SAN FRANCISCO — Juul is gearing up for an all-or-nothing fight over the surge of local bans on vaping around the country. And the battle is starting in its headquarters city of San Francisco, which just enacted the nation’s first blanket prohibition on e-cigarette sales.
More than 200 jurisdictions have placed limits on selling flavored tobacco products, including nearly two dozen cities and counties in California. San Francisco’s ordinance, signed last week, goes further by cutting off all sales, including online purchases delivered to city addresses, until the products go through FDA reviews.
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The ban is serving as a test case for a broader national fight over youth smoking and vaping. Prodded by Senate Majority Leader Mitch McConnell — an unlikely foe of anything tobacco — the Senate is weighing raising the tobacco purchasing age to 21 nationwide to discourage teen vaping and nicotine addiction. More than a dozen states, including a few conservative ones, have already raised the age.
Juul is beefing up its lobbying efforts and visibility at the federal level and in states, backing efforts to raise the minimum age to buy e-cigarettes while fighting local laws to curb the marketing of vaping products, including flavored products.
Those enforcement efforts have resulted a patchwork of state and local laws addressing such matters as the public health effects of smoking, underage sales and licensing. Ten states now tax e-cigarettes while 20 require licenses for retail sales, according to the Public Health Law Center. Florida, Minnesota, New Mexico and South Dakota this year imposed indoor vaping bans similar to those in place for traditional tobacco. And lawmakers in South Carolina took steps to restrict minors from entering establishments that sell vaping and tobacco products and to strengthen age verification for internet sales.
The San Francisco fight, however, has a particularly local tang: the country’s dominant e-cigarette maker has its headquarters by the Bay — on city property, no less, and is planning to move to larger quarters.
“It has to be an irritant for the company that plays the leading role in the youth e-cigarette epidemic in the United States to be headquartered in the city that has done more than any other to try to protect its youth,” said Matthew Myers, president of the Campaign for Tobacco-Free Kids.
City leaders, in addition to the sales ban, passed an ordinance that would prohibit the sale, manufacture and distribution of e-cigarettes on city property. Current operations would be grandfathered. But Juul, seemingly unfazed by the prospect of regulation and bent on expanding, defiantly announced its purchase two weeks ago of a 28-story downtown office building.
It’s helping bankroll a proposed ballot initiative that pushes back at the city’s ban by proposing a new system allowing sales of vaping products. With just days to go before the deadline to submit signatures, the measure appears to have more than twice the number needed to appear on the November ballot.
Juul spokesperson Ted Kwong said the company is working on a “comprehensive” application to the FDA that will demonstrate the potential public health effects of its products, including the rate at which adult cigarette smokers switch to Juul products.
The company argues that it’s acting aggressively to curb underage vaping and that a citywide ban would create a “thriving black market” for its products. Juul says the ban also would remove a pathway for regular cigarette smokers to quit by transitioning to electronic products, which contain addictive nicotine but not the most harmful chemicals in tobacco smoke.
The friction between the company and the city dates to 2017, when city supervisors prohibited the sale of flavored tobacco products. The law, among the toughest of its kind in the nation, prompted the industry to fight back with a ballot measure last November supported by companies like R.J. Reynolds, which spent $12 million. In the end, 68 percent of voters opted to keep the candy nicotine liquid pods and menthol cigarettes off the market.
Five months later, the city board came back with its ban on all vaping products, leading industry-backed groups to file a new ballot measure even before the ban was formally passed. Juul has contributed more than $512,000 to the Coalition for Reasonable Vaping Regulation to support the effort.
Coalition spokesperson Nate Allbee said the campaign in the past nine days collected over 20,300 signatures — more than twice the 9,485 signatures needed to make the ballot. The signatures are slated to be submitted Tuesday for certification.
The measure would establish a new set of city regulations requiring electronic ID verification both for online and retail sales, permits to sell vapor products and increased restrictions on marketing and limits on the number of products that can be purchased. While anti-tobacco advocates argue the referendum could overturn the city’s existing flavored tobacco law, Allbee said the regulations would keep the city’s flavored tobacco that ban “firmly in place.”
Allbee said the plan would impose “the strongest regulations on any age-restricted products in America” and make violators subject to the same misdemeanor charges as people who sell tobacco to underage buyers. “What we’re against is a all-out ban that stop adults form having this choice to use this product,” he said.
The ban Juul and the coalition are trying to overturn is intended to stay in effect until the FDA institutes a system for reviewing e-cigarette products, including public health considerations. But when that would happen remains up in the air. A federal court in Maryland ruled in May that the FDA had exceeded its authority by allowing e-cigarettes to remain on the market until 2022 before requiring companies to apply for regulatory approval. A new deadline has not been set.
Stanton Glantz, director of UC San Francisco’s Center for Tobacco Control Research and Education and a strong anti-tobacco advocate, called the city ban “a totally brilliant way of a local government basically saying to the FDA and to Juul and the other e-cigarette companies that hey, we’ve got a law here and it should be followed.”
But the ban has also prompted concerns about regulatory overreach driven by overcooked public health concerns that could wind up cutting off access to an effective cessation tool for adult smokers. Though some studies have found the devices are more effective than nicotine replacement products like patches, bodies such as the U.S. Preventive Services Task Force have concluded there isn’t enough evidence to recommend electronic delivery systems for cessation.
Other localities are weighing in with their own restrictions, concerned that federal efforts such as an FDA proposal to limit the sales of some flavored vaping products won’t come soon enough or be sufficiently far reaching. Surveys show vaping among high school seniors nearly doubled from 2017 to 2018, to 21 percent.
The day before San Francisco supervisors unanimously approved their e-cigarette sales ban last week, city council members in Livermore, 44 miles away, cast initial votes for their own prohibition. Beverly Hills in June passed a ban on all tobacco sales, with some exceptions, effective in 2021.
Many public health experts back efforts like San Francisco’s, believing the biggest threat is young vapers going on to use tobacco. They say removing the products is the best way to reduce the chances of creating lifelong smokers.
“San Francisco oftentimes is at the forefront of these kinds of efforts — whether it be taxing soda or eliminating candy-flavored tobacco products,” said Larry Tramutola, a political strategist who ran last year’s winning campaign to reaffirm the flavored tobacco ban.
Whether voters agree is another question.
Last November’s referendum boiled down to industry-supported arguments for personal freedom versus health groups’ messaging about protecting kids. Tramutola says that this time, Juul won’t be able to separate itself from “Big Tobacco” after industry giant Altria invested $12.8 billion, a 35 percent stake in the company.
“They are hunkering down for battles both here in San Francisco and around the country and perhaps in other places around the world because of a bigger problem, which is how these products are marketed and used by kids,” he said. “This is going to be a battle that’s going to go on a while. We’re seeing the first skirmishes.”