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ARTICLE 36: CHILD COUGH AND COLD MEDICINE WARNING ORDINANCE

Sec. 3601. Short title.

Sec. 3602. Definitions.

Sec. 3603. Warning required at point of sale.

Sec. 3604. Implementation.

Sec. 3605. Enforcement and penalties.

Sec. 3606. Operative date.

Sec. 3607. Severability.

Sec. 3608. No conflict with Federal or State law.

Sec. 3609. Undertaking for the general welfare.

SEC. 3601. SHORT TITLE.

This Ordinance shall be entitled the "Child Cough and Cold Medicine Warning Ordinance."

(Added by Ord. 4-08, File No. 071089, App. 1/14/2008)

SEC. 3602. DEFINITIONS.

For the purposes of this Ordinance, the following words shall have the following meanings:

(a) "Business" means a fixed location within the City and County of San Francisco, whether indoors or outdoors, at which merchandise is offered for sale at retail and that is required to obtain a valid San Francisco business registration certificate from the San Francisco Tax Collector's office.

(b) "Cough of Cold Medicine" means drugs available "over the counter" or "OTC" and without a doctor's prescription that are used to suppress coughs and/or reduce symptoms associated with colds and includes nasal decongestants, antitussives, and antihistamines ingested orally.

(c) "Department" means the Department of Public Health.

(d) "Director" means the Director of the Department of Public Health.

(e) "Marketing for use in children" means cold and cough medications contained in packaging that promotes the use of the product in children and that contains the words "child" or "children" and/or includes a picture of a child on the packaging.

(f) "Person" means an individual, trust, file, joint stock company, corporation, cooperative, partnership, or association.

(Added by Ord. 4-08, File No. 071089, App. 1/14/2008)

SEC. 3603. WARNING REQUIRED AT POINT OF SALE.

All owners, managers, and proprietors in charge of businesses selling, or displaying for the purpose of marketing for use in children, cough or cold medicines, shall post a warning sign in a manner that is prominent and accessible at the point of product selection. Such sign shall be printed on a white background with black text and in a legible manner with a depiction of a baby's face inside a circle with a slash through it next the following: "0-6" Such sign shall be in English, Spanish, and Chinese conveying the following warning:

"WARNING" Based on a Federal Health Advisory Panel's recommendation to the FDA . . . Not recommended for children under 6 years. When misused, these products have caused illness and death in children under 6 years.

The warning must be legible and easily readable by the average person to the naked eye.

(Added by Ord. 4-08, File No. 071089, App. 1/14/2008)

Sec. 3604. IMPLEMENTATION.

The Director, after a public hearing, may adopt and may amend guidelines, rules, regulations, and forms to implement this Ordinance. When businesses post a warning sigh, they do so to comply with City law and are not offering health care advice. Therefore, such businesses are not responsible for the consumers' actions regarding the purchase of cold or cough medicines.

(Added by Ord. 4-08, File No. 071089, App. 1/14/2008)

Sec. 3605. ENFORCEMENT AND PENALTIES.

(a) The Director may enforce the provisions of this Ordinance against violations by serving notice requiring the correction of any violation within a reasonable time specified by the Director. Upon the violator's failure to comply with the notice within the time period specified, the Director may request the City Attorney to maintain an action for injunction to enforce the provisions of this Ordinance and for assessment and recovery of a civil penalty for such violation.

(b) Any person that violates or refuses to comply with the provisions of this Ordinance shall be liable for a civil penalty, not to exceed $500.00 for each day such violation is committed or permitted to continue, which penalty shall be assessed and recovered in a civil action brought in the name of the people of the City and County of San Francisco, by the City Attorney, in any court of competent jurisdiction. Any penalty assessed and recovered in a civil action brought pursuant to this Section shall be paid to the Treasurer of the City and County of San Francisco.

(c) Any person who violates or refuses to comply with the provisions of this Ordinance shall be guilty of an infraction, and shall be deemed guilty of a separate offense for each day such violation or refusal shall continue. Every violation is punishable by (1) a fine not exceeding $100.00 for a first violation; (2) a fine not exceeding $200.00 for a second violation within one year; (3) a fine not exceeding $500.00 for each additional violation within one year.

(d) In undertaking the enforcement of this Ordinance, the City and County of San Francisco is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.

(Added by Ord. 4-08, File No. 071089, App. 1/14/2008)

Sec. 3606. OPERATIVE DATE.

This ordinance shall go into effect February 1, 2008, upon a determination that the FDA has failed to require that labels on cold and cough medicine reflect that the product is dangerous to children under 6 years. In the event that the FDA does require such warnings by February 1, 2008, this ordinance shall be repealed in its entirety. The determination as to whether the FDA has required such warnings shall be made by the Board of Supervisors.

(Added by Ord. 4-08, File No. 071089, App. 1/14/2008)

Sec. 3607. SEVERABILITY.

If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the Ordinance. The Board of Supervisors hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of this Ordinance would be subsequently declared invalid or unconstitutional.

(Added by Ord. 4-08, File No. 071089, App. 1/14/2008)

Sec. 3608. NO CONFLICT WITH FEDERAL OR STATE LAW.

Nothing in this ordinance shall be interpreted or applied so as to create any requirement, power, or duty in conflict with any federal or state law.

(Added by Ord. 4-08, File No. 071089, App. 1/14/2008)

Sec. 3609. UNDERTAKING FOR THE GENERAL WELFARE.

In adopting and implementing this Ordinance, the City and County of San Francisco is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing in its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.

(Added by Ord. 4-08, File No. 071089, App. 1/14/2008)