At City Hall Monday, referendum backers turned in an estimated 34,000 signatures calling for repeal, well above the 19,000 signatures the measure needed to qualify for the ballot. The city clerk has 30 days to verify signatures. If backers meet the threshold, supervisors will decide whether to repeal the law; schedule a special election; or hold an election in June 2018, the date of the next regularly scheduled vote. The latter course is most likely.

Although backed by the tobacco industry, the repeal effort focuses primarily on issues of tobacco “harm reduction.” That’s the idea that health officials ought to promote policies designed to reduce the harmful effects of tobacco and other addictions, rather than insist on a more idealistic, yet less potentially successful, abstinence-based approach. In other words, it might help people if they switch from dangerous behaviors to less-dangerous ones, even if the less-dangerous ones aren’t totally safe.

There’s no debate about the dangers of traditional cigarette smoking and, perhaps to a lesser extent, other combustible tobacco products such as cigarillos and cigars. But the wide-ranging city ban also defines electronic cigarettes as tobacco. Vaping liquids are not actually a tobacco product, but most contain nicotine. All of these liquids are flavored.

Under the new ordinance, retailers will no longer be allowed to sell vaping liquids, which will make it more difficult for cigarette smokers to switch to them. Public Health England, Great Britain’s main public-health agency, deems vaping to be 95 percent safer than smoking. For that reason, the vaping industry, well represented at a Monday news conference on the City Hall steps, depicted the city’s ban as a threat to the public’s health.

As they explain it, under the new law, cigarettes (although not menthol ones, or fruity cigars) can still be sold legally in the city. But less harmful tobacco-related products such as snus (spitless Swedish-style tobacco that is placed under one’s upper lip) and vaping will be outlawed. Those addicted to nicotine will find it easier to just grab a pack of traditional cigarettes, given that these safer alternatives will be off store shelves.

During the debate, city officials rebuffed such harm-reduction arguments. “We’re focusing on flavored products because they are widely considered to be a starter product for future smokers,” said Supervisor Malia Cohen, who introduced the unanimously passed ordinance. She argued that tobacco companies target poor, young and minority communities with flavored products to hook them on a lifetime of nicotine additions.

Ordinance backers depicted vaping as another tool in Big Tobacco’s arsenal. Yet a news story this week from San Francisco’s public-radio station KQED seemed to confirm at least some of the points the vaping supporters were making. “Electronic cigarettes may be a helpful tool for those who are looking to quit smoking, according to a recent study,” noted the report by Anna Kusmer. “This complicates the public health narrative around this new tobacco product, which have grown in popularity in the U.S. over the past decade.” Complicate, it does indeed.

And a new survey from Chris Russell and Neil McKeganey from the Centre for Substance Use Research in Glasgow, Scotland has rebutted the idea of vaping as a gateway to traditional cigarette smoking. The researchers found that: “More than 75 percent of American adult frequent (electronic vaping product, or EVP) users surveyed were cigarette smokers when they began using e-cigarettes and have now successfully quit smoking.” Yet less than “5 percent of current EVP users were non-smokers before beginning e-cigarette use.”

Referendum supporters also pointed to the economic impact of shutting down such a large portion of the city’s convenience-store industry. For instance, possession and use of menthol cigarettes and vaping products will still be legal in San Francisco, but consumers will have to travel to other localities or order the products online. The city’s Office of Small Business opposed the ban because, in part, of the ease of buying products other places.

CNN also reported on some recent data: The U.S. Centers for Disease Control and Prevention reported that tobacco use among high-school and middle-school students remained unchanged from 2011 to 2016, but that from 2015 to 2016, there were decreases in use of any tobacco product, e-cigarettes and hookahs among high school students. For middle-schoolers, rates of e-cigarette use dropped slightly as well. E-cigarette advocates say that’s evidence vaping is not becoming the teen epidemic that its proponents suggest.

However, California’s Tobacco Education and Research Oversight Committee, which oversees spending from the state’s recently enacted $2 a pack cigarette-tax increase, seems to view vaping as just another form of smoking. That’s a prevalent view among state and local health officials, who focus on vaping’s potential health concerns, rather than on the lower risks it creates in comparison to traditional cigarette smoking. They promote the use of medically approved tobacco-cessation devices instead, despite their low rates of success.

