New California vaping bill is a ruse for protecting Big Tobacco, health groups say

A teenager uses a vaping device near her school in Cambridge, Mass. A California bill to stop teen use of electronic cigarettes was shelved earlier this year.
(Steven Senne / Associated Press)

Two months after key lawmakers sidetracked a proposed ban on the sale of flavored tobacco products in California, an influential state legislator has quietly introduced a less restrictive measure that some health groups say is designed to protect electronic-cigarette makers.

The new proposal, which also targets marketing to youth, was announced by lawmakers led by Assemblyman Adam Gray (D-Merced), whose chairmanship of the powerful Assembly Governmental Organization Committee makes him a gatekeeper for all tobacco-related bills.

At issue is the sale of vaping products with candy, fruit and other flavors, which make them attractive to young people, health groups say. They cite a study last year by the Food and Drug Administration that found some 3.6 million middle and high school students are using e-cigarettes, an increase of 1.5 million from the year before.


Rather than an outright ban on flavored tobacco products as proposed by others previously, Gray’s Assembly Bill 1639 would allow sales in age-restricted vape and tobacco shops and through online merchants that use age-verification technology.

The bill would bar flavored e-cigarette products except those with menthol, mint and tobacco flavors from being sold at other retail stores, including liquor stores and gas stations.

Gray, who sidelined another Assembly member’s proposed ban on flavored products in May, said that comprehensive action is needed because the number of minors using e-cigarettes is rising and is 2.5 times the number who are smoking.

“This is a serious crisis which calls for a serious response,” he said in a statement. “This legislative package is a model other states should look to emulate.”

His office said he was not immediately available Friday to comment further.

AB 1639 would create a fine of up to $100 for those older than 18 but younger than 21 who are caught with electronic cigarettes or tobacco products, while minors would face mandated drug education and community service. Sellers would also be fined.

However, health groups denounced the broader proposal as watered down and misdirected.

The American Cancer Society Cancer Action Network called the bill as amended by Gray a “complete sham.”

“Big Tobacco is using intense lobbying and campaign contributions to lure lawmakers to pass a bill that will do little to curb the current youth e-cigarette epidemic raging in this state,” the group said in a statement.

The legislation protects e-cigarette firms, including Juul Labs, which has been a major campaign contributor to state lawmakers, the cancer network argued.

“What Gray is offering in some ways is the Juul market-share protection act,” Jim Knox, managing director of the network, said in an interview.

The network issued a report that said the tobacco industry has provided more than $2.2 million in campaign contributions to state officials since 2014.

Juul has spent $137,000 on campaign contributions a little more than halfway through the current two-year legislative session, including $25,000 to Gray’s ballot measure committee — which is not subject to contribution limits under state law — and $13,000 to his reelection committees. In addition, Juul has spent $210,000 in the last two years on lobbying. A spokesman for the firm declined to comment on the new legislation.

The sway of the industry is “disappointing politics as usual,” according to Jessica Sims, a physician and board member of the American Heart Assn., Los Angeles Division, who said in an interview that she opposes the new legislation.

Sims said that kids exposed to the industry’s marketing efforts shouldn’t be the ones held responsible for trying e-cigarettes. “It’s the people who are profiting from putting bad products in kids hands that should be held accountable,” she said.

The legislation also drew opposition as “inadequate” from Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, a coalition of health officials.

Myers said cities including San Francisco have taken a better approach by prohibiting the sale of electronic cigarettes.

“We urge the California Legislature to follow their lead and prohibit all flavored tobacco products,” Myers said.

The new proposals come two months after state Sen. Jerry Hill (D-San Mateo) shelved his ban on the sale of flavored tobacco products because he felt it had been watered down by a Senate committee and was no longer supported by health groups.

The Hill bill was changed to exempt hookah products and some flavors that are commonly used in cigars and pipes, including menthol.

The senator said Wednesday that he stands by his original position that there should be a complete ban on flavored tobacco products, which he feels is needed to address the growth of vaping by young people.

“I was not then, nor am I now, interested in half measures that fail to adequately address the root of this problem,” Hill said Wednesday.

He objected to a statement by Gray’s office that another Hill bill is part of a package of tobacco bills.

“That’s wrong on several counts,” Hill said. “SB 39 is a standalone bill, introduced in December, to impose more stringent age verification, packaging and delivery requirements for tobacco products of all kinds sold online and by mail. It is not associated with any committee effort.”

Hill released a letter he received two months ago from the Vapor Technology Assn. that opposed his bill banning flavored products. Instead the association proposed that new rules be adopted to prevent labeling and marketing of products in ways aimed at being attractive to minors.

The association cited medical studies including one published in the New England Journal of Medicine that indicate electronic cigarettes are more effective at helping smokers quit than other nicotine replacement therapies.

“For this reason alone, limiting access to flavored vapor products is bad public health policy,” wrote Tony Abboud, executive director of the association, a vape trade group representing manufacturers, wholesalers, distributors and small business.

Gray’s proposal is consistent with the industry proposal by suggesting the state conduct sting operations in which minors would try to buy tobacco products in stores, and violators would face a fine of up to $1,800 for the first offense, with subsequent fines higher.

The measure would also prohibit marketing of tobacco products in ways that might be attractive to minors, including with cartoons, and references to “candy.”

Still Abboud said the new legislation goes too far, saying it would “impose onerous limitations on adult access to vapor products.”

The bill’s authors also include Assemblymen Jordan Cunningham (R-Templeton), and Robert Rivas (D-Hollister).

“Like epidemics of the past, this one deserves a robust and focused public policy response,” Cunningham said. “I believe this bill will help curb the rise of teenage vaping and be positive for public health.”

The latest legislation is scheduled for a vote in the Assembly Governmental Organization Committee on July 10.

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