June 26, 2019

San Francisco's Board of Supervisors on Tuesday unanimously voted to approve an ordinance that would ban e-cigarette sales and distribution in the city, KQED reports.

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San Francisco Mayor London Breed (D), who has indicated her support for the measure, now has 10 days to sign the ordinance into law. The ordinance would take effect 30 days after it is signed into law, meaning San Francisco is set to become the first city in the United States to effectively ban the distribution and sale of e-cigarettes.

Background

E-cigarettes have been sold in the United States for at least a decade and have become popular among both adults looking to quit smoking and teens who have not previously smoked. But despite the surging popularity of e-cigarettes, public health experts say little is known about the health effects of long-term use, particularly among nonsmokers.

The National Academies of Sciences, Engineering, and Medicine (NASEM) in a January report found that e-cigarettes contain numerous potentially toxic chemicals, but that they contain fewer toxic chemicals than conventional cigarettes, and those chemicals are present in lower levels. Still, the researchers noted the long-term health benefit of e-cigarettes "is substantially less and is even negative under some scenarios." They continued, "If the products do not increase combustible tobacco cessation in adults, then with the range of assumptions the committee used, the model projects that there would be net public health harm in the short and long term."

FDA and public health officials in recent months have intensified their focus on combatting e-cigarette use, particularly among youth, as the number of high school and middle school students who reported using e-cigarettes has surged in recent years.

Currently, none of the e-cigarette products available in the United States have been approved by FDA, but FDA has imposed retroactive premarket reviews on the products that require e-cigarette manufacturers to receive FDA approval of products that entered the market after Feb. 15, 2007, to continue selling them. The regulation affects all e-cigarette products currently on the market, and FDA earlier this month finalized guidance detailing the requirements e-cigarette manufacturers will have to meet when they submit their products for premarket review. FDA under former Commissioner Scott Gottlieb said it would not require e-cigarette manufacturers to submit their products for review until 2021, and FDA did not require e-cigarette manufacturers to pull their products from the market in the meantime.

San Francisco to effectively ban e-cigarette sales, manufacturing

The San Francisco ordinance would prohibit within the city's limits sales and distribution of e-cigarettes that have not been approved by FDA, meaning the city would effectively ban the sales and distribution of all e-cigarette products currently available in the United States.

San Francisco Supervisor Shamann Walton, who co-wrote the ordinance with City Attorney Dennis Herrera, said the ordinance would temporarily ban e-cigarette sales until FDA completes clinical trials and issues standards on e-cigarettes. "As of now, the FDA has not made a ruling on the safety and all health issues associated with e-cigarettes," Walton said.

According to the Associated Press, the ordinances states that it aims to address the "significant public health consequence" e-cigarette use has on minors, and it would build on a 2014 measure that prohibits the sales of e-cigarettes in places in San Francisco where the sales of traditional tobacco products already have been banned.

Under the ordinance, merchants would have six months to deplete their current stocks of e-cigarettes, the New York Times reports. The ordinance would not have an effect on the sales of conventional cigarettes or cannabis joints, according to the Times.

Walton said the San Francisco Board of Supervisors also voted unanimously to approve an accompanying measure that would prohibit e-cigarette manufacturing, sales, and distribution on city-owned property. The measure is intended to prevent e-cigarette manufacturers from leasing property from the city in the future, according to KQED. E-cigarette manufacturer Juul Labs, which has its headquarters in San Francisco, currently leases a space on the city's Pier 70, but Juul spokesperson Ted Kwong said the company does not "manufacture, distribute, or sell [its] product[s] from [the] space."

Reaction

Various stakeholders, as well as the American Heart Association and other health organizations, praised the ordinance's passage.

Herrera said, "This is a decisive step to help prevent another generation of San Francisco children from becoming addicted to nicotine." Herrera also criticized FDA for being slow to regulate e-cigarettes. "It's incumbent on local and state authorities to step in and make sure their young people are protected in light of the fact that the FDA has totally abdicated its responsibility and let this product come to market without doing the premarket review that they were mandated to do," Herrera said.

According to the Times, FDA did not respond to a request for comment.

San Francisco Board of Supervisors Chair Norman Yee said San Francisco officials will resume policy discussions on e-cigarettes once FDA completes a full review of the products' effects. "Big tobacco has shown us their eagerness to prey on youth in order to grow their next generation of nicotine user. The full health impacts of these so-called 'safer alternatives' to traditional cigarettes is unknown—that's a fact," Yee said.

Juul Labs said the company agrees with the city's goal of preventing youth from accessing e-cigarettes, adding that it has taken steps to prevent youth from purchasing the products. However, Kwong said, "This full prohibition will drive former adult smokers who successfully switched to vapor products back to deadly cigarettes, deny the opportunity to switch for current adult smokers, and create a thriving black market instead of addressing the actual causes of underage access and use."

Steven Schroeder, a professor of health at the University of California-San Francisco, raised similar concerns, saying the ordinance could negatively affect conventional smokers who typically have lower incomes by restricting their access to a less-harmful alternative to conventional cigarettes.

Juul is gathering signatures from San Francisco residents for a November ballot initiative to repeal the ban before it takes effect, KQED reports (Fuller, New York Times, 6/25; Rummler, Axios, 6/25; Klivans, "Shots," KQED/NPR, 6/25; Madani, AP/NBC News, 6/25).

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