforce new, more restrictive regulations on and after January 1, 2002.

 

Cal. Health & Safety § 104495

 

State law does not prohibit a city or county from enacting or enforcing a more stringent ordinance relating to smoking in a family day care home.

 

Cal. Health & Safety § 1596.795

 

State law does not preempt any more restrictive local ordinance on smoking in private and public transportation.

 

Cal. Health & Safety Code § 118940

 

Exemptions

 

The following are exempt from the ban on smoking, subject to conditions:

  • Designated guestroom accommodations (maximum of 20%) in a hotel, motel, or similar transient lodging establishment.
  • Areas of the lobby in a hotel, motel, or other similar transient lodging establishment designated for smoking by the establishment. An establishment may permit smoking in a designated lobby area that does not exceed 25% of the total floor area of the lobby or, if the total area of the lobby is 2,000 square feet or less, that does not exceed 50% of the total floor area of the lobby.
  • Meeting and banquet rooms in a hotel, motel, other transient lodging establishment similar to a hotel or motel, restaurant, or public convention center, except while food or beverage functions are taking place, including setup, service, and cleanup activities, or when the room is being used for exhibit purposes. At times when smoking is not permitted in a meeting or banquet room pursuant to this paragraph, the establishment may permit smoking in corridors and pre-function areas adjacent to and serving the meeting or banquet room if no employee is stationed in that corridor or area on other than a passing basis.
  • Licensed retail or wholesale tobacco shops and private smokers’ lounges.
    • “Private smokers’ lounge” means any enclosed area in or attached to a retail or wholesale tobacco shop that is dedicated to the use of tobacco products, including, but not limited to, cigars and pipes.
    • “Retail or wholesale tobacco shop” means any business establishment the main purpose of which is the sale of tobacco products, including, but not limited to, cigars, pipe tobacco, and smoking accessories.
    • The California Attorney General issued an opinion in 2012 concluding that neither retail or wholesale tobacco shops nor private smokers’ lounges are exempt from the smoking prohibition if they serve alcohol to patrons.
      http://ag.ca.gov/cms_attachments/opinions/pdfs/o559_09-507.pdf#xml=http://search.doj.ca.gov:8004/AGSearch/isysquery/93763081-5eff-4814-8715-f035798f341d/1/hilite/
    • California law does not provide a specific application procedure to qualify for exemption from the smoking ban. Localities may have specific requirements.
  • Cabs of motortrucks or truck tractors, if no nonsmoking employees are present.
  • Warehouse facilities with more than 100,000 square feet of total floorspace, and 20 or fewer full-time employees working at the facility, but not including any area within a facility that is utilized as office space.
  • Theatrical production sites, if smoking is an integral part of the story in the theatrical production.
  • Medical research or treatment sites, if smoking is integral to the research and treatment being conducted.
  • Private residences, except for private residences licensed as family day care homes.
  • Patient smoking areas in long-term health care facilities.
  • Breakrooms designated by employers for smoking, provided that all of the following conditions are met:
    • Air from the smoking room must be exhausted directly to the outside by an exhaust fan. Air from the smoking room must not be recirculated to other parts of the building.
    • The employer must comply with any ventilation standard or other standard utilizing appropriate technology, including, but not limited to, mechanical, electronic, and biotechnical systems, adopted by the Occupational Safety and Health Standards Board or the federal Environmental Protection Agency. If both adopt inconsistent standards, the ventilation standards of the Occupational Safety and Health Standards Board must be no less stringent than the standards adopted by the federal Environmental Protection Agency.
    • The smoking room shall be located in a nonwork area where no one, as part of his or her work responsibilities, is required to enter, not including any custodial or maintenance work carried out in the breakroom when it is unoccupied.
    • There are sufficient nonsmoking breakrooms to accommodate nonsmokers.
  • Employers with a total of five or fewer employees, either full time or part time, may permit smoking where all of the following conditions are met:
    • The smoking area is not accessible to minors.
    • All employees who enter the smoking area consent to permit smoking. No one, as part of his or her work responsibilities, may be required to work in an area where smoking is permitted.
    • Air from the smoking area shall be exhausted directly to the outside by an exhaust fan. Air from the smoking area shall not be recirculated to other parts of the building.
    • The employer must comply with any ventilation standard or other standard utilizing appropriate technology, including, but not limited to, mechanical, electronic, and biotechnical systems, adopted by the Occupational Safety and Health Standards Board or the federal Environmental Protection Agency. If both adopt inconsistent standards, the ventilation standards of the Occupational Safety and Health Standards Board must be no less stringent than the standards adopted by the federal Environmental Protection Agency.
  • Private living areas of public buildings.
  • Parking areas of covered parking lots.
  • Public sidewalks within 25 feet of a playground or tot lot area.
  • Family day care homes before or after hours of operation as a day care facility, but smoking in areas where children are present, even after hours, is still prohibited.

 

Cal. Lab. Code § 6404.5(d)
Cal. Gov. Code §§ 7596-7598
Cal. Health & Safety § 104495
Cal. Health & Safety § 1596.795

Individuals under 21 years of age cannot purchase, receive, or possess any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking of tobacco, products prepared from tobacco, or any controlled substance.

