San Francisco could become the first US city to ban e-cigarette sales

Board of Supervisors votes this week

By Michael Nedelman, CNN
Joe Raedle/Getty Images

SAN FRANCISCO - San Francisco is on course to become the first US city to effectively ban the sale of e-cigarettes once its board of supervisors votes on Tuesday.

The board is expected to pass an ordinance that says "no person shall sell or distribute an electronic cigarette to a person in San Francisco" unless that product has undergone premarket review by the US Food and Drug Administration. To date, none have.

This includes sales in brick-and-mortar stores, as well as online sales shipped to a San Francisco address. The ordinance also applies to flavored tobacco products in addition to e-cigarettes. The measure does not ban the use of e-cigarettes among people 21 and older.

This puts San Francisco -- where leading e-cig maker Juul Labs is headquartered -- at the center of a tense debate. City officials have cited vapes' popularity among youth as a key reason for introducing these measures. But critics of the ordinance say it could harm businesses and remove what some groups describe as a less-harmful alternative for adult smokers.

The measure also highlights what health advocates say is the FDA's failure to act. The city criticized the FDA in a March letter -- alongside officials from New York and Chicago -- for allowing these products to temporarily remain on shelves without undergoing premarket review for their impact on public health.

"E-cigarettes are a product that, by law, are not allowed on the market without FDA review. For some reason, the FDA has so far refused to follow the law," City Attorney Dennis Herrera said in a statement last week after the ordinance passed an initial vote.

"Now, youth vaping is an epidemic," he continued. "If the federal government is not going to act to protect our kids, San Francisco will."

If the ordinance passes a final vote, it will make its way to the mayor's desk. Upon signing, it would become an effective policy 30 days later, and it would be implemented six months after that.

While the FDA would not comment on the specific measure, spokesman Michael Felberbaum said in a statement Monday that "the FDA has and will continue to tackle the troubling epidemic of e-cigarette use among kids. This includes preventing youth access to, and appeal of, flavored tobacco products like e-cigarettes and cigars, taking action against manufacturers and retailers who illegally market or sell these products to minors, and educating youth about the dangers of e-cigarettes and other tobacco products."

Earlier this month, the FDA issued final guidance for e-cigarette makers to submit premarket tobacco product applications, giving these companies a clearer path to seek official authorization to market their products. The announcement came about a month after a federal judge ordered the agency to speed up its review of thousands of vaping products now on the market. That decision, part of a lawsuit filed by multiple health groups, said that the agency has acted illegally by allowing e-cigarettes to remain on the market until 2022 before requiring companies to apply for that authorization.

In a statement Monday, a Juul representative said "the prohibition of vapor products for all adults in San Francisco will not effectively address underage use and will leave cigarettes on shelves as the only choice for adult smokers."

The company has maintained it has taken action to limit kids from using their products and said it intends to continue working with policymakers and community members toward "stronger regulation and enforcement rather than complete prohibition."

A separate ordinance, also up for a final vote Tuesday, would prohibit "the sale, manufacture, and distribution of tobacco products, including electronic cigarettes, on City property."

The company is also behind a ballot initiative that experts worry could roll back the city ordinance if voters approve it in upcoming elections. But the company defends its proposal, which includes measures like age verification and limiting the amount of product that can be purchased at once.

Juul has already amassed the signatures required to move forward with the proposal, according to its statement Monday.

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