The new law’s backers also point to studies that suggest potentially bad health effects from the use of e-cigarettes. But referendum supporters note the irony that San Francisco, a city that has long pioneered harm-reduction policies when it comes to sexual behavior and drug use (safe sex programs and needle exchanges for heroin users), is instead taking a Prohibition-oriented approach when it comes to tobacco products, especially as the state legalizes the once-prohibited marijuana.

The scientific and public-policy debates aren’t going away. But this much is certain. The coming San Francisco referendum will show whether vaping’s supporters will be able to halt the wave of flavored-tobacco bans. If they don’t succeed, there will be little to stop Bay Area and other California localities from moving forward with similar bans.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

TBEC Review / flickr

Restrictive new anti-tobacco ordinances are spreading across the San Francisco Bay Area like a cigarette-sparked wildfire. Northern California cities already have some of the toughest anti-smoking laws in the nation, but a raft of new laws and proposals take aim at “flavored” tobacco products such as menthol cigarettes and fruity mini-cigars.

Health officials argue that these flavored products are particularly appealing to teens, and that their bans are designed to keep young people from picking up an unquestionably dangerous habit. They also argue that the purveyors of menthol cigarettes, for example, target minority communities, and lead to ongoing health problems there.

The ordinances, however, share one trait that has advocates for tobacco “harm reduction” concerned. They make no distinction between combustible tobacco products – i.e., cigarettes, cigarillos, pipe tobacco and cigars – and smokeless products such as e-cigarettes and snus (Swedish-style spit-less tobacco that one places on one’s upper lip).

Tobacco “harm reduction” is a public health strategy designed to reduce the harmful effects of cigarette smoking by encouraging smokers to switch to far-less dangerous – not safe, but less dangerous – types of tobacco-related products. For instance, Public Health England, the United Kingdom’s main public-health agency, argues that vaping is 95 percent safer than cigarette smoking and therefore is a potentially beneficial alternative to smoking.

“About 40 percent of former and current adult smokers predict that removing their ability to choose flavors would make them less likely to remain abstinent or attempt to quit,” wrote Carrie Wade, the R Street Institute’s director of harm-reduction policy, in a recent Washington Examiner column. “While the vast majority of quit attempts are of the ‘cold turkey’ variety, e-cigarettes beat out both nicotine replacement therapies like the patch or nicotine gum and prescribed drugs like Chantix and Zyban.”

Vape liquids are not actually tobacco but mostly contain nicotine. They almost always are flavored. Many adult e-cigarette users prefer vaping with flavored liquids than vaping with those that have a tobacco flavor. These local bans on flavors, by the way, follow a recent statewide law that taxes vaping liquids at the same rate as cigarettes. The California Board of Equalization is currently working out the details of that taxation edict.

Wade described the essence of tobacco harm-reduction policy: make it easier for smokers to switch to smoking alternatives that cause fewer health-related problems. It might be ideal, health-wise if every smoker simply went “cold turkey,” but that’s not likely to happen, so harm-reduction advocates see vaping as a reasonable alternative. They see efforts to limit access to liquids and to boost taxes on them as policies that work against this harm-reduction approach.

Even California’s official Tobacco Education and Research Oversight Committee explained, in a public meeting earlier this year, that insufficient numbers of smokers participate in medically approved nicotine-replacement therapies. The committee, however, made no effort to distinguish between degrees of harm, and one member depicted vaping as just another form of smoking. In Bay Area cities and elsewhere, public-health officials argue that vaping is still dangerous – and they argue (despite contrary evidence) that it serves as a gateway for teens to actual smoking.

As a result of the new rules, it will become increasingly difficult for nicotine-addicted northern Californians to purchase and use vaping products. That’s particularly true as neighboring counties and cities embrace similar bans. Supporters of these bans admit that it is one of their goals to have such ordinances spread from one community to another, thus making it more difficult for people to simply go to a neighboring city to grab some vape juice.

Some proposals have become law, such as one in the Marin County city of Novato. Others are under consideration. The Contra Costa County Board of Supervisors is now considering a ban after one of its committees recently approved a new proposal. Likewise, officials in San Francisco and Oakland have also introduced flavor bans.

