August 21, 2019

Stanton A. Glantz, PhD

Legal consensus that Juul initiative would overturn SF flavor ban continues to grow

I asked Mark Pertschuk, the lawyer who runs Grassroots Change’s Preemption Watch, whether he thought the language in Juul’s initiative would overturn San Francisco’s ban on the sale of flavored e-cigarettes (as well as other existing laws related to e-cigs).  Here is what he wrote me:


August 20, 2019


Stanton A. Glantz, PhD

Professor of Medicine

Truth Initiative Distinguished Professor of Tobacco Control

Director, Center for Tobacco Control Research and Education

University of California San Francisco


Dear Dr. Glantz:

Thank you for the opportunity to review and comment on the impact of San Francisco’s Juul initiative, and specifically Section 19N.5-6(a), on the ongoing marketing of e-cigarettes to children and young people.

The Juul initiative mirrors the tobacco industry’s favorite tool for undermining and invalidating effective public health policies: Preemption.[1] As a practical matter, were the Juul initiative to pass it would supersede and invalidate San Francisco’s ban on the sale of flavored e-cigarettes, including Juuls. That ban was overwhelmingly adopted by 68% of San Francisco voters in a transparent democratic process in 2018.

A well-drafted public health law should contain a clear and transparent statement of whether or not it is intended to overturn other laws addressing the same topic. If those who draft a law don’t intend to undermine existing laws, they must include unambiguous language stating that intent (a “savings clause”).

The drafters of the Juul initiate apparently intentionally omitted such clear and transparent language about their intent regarding flavored vaping products. However, they did include textbook implied preemption language under Section 19N.5-6(a) in order to “occupy the field” of e-cigarette regulation. Specifically, The plain language of Section 19N.5-6(a), below, would establish Juul’s initiative as the sole local public health law in San Francisco protecting children and others from e-cigarette marketing, design, and sales:

Section 19N.5-6(a): 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. [Emphasis added]

By definition, a law that “comprehensively” regulates a product occupies that field, in this case the regulation of e-cigarettes in San Francisco.[2] That means that other laws addressing the same topic (regulating the sale of e-cigarettes, including San Francisco’s flavorings ban as it applies to vaping products) would effectively be preempted by the new initiative. It is unlikely, and would be unusual, for a court to look beyond Juul’s clear language in Section 19N.5-6(a). None of the tobacco industry’s advertisements, memos, press releases or other promises that the Juul initiative will not invalidate the flavorings ban carry no legal weight and cannot change the plain meaning of the initiative language itself.

The tobacco industry, and industry groups like ALEC, frequently use terms such “comprehensive” and “statewide concern” in bills and model laws intended to undermine local public health protections. One example of the type of preemption language employed by Juul is from a 2016 Kansas law preempting all local authority over nutrition, food policy and industrial farming:

"[R]ules and regulations adopted under this section constitute a comprehensive plan with respect to all aspects of the regulation of the provision of food nutrition information and consumer incentive items at food service operations in this state." [Emphasis added]

It is essential that the public and media understand the likelihood that, if adopted, this initiative would undermine the ban on flavored e-cigarettes, an essential measure for protecting young people and the public health in general, which was approved by the voters themselves in 2018.


Mark Pertschuk, JD


Preemption Watch, a project of Grassroots Change


[1] Pomeranz JL, Zellers L, Bare M, Sullivan PA, Pertschuk M. State Preemption: Threat to Democracy, Essential Regulation, and Public Health. American Journal of Public Health. 2019 Feb: 251-252. 

[2] Institute of Medicine.  For the Public’s Health: Revitalizing Law and Policy to Meet New Challenges. Washington, DC: The National Academies Press, 2011.


A PDF of the letter is here.

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