Loading...
HomeMy WebLinkAboutbocc.ord.010.2026 ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, AMENDING TITLE 6, SECTION 6-42 (HEALTH AND SAFETY) SUB-SECTIONS 6-42-050, 6-42-070, AND 6-42-140 (PITKIN COUNTY TOBACCO LICENSING REQUIREMENTS) OF THE PITKIN COUNTY CODE PROHIBITING THE SALE OF FLAVORED TOBACCO PRODUCTS ORDINANCE NO. 010-2026 RECITALS WHEREAS, Pursuant to 30-35-301 C.R.S., the Board of County Commissioners (“BOCC”) of Pitkin County, Colorado a Home Rule County is authorized to make and publish ordinances for carrying into effect or discharging the powers and duties conferred upon such counties by law and as seems necessary, and; WHEREAS, Pursuant to Section 2.8.1 of the Home Rule Charter (“HRC”), the BOCC is authorized to take official action by Ordinance for certain matters where action is prescribed pursuant to the Colorado Revised Statutes as amended, and; WHEREAS, Pitkin County’s authority to enact this ordinance is found in the body of Colorado Revised Statutes and in particular §§ 30-11-103; 30-11-101(2); 18-13-121; and 30-15-401, and; WHEREAS, The Pitkin County Board of County Commissioners is committed to protecting the health, safety, and welfare of people in the County, and; WHEREAS, Cigarettes, tobacco products and nicotine products, collectively tobacco products, are intended to be both enticing and addictive, promoting use leading to dependence, and; WHEREAS, Approximately 95% of people who smoke began smoking before the age of twenty- one (21), and; WHEREAS, Nicotine exposure during childhood and adolescence effects brain development predisposing young people to addiction and disrupting learning, memory development and cognition, and; WHEREAS, The U.S. Food and Drug Administration has concluded that menthol cigarettes lead to increased smoking initiation among youth and young adults, greater addiction, and; decreased success in quitting smoking, and; WHEREAS, Half of youth who have ever tried smoking initiated with menthol-flavored cigarettes, and; WHEREAS, According to a 2023 Colorado Survey, 17% of AHS students have used an E- cigarette in the last 30-days, and; Ordinance No. 010-2026 WHEREAS, According to a 2023 Colorado Survey 8.7% of Colorado high school students use e-cigarettes in the last 30 days, and; WHEREAS, The Centers for Disease Control and Prevention (CDC) reported over 1.6 million youth e-cigarette users nationwide in 2024, and; WHEREAS, E-cigarettes are available in a wide variety of kid-friendly flavors like cotton candy, gummy bear and pink lemonade, the majority of which are sold illegally in contravention of federal laws regulating the sale of tobacco products, and; WHEREAS, Flavored tobacco products are specifically marketed to entice young adults and children to initiate smoking. 94% of youth who use tobacco products in Pitkin County report using flavored tobacco products (AHS, HKCS 2025), and; WHEREAS, Sales of nicotine pouches have continued to rise nationally since 2016, with the CDC reporting that use among U.S. youths has become concerning. All pouches contain nicotine, which is highly addictive and harms the developing adolescent brain, and; WHEREAS, Data from the Monitor the Future national survey indicates that US youth nicotine pouch use and dual use with e-cigarettes has increased from 2023 to 2024, and; WHEREAS, The restriction on the sale of flavored tobacco products will not unduly burden business activities of retailers who sell legal tobacco products to adults, and; WHEREAS, Ordinance 026-2023 amended Title 6 of the Pitkin County Health and Safety Code with the adoption of Section 6.42, which requires retailers that sell tobacco products to obtain a tobacco product retail license and creates compliance standards for the sale of tobacco products in the County, and; WHEREAS, In light of the foregoing, the Board of County Commissioners wishes to institute an amendment to the retail tobacco business license regulations that prohibits the sale of flavored tobacco products in the interest of the health, safety, and welfare of County residents, and; WHEREAS, Retailers will be given a 90 day period to comply with the provisions of this ordinance and the amended Sections 6-42-050, 6-42-070 and 6-42-140 of Title 6 of the Pitkin County Code, and; WHEREAS, The Board finds that adoption of this ordinance is necessary for the immediate preservation of the public health, safety and welfare of persons in Pitkin County and therefore declares this ordinance and legislation to be effective immediately upon adoption, and; WHEREAS, The Board of County Commissioners (BOCC) finds that the use of flavored cigarettes, tobacco and nicotine products, collectively tobacco products, is prevalent among young people in Pitkin County. Tobacco product use among young people is a significant health threat in the County for youth and adults as today’s young people mature. The BOCC further finds that this public health threat requires permanent regulation in the form of a prohibition on the sale of flavored tobacco products, regardless of product type, to ensure that age-restricted flavored tobacco products marketed and sold to youth are not easily accessed Ordinance No. 010-2026 and sold in Pitkin County. In addition, the vast majority of flavored tobacco products sold to both youth and adults have not received marketing authorization by the Food and Drug Administration as required under federal law. Thus, such the restriction on sale of these products assists in the prevention of the sale of illicit tobacco products in Pitkin County, and; WHEREAS, This Ordinance shall apply in the unincorporated areas of Pitkin County. WHEREAS, If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases of this Ordinance, or its application to any other person or circumstance. The BOCC declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases hereof be declared invalid or unenforceable. