A Move Towards E-Cig Prohibition In California

The First Step to E-Cig Prohibition

A group of six California state senators are moving to place severe restrictions on electronic nicotine delivery systems (ENDS) and e-juices of all flavors. A pair of proposed bills, SB-38 and SB 39 are grim news for anyone who vapes, works in the vaping industry or has relatives or friends who vape in the golden state. As written, they would annihilate the vaping industry in California. SB-38 would shutter every vape shop, prevent retail outlets from selling e-cigs. SB-39 would hit e-commerce sellers with strict signature verification procedures. The word "prohibition" may sound like hyperbole, but sadly it isn’t. The first state to legalize medical marijuana, way back in 1996, may soon be enforcing strict laws would punitively restrict and in many cases even cutoff adult access to electronic cigarettes. Assessing the effectiveness of the new FDA regulations on e-cigs, announced barely two weeks ago, was clearly not a priority when these twin bills were drafted. There are political points to be scored and a group of legislators decided to strike while the iron is hot. Vaping in public has long been treated like smoking in the golden state. The products themselves are treated like tobacco. SB-38 takes it a step further, making  it harder to obtain e-cigs than it is to buy a pack of Marlboro Reds, although flavored cigarettes and cigars are also prominently targeted. If you currently order your vaping products online, get ready to wait for the mailman. Because signature verification by a party over the age of 21 would be made mandatory by SB-39 and packaging would have to be conspicuously labeled with the words: “CONTAINS TOBACCO PRODUCTS: SIGNATURE OF PERSON 21 YEARS OF AGE OR OLDER REQUIRED FOR DELIVERY.” The restrictions outlined in SB-39 may create an insurmountable obstacle for rural e-cig users, especially because most e-cig companies have adopted strict age verification procedures.

The Gang of Six

As reported by the San Francisco Chronicle, the individuals who signed their names to this proposed legislation are Senators Jerry Hill, Steve Glazer, Anthony J. Portantino, Connie M. Leyva and Scott Wiener. Both bills, to be introduced this week, target ALL flavored nicotine products. Nicotine free e-juices are also caught up in the sweeping proposals. Leading the charge is state senator Jerry Hill. His November 29 press release illustrates the dangers of leaving scientific and medical issues in the hands of politicians. “We must stop the appalling epidemic of e-cigarette use by youths.” As if this overwrought rhetoric was not enough, he cited the now familiar narrative that is being used to bludgeon the e-cig industry into submission: “Enticed by fruit, candy and other appealing flavors, high school and middle school students throughout the U.S. are vaping in record numbers. The surge has reversed the decline in underage use of all tobacco products.”

California Senate Bill SB-38 Dials FDA Regulations Up to Eleven

One of the two flawed pillars of the FDA’s approach to regulation is the unchallenged premise that sweet e-juice flavors exist to entice minors to vape. An exhaustive and scientifically rigorous survey of 69,000 vapers punches holes in this theory. The reality is that these flavors exist because they are preferred by 3 in 5 adult vapers. The percentage of minors that use fruit/dessert flavors is higher still, but this makes sense when you consider that tobacco type flavors are most popular with heavy smokers who recently quit. The second pillar of the FDA’s approach is that convenience stores and gas stations are incapable of adhering to age verification laws. This issue is removed from the board entirely by the California Senate Bill SB-38. “Under the state lawmakers’ proposed bill, retail stores and vending machines in California would be prohibited from selling flavored tobacco products. The legislation would cover flavored e-cigarettes, e-hookahs, e-pipes and other vaping devices as well as flavored smokable and nonsmokable products, such as cigars, cigarillos, pipe tobacco, chewing tobacco, snuff, dissolvable tobacco and tobacco edibles.” One critique of the FDA regulations was that they are overstepping their bounds by differentiating between sales channels. The California law is equal opportunity. Convenience stores, gas stations, vape shops and online retailers all get hammered.

A Rational Approach to E-Cig Use

The reactionary California bill stands in sharp contrast to the rational approach recommended by Iowa Attorney General (AG) Thomas Miller. The Iowa AG's criticism of the FDA regulations included an important point that is often overlooked,
“Young people suffer significant harm when a parent or other significant people in their lives die or are incapacitated by smoking-related disease.”
Lumping electronic nicotine delivery systems in with smokable and nonsmokable tobacco leaves the field wide open for classic, unflavored tobacco cigarettes. A questionable approach to say the least.

