What Juul would do if they really wanted to protect San Francisco’s ban on flavored e-cigs

After being grilled by Congressman Elijah Cummings (5 min, worth watching) on why they were promoting an initiative to overturn e-cigarette regulation in San Francisco, including the flavor ban upheld by 68% of SF voters, Juul is intensifying its PR campaign to promote the myth that its initiative would leave the flavor ban intact.  On Friday July 26, the day after the hearing, a lawyer for Juul’s campaign wrote the City Attorney and put out a press release (reproduced below) claiming that the Jull initiative did not override the flavor ban for e-cigarettes.

In particular, the Juul initiative lawyer asserted that “any legal analysis of the Initiative must conclude that it does not repeal the ban.”  As I have pointed out before, every lawyer I have consulted who knows about such things has said just the opposite: The technical phase “comprehensively authorize and regulate” buried in Section 19N.5-6(a) means that it supersedes all other laws and regulations – including the flavor ban.

Former City Attorney Louise Rennie summed Juul’s claim succinctly:  “This [claim Juul’s campaign is making] is sheer hogwash. It doesn’t matter what they now say they intended, but what they actually wrote in the initiative. They are just sorry that they have been caught!”

The key question that the public, the media, and policymakers should be asking Juul is why, specifically, they used the broad preemption language in Section 19N.5-6(a) rather than simply and specifically overturning the new law SF passed that said Juul and other e-cig companies have to comply with federal law and win FDA authorization before they can sell their products in San Francisco. 

Juul has access to skillful lawyers.  Why didn’t they tell the lawyers to craft the initiative to do what they now claim they wanted to accomplish?  Based on the tobacco industry’s long history of trying to sneak preemption past policymakers and voters, I think they knew exactly what they were doing.

Working to get a law passed making one set of claims, then suing making another is also nothing new for tobacco companies.  Back in the 1990s tobacco companies lobbied boards of health to exempt hospitality venues from smoking restrictions, then successfully sued the boards to nullify the regulations on the grounds of those same exemptions.

The reality is that when Juul or some other e-cigarette company sues San Francisco if it tries to continue to enforce the flavor ban (Proposition E), the judge will rule on what the initiative says, not what Juul’s PR people and lawyers said it says to get their initiative passed.

Juul’s claim that they want to “supplement and not repeal” existing regulations also rings hollow because they weaken existing enforcement of the Tobacco 21 law by requiring that sales be made “knowingly” to youth.  (Rep Cummings also nailed Juul on this.)

If Juul is serious about the claim “that [the Juul initiative] was intended to supplement, and not repeal, pre-existing regulations,” they whould withdraw the initiative on the groups that the drafting was so sloppy that the initiative will not accomplish their actual intent.  (Of course, I think their problem now is that people, epitomized by Rep Cummings and former City Attorney Louise Rennie, have figured out that the initiative was carefully drafted by experienced lawyers to give Juul exactly what it wanted: an environment in which there was no meaningful regulation of their ability to sell their ecigs to kids.) 

Juul would also immediately disband their campaign, and put the millions they are spending trying to roll back sensible regulation of e-cigarette flavors and sales and put toward getting their application into the FDA. 

I'm not holding my breath.

Here is the Juul initiative campaign’s press release.  (Note: There are some formatting inconsistencies with the actual release that I could not make go away when I pasted it into this blog post.)

Media Contact:
[email protected] 

Ballot Initiative Attorneys Confirm SF Flavor Ban Will Remain Intact

Coalition submits letter to the city attorney’s office clarifying intent to leave flavor ban in place, add stringent regulations to prevent youth access to vaping products

San Francisco, CA— Lawyers for the Coalition for Reasonable Vaping Regulation submitted a letter to the Office of the City Attorney today, making clear the City’s ban on flavored vaping products would not in any way be rolled back or affected by the ballot initiative.  The letter to the attorneys clearly stipulates the intent of the ballot initiative and what regulations would be implemented if the measure passes this November.  The Coalition submitted this letter as an additional measure to dispel any confusion or claims that the flavor ban would be repealed if the measure passes.

