by James Poulos | March 3, 2014 9:57 am
In the biggest “blue state” cities, administrative and regulatory action against e-cigarettes has been swift and fierce. California officeholders — from the city council level all the way up to the U.S. Senate — are poised to follow suit. But the West Coast’s trendsetting culture may be the first to stop expanded e-cigarette regulation in its tracks. At a minimum, authorities face massive civil disobedience with a uniquely California flavor.
Here’s the current legal situation. As Megan McArdle has detailed at Bloomberg Businessweek, the rapidly growing $1.5 billion-dollar industry is about collide with the U.S. Food and Drug Administration. Since experts are not yet convinced that there are significant health risks to “smoking” e-cigarettes (or “vaping,” as they say), the campaign against the free public enjoyment of the devices has fallen back on a trinity of moralism, fearmongering and progressivism.
Sen. Barbara Boxer (D-CA), for instance, is currently co-sponsoring the Protecting Children from Electronic Cigarette Advertising Act. “We cannot risk undoing decades of progress in reducing youth smoking by allowing e-cigarette makers to target our kids,” she insists.
Chicago Mayor Rahm Emanuel deployed the same rhetoric in his own successful anti-e-cig campaign. “Having worked with the FDA,” he declared, “having encouraged them to take steps to protect individuals and children, they are usually an agency that leads from behind. And when it comes to the city of Chicago, when it comes to the people of the city of Chicago, when it comes to the children of the city of Chicago, I do not believe we should wait.”
Michael Bloomberg himself, of course, surprised no one by being the first mayor of a major American city to crack down on vaping. Sure enough, as the New York Post reported, “city Health Commissioner Tom Farley said allowing electronic cigs in public places would make smoking socially acceptable again among youths and undermine gains in curbing tobacco use. He said they look like regular cigarettes, mimic the action of smoking, and are popular with youths.”
And so, as McArdle explains, one of “the FDA’s most difficult decisions will be determining whether e-cigarettes will be a gateway product, encouraging young smokers to develop a nicotine habit that might lead to tobacco use. After all, many of the things that make e-cigarettes attractive to smokers make them even more attractive to minors.”
A municipal vaping ban is now on the agenda for Los Angeles. A proposed ordinance to treat e-cigs like regular cigarettes is now headed to the L.A. City Council. “Lawmakers,” recounts the Los Angeles Times, “acted after Jonathan Fielding, director of the Los Angeles County Department of Public Health, said e-cigarettes threaten to make smoking socially acceptable after years of advocacy to discourage the habit. Young people who get hooked on the nicotine in e-cigarettes may then turn to tobacco use, he said.”
Can anything stop the regulation’s momentum? It’s possible that an appeal to logic and reason could prevail. At least one former surgeon general, Dr. Richard Carmona, has written forcefully against the ban, arguing that it would actually hurt anti-smoking efforts. In fact, he attributes his decision to join the board of NJOY, “the leading independent e-cigarette company,” because its “ambitions” are “to make obsolete the tobacco cigarette entirely.”
On the other hand, California’s social mores might do more to complicate life for anti-vape regulators. In the Los Angeles metro area, for instance, the public use of e-cigarettes is particularly appealing for a complex set of reasons. Take the city’s outdoor culture, permissive parenting, soft school discipline and widespread recreational marijuana use. Add tight municipal bans on cigarette smoking, and you’ve got all the makings of some broad opposition to e-cigarette restrictions.
At first blush, it would seem that the anti-vape crowd could rally public support based on reports that L.A. kids are using vapes to get high in class. But it’s one thing to prohibit, say, drinking alcohol at school — and another thing to impose such strictures on the general public. Plenty of people in Los Angeles still like to smoke, and not in the privacy of their own homes, either. It’s not difficult to find bars in town that have found careful, quiet ways around the city’s tough regulations.
Still, support for cigarette smoking in public spaces is probably not as strong as L.A.’s tacit support for discreet marijuana smoking. In a city where even smokers respect those who don’t want secondhand smoke anywhere near them, vapes offer everyone what some locals might describe as a more chill vibe.
Using e-cigs to deliver a marijuana high takes that unofficial agreement a step further. Conduct yourself with a minimum of self-control, and nobody in Los Angeles is apt to turn you in for leaving the house under the influence of pot. The huge number of “medical” dispensaries in the city — just a fraction of local pot suppliers — is a stunning testament to the strength of market demand for the drug. It’s not outlandish to conclude that in L.A., the pot industry and the e-cig industry are poised for a much closer partnership than ever had time to develop in, say, Chicago or New York. That means it’s harder in Los Angeles to fully associate e-cigs with regular cigarettes. In a perhaps unexpected way, the city’s fairly lax pot regime probably makes it harder to mobilize public compliance with e-cig bans in the spirit of “saving the children.”
That sets up the L.A. City Council with two hurdles. Not only does the anti-vaping ordinance have to pass in the first place; it then must be enforced. Of course, a cynic might say that today’s bad governance puts a great deal of energy into passing flavor-of-the-month legislation, but much less energy into dutifully executing the minute and detailed rules. California cities like Los Angeles are primed for widespread public disobedience of anti-vaping laws. L.A.’s experience with e-cigarettes may well speak to the larger issue of how long American politicians can build support around regulations that lack strong support from experts and citizens alike.
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