A Glaring Oversight

When announcing their sweeping new rules, the FDA specifically mentioned the complexity of the issues facing regulators and the potential harm that results from cutting off consumers from cigarette alternatives. Harm reduction merited not a single mention in the California press release. The law's authors are wed to an authoritarian approach that closely resembles previous government forays into prohibition. Lives are in the balance. It is inhumane to remove cigarette alternatives from the market. That lawmakers would attempt to cash in on legitimate concerns about teen vaping by promoting destructive public health policies is indefensible.

Don’t Let Perfect Be the Enemy of Good

As Stephanie Bloom wrote for the American Council on Science and Health this summer, don’t let the perfect be the enemy of good. “Tobacco harm reduction—the policies, programs, and practices that reduce the damage caused by smoking—must consist of viable alternative options to traditional cigarettes.” She concluded, “It is unconscionable to ignore the fact that many lives could be saved if smokers were to switch to smokeless tobacco alternatives, including e-cigarettes. It should be more important to prevent deaths from smoking than to adhere to some strictly moralistic stances that all tobacco use should be condemned. It is unnecessary for smokers to sacrifice their lives to obtain this nicotine. Smokers smoke for the nicotine, but they die from the smoke."

Prohibition and Legalization

The purported benefits of medical marijuana were taken at face value in 1996 by Californians. This occurred despite a dearth of peer reviewed, gold standard evidence in high impact medical journals. On the flip side of the equation, the potential benefits of electronic cigarettes have been largely cast aside because of an increase in teen vaping. At least Scott Gottlieb acknowledges the potential benefits that e-cigs provide to smokers. The California bills makes no such concession. They represent an outmoded view of human agency and societal control from above. The price of similar efforts has been staggering. The humiliating failure of the Prohibition debacle in the 1920s and excesses that occurred during the war on drugs should serve as cautionary tales. The failure of Prohibition is actually an imperfect analogy. The overwhelming majority of vaping occurs in place of cigarette smoking. No similar case can be made for alcohol. Prohibition did illustrate the futility of attempting to legislate a popular product out of existence. The inevitable result was that poorly regulated and often dangerous alternatives quickly swamped the black market.

Vaping by Minors

The issue of teen vaping is a fraught issue that deserves careful consideration and requires solutions based on empirical evidence. Vapor4Life, and the overwhelming majority of businesses in the e-cig industry, have no interest in selling to minors and have taken strong steps to cut off supply. We exist to provide adult smokers with an enjoyable cigarette alternative that is free from tar, ash and smoke. As a result, we make a point of performing our due diligence and then some. In order to keep our products out the hands of children we rely on Veratad, the industry leader in age verification technology. This is the same system that is used by the largest companies selling age restricted products online including vaping supplies, ejuice, alcohol and sports betting. Rather just a meaningless check box, this system compares purchaser data against multiple trusted data sources. In addition, all of our sales and customer service team members have completed We Card training.  We Card is the industry leading standard for in-store age confirmation.  In fact, we exceed the local legal requirement and card all customers regardless of age at our Northbrook Vape Shop.

E-Commerce Targeted By California Senate Bill SB-39

Adult vapers and retail stores are the obvious victims of SB-38. But it is worth examining SB-39, which imposes severe restrictions on e-commerce. Violations of the requirements by sellers or distributors would result in civil penalties, ranging from $1,000 to $2,000 for the first incident to $10,000 for a fifth violation within a five-year period. Considering the fact that the vast majority of minors get their e-cigs through social contacts, perhaps they want to add a rider that incarcerates the family members and legal age adults who violate the law.

Outdated Approach

It is ironic that California, a state at the forefront of marijuana decriminalization, has politicians so eager embrace outdated views on harm reduction and vaping. But ironic becomes absurd when you examine the numbers behind the teen vaping epidemic and compare it to other risky behaviors. According to the CDC Youth Risk Behavior Surveillance System, only 1.9 percent of California high school students vape daily. Although we should hesitate before resorting to the “not as bad as” logical fallacy, it is worth comparing this number to the 19.8 percent who current use marijuana and the 13.5 percent who currently binge drink. Eliminating vaping and tobacco use by minors is an admirable goal that we wholeheartedly support, but it is not the biggest threat to the well-being of minors. The chart below illustrates several relevant high risk behaviors that California high school students are engaged in. And before the alarming numbers on the chart leads you to leap to the conclusion that the end times are nigh, keep in mind these high risk behaviors have declined remarkably in the last couple of decades. Especially smoking. *CDC Youth Risk Surveillance System 2017