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that it hereby adopts an Ordinance Amending Title 6, Health and Safety, Section 6.42, Sub-Sections 6-42-050, 6-42-070, and 6-42-140 Pitkin County Tobacco Licensing Requirements, (appended hereto as Exhibit A) of the Pitkin County Code Prohibiting the Sale of Flavored Tobacco Products and authorizes the Chair or the Chair’s designee to sign the Ordinance upon the satisfaction of the County Attorney as to form. Ordinance No. 010-2026 INTRODUCED AND FIRST READ ON THE 25TH DAY OF FEBRUARY, 2026 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE 11TH DAY OF MARCH 2026. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE ORDINANCE PUBLISHED IN THE ASPEN DAILY NEWS ON THE 26TH DAY OF FEBRUARY, 2026. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE 26TH DAY OF FEBRUARY 2026. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE 11TH DAY OF MARCH 2026. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) AFTER ADOPTION, ON THE 19TH DAY OF MARCH, 2026. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN DAILY NEWS ON THE 19TH DAY OF MARCH, 2026. ATTEST: BOARD OF COUNTY COMMISSIONERS By _________________________ By: _____________________________ Sam Engen Jeffrey H. Woodruff, Chair Deputy County Clerk Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL By:___________________________ By:_________________________________ Richard Neiley, III Kara Silbernagel County Attorney Interim County Manager Form Revised 01/01/2026 Mar-15-2026 EXHIBIT A 6-42-050 Definitions. The words and phrases used in this Section shall have the meanings ascribed to them herein. Any undefined terms used in this Ordinance shall have their accepted definitions under Colorado law. 1.Arm's Length Transaction. A sale in good faith and for valuable consideration thatreflects the fair market value in the open market between informed and willing parties,neither of which is under any compulsion to participate in the transaction. A sale betweenrelatives, related companies or partners, or a sale for which a significant purpose isavoiding the effect of violations of this regulation is not an arm’s length transaction. 2.Board. The Board of County Commissioners for Pitkin County (BOCC). 3.Cigar. Any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco orany other substance containing tobacco. For purposes herein, cigar includes, but is notlimited to tobacco products known as “cigar,” cigarillo,” or “little cigar.” 4.Cigarette. Any product that contains tobacco or nicotine, that is intended to be burned orheated under ordinary conditions of use, and consists or contains: a.Any roll of tobacco wrapped in paper or any other substance notcontaining tobacco; b. Tobacco in any form that is functional in the product which, because of itsappearance, the type of tobacco used in the filler, or its packaging or labeling,is likely to be offered to or purchased by consumers as a cigarette; or c.The term includes all “roll your own,” i.e., any tobacco that, because of itsappearance, type, packaging or labeling is suitable for use and likely to beoffered to or purchased by consumers as tobacco for making cigarettes. 5.Consumer. A person who purchases tobacco products not for resale to another. 6.County. Unincorporated areas of Pitkin County. 7.Department. The Pitkin County Public Health Department, and any agency orindividual designated by the BOCC to enforce the provisions of this regulation. 8.Electronic Smoking Device (ESD). Any product that contains or delivers nicotine,synthetic regardless of source, or any other substance intended for human consumptionand that can be used by a person to enable the inhalation of vapor or aerosol from theproduct and includes but is not limited to a product manufactured, distributed, marketed,or sold as an e-cigarette, e- cigar, e-pipe, e-hookah, or vape pen or any other productname or descriptor. Electronic smoking device includes, but is not limited to, any refill,cartridge or component part of a product, whether or not marketed or sold separately.Electronic smoking devices do not include a humidifier, an inhaler, nebulizer, or similar Formatted: Font: (Default) Times New Roman, Fontcolor: Accent 5 Formatted: Indent: Left: 0.25", First line: 0", Right: 0" device approved by the Federal Food and Drug Administration for the delivery of medication.; medical marijuana as defined in C.R.S. § 44-10-103(34), as amended, or section 14 of article XVIII of the Colorado Constitution, or retail marijuana as defined in C.R.S. § 44-10-103(57), as amended, or section 16(2)(f) of article XVIII of the Colorado Constitution; or any product that is a drug, device, or combination of products specifically authorized for smoking cessation purposes by the United States Food and Drug Administration, as those terms are defined or described in 21 U.S.C. 321 and 353(g). 