San Francisco Supervisor Malia Cohen’s public statements focus on the sale of mentholated tobacco products. She explains that 80 percent of African-American smokers use menthol products. Nevertheless, her proposal includes all flavored tobacco, which includes vaping liquids. Oakland Councilmember Annie Campbell Washington, who led a 2016 campaign to increase soda taxes in the city, has introduced a similar measure that includes vapor products in the flavoring ban.

Novato’s ordinance, which goes into effect January 2018, requires that all residential leases in the city include a clause calling it a “material breach of the agreement for tenant or any other person subject to the control of the tenant … to violate any law regulating smoking while anywhere on the property.” In other words, tenants can be evicted from their apartments not only if caught smoking – but if they or their guests are caught vaping.

The Contra Costa County health department justifies its proposal by stating that e-cigarettes contain nicotine, which is addictive, and includes various chemicals known to cause cancer and lung problems. But harm-reduction advocates don’t claim that vaping is totally safe, only that it is far safer than cigarette smoking.

Given the political bent of Bay Area cities and counties, it seems likely that most if not all of these proposals will eventually become law. The question remains whether in their zeal to improve the public’s health, these officials are embracing policies that will make actual smoking-related health improvements that much harder to attain.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

Los Angeles congressman tapped for CA attorney general

Good morning. TGIF. The wait (and inane speculation) about who would fill the upcoming attorney general vacancy ended yesterday as Gov. Jerry Brown (kinda) nominated Democratic Congressman Xavier Becerra. 

Becerra, who would need to be confirmed by the Legislature, would fill a vacancy left by Kamala Harris, who was elected to the U.S. Senate last month. The nomination will not be official until Harris resigns.

The move set off a scramble to backfill Becerra’s congressional seat, with former Assembly Speaker John A. Perez announcing his candidacy around an hour later.

The pick breaks up the Bay Area’s stranglehold on statewide offices – only two of the eight statewide elective office holders are from outside the Bay Area. Becerra, from Los Angeles, will be the third.

The pick also ends months of speculation, which at times suggested Brown would pick his wife, Anne Brown Gust (Brown dismissed those rumors). Becerra’s name had not been previously mentioned, which says what about media speculation?

CalWatchdog has more. 

In other news:

• Vape tax: “The claims that e-cigarettes are just as much of a health hazard as regular cigarettes and must be heavily taxed has touched off a fight in the public health community. … The issue is coming to the fore in California because of voters’ passage of Proposition 56 last month. It will increase the state tax on a pack of cigarettes from 87 cents to $2.87 and mandates an ‘equivalent’ increase in taxes on e-cigarettes. … It’s not clear yet what ‘equivalent’ means.” CalWatchdog has more. 

• Bullet stamps: “Gun manufacturers have the right to present evidence supporting their claim that technology does not exist to comply with a California law requiring new models of semi-automatic handguns to stamp identifying information on bullet casings, a state appeals court said Thursday,” reports The San Jose Mercury News. 

• Oops: “On Wednesday, [Richmond Mayor Tom Butt] boasted on his popular e-forum that a recent list of ‘Top 12 most dangerous cities in Northern California’ did not include Richmond, which has struggled with high crime for many years, although the rate is nowhere what it was a decade ago. What the mayor failed to mention in his post is that the Richmond Police Department did not even submit its crime figures to the FBI due to a glitch in the crime reporting system that wiped out about 15 months worth of data last year.” The San Jose Mercury News has more. 

• More on Becerra: “California Senate President Pro Tem Kevin de León on Thursday lauded the appointment of Rep. Xavier Becerra as state attorney general, while a source close to the Senate leader said he has no plans to run for Becerra’s congressional seat when it is vacated.” The Los Angeles Times has more. 

Legislature:

• Back on Monday. 

Gov. Brown: 

• No public events announced. 

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mfleming

New follower: @HLincoln_News

The claims that e-cigarettes are just as much of a health hazard as regular cigarettes and must be heavily taxed has touched off a fight in the public health community. A faction of public health officials has sided with e-cigarette companies and their assertion that e-cigarettes are much less dangerous than cigarettes and can in fact help people break the smoking habit.

