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A surprise switch to a bill that would tightly regulate vaping has caused its sponsor to repudiate the legislation.

State Sen. Mark Leno, D-San Francisco, had advanced SB140 confidently, riding a wave of anti-smoking activism that sought to treat vapes, or e-cigs, the same way as traditional tobacco cigarettes in the eyes of the law. But Leno had to renounce his own bill after it transformed in committee. As the Los Angeles Times reported, the Assembly Governmental Organization Committee ensured its language “no longer treated the vapor devices as tobacco products that would face the same restrictions.”

“The proposal would have banned electronic cigarettes in workplaces, restaurants and other public places where smoking is prohibited. It would also have allowed sting operations against businesses that sell the vaping devices to minors. Leno said removing the designation of e-cigarettes as tobacco products allows manufacturers of vaping devices to continue marketing their products to minors.”

Tempers flare

It was a shocking defeat for anti-smoking advocates, who had not anticipated that the vape industry would be able to secure the amended language it sought. “No committee member moved to take up the modified bill, which was then held in the committee,” the Associated Press reported.

Leno’s public remarks reflected his frustration. “We all walk away. It is no longer our bill,” AP quoted him as saying.

“Leno angrily told the committee that he and the bill’s co-sponsors, which include the American Cancer Society, American Lung Association and American Heart Association, would not take part in advancing the diluted bill.”

“I no longer believe in it. I disassociate myself from it. It’s a very dangerous bill now,” said Leno, according to Business Insider. According to Leno, because nicotine comes from tobacco, and e-cigs utilize a liquid that contains nicotine, they ought to be classified as tobacco products. “It’s no small difference of opinion whether these are tobacco products or not,” he argued, according to the Sacramento Bee, “because if they’re not tobacco products, Big Tobacco can continue to market their ‘non-tobacco product’ to our children.” Although nicotine is traditionally taken from the tobacco plant, it is also naturally found in trace amounts within the tomato, potato and eggplant.

Cascade effect

The about-face on SB140 appeared to augur a broader defeat for the anti-smoking lobby, which had helped build momentum for another sweeping and high-profile piece of legislation. SB151, introduced by state Sen. Ed Hernandez, D-Azusa, was also pulled by its own sponsor.

That bill, which would raise the statewide legal age for purchasing tobacco products to 21, was shelved by Hernandez before a planned hearing, as the Bee reported. “Big Tobacco is following their usual playbook and trying to kill this bill quietly in a committee,” he said, according to the Bee, “though his office said he planned to continue pursuing the measure.”

Federal hurdles

Although the tobacco industry has favored federal over state-by-state rules on the availability of their products, the vape industry has had bigger concerns than the state of play in Sacramento. As the Wall Street Journal reported, the federal Food and Drug Administration has been expected this summer “to complete rules that would require federal approval for nearly all flavored liquid nicotine juices and e-cig devices sold in vape shops,” imposing potentially prohibitive costs on nervous businesses.

“The approval process could cost anywhere from $2 million to $10 million to collect data and put forward an application for each item, according to the regulatory consulting company SciLucent LLC.”

That alone could put a substantial dent in the Golden State’s smaller vape companies — with the much larger tobacco companies moving in instead. Rodney Jerabek, CEO of the California-based liquid nicotine business Five Pawns, told the Journal the expenses were daunting. “This could mean the end for a lot of small companies,” he said.

By the numbers

According to the bill’s supporters, the ban would be instrumental in dramatically reducing not only teen smoking but smoking in general. “Sen. Ed Hernandez, D-West Covina, said he introduced the bill, SB151, out of concern that an estimated 90 percent of tobacco users start before age 21,” the Los Angeles Times reported.

That statistic emerged from a recent Institute of Medicine study making the rounds in policy circles. Researchers suggested that “teen smoking could be curbed by 12 percent if the age limit was raised to 21,” as LAist noted, “making it harder for minors to find somebody to buy cigarettes for them.” In real numbers, the study concluded, the age-21 limit would ensure “more than 200,000 fewer premature deaths nationally for those born between 2000 and 2019.”

Although critics have pointed out that people older than 18 are adults eligible to be drafted and bound to signed contracts, the Times observed, momentum has gathered to raise the legal smoking age for reasons unrelated to consistency in the treatment of individual rights and responsibilities.

Tobacco-related illness has long represented a significant chunk of aggregate health care costs. For policymakers, that problem grows more serious the more those costs are shifted onto government and taxpayers. “Tobacco-related disease killed 34,000 Californians in 2009 and cost the state $18.1 billion in medical expenses, according to studies by UC San Francisco,” according to the Times.

