OK. What does Juul mean by Section 19N.5-6(a) and why did they include it in their initiative?

Juul’s CEO, their campaign to pass their initiative, and now lawyer Kevin Ryan (financial or other connections to Juul unknown) all claim that their initiative will not undo San Francisco’s ban on flavored e-cigarettes or make it harder to enforce San Francisco’s other laws on e-cigarettes.

In particular, Ryan says, “The ballot initiative does not undo the ban on sales of flavored e-cigarettes. Nowhere in the initiative is the flavor ban even referenced, so it is disheartening for its opponents to make this claim. The flavor ban remains intact, and the initiative would add further regulation to how vaping products are sold. Furthermore, there is no legal way to undo the flavor ban. The California Supreme Court ruled in Lopez vs. Sony Electronics Inc. that a new law cannot repeal a prior law unless the two laws are irreconcilable, which they are not.”

Ryan is correct that the flavor ban is not specifically referenced in Juul’s initiative. Rather, it would be overturned by this this obscure section, buried on page 7 of Juul’s initiative:

Section 19N.5-6(a): This article [the initiative] is intended to comprehensively authorize and regulate the retail sale, availability, and marketing of vapor products in the City and County of San Francisco.

The phase “comprehensively authorize and regulate” means that it supersedes all other laws and regulations – including the flavor ban.

That is why former San Francisco City Attorney Louise Rennie wrote in an op-ed in the San Francisco Chronicle a week or so earlier, the flavor ban (and all other San Francisco’s regulations) would be repealed. She said: “First, Juul’s initiative would undo the ban on sales of flavored e-cigarettes under Proposition E, approved by 68% of the city’s voters last year. The Juul initiative would in fact delete all the laws that currently regulate vaping products, including the ban on flavored e-cigarettes. Preemption of local public health laws has been a common tobacco industry tactic for years.”

Rennie’s analysis is consistent with the analysis of three other lawyers that I know of that have looked at the Juul initiative as well as my analysis. (She also highlights other was that Juul’s initiative protects its business at the expense of public health.)

Juul and its agents and allies may claim that this language does not overturn existing law, but what a judge will rely on when Juul goes to court to make sure all the existing laws a blocked if the manage to trick San Francisco voters into passing this initiative is what the initiative actually says (what lawyers call “black letter law” rather than what Juul says it says during their political campaign to pass it.

Because this is such an arcane legal point, I suggest that reporters, editorial boards, and voters ask Juul two questions about Section 19N.5-6:

If it doesn’t mean what former City Attorney Rennie (and others) says it means, what does it mean?
Why did they even bother to include it?

One thing that has impressed me about Juul is how meticulous they are. This language did not get in there by accident.