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Notice of Fines Schedule Flavored Tobacco and Electronic Smoking Devices Ban

Friday, February 17, 2023

ADMINISTRATIVE BULLETIN AB-2023-01
Notice of Fines Schedule Flavored Tobacco and Electronic Smoking Devices Ban

Issuer: Shirley Kwan-Hui, Interim Director
Issuance Date: February 8, 2023
Effective Date: Upon publication in the District of Columbia Register on February 17, 2023
Purpose: This document imposes a new fine schedule related to businesses that violate D.C. Official Code § 7-1721.08(a)(1), which bans the sale of flavored tobacco products and D.C. Official Code § 7-1721.08(a)(2), which bans the sale of electronic smoking devices within a quarter mile of a middle or high school.
Related Code Sections: D.C. Official Code §§ 7-1721.07(4); 7-1721.08(a); 47-2401(5A); 47- 2401(9A); and 47-2404(b)(2)


The purpose of this Administrative Bulletin is to provide guidance to the public of the fine schedule associated with certain violations of the Flavored Tobacco Product Prohibition Amendment Act
of 2021 (Law 24-25). The Act became effective on October 1, 2022.

D.C. Official Code § 7-1721.08(a)(1) bans the sale of flavored tobacco products. The prohibition on flavored tobacco includes any flavor other than tobacco, including “menthol.” The law
establishes a rebuttable presumption that a tobacco product is a flavored tobacco product if there is any text, image, statement, or action by the manufacturer that suggests the product has a flavor other than tobacco.

D.C. Official Code § 7-1721.08(a)(2) bans the sale of electronic smoking devices within a quarter of a mile of any middle or high school. Electronic smoking devices include any device that uses
a heating element to deliver a vapor or aerosol with nicotine or any other substance in it for human consumption. See D.C. Official Code § 7-741.01(1). Electronic smoking devices include “vapes,” “vape pens,” “e-cigarettes,” “e-cigars,” “e-hookahs,” or any product with the function described in the preceding sentence, regardless of what it is called. The distance from a school is determined from the closest point between the school grounds and the property containing the retail space. Schools with combined campuses qualify if any student attending school at that location is enrolled in any grade from grade 6 through 12. District of Columbia Public Schools, District of Columbia Charter Schools, and private schools all qualify.

A person who violates D.C. Official Code § 7-1721.08(a)(1) or § 7-1721.08(a)(1) will be subjectto a civil penalty in the form of a Notice of Infraction. The fine for an individual who violates these
provisions is $25 per violation. See Id. at § 7-1721.07(4)(A). The fine for “persons other than individuals,” such as businesses, shall be not more than $10,000 per violation. See Id. at § 7-
1721.07(4)(B). The fine for persons other than individuals is within the Department of Licensing and Consumer Protection’s (DLCP) and shall not exceed $10,000 per violation.

 Official Code §§ 7-1721.08(a)(1) and 7-1721.08(a)(2) by a person other than an individual shall result in the following fine schedule:

1st Offense: $2,500
2nd Offense: $7,500
3rd Offense: $10,000

Violations of D.C. Official Code § 7-1721.08(a)(1) and § 7-1721.08(a)(2) shall be cited as separate violations within the same Notice of Infraction (NOI) and each shall carry a separate fine. If
violations of D.C. Official Code § 7-1721.08(a)(1) and § 7-1721.08(a)(2) are found as a result of the same inspection, they shall be considered a part of the same offense. For example, if violations of D.C. Official Code § 7-1721.08(a)(1) and § 7-1721.08(a)(2) are found for the first time as a part of the same inspection, this will be cited as a first offense and each violation shall be cited separately in the NOI with fines of $2,500 each. If other violations, such as violations of the Consumer Protection Procedures Act or business licensing laws, are found contemporaneously,
these violations may also be cited in the same NOI. 

Any subsequent violation of D.C. Official Code § 7-1721.08(a), regardless of whether the business was originally cited for violating D.C. Official Code § 7-1721.08(a)(1) or 7-1721.08(a)(2), shall be considered a subsequent offense and carry a higher fine amount. Subsequent offenses may be cited even if a prior offense has not yet been adjudicated by the Office of Administrative Hearings. Pursuant to D.C. Official Code § 7–1721.08(c)(1), a license to sell tobacco products “may be suspended, after a hearing, for a first or second violation” of the prohibition on the sale of flavored tobacco products or sale of electronic smoking devices within a quarter of a mile of any middle or high school. The law further provides that a license to sell tobacco products “shall be revoked, after a hearing, for a third or subsequent violation.” See D.C. Official Code § 7–1721.08(c)(2).