The issue is coming to the fore in California because of voters’ passage of Proposition 56 last month. It will increase the state tax on a pack of cigarettes from 87 cents to $2.87 and mandates an “equivalent” increase in taxes on e-cigarettes, which allow users to heat nicotine fluid and inhale nicotine vapor without the tars they ingest when smoking regular cigarettes.

It’s not clear yet what “equivalent” means. State officials are still formulating the levies. But the Associated Press reports e-cigarette makers and distributors believe they will face a huge increase in state taxes that will raise the cost of vaping devices and liquids by more than 60 percent. If that happens, according to the American Vaping Association, it will be cheaper to smoke regular, more dangerous cigarettes in California than to “vape” — even though state taxes on regular cigarettes are going far higher as well.

In the United States, public health authorities, medical doctors and academics are broadly split on e-cigarettes. Some believe that e-cigarettes are so much less harmful that their use by conventional smokers should be encouraged. Some argue that there isn’t nearly enough hard research with which to draw conclusions about the relative healthiness of vaping. And some argue that e-cigarettes’ popularity threatens to undo the huge progress that has been made in reducing nicotine consumption in America over the last 50 years and should be heavily taxed and regulated for that reason alone.

Britain sees vaping as public health tool

These divided views aren’t the norm elsewhere. In California, state health officials issued a 2015 report blasting the emergence of vaping as a common habit, especially among the young. This report may be a factor in state officials’ consideration of heavy taxes for e-cigarettes.

Conversely, in the United Kingdom, physicians have been recommending that vaping be used by cigarette smokers because a massive government study found it is 95 percent healthier and has been a valuable tool for individuals trying to break their conventional smoking habits. These conclusions were released in a 2015 report by Public Health England.

Given that millions of Americans have died of lung cancer caused by smoking cigarettes, this would seem to make the case for vaping’s utility in fighting regular smoking. But many authorities are unpersuaded. Perhaps the most prominent critic of the notion of vaping as a public health tool is Stanton Glantz, a professor of tobacco control at the University of California, San Francisco.

In a 2015 interview with Rolling Stone magazine, Glantz dismissed claims about vaping’s promise with a profanity. He acknowledges that e-cigarettes are healthier than regular cigarettes but sharply questions the British research. “I’ll eat my shoe if that 95 percent figure turns out to be correct five years from now,” he told the magazine.

Glantz says the big picture must not be ignored: “Are there people who have totally made the switch or quit completely because of these? Yes, I believe there are. Terrific. But most are what we call dual users — those who smoke both, often to smoke in places where they can no longer smoke cigarettes. If you’re talking about a smoker using these to inhale more dangerous chemicals, well, that has a net negative effect on public health.”

Proposition 56 takes effect on April 1. It is unclear if state officials will issue a draft proposal on how to tax e-cigarettes and seek public comment or decide rates without such input. The text of the 24-page ballot measure is silent on how the rules should be crafted.

But two months before the election, one of the highest-visibility measures also is fairly narrow in scope. Proposition 56 would raise California’s relatively low tobacco tax (relative to other states) by $2 a cigarette pack – and increase taxes by an equivalent amount on all other tobacco products (cigars, chewing tobacco, etc.). It also would significantly increase taxes on electronic cigarettes and vaping products. It has high visibility right now because of a series of advertisements opponents are running on radio stations across the state.

Supporters pitch the measure as a means primarily to boost public health. “An increase in the tobacco tax is an appropriate way to decrease tobacco use and mitigate the costs of health care treatment and improve existing programs providing for quality health care and access to health care services for families and children. It will save lives and save state and local government money in the future,” according to the initiative’s findings.

Gov. Jerry Brown recently signed into law a package of anti-tobacco bills that, among other things, raise the smoking age to 21. Studies of addiction show that teens who begin smoking are more likely to continue this dangerous habit throughout their lives. Backers of this initiative argue that raising the prices of cigarettes is another main way to dissuade people from smoking. And they point to the costs to the health system imposed by smokers.