9. Flavored tobacco product: a. Any tobacco product that imparts a taste or smell, other than the taste or smell of tobacco, either prior to or during the consumption of the product, including, but not limited to, any taste or smell relating to chocolate, cocoa, menthol, mint, wintergreen, vanilla, honey, fruit, or any candy, dessert, alcoholic beverage, herb, or spice; or b. Any tobacco product that imparts a cooling or numbing sensation either prior to during the consumption of the tobacco product. Any public statement or claim, whether express or implied, made or disseminated by the manufacturer or retailer of a licensed product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such products, that a product has or produces a taste or smell other than a taste or smell of tobacco or a cooling or numbing sensation will constitute presumptive evidence that the product is a flavored tobacco product. Presumptive evidence may include but is not limited to the use of terms such as, “cool,” “chill,” “ice,” “fresh,” “arctic,” “frost,” or “fruit” to describe the product. 8.10. Labeling. Any written, printed or graphic matter upon any tobacco product or any of the product’s packaging or accompanying a tobacco product. 9.11. License. A tobacco product retailer license. 10.12. Licensee. Any person, partnership, joint venture, society, club, trustee, trust, association, organization, or corporation who owns, operates, or manages any tobacco retail establishment. 11.13. Licensing Authority. The County licensing administrator means the Pitkin County Administration Department. 12.14. Minimum Legal Sales Age (MLSA). Means twenty-one (21) years of age. 13.15. Nicotine. An addictive, poisonous chemical derived from tobacco or created synthetically intended for human consumption, whether by vaporizing, chewing, smoking, absorbing, dissolving, inhaling, snorting, sniffing, aerosolizing or by any other means. 14.16. Person. Any natural person, partnership, cooperative association, corporation, limited liability company, personal representative, receiver, trustee, assignee or other legal entity. 15.17. Sale or Sell. Means any of the following; to exchange, barter, or traffic in; to Formatted: Right: 0.26", Space Before: 10 pt, Outlinenumbered + Level: 1 + Numbering Style: 1, 2, 3, … +Start at: 1 + Alignment: Left + Aligned at: 0.5" + Indentat: 0.75" Formatted: Font: Bold, Italic, Font color: Accent 1 Formatted: Font color: Accent 1 Formatted: Space Before: 0 pt Formatted: Space Before: 0 pt solicit or receive an order for; to keep or expose for sale; to deliver for value or in any way other than gratuitously; to peddle or to possess with intent to sell; to traffic in for any consideration promised or obtained, directly or indirectly. 16.18. Self-Service Display. The open display or storage of a tobacco product(s) in a manner that is physically accessible to the general public without the assistance of the licensee or an employee or agent of the licensee (licensee) and a direct transfer between the licensee and a consumer. A vending machine is a form of a self-service display. 19. Tobacco Paraphernalia. An item designed for the consumption, use, or preparation of a tobacco product. 17. 18.20. Tobacco Product means and includes: a. Any product that contains, is made or derived from nicotine, tobacco or synthetic nicotine and is intended for human consumption, whether heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means. b. An Electronic Smoking Device (ESD); c. Any provision of subsections (a) and (b) above to the contrary, “tobacco product” includes any component, part, accessory or associated tobacco paraphernalia of a tobacco product whether or not sold separately. d. The term “tobacco product” does not include: 1. Any product specifically approved by the United States Food and Drug Administration as a cessation product for use in reducing, treating or eliminating tobacco or nicotine dependence, for use in mitigating or treating disease or for any other medical purpose when such product(s) is being marketed and sold solely for such an approved purpose; or 2. Marijuana as defined in the Colorado Marijuana Code 44-10-101 et seq., C.R.S. 19.21. Tobacco Product Retailer. Any business that sells, offers for sale, or does or offers to exchange for any form of consideration a tobacco product without regard to the quantity sold, offered for sale, exchanged, or offered for exchange. 20.22. Tobacco Product Retailing. Any person who engages in the sale of tobacco products directly to the public from any store, stand, booth, concession, outlet, vehicle, cart, vending machine, structure or any grounds or any other enterprise that sells, offers for sale, or does or offers to exchange for any form of consideration tobacco products. 21.23. Tobacco Product Retail Location. Any fixed location where tobacco products are offered for sale or exchange for any form of consideration without regard to the quantity sold, offered for sale, exchanged, or offered for exchange. 