What the Measure Would Do

Prop. C would overturn a recent ordinance that effectively banned the sale of electronic cigarettes in San Francisco. In its place, the measure would establish a set of regulations for the sale of these products in the city. Electronic cigarettes (also known as e-cigarettes or vapor products) are defined as electronic devices, components and replacement parts that deliver nicotine in aerosol form.

The measure would:

• Prohibit the sale of vapor products to anyone under 21 years of age, including online sales.
• Specify the conditions under which vapor products may be sold. Retailers would be required to place vapor products behind the counter or in a lockbox, check and scan a government-issued photo ID and limit transactions to no more than two devices or five packages of vapor liquid.
• Prohibit the marketing of vapor products to minors. (For the purposes of the measure, marketing to minors means designing advertisements, packaging or labels to appeal to minors or using an advertising medium that is known to be seen primarily by minors.)
• Require that all vapor product retailers provide a twice-yearly training on these regulations to their employees.

Online retailers would need to:

• Obtain a valid permit from the Department of Public Health to sell vapor products that are delivered to a San Francisco address.
• Limit sales to no more than two devices or 60 milliliters of vapor liquid per month for each customer.
• Require purchasers to create online profiles that include personal information and date of birth and to upload a copy of their photo ID.
• Engage a third party to verify profiles and photo IDs for accuracy before selling to customers.

Many of these regulations already exist for tobacco products, but the rules around quantities sold, employee training and use of scanning technology to check IDs would be new.

Finally, the measure would require the Department of Public Health to create an outreach and education program informing parents and youth about the effects of nicotine, to produce an informational website and flyer to be disseminated to the public and to monitor the effectiveness of those programs.

The Backstory

City and state laws currently regulate the sale and use of tobacco products in San Francisco, including electronic cigarettes, in several ways.¹ California prohibits the sale of tobacco products to anyone under the age of 21, requires that retailers check photo IDs of purchasers, requires that online retailers obtain and verify photo IDs and requires that tobacco products be stored behind the counter or in lockboxes. In addition to these state rules, San Francisco requires brick and mortar retailers to obtain sales permits and prohibits the sale of e-cigarettes anywhere tobacco products are already prohibited (like pharmacies). With the passage of Prop. E in 2018, San Francisco now also bans the sale of flavored tobacco products to people of any age.

Here’s where it gets complicated — and why this is on the ballot now: All new tobacco products (defined as entering the market after February 2007), including e-cigarettes, became subject to premarket health review by the Food and Drug Administration (FDA) in 2016 as an update to the Tobacco Control Act.² Manufacturers initially had two years to submit their application for review, but in 2017, the FDA under the Trump administration extended the window until 2022. A recent court ruling reversed that extension and ordered all e-cigarette manufacturers to submit applications for federal approval by May 2020 and called for the FDA to review those applications within one year.³ In response, the Vapor Technology Association sued to delay the review process and return to the deadline set by the Trump administration.

In June, as a means of locally enforcing the federal regulation, the San Francisco Board of Supervisors unanimously passed an ordinance prohibiting the sale of e-cigarettes that have not undergone premarket review by the FDA. Because no e-cigarettes have been approved yet, the legislation effectively banned the sale of all e-cigarettes in San Francisco. The ban will be fully implemented by February 2020 and in place until premarket review is completed. Because ongoing litigation could shift the timeline for premarket review of these products, the length of San Francisco’s ban remains uncertain.  

The regulatory back-and-forth comes amid growing debate over the health effects of e-cigarettes. Supporters of San Francisco’s ban point to public health concerns over liquid nicotine and vaping and to an “epidemic” of youth e-cigarette use and marketing of these products specifically to youth. The Centers for Disease Control reported that one in 20 high schoolers used e-cigarettes in 2018, a 78% increase over the previous year. Companies like Juul, a well-known e-cigarette brand based in San Francisco, argue that these products are less harmful than traditional cigarettes and are critical in helping smokers quit.⁴

In response to the ban, the Coalition for Reasonable Vaping (a group of retailers, vapor product users and others) began collecting signatures in the spring to place this measure on the ballot. Juul has contributed $4.3 million to the campaign.⁵

Overturning the Flavored Tobacco Ban

Language in Prop. C states the intent that this measure would “comprehensively authorize and regulate” the retail sale, availability and marketing of e-cigarettes. Opponents of the measure interpret this to mean that Prop. C would overturn any current regulation in conflict with it, which would include both the recent ban on e-cigarettes and the section of the 2018 flavored tobacco ban that applies to flavored e-cigarettes. Proponents argue that a repeal of any part of the flavored tobacco ban was never their intent. The city attorney has not weighed in conclusively but did suggest language for the ballot summary stating that the measure “may repeal other City laws that apply to electronic cigarettes, including the City law that prohibits the sale of flavored electronic cigarettes.” As of September, proponents have filed a legal challenge to the ballot simplification text, which calls out this possible repeal of San Francisco’s flavored tobacco ban.

Pros

• The measure would put in place regulations that could decrease youth access to e-cigarettes, while still allowing adults older than 21 to purchase and use these products.
• Small businesses face significant revenue loss because of the e-cigarette ban. This measure would restore that lost revenue and keep a number of these stores, many of them minority-owned, in business.
• The measure would create market fairness by regulating cigarettes and e-cigarettes in the same way.

Cons

• Many of the rules set out in this measure already exist for tobacco products sold in San Francisco. Contrary to its stated intent, Prop. C introduces few additional safeguards to protect youth from e-cigarettes.
• If passed, the measure would allow e-cigarette manufacturers to sell a product that has not completed federally required premarket review.
• This measure would preempt the Board of Supervisors and city departments in regulating e-cigarette products, and any future amendments to the regulations would need to come back to the voters.
• As it is currently written, the measure could overturn the city’s flavored tobacco ban for e-cigarettes, against the intent of the Board of Supervisors and San Francisco voters.
• This measure was written by the industry the regulations would affect. While it’s important that businesses be involved in setting the rules of the game, they should not write them singlehandedly. This was a missed opportunity to collaborate with the city on legislation instead of working independently to overturn a recent decision.