But the measure’s opponents are focused increasingly on the spending aspects of the proposal. According to the official ballot argument against the measure, “Prop. 56 allocates just 13 percent of new tobacco tax money to treat smokers or stop kids from starting. If we are going to tax smokers another $1.4 billion per year, more should be dedicated to treating them and keeping kids from starting. Instead, most of the $1.4 billion in new taxes goes to health insurance companies and other wealthy special interests, instead of where it is needed.”

An analysis by the non-partisan Legislative Analyst’s Office confirms that only a small percentage of the estimated $1.4 billion in new revenues are earmarked to such programs. The main priority of the new funds, based on the LAO analysis, is to “replace revenues lost due to lower consumption resulting from the excise tax increase.” That reinforces the odd conundrum faced by California and other states. They use tax and regulatory policies to promote public health by reducing smoking, but then struggle to find funds to pay for ongoing programs as the number of smokers – and therefore the number of tobacco-taxpayers – keeps falling.

The initiative then earmarks some funds to law enforcement, to University of California physician training, to the state auditor and to administration. But 82 percent of the remaining funds go to “increasing the level of payment” for health care related to Medi-Cal, the state’s health-care program for low-income people. Prop. 56 opponents therefore argue it’s designed mainly to benefit health-insurance companies and other interest groups – and includes few limits on how they spend the money they receive.

Furthermore, the initiative bypasses educational-funding requirements under Proposition 98, the 1988 initiative that now requires approximately 43 percent of state general-fund revenues to be directed to the public-school system. As the LAO explained, “Proposition 56 amends the state Constitution to exempt the measure’s revenues and spending from the state’s constitutional spending limit. (This constitutional exemption is similar to ones already in place for prior, voter-approved increases in tobacco taxes.) This measure also exempts revenues from minimum funding requirements for education required under Proposition 98.”

It’s not unusual for a major tax hike measure to ignite controversies over how the new revenues will be spent. But there’s a serious question about whether this initiative will meet its health-improvement goals given the way the tax hammers a common product used by people to quit smoking.

In a research paper co-authored with my R Street Institute colleague Cameron Smith, we note the measure boosts excise taxes on vaping by 320 percent. The key, stated goal of the tobacco tax increase is to dissuade people from buying cigarettes. By the same logic then, the massive boost in taxes on e-cigarettes seems designed to dissuade people from using them.

Yet as Public Health England explained: “The comprehensive review of the evidence finds that almost all of the 2.6 million adults using e-cigarettes in Great Britain are current or ex-smokers, most of whom are using the devices to help them quit smoking or to prevent them going back to cigarettes.” That government health agency urges public-health officials to promote vaping as a way to improve public health. Some U.S. studies come to similar conclusions.

Proposition 56 backers argue that vaping hasn’t been proven safe and the devices haven’t been around long enough to know long-term health effects. They also fear teens will begin vaping and then move on to combustible cigarettes, which everyone agrees are dangerous. And they point to a recent University of Southern California study suggesting teens who vape are six times more likely to begin smoking cigarettes than teens who don’t vape.

In reality, the study seems mainly to reflect “the difference between teens inclined to experiment and teens not so inclined,” according to a public-health expert we quoted. Furthermore, the e-cigarette industry doesn’t claim vaping is safe – they say it is a safer alternative to cigarette smoking. Research suggests they are about 95 percent safer.

California has the second-lowest smoking rate in the nation at around 12 percent. Only Utah has a lower percentage of smokers. So Proposition 56 doesn’t effect a broad swath of the public – but it is a contentious measure given questions about where the tax dollars will go and about its heavy-handed treatment toward vaping. Compared to many of the other initiatives on the ballot, this one might seem simple, but it’s about far more than whether the state government should boost taxes on a pack of cigarettes by two dollars.

Steven Greenhut is Western region director for the R Street Institute. He is based in Sacramento. Write to him at sgreenhut@rstreet.org.

Upsetting years of tradition and new trends alike, Gov. Jerry Brown signed into law sweeping new measures that put consumers and producers of nicotine-based products on the defensive.

One bill will “raise the legal age to buy products from 18 to 21,” while another “dramatically tightens restrictions on e-cigarettes,” NPR reported. “Anyone who gives tobacco or tobacco paraphernalia to someone under 21 could be found guilty of a misdemeanor crime,” the Associated Press cautioned. “Under the new law, 18 to 20-year-olds will no longer be allowed to buy tobacco in California starting on June 9.”