22.24. Vapor Product: Any product intended for use with an electronic smoking device (ESD) including, but not limited to, refills, cartridges and component parts of a product, whether or not sold separately, that provides, delivers, or is intended to provide or deliver a vapor, a vapor of solution, a particulate or vaporized substance or aerosol of a solution, even if the product is marketed as containing synthetic nicotine or is nicotine-free. Formatted: No bullets or numbering, Border: Top: (Noborder), Bottom: (No border), Left: (No border), Right:(No border), Between : (No border) 23.25. Vending Machine. A mechanical, electrical, or electronic self-service device which upon the insertion of money, tokens or any other form of payment dispenses tobacco product(s). 6-42-070 Prohibitions. 1. Lawful Business Operation. In the course of tobacco product retailing or in the operation of the business or maintenance of the location for which a license is issued, it shall be a violation of this Ordinance for a licensee, or any of the licensee’s employees or agents to violate any local, state, or federal law applicable to tobacco product retailing. 2. License Non-Transferrable. A tobacco product retail license cannot be assigned, delegated, sold, inherited, or otherwise transferred between persons or transferred to a different location. a. No licensee shall exercise the privileges of any other license or delegate the privileges of the license. b. When a license has been issued to spouse or general or limited partners, the death of a spouse or partner shall not require the surviving spouse or partner to obtain a new license for the remainder of the term of that license. All rights and privileges granted under the original license shall continue in full force and effect as to such survivors for the balance of the term of the license. 3. Mobile Vending Prohibited. No license shall be issued to authorize tobacco product retailing at a location other than a permanent fixed location described in the license and approved by the licensing authority. 4. Distance from Schools. The licensing authority shall not approve a tobacco product retail license application for a new retail location that is located within five hundred (500) feet of a school after the effective date of this Section. a. A retail location where tobacco products were sold prior to the effective date of this Ordinance need not comply with this distance requirement. b. The distance between a new tobacco product retail location and the school is measured from the nearest property line of land used for school purposes to the nearest portion of the building where tobacco products are sold, using a route of direct pedestrian access. 5. Packaging and Labeling. No tobacco product retailer shall sell tobacco products to any consumer unless the tobacco product: a. Is sold in the original manufacturer’s packaging intended for sale to consumers; and b. Conforms to all federal labeling requirements. 6. Self-Service Displays Prohibited. Tobacco product retailing by means of a self-service Formatted: Indent: Left: 0.75" display is prohibited. 7.a. Licensees shall stock and display tobacco products in a manner so as to make all such products inaccessible to customers without the assistance of a retail clerk, thereby requiring a direct, face-to-face exchange of the tobacco product with the licensee, or an employee or agent of the licensee to the consumer. 8.7.Outdoor Advertising of Electronic Smoking Device Products Prohibited. A retailer shall not advertise an electronic smoking device product in a manner that is visible from outside the retail location at which the product is offered for sale. 8. Flavored Tobacco Product Sales Prohibited. No tobacco product retailer shall sell, display or advertise for sale, any flavored tobacco product within the County of Pitkin. 6-42-140 Compliance Monitoring. 1.Compliance monitoring of this Section shall be by the Department, as the Department deems appropriate. 2. The Department shall conduct at least two (2) compliance checks per licensee per license term. 1. Compliance checks shall be conducted so as to allow the Department to determine, at a minimum, if the tobacco product retailer is conducting business in a manner that complies with laws regulating access to tobacco products, including inspections for the sale, storage or display of flavored tobacco products as prohibited under this Code. When the Department deems appropriate, the compliance checks may determine compliance with other laws applicable to tobacco products., 2. Any licensed location that receives a compliance monitoring violation must be rchecked for compliance by the Department or other designee determined by the County for compliance within forty-five (45) days of the violation. 3. The Department shall report compliance check results to the licensing authority. 4. A database of compliance check results shall be maintained by the Department. 5. Nothing in this subsection shall create a right of action in any licensee or other person against the County, the Department or their agents and officers. a. b. Third or subsequent offense within a one-year period36 months, revocation of the license. Formatted: Indent: Left: 0.75" Formatted: Outline numbered + Level: 1 + NumberingStyle: 1, 2, 3, … + Start at: 1 + Alignment: Left + Alignedat: 0.44" + Indent at: 0.69" Formatted: Font: Italic, Font color: Accent 5 Formatted: Font: Not Bold, Font color: Accent 5 Formatted: Font: Not Bold, Font color: Accent 5 Formatted: Font: Not Bold, Font color: Accent 5 Formatted: Indent: Left: 0"