In the letter, attorney Jim Sutton requests that the deputy city attorneys responsible for drafting the ballot measure language not include anything about the flavor ban. The letter explains:

“Opponents of the Initiative have recently advanced a claim in the press that the Initiative would repeal the ban on flavored tobacco products which was adopted by the voters in 2018 and which was then extended by the Board of Supervisors earlier this year (collectively referred to herein as the “flavor ban”). That is false. The Initiative does not intend to repeal the flavor ban, and any legal analysis of the Initiative must conclude that it does not repeal the ban…

…. The entire text, structure and context of the Initiative makes clear that it was meant to build on and supplement, and not supersede, the regulations of vapor products which were already in place, and also to apply certain regulations applicable to tobacco products also to vapor products.

…. In addition, the Initiative imposes a number of new regulations that were not already applicable to traditional tobacco products, including online seller permits, additional advertising regulations, etc.

 Again, the text and context of the Initiative make clear that it was intended to supplement, and not repeal, pre-existing regulations.

What the Initiative was meant to supersede -- what is irreconcilable with the initiative -- is the complete prohibition on the sale of vapor products adopted by the Board of Supervisors in June, found in Health Code Sections 19R.2 and 19S.2(b).

…. It seems that opponents of the Initiative may shape their campaign around the claim that the flavor ban would be repealed, perhaps because the claim polls well. But such a claim is not

consistent with the law, and, as this letter confirms, is not consisten with the proponent’s

intention. We therefore urge your office to reject any suggestion that this claim be included in the draft Digest."

“It is imperative for the people of San Francisco to have transparency at the voting booth so that they can make educated decisions,” said Jim Sutton, attorney for the Coalition for Reasonable Vaping Regulation. “We felt it necessary to take this extra step to reassure the City and its residents that despite what has been said in the public arena, there is no intent whatsoever to change or undo the flavor ban. This ballot initiative contains a series of stringent regulations that, if passed, will be additional means by which we can successfully address the youth vaping crisis.  Our intent is clear: we want to build upon existing law and put in place proven regulations to tackle this problem head on.”

The ban on flavored tobacco products, which includes flavored cigarettes as well as vaping products, was enacted in 2018 and extended to on-line sales in 2019.  The Coalition ballot initiative cannot undo existing law unless it explicitly intends to do so. The ballot initiative does not reference the flavor ban at all, and the letter from Sutton explains that is because there will be no effect on that existing law if the measure passes in November.

“False claims made by opponents to the initiative must be put to rest, once and for all,” said Nate Allbee, Coalition communications director. “The Coalition is working in good faith to bring the strongest regulation of vaping products in the country to San Francisco. This ballot initiative will set a new standard for the nation on how to keep vaping products out of the hands of kids. Talk of the flavor ban being undone has been a distraction from day one.  Today, with this letter, we can get back to the facts of youth prevention, harm reduction and public health so that voters can decide.”

The Coalition has requested this letter be included in the formal public file for of the upcoming Ballot Simplification Committee hearing. 

 A copy of the letter can be found on the Coalition website: www.regulatenotban.com

 ---

Media interested in speaking with Coalition leadership and counsel, please contact: [email protected]

 

The Coalition for Reasonable Vaping Regulation is an alliance of San Francisco residents, businesses, and community leaders who believe in common sense regulation preventing youth access and preserving adult choice. The coalition was created in response to a proposed ban by the City of San Francisco on the sale of vapor products. This ban would be harmful not only to adult choice, but also to the city’s economy. The coalition provides a platform for concerned residents, business owners and community organizations so that we can take strong actions to further fight underage use while still preserving access to products that can help adult smokers switch from cigarettes.

Ad paid for by Coalition for Reasonable Vaping Regulation, including neighborhood grocers and small businesses.  Committee major funding from Juul Labs.  Financial disclosures are available at sfethics.org.