San Francisco Passes Ban on E-Cigarettes
The ordinance, which could take effect in 2020, will bar tobacco shops from selling any e-cigarette product that has not gone through the FDA premarket approval process. No e-cigarette or vaping product has gone through that process.
June 26, 2019 at 05:54 PM
3 minute read
San Francisco's board of supervisors voted Tuesday to ban the sale of e-cigarettes, and companies operating in that space have both political and legal courses they can take to reverse the ban, according to experts in the field.
San Francisco Mayor London Breed has 10 days to sign the ordinance. The ordinance, which could take effect as soon as the beginning of 2020, will bar tobacco shops from selling any e-cigarette product that has not gone through the Food and Drug Administration premarket approval process. No e-cigarette or vaping product has gone through that process. The ordinance will also ban those products from being shipped into the city.
A representative from Juul, which is headquartered in San Francisco, said the move will cause former adult smokers to go back to cigarettes. The representative said Juul is looking to help enact strict e-cigarette regulation that would still allow adults to purchase e-cigarettes.
“We will continue to work with local policymakers, small businesses, community leaders and adult smokers who have switched to vapor products to enact stronger regulation and enforcement rather than complete prohibition, because this will primarily drive adult smokers back to cigarettes, which remain untouched by this legislation, even though they kill 40,000 Californians every year,” the representative said.
Since the ordinance has not taken effect yet, Agustin Rodriguez, counsel at Troutman Sanders in Richmond, Virginia, said there are a couple of different paths e-cigarette companies could go down to turn around the ordinance.
“In addition to pursuing political routes, which I understand Juul to be doing, the industry is going to want to consider its options, which will include arguments involving federal preemption, First Amendment protections and constitutional takings claims,” Rodriguez said.
Rodriguez, who previously worked as associate general counsel at Altria, said a legal challenge to the ordinance is likely and he is not sure how courts would rule.
“I think there is incredible uncertainty as to whether a court would uphold this type of ban if challenged,” Rodriguez said.
Legal action appears likely, Azim Chowdhury, a partner at Keller and Heckman in Washington, D.C., said.
“On behalf of the industry, we are exploring legal options should this [ordinance] go into effect,” Chowdhury said.
If the mayor signs the legislation and the ordinance is not stricken down by the courts, Chowdhury said he would suspect other municipalities in California and across the country to follow suit.
“It seems like these things tend to build off of each other,” Chowdhury said. “Other cities might come through and emulate the approach. We've seen that with flavor bans.”
He said other jurisdictions around the country have proposed those at a minimum.
“I know San Francisco has put it out there that other jurisdictions should follow their lead,” Chowdhury said.
Matthew L. Myers, president of Campaign For Tobacco-Free Kids, said in a statement that this action is the result of the FDA's failure to review these kinds of products.
“San Francisco's action is a reflection of its frustration with the FDA's failure to act and review e-cigarettes as required by federal law,” Myers said. “It sends a message that if the FDA doesn't do its job to protect kids and public health, we can see more local jurisdictions filling the void one way or the other.”
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