San Francisco’s E-Cigarette Ban Aims to Goose the FDA

San Francisco city officials voted unanimously on Tuesday to suspend the sale and delivery of electronic cigarettes until the products are approved by the Food and Drug Administration. The legislation, which still requires a second vote from SF’s Board of Supervisors and the mayor’s signature, would go into effect seven months after being passed—giving e-cigarette makers until early next year to win approval from the FDA.

The measure is intended to help stem the explosive popularity of e-cigarettes among young people, which the US Surgeon General has described as an epidemic. But it’s not clear that making e-cigarettes illegal will stop teenagers from vaping.

“We’ll see if it changes behavior,” says Bonnie Halpern-Felsher, a professor at Stanford who studies how e-cigarettes affect young people. “We don’t know yet.” Halpern-Felsher welcomes the ban, but says it’s just one step toward addressing the problem. She points out that the proposal is largely aimed at the makers of e-cigarettes themselves, and “in a lot of ways this is a message to the FDA.”

The message is hurry up. Dennis Herrera, San Francisco’s city attorney and coauthor of the bill, says the city wants to protect young people. But he also says he hopes the legislation will “spur the FDA to do what’s required under the law” and review whether these products are safe for consumers, and whether e-cigarettes are really the lower-risk tobacco option they claim to be.

More than one in five middle and high school teenagers vape, according to the US Centers for Disease Control. In 2018, the FDA warned e-cigarette companies to stop marketing to children and proposed restricting the sale of flavored vaping products to minors. Still, the administration has yet to review the safety of these products. In an email, FDA spokesperson Michael Felberbaum wrote: “The FDA is committed to continuing to tackle the troubling epidemic of e-cigarette use among kids. This includes limiting 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.”

San Francisco officials say that isn’t enough. “The epidemic is real. It needed attention,” says Herrera, “We felt it was necessary to step in and make sure we were protecting young people on our streets.” Herrera criticized the FDA for being too slow and not properly vetting e-cigarettes before they arrived on the market in 2007. He says that by failing to test the safety of the devices, the federal government “abdicated” its responsibility. So San Francisco had to step in.

The Tobacco Control Act gives the FDA authority to assess the safety and health risks of products, like e-cigarettes, that advertise themselves as low risk or less harmful than regular cigarettes. Typically the FDA is supposed to conduct these reviews before the products show up on shelves, but the agency has been slow to catch up with the vaping craze. The FDA does currently require e-cigarette manufacturers to submit applications for review, but many products like Juul didn’t get pre-market approval before they put their e-cigarettes out. Instead of removing those products, the FDA gave Juul and other companies a 2022 deadline for submitting applications for approval.

For San Francisco officials and others, that’s unacceptable. E-cigarettes may not cause lung cancer, but they do contain nicotine, which is highly addictive, and can affect adolescent brain development. Recent studies suggest they may be linked to other cardiovascular and lung conditions. The CDC does not recommend any e-cigarette products for children or teenagers, but it has said e-cigarettes have the “potential to benefit” adult smokers who switch from combustible cigarettes to e-cigarettes.

“The FDA is complicit in allowing this epidemic to develop,” Stanton Glantz, director of the UC San Francisco’s Center for Tobacco Control Research and Education, wrote in an email. “Other cities and states should follow SF’s lead: pass comprehensive flavor bans, followed by legislation to prohibit the sales of e-cigs until they are properly assessed by FDA.”

While the FDA may be behind the hot new teen trends, there is no guarantee that a local prohibition will have much impact on the teenage vaping epidemic. The FDA already restricts the sale of e-cigarettes to people 18 and older, and in California you have to be 21 and over to buy them, but that hasn’t done much to deter kids. “Youth still can access these products pretty easily,” says Halpern-Felsher, the Stanford professor. A ban would remove e-cigarettes from San Francisco, but not from Oakland or other neighboring cities. Halpern-Felsher says that for many teenagers, especially those who can’t drive, that will make buying e-cigarettes more difficult but not impossible. “They certainly can, no doubt, and they do,” she adds.

Halpern-Felsher would like to see additional programs that educate parents, teachers, and teenagers about the risks of e-cigarettes. Right now San Francisco has no plans to increase awareness, advertising, or education campaigns aimed at young vapers.

The proposed law seems particularly odd in a city where marijuana vape pens are both popular and still legal, untouched by the ban. “That’s a fair debate to have,” says Herrera, who notes that policymakers will need to evaluate if they are sending mixed messages to the public.

Michael Siegel, a professor at Boston University who studies tobacco regulation, worries the ban will send mixed signals about what substances are or are not OK to use. He says that San Francisco is not proposing to ban traditional cigarettes, whose health risks are well documented: “We’re basically saying that we only care about the risks of kids vaping, but we don’t care about whether they smoke or not. If we’re going to ban vaping because we’re afraid of long-term risks that we don’t know, then how can we not ban smoking or the sale of cigarettes when we do know the long-term effects?” Siegel says some adults who can’t get access to e-cigarettes may return to regular cigarettes, causing more health problems.

Siegel suggests San Francisco treat tobacco the way many states treat alcohol, by restricting sales to adults-only stores. “The Board of Supervisors is going after vaping because it’s politically expedient,” he says, arguing that if the city were serious about tobacco addiction it should ban all tobacco products, as Beverly Hills did in June.

Juul, which controls around 75 percent of the e-cigarette market and is headquartered in San Francisco, voiced similar concerns. In a statement, a Juul spokesperson wrote that the company shares the supervisors’ “goal to keep tobacco and vapor products out of the hands of anyone under 21.” Juul points to changes it made to the company’s online marketing and to improvements to its online ordering age-verification system. “But 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, even though they kill 40,000 Californians every year,” the statement continued.

If one thing is clear, it’s that teenagers like to buck authority. There’s been a sea change in our cultural attitudes toward smoking, due in part to campaigns that taught teenagers how the tobacco industry was manipulating them to buy cigarettes. The teens rebelled, and suddenly smoking wasn’t cool anymore. Teens may not care about any messages that San Francisco is sending to the FDA—or what their parents would like them to do.

Siegel says we should harness that anti-establishment spirit to turn teenagers away from vaping too. “These are very addictive products and when you get addicted, you lose control,” he adds. By communicating those messages to teenagers, we’ll get teenagers to do the hard work of transforming a culture for us. “Kids could rebel against Juul itself,” he says.

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