June 8, 2019

Stanton A. Glantz, PhD

SF Board of Supervisors advances two bills to reign in ecigs

On June 7, the Public Safety and Neighborhood Services Committee voted 3-0 to endorse two bills on e-cigs to the full Board, which will consider them on June 18.  One states that the City will no longer allow the sale, distribution, or manufacturing of any tobacco product, including e-cigarettes, on city property.  (Juul’s main office is on rented city property, but would not be affected until its current lease runs out.)  The other, more important, one makes it illegal to see e-cigarettes in San Francisco until they have a marketing order from the FDA.

Neither Juul nor any other e-cigarette company has even applied for such an order even though they could have done so for the last three years, since the FDA issued its “deeming rule” in August 2016.

Under the original rule, e-cig companies would have 2 years (until 2018) to submit their applications; the products could stay on the market for up to another year while the FDA considered their applications.

Scott Gottlieb, Trump’s FDA director extended the deadline to 2022 (although FDA is thinking about moving it back to 2021) and allowing products to remain on the market indefinitely if FDA did not act on their applications.  The health groups, lea by the American Academy of Pediatrics and Tobacco Free Kids won in court a few weeks ago when a federal judge told the FDA this delay was unacceptable and ordered FDA to come up with a speedier plan.)  I haven’t seen FDA’s response yet.

But, the fact is had Juul (and the other e-cig companies) submitted applications back in 2016 – and there was nothing keeping them from doing so – the SF ordinance wouldn’t have affected their sales at all.  All they would need to do is convince the FDA that e-cigs were “appropriate for the public health.”

While lots of people showed up for the hearing on both sides, including several of us from UCSF and a large contingent from the American Heart Association, Juul was nowhere to be seen (although a few employees did testify as individuals). 

They are lurking behind the scenes and someone (Juul's "coalition" no doubt) sent around a slick mailer opposing the law.  It sure would have been nice for them to have shown up so that supervisors on the committee could have asked them questions.

But, like their colleagues at Phillip Morris and the other tobacco companies, the are limiting their participation to situations where they have more control.  For example, the day before the hearing Juul CEO Kevin Burns did meet with the San Francisco Chronicle editorial board to express concern about vaping among young people. “It’s not something we want from a moral basis.”  He is, of course, happy to take their money.

The Chronicle also reported that he told the editorial board that the initiative it is circulating would not “negate tobacco laws the city has already enacted, such as a ban on flavored tobacco that voters passed last year.”  This argument differs from my reading of the initiative, as well as the readings by every lawyer I have talked to about it.  While it would not entirely repeal Proposition E, the ban on flavored tobacco products that SF voters upheld with a 68% “yes” vote in the face of a $12 million industry campaign against it, the Juul initiative would repeal the flavor ban on e-cigarettes.

In other words, Juul would allow the city to ban flavored little cigars and similar products while allowing it to see flavored e-cigs.  Pretty sneaky.  Protect your product while banning the competition.

The initiative would also block any new e-cig regulations by the Board of Supervisors and undermine other existing City laws.

He also argued to the Chronicle that Juul was responding to the youth vaping epidemic by setting up systems that would limit each customer to two vaping devices and five packs of pods (up to 20 pods total) in a single transaction.

Twenty pods is equivalent to 20-30 packs of cigarettes.

Here is some of the press coverage of the hearing: SF Chronicle, ABC7, KTVU2.

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