So-called vapes have been incorporated into a crackdown critics said would make it harder for traditional smokers to find less harmful alternatives to tobacco. Applicable legislation now “defines e-cigarettes as tobacco products, barring their use in workplaces, schools, hospitals and on public transit,” according to the Los Angeles Times. “The bill also requires vaping devices and liquids to be sold in child-resistant packaging. They also cannot be marketed to minors.”

Nevertheless, Gov. Brown did exercise some restraint around the issue of taxing smoking. He “vetoed a bill that would have permitted cities and counties to establish their own tobacco taxes,” NPR added, based on his discomfort level with the number of other tax hikes voters might usher in. “Although California has one of the lowest cigarette taxes in the nation, I am reluctant to approve this measure in view of all the taxes being proposed for the 2016 ballot,” said Brown in his veto message. 

Just the beginning

The new laws, Sacramento watchers noted, are themselves only the tip of the iceberg for public health-focused legislators. California State University and even community college students could soon be barred from smoking or vaping on campus. The legislation that would bar them, Assembly Bill 1594, “squeaked out of the 80-member Assembly on a 41-23 vote,” the Sacramento Bee reported, “with all but two of the votes against coming from Republicans and several Democrats not casting votes.”

Nationally, meanwhile, U.S. policymakers were poised to follow California’s lead, although the Golden State has become just the second state across the country, after Hawaii, to hike the smoking age to 21. (As the Associated Press noted, “more than 100 local jurisdictions around the country have made the change, including New York, Chicago and San Francisco.”) A new federal rule promulgated through the Food and Drug Administration will subject tobacco and classified-as-tobacco products to extraordinary new scrutiny. Going forward, “every e-cigarette on the market — and every different flavor and nicotine level — would require a separate application for federal approval,” according to USA Today. “Each application could cost $1 million or more, says Jeff Stier, an e-cigarette advocate with the National Center for Public Policy Research and industry officials.”

Conflicting conclusions

Scientific research on the relative benefits of vaping have been mixed. But new studies conducted in the United Kingdom have led researchers there to reach a conclusion completely at odds with the emerging expert consensus in the U.S. In a new report, the Royal College of Physicians has endorsed vaping “as part of a ‘harm reduction’ strategy that encourages smokers to move to less dangerous forms of taking nicotine, the addictive substance in tobacco,” U-T San Diego recently reported. “The advice contradicts conclusions from some researchers and American government agencies. These focus on getting smokers to quit entirely, or at least to use federally approved means of nicotine replacement therapy with the goal of totally quitting nicotine use. And results in other countries may not apply in the United States, they say.”

Tellingly, California’s anti-smoking legislators preserved one big carve-out for a certain class of smokers — military personnel age 18-20. “[B]efore you scream that you can fight for your country but you can’t light up,” the LA Weekly reported, as state Sen. Ed Hernandez, D-West Covina, admitted, “you can light up if you’re fighting for your country.”

Transparency measure close to qualifying

Good morning! TGIF

Is it worth giving the public more time to consider major pieces of legislation if it also gives special interest groups more time to unravel the deal?

That’s the debate over a transparency measure that appears headed for the November ballot. It would require all bills be made available online in their final form at least 72 hours prior to a floor vote in either chamber of the Legislature.

It would also require all open legislative meetings to be recorded, with the videos posted online within 24 hours. It also allows individuals to record and share their own videos of open meetings.

CalWatchdog has more. 

In other news:

• Even though Trump is the likely GOP nominee for president, California Republicans are still split on the business tycoon. Congressman Darrell Issa of Vista has endorsed Trump, reports The San Diego Union-Tribune. Meanwhile, Assembly Republican Leader Chad Mayes has said not yet, according to the Los Angeles Times. And Capitol Weekly takes a look at how Republican Latinos feel about the candidate largely hated by Latinos. 
• It looks like the state Supreme Court might not block Gov. Jerry Brown’s proposed ballot measure to reduce prison sentences for some nonviolent offenders. The measure is being challenged on procedural grounds. The Sacramento Bee has more.  
• While Democratic leaders pat themselves on the back for raising the smoking and vaping age to 21, there are lots of disappointed and annoyed nicotine addicts who will now be either forced to quite or to get nicotine illegally. The Redding Searchlight has more. 
• Republican leaders in both chambers of the Legislature are seeking an additional $200 million in low-income dental services in Brown’s revised budget, which is set to be released next week. The Sacramento Bee has more.

