Vaping industry breathes easier: For now, California lawmakers won’t restrict its business

In Summary

San Francisco-based Juul and other companies that produce and sell vaping products lobbied hard — and seem to have gotten what they wanted out of the 2019 legislative session.

It’s been a bad week for Juul — which faces a growing health scare, federal accusations of false advertising to minors and a possible ban on its flavored products. But as of today, the San Francisco-based e-cigarette giant can rest assured that Sacramento legislators will not be adding to their woes anytime soon.

Assemblyman Adam Gray, a moderate Democrat from Merced, announced that he was tabling his bill that would have placed new regulations on vendors of e-cigs and vape pens. His goal, he said, is to make the legislation stronger before bringing it back next year.

As a consequence, Juul and other companies that produce and sell vaping products seem to have gotten pretty much exactly what they wanted out of the 2019 legislative session.

California’s hands-off approach is at odds with the escalating public concern over the industry. By the most recent count by the federal Centers for Disease Control, 450 people may have been sickened and five Americans (including one Californian) have died as a result of vaping-associated lung disease

That has brought additional scrutiny of policymakers elsewhere. On Wednesday, Alex Azar, the federal Health and Human Services Secretary, announced plans to ban the sale of all non-tobacco flavored e-cigarette products. That comes just two days after the Food and Drug Administration accused Juul of marketed its vaping products to teenagers as a “much safer” or “totally safe” alternative to traditional cigarettes. Earlier this summer, San Francisco had voted to ban the sale of e-cigarettes in the city.

Neither Juul nor the lobbyists who represent the company in Sacramento responded to requests for comment. But the company and its industry peers are a familiar presence around the capital, maintaining that they, too, want to keep minors from using their products.

In the first half of this year, Juul and the Vapor Technology Association, a trade group, spent a combined $314,418 on lobbying state legislators. Since early last year, Juul has contributed $95,150 to California lawmakers (including $33,800 to Gray and his associated fundraising committees) and $278,750 to other political groups, including the Los Angeles County Democratic Party.

The year began with more than half a dozen bills aimed at reining in the industry, including a series of outright bans on candy and fruit flavored vapes. In the end, only one bill — a proposal by San Mateo Democratic Sen. Jerry Hill that would have required that vaping paraphernalia be “conspicuously labeled” as a tobacco product—has made it to the governor’s desk.  

The tortured history of Gray’s bill speaks to the long odds that even modest restrictions on the e-cigarette industry have in California’s Democrat-dominated Legislature.

Earlier this year, Democratic Assemblymen Kevin McCarty of Sacramento and Jim Wood of Healdsburg introduced a bill to ban the sale of flavored tobacco products — flavors on the market included mango, cotton candy and mint. Public health advocates say flavors are helping drive the huge growth in vaping among young people. The University of Michigan’s “Monitoring the Future” survey found that 1 in 5 high school seniors in 2018 acknowledged vaping nicotine at least once in the prior month. That was almost double the share from the previous year’s survey, making it the biggest single-year spike in substance abuse of any kind recorded in the survey’s 44 years.

The McCarty-Wood bill was killed without a hearing in the Assembly’s Government Organization Committee, chaired by Gray.

Over in the Senate, a similar proposal by Hill was watered down in another committee, leading the author to withdraw it in disgust

A few months later, Gray introduced a vaping bill of his own. This one presented a lighter touch than the earlier proposals, simply introducing new restrictions on where flavored vape products can be sold and how they can be advertised. When Gray announced that the proposal would be part of a legislative package with Hill’s conspicuous labeling bill, Hill told Politico that his proposal had been “hijacked” and replaced with “an industry-sponsored plan that doesn’t help alleviate the epidemic of youth vaping.” 

Public health advocates were similarly incensed. The American Cancer Society Cancer Action Network called it a “complete sham.”

Following that critique, Gray removed the provisions that drew the most ire: penalties on under-age buyers, which health advocates said misplaced the punishment on children; an exemption on hookah pipe products; and flavored tobacco restrictions that carved out an exception for menthol, mint and “tobacco” flavors. Once the offending provisions were stripped away, the bill won the support of the American Cancer Society, the American Heart Association, the American Lung Association of California and the Campaign for Tobacco-Free Kids.

In its somewhat denuded form, Gray’s proposal mollified critics. Public health advocates were supportive of its effort to place new restrictions on advertising and hike fees for vendors who sell to minors,. And while the Vapor Technology Association (which represents most vaping companies that aren’t called Juul) opposed the bill, the San Francisco vape giant did not take a position.

Now that the bill has been put on ice until 2020, Juul will have more time to consider its position. 

Explaining his decision in a conversation on Tuesday afternoon, Gray said that the bill, which passed the Assembly without a single “no” vote, but which would likely have had to be considered by at least one Senate committee before going before the Senate as a whole, simply “ran out of time.” The 2019 legislative session ends this Friday at midnight. 

“I don’t think rushing through new amendments in the last four days is the way to build trust, collaboration and have, frankly, transparency,” he said. 

But Gray also said that the bill doesn’t go far enough. He said he wants the 2020 version of the proposal to raise taxes on e-cigarette sales and to consider the health consequences of vaping itself. The most recent news reports of vaping-related deaths helped convince him, he said.

“It’s also important to address the safety of the product and these (latest) newspaper stories make that real evident to me,” he said. “There certainly needs to be some regulatory oversight.”

Tim Gibbs, a lobbyist with the American Cancer Society, said that he and his colleagues were “pleased that there’s more time to work on (the bill) to make sure that we get it right.” 

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