 

Cal. Pen. Code § 308(b)

 

No person may sell, offer for sale, distribute, or import any tobacco product commonly referred to as “bidis” or “beedies,” unless that tobacco product is sold, offered for sale, or intended to be sold in a business establishment that prohibits the presence of persons under 18 years of age on its premises.

 

Cal. Pen. Code § 308.1

 

Similarly, it is illegal for any person, firm, or corporation to knowingly sell, give, or in any way furnish to another person who is under 18 years of age any tobacco, cigarette, or cigarette papers, or blunt wraps, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance.

 

Cal. Pen. Code § 308(a)(1)

 

No minor under the age of 16 years may be employed or permitted to work in any capacity in assorting, manufacturing, or packing tobacco.

 

Cal. Lab. Code § 1294(f)

 

Every person, firm, or corporation that sells, or deals in tobacco or any preparation thereof, must conspicuously post, at each point of purchase in each place of business, a notice stating that selling tobacco products to anyone under 18 years of age is illegal and subject to penalties. The notice must also state that the law requires that all persons selling tobacco products check the identification of a purchaser of tobacco products who reasonably appears to be under 18 years of age. The warning sign must include a toll-free telephone number to the State Department of Public Health for persons to report unlawful sales of tobacco products to minors.

 

Cal. Pen. Code § 308(c)
Cal. Bus. & Prof. Code § 22952(b)

 

It is the Legislature’s intent to regulate the area of tobacco products age restrictions. As a result, a city, county, or city and county cannot adopt any ordinance or regulation inconsistent with Cal. Pen. Code § 308.

 

Cal. Pen. Code § 308(f)

 

Division of Labor Standards Enforcement staff reported that California law contains no specific provisions concerning the minimum age to work in tobacco retail stores. In general, minors 14 and 15 years of age may be employed in cashiering, selling, bagging, and carrying out customers’ orders. However, minors under 21 years of age may not be employed during business hours in or on that portion of any premises that are primarily designed and used for the sale and service of alcoholic beverages for consumption on the premises. Minors under 18 may be employed by establishments that sell alcohol for consumption off the premises only if the minor is constantly supervised by a person 21 years of age or older.

 

Cal. Lab. Code § 1294.3
Cal. Bus. And Prof. Code § 25663

 

Tobacco products are prohibited to be marketed by an operator of an Internet Web site, online service, online application or mobile application directed to minors (under the age of 18 years old) who reside in the state.

 

Cal. Bus. And Prof. Code § 22580

Federal regulations prohibit free samples of cigarettes and limit free samples of smokeless tobacco products to certain age-restricted venues under several conditions.

 

Regulations Restricting the Sale, Distribution, and Marketing of Cigarettes, Cigarette Tobacco, and Smokeless Tobacco: Consumer Fact Sheet
http://www.fda.gov/downloads/TobaccoProducts/ProtectingKidsfromTobacco/RegsRestrictingSale/UCM265540.pdf

 

In California, it is illegal for any person, agent, or employee of a person in the business of selling or distributing smokeless tobacco or cigarettes to engage in the non-sale distribution of any smokeless tobacco, cigarettes, coupons, coupon offers, gift certificates, or gift cards to any person: in any public building, park, or playground, or on any public sidewalk, street, or other public grounds, including city and county streets and sidewalks, parade grounds, fair grounds, public transportation facilities and terminals, public reception areas, public health facilities, public recreational facilities, and public office buildings; or on any private property that is open to the general public, whether or not a fee or charge is imposed for entry or use. However, distribution of tobacco product samples in connection with the sale of another item, including tobacco products, cigarette lighters, magazines, or newspapers will not constitute non-sale distribution.

 

Cal. Health & Safety Code § 118950(b)

 

It is illegal for any person by any means, as part of an advertising plan or program, to distribute free samples of smokeless tobacco products within a 2-block radius of any premises or facilities whose primary purpose is directed toward persons under 18 years of age, including schools, clubhouses, and youth centers, when those premises are being used for their primary purposes.

 

Cal. Bus. & Prof. Code § 17537(c)

 

The giving away in California of untaxed tobacco products as samples is a taxable distribution, and each package of sample tobacco products distributed must be clearly marked as a sample. Tobacco products manufacturers or imports must file a Tobacco Products Manufacturer/Importer Return of Taxable Distribution of Samples in California on or before the 25th day of the month following the month during which samples were distributed, along with payment for taxes due.

 

Tobacco Products Manufacturer/Importer Return of Taxable Distribution of Samples in California
http://www.boe.ca.gov/pdf/boe501tim.pdf

 

Staff reported that the distribution of tobacco samples in California is subject to state licensing requirements. Localities may also require additional tobacco sampling licenses.

 

City or county ordinances regulating distribution of smokeless tobacco or cigarette samples within their boundaries may be more restrictive that state law. An ordinance that imposes greater restrictions on the sale or distribution of tobacco than state law will govern, to the extent of any inconsistency.

 

Cal. Health & Safety Code § 118950(e)

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