Assembly:

• Gone ’til Monday. 

Senate:

• Gone ’til Monday. 

Gov. Brown:

• No public events scheduled.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New followers: @myolio @AFPPennsylvania

Triggering the sort of speculation about nationwide change California’s new regulations often inspire, legislators approved bills raising the legal age for smoking and vaping to 21.

“The California state Senate voted Thursday to raise the legal age to buy and use cigarettes and other tobacco products from 18 to 21 years old,” Slate noted. “The anti-smoking legislation had already been passed by the state Assembly and is now just the governor’s signature away from making California only the second state (along with Hawaii) to raise the age individuals can consume tobacco products, including e-cigarettes and smokeless tobacco.”

Domino effect

Analysts swiftly turned attention to the likelihood of other states adopting similar rules. Already, the Associated Press reported, “dozens of cities, including New York and San Francisco, have passed similar laws of their own.” Thomas Carr, the American Lung Association’s director of national policy, told the Huffington Post he suspected “Massachusetts and New York are likely candidates” to follow suit, “since their biggest cities have raised the smoking age to 21 in recent years.” But some observers, according to the Huffington Post, have noted that cigarette use tends to plunge more as a result of higher taxes than age restrictions.

Only one loophole survived California’s new strictures. “American law and custom has long accepted that people can make adult decisions on their 18th birthday and live with the consequences,” opponents insisted, according to the AP, noting that the milestone permits Americans to “register to vote, join the military, sign legally binding contracts, consent to sex and do just about any legal activity besides buying alcohol. In response, Democrats changed the bill to allow members of the military to continue buying cigarettes at 18.”

That concession granted, the legislation advanced. “The higher age limit, part of a package of anti-tobacco bills, won approval despite intense lobbying from tobacco interests and fierce opposition from many Republicans, who said the state should butt out of people’s personal health decisions, even if they are harmful,” the AP noted.

A vape crackdown

TBEC Review / flickr

Perhaps the most significant change ushered in by the six interrelated laws making up the suite of anti-smoking legislation — assuming they receive Gov. Jerry Brown’s signature — affects electronic cigarettes, “classifying them as tobacco products. ‘Vaping’ devices are not regulated by the Food and Drug Administration, and critics have described them as a gateway to more harmful, combustible tobacco,” the Orange County Register noted.

“The bill passed by the Legislature classifying e-cigarettes as tobacco products would subject them to the same restrictions on who can purchase them and where they can be used, meaning they would be banned from bars, workplace break rooms and hotel lobbies.”

“Among Orange County teens, the 2014 California Healthy Kids Survey found that 9 percent of 11th-graders polled had smoked cigarettes, while 20 percent reported vaping e-cigarettes,” the paper added. Vapes have been big business in California, driven by shifting preferences among consumers largely convinced that e-cigarettes offer a less hazardous product with a comparably enjoyable experience to traditional tobacco smoking.

Foregone conclusion

Although the governor’s office declined to comment on the likelihood of the bills being signed into law, overwhelming support among Sacramento Democrats has cemented the view that Brown won’t stand in their way. “An expanded ban on smoking in workplaces and permission for counties to begin introducing local taxes on tobacco sales were among the other proposals passed Thursday, almost entirely with support from Democratic lawmakers,” the Sacramento Bee reported. “The only proposal to attract notable opposition from Democrats was the expanded ban on smoking in workplaces, which will remove exemptions for hotel lobbies, warehouse facilities, gaming clubs, bars and businesses with five or fewer employees.”

On Wednesday, legislation that would classify e-cigarettes as tobacco products was amended and held in the Assembly Governmental Organization Committee.

Senate Bill 140 author Sen. Mark Leno, D-San Francisco, dropped his support for the bill after committee amendments struck out portions of the legislation that would have redefined tobacco products and smoking to include electronic devices and vapors emitted from those devices.

