May 16, 2019

Stanton A. Glantz, PhD

Juul is trying to trick San Francisco voters into repealing laws they passed to protect San Franciscans from Juul

Taking another page from its senior partner Philip Morris’ playbook, Juul just filed the paperwork to start collecting signatures for an initiative that, according to Juul, “imposes additional regulations and restrictions on the access, sale, and marketing of vapor products.”  In fact, a careful reading of their proposal shows that it rolls back the City’s ban on the sale of flavored e-cigarettes (together with other flavored tobacco products), undermines enforcement of current law prohibiting the sale of e-cigarettes to people under 21, and guarantees that Juul will remain welcome in the City.

This is just like Philip Morris’ attempt to trick California voters into overriding the state clean indoor air law in 1994 by promoting a state initiative that nominally restricted smoking but really guaranteed smoking areas. 

Juul’s initiative is framed around preventing sales of e-cigarettes to people under 21, and, no doubt, that is how they will promote it.  The reality is, however, that it is already illegal to sell e-cigarettes to people under 21 under both existing San Francisco and California law.  So, Juul’s initiative is, on its face, unnecessary.

In fact, the key provision Juul wants is in Section 19N.5-6(a), which is buried on page 7 of the initiative.  It says, “This article is intended to comprehensively authorize and regulate the retail sale, availability, and marketing of vapor products in the City and County of San Francisco.”  Put into plain language, Juul’s law would preempt and overrule existing laws, including the City’s ban on flavored tobacco products, including e-cigarettes, as well as the City’s Tobacco 21 law.  It would also overrule pending legislation that would prohibit the sale of e-cigarettes in San Francisco until the FDA issues an order authorizing their sale.

That’s their objective.

And there are other protections for Juul buried in the text.  Like all the nominal Tobacco 21 laws Juul and Philip Morris are pushing around the country, the Juul initiative only allows enforcement action against a seller if they “knowingly” sell an e-cigarette to someone under 21 (Section 19N.5-1(a)-(d)).  Since it is practically impossible to prove what a seller did or did not “know,” this provision makes the law unenforceable. 

Good enforceable legislation simply prohibits sale regardless of what the seller “knows.”

The nominal restrictions on marketing (Section 19N.5-2) contain the same loophole.

The initiative also authorizes online sales if “the purchaser uploads a copy of his or her government photo identification,” something that would allow Juul to add people to its database and follow them for life, something that raises serious privacy issues.  This information could be combined with Juul’s use of an app to track puffing behavior of individual users that Juul could use to “tune” the  device works to maximize addiction and pod sales.

Juul also protects itself from San Francisco political leaders who have said that they think Juul doesn’t belong in San Francisco.  Section 19N.5(c) says, “Neither this section nor Article 19K nor any other provision of law apply to prohibit the sale, manufacture, wholesale, or online retail sale of vapor products.”  This provision would block the attempts by the city to remove Juul's headquarters from the city-owned buildings.  It would also preclude the possibility of a future ordinance prohibiting the sale of e-cigarettes, as is being considered in Beverly Hills (as part of ending the sale of all tobacco products). 

Finally, Section 16 says that if there is a competing initiative (presumably from health groups) on the same ballot all of Juul’s initiative takes priority and that if the other initiative prevails the non-conflicting parts of Juul’s initiative still go into effect. 

Voters saw through Philip Morris’ scam in 1994 and, given the fact that the voters clobbered RJ Reynolds’ $12 million attempt to block the flavor ban last year, I am confident that voters will see through this latest scam from Juul.  Unfortunately, it will force the health groups to run an expensive campaign to educate the public about Juul’s latest scam.

Of course, the fact that Juul is going to spend millions of dollars trying to block San Francisco’s efforts shows that the City is on the right track.

 

Other fine print that will protect Juul’s ability to chase kids and keep adults addicted and buying more pods:

Section 19N.2(b): Creating a new definition for "vapor product" is bad. Under existing law, Juuls and other e-cigarettes are defined as “e-cigarettes,” and several city laws that prohibit smoking in workplaces, bars, playgrounds, hotels, cars, and other places that apply to “e-cigarettes” may not apply to “vapor products” if the term is changed. Also, the definition of “vapor product” applies to devices, components, and/or parts “that deliver aerosolized nicotine-containing e-liquids.”  It is unclear whether Juul’s definition would apply to Juul devices that are sold separately from Juul pods.  This means that it could be possible for online dealers to sell devices to kids if they are packaged separately from the nicotine-containing pods.

Section 19N.2.(d):  The definition of "online retailer" only includes entities that sell to addresses within the City.   This means that if Juul sets up shop in the city to sell Juuls online to consumers nationally, they don't have to follow any of the other rules listed in the ordinance (sales to under 21, limits on numbers of devices, permits, age verification, etc.)  The minimum of 100 vapor products is not well-defined, which means it will be unenforceable.  Is it per day? Per year? Per hour? 

Section 19N.3.(b): This requirement for an online retailer having a permit may be limited to sales to people in the City.  In addition, if the City does not approve or deny a permit within 90 days, it is automatically issued.

Section 19N.5-1(f)(2):  Limiting sales to "60 ml of nicotine-containing liquid" will have no practical effect.  Juul could also get around this limitation by increasing the voltage in the device which will deliver more nicotine (and toxins) by running the Juul hotter. 

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