A developing trend

Some evidence of the policy’s likely impact has accumulated in states where the smoking age was previously hiked. “Although most states set the minimum age at 18, Alabama, Alaska, New Jersey and Utah set it at 19, and some localities have set it at 21,” according to The Washington Post. “Higher age limits seem to correspond with lower smoke rates in these states; Utah and New Jersey also have among the lowest smoking rates in the country, No. 1 and No. 5, per Gallup, while Alaska has the most improved, and Alabama is somewhat of an outlier in the South, as it’s not among the states with the highest smoking rates, like its neighbors Mississippi and Louisiana.”

California could be the first state to deny tobacco to under-21s. But other western states could swiftly follow suit. According to KPPC, “Legislatures in Oregon and Washington are considering similar bills and lawmakers in Hawaii have passed a bill and sent it to the governor.” Among the localities setting the legal age at 21, Hawaii County has been joined by New York City.

Next, vaping

Traditional tobacco products were not the only ones on the state Senate’s chopping block. SB140, introduced by state Sen. Mark Leno, D-San Francisco, also passed handily, on a 24-12 vote.

As the San Francisco Chronicle reported, that bill “would include e-cigarettes in the definition of tobacco products in order to prohibit the devices from being used at workplaces, schools and public places, just as tobacco products are under the state’s Smoke Free Act. SB140 would also make it a misdemeanor to provide e-cigarettes to minors.”

The tandem advance of the state Senate’s anti-smoking and anti-vaping bills raised the prospect that the two approaches would converge in the near future, raising the vaping age to 21. “California bans the sale of e-cigarettes to anyone under 18,” the Chronicle observed, “but Leno said young teens still have access to them and they are becoming increasingly popular among middle and high school students.” If Hernandez’s bill were to pass before Leno’s, vaping would automatically be restricted in the same manner as traditional cigarette smoking.

In a statement explaining the campaign, CDPH described two new TV ads emphasizing “the e-cigarette industry’s use of candy flavored ‘e-juice'” and “exposing the fact that big tobacco companies are in the e-cigarette business.”

The move bolstered momentum for broad crackdowns on vapes, which have been targeted by policymakers and activists who see them as just as bad as tobacco cigarettes — if not worse.

Playing politics

Political considerations have played into CDPH’s adverse judgment against vapes. New data recently showed that, last year, the use of e-cigs outpaced the use of tobacco cigarettes among teenagers and young adults.

Defenders of the freedom to vape argued this is good news. Vaping companies have claimed e-cigs help smokers abandon far more dangerous tobacco products, especially those, like traditional cigarettes, that emit high numbers of carcinogens.

But for prohibitionists, e-cigs presented a special hazard because of their accessibility and appeal to children. As the Los Angeles Daily News detailed, those drawbacks appeared to be the product of unregulated marketing, a more pleasurable use experience and apparent carelessness among adult consumers with children:

“Most startling to health officials was the spike in calls to California Poison Control centers related to exposures to accidental e-cigarette poisonings, including drinking the liquid inside. There were seven calls in 2012 to poison control. In 2014, those calls jumped to 243. More than 60 percent of all those e-cigarette related calls involved children 5 years and under.”

As NBC News reported, “bottles and cartridges that contain the liquid for e-cigs have been known to leak and tend not to be equipped with child-resistant caps, creating a potential source of poisoning through ingestion or just through skin contact.”

Although legislation and regulation could be tailored narrowly to focus on the threat of poisoning, public health officials issued a broad warning that comports with the prevailing view among prohibitionists.

Dr. Ron Chapman, State Health Officer and director of the California Department of Public Health, said that “many people do not know that they pose many of the same health risks as traditional cigarettes and other tobacco products.” In January, he called for a “bold public education campaign” to roll back e-cig gains in market share. Anti-smoking advocates working in the policy arena have been all but unanimous in treating e-cigs like an integral part of the same problem as tobacco products.

Safety over freedom

Despite the unfolding research concerning the differences between e-cig effects and those of tobacco cigarettes, prohibitionists in the political arena have used heightened rhetoric of their own to advance vape bans.

Earlier this year, state Sen. Mark Leno, D-San Francisco, underscored how far many officials have been willing to go in departing from the scientific record. In January, he introduced Senate Bill 140, a bill that would ban e-cigs at hospitals, restaurants, schools and workplaces.

“No tobacco product should be exempt from California’s smoke-free laws simply because it’s sold in a modern or trendy disguise,” he warned. Yet, as Reason’s Jacob Sullum observed, e-cigs neither emit smoke nor burn tobacco. Instead, they heat a device which allows the user to exhale a vapor.

SB140 will go into committee hearings this spring, behind a full-steam-ahead approach to cracking down on vapes. As CalWatchdog.com reported previously, the so-called “precautionary principle” — better safe than sorry — has inspired a spate of municipal regulations that treat e-cigs the same way as tobacco cigarettes, despite widespread ignorance and uncertainty as to how the products differ.