Sen. Leno said during the hearing that, by federal definition, products that contain nicotine are technically derived from tobacco. Assemblyman Eduardo Garcia, D-Coachella, also mentioned during the hearing that the FDA “is moving in the direction of classifying” e-cigarettes and similar products as tobacco products.

‘Tobacco products’

Existing law, under the Stop Tobacco Access to Kids Enforcement Act, prohibits selling or furnishing tobacco products to minors, as well as selling without a state license. California’s Smoke Free Act also prohibits smoking in any “enclosed space at a place of employment” – which includes schools, offices, daycares, bars, restaurants and many other venues.

Since the definition of tobacco products and smoking, under SB140’s original text, would expand to include electronic devices and vapors emitted from those devices, the bill would subject e-cigarettes to the same regulations under California’s STAKE Act and Smoke Free Act.

“A growing number of Californians are becoming increasingly concerned about the public’s exposure to e-cigarettes, as is evidenced by the fact that nearly 180 cities and counties have already passed ordinances that restrict e-cigarette smoking,” Sen. Leno said in a prepared statement. “These tobacco products are addicting a new generation of smokers to toxic nicotine, which we already know is highly addictive and contains harmful chemicals. SB140 puts common sense regulations into place statewide in order to protect young people, non-smokers and smokers alike.”

“Recent studies show that e-cigarettes pose potentially serious health risks to users and those who inhale their secondhand emissions. In 2009, the Food and Drug Administration found cancer-causing chemicals, including an ingredient used in antifreeze, in two leading brands of e-cigarettes. The same study also discovered that e-cigarettes labeled as “nicotine-free” had traceable levels of nicotine. In addition, a 2015 study published in the New England Journal of Medicine found high levels of formaldehyde, a known carcinogen, in e-cigarette emissions.”

Opposition to the bill

But Gregory Conley, president of the American Vaping Association, says these measures are mere “hype and conjecture designed to scare” people away from “switching to a potentially lifesaving product.”

“Vapor products are not tobacco products and it makes no sense to regulate them as such. These products do not create harmful secondhand smoke and have been repeatedly shown to be effective in helping smokers kick the habit. California’s 3.6 million adult smokers deserve truthful information about the risks of these smoke-free products. …

 

“The vapor industry does not oppose sensible regulations designed to prevent youth access to these adult products, including beefing up California’s existing ban on sales to minors. However, SB140 goes far beyond what is necessary to achieve this goal. If this bill is passed, over 1,400 California businesses will be left to deal with the unintended consequences of this rushed regulatory plan.”

Los Angeles, Long Beach and San Francisco have already enacted bans on e-cigarette use in public places. “The e-cigarette industry is almost completely unregulated, and statewide laws are essential to providing uniform protections for the health and wellbeing of all California children and our communities,” said San Francisco Supervisor Eric Mar.

But proponents of the electronic smoking devices say that this kind of fear-mongering propaganda ultimately protects cigarettes and threatens the lives of vapers and smokers. Bill Goodshall, executive director of Smokefree Pennsylvania, said of a similar Pennsylvania bill to ban e-cigs, “Public health benefits every time a smoker vapes instead of smoking a cigarette. The proposed vaping ban … would deceive the public to inaccurately believe that vaping is just as hazardous as cigarette smoking.”

In the Senate, the legislation passed on a 25-12 vote. But once the Assembly Governance Committee approved amendments that would no longer classify e-cigarettes as tobacco products, Sen. Leno immediately dropped his support of the bill, stating it would be “dead on arrival in the Senate” and that he could no longer “associate [himself] with it.”

Assemblyman Ken Cooley, D-Rancho Cordova, also said he would “not support the bill in this form.” He addressed the “rising cost of health care” and how it was the task of policymakers to “cut down discrete sources of costs” — such as potential health problems acquired through vaping. “To deal with costs in the health-care system,” he said, “we have to look at where the cost drivers are and chase them down.”

After passage of the amendments, the bill was held in committee.

Photo credit: www.vaping360.com

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.”

L.A. next front in ‘vape’ fight

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.

Lax on pot but tough on e-cigs? Unlikely

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.