San Francisco Suspends E-Cigarette Sales Until Manufacturers Obtain FDA Approval


On June 25, San Francisco’s Board of Supervisors voted unanimously to pass legislation that will suspend the sale of electronic cigarettes. The popular vaping devices have not been reviewed or approved by the Food and Drug Administration (FDA). The Board of Supervisors’ move will effectively ban e-cigarettes from the City and County of San Francisco until FDA approval has been granted.

Surprising as it may be, the FDA has allowed the most toxic e-cigarettes of all time to be sold to American consumers without requiring manufacturers to submit any proof of their product’s safety or efficacy. Legislators in San Francisco have decided to force Big Tobacco’s hand: until they apply for and receive premarket approval, e-cigarettes are outlawed in the city.

London Breed, the mayor of San Francisco, is expected to sign the legislation, which will go into effect 30 days her signature. The legislation will then be enforced for a period of 6 months after that. In a statement before the vote, she explained the potential dangers the policy seeks to address:

“There is so much we don’t know about the health impacts of these products, but we do know that e-cigarette companies are targeting our kids in their advertising and getting them hooked on addictive nicotine products. We need to take action to protect the health of San Francisco’s youth and prevent the next generation of San Franciscans from becoming addicted to these products.”

Although the law is aimed at curbing youth vaping, adults will also be prohibited from purchasing e-cigarettes within county limits. Once the bill goes into effect, San Francisco will become the first city in the United States where the sale and distribution of e-cigarettes are prohibited. This will include sales from brick-and-mortar shops as well as online sales to city addresses.

Why Are E-Cigarettes Legal if They Are Not FDA Approved?

In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act, which authorized the FDA to regulate tobacco products in order to protect public health. Every “new tobacco product” was supposed to be reviewed by the FDA before it was marketed to American consumers.

E-cigarettes — which use aerosolize nicotine, a known toxin, and deliver it into a user’s lungs — should, at the very least, be subject to FDA premarket review. Unfortunately, there as has been no such analysis of these new tobacco products.

Thanks to a decade of industry lobbying and administrative foot-dragging, millions of people are using e-cigarettes even though the federal government has not vetted them in any systematic way to make sure these addictive products do not threaten public health.

In guidance documents, the FDA has said it will begin enforcing the need for premarket regulation for all tobacco and nicotine-containing products by 2022. By that time, however, e-cigarettes will have been on the market for 15 years without any substantial FDA analysis.

San Francisco officials, pointing to the youth vaping epidemic, have said that action cannot wait. In a statement about the new e-cigarette legislation, San Francisco City Attorney Dennis Herrera said:

“San Francisco is taking action to protect our kids. This temporary moratorium wouldn’t be necessary if the federal government had done its job. 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. If the federal government is not going to act, San Francisco will.”

The new ordinances amend the city’s health code to prohibit the sale, manufacture, and distribution of e-cigarettes within the property of the City and County of San Francisco. JUUL Labs, the country’s largest e-cigarette manufacturer, is headquartered in San Francisco and has already collected signatures for an initiative to reverse the law.

Will San Francisco’s E-Cigarette Ban Work?

There are a number of practical concerns that accompany the sudden prohibition of any addictive drug. All eyes will be on San Francisco as these unprecedented policies are implemented. Will it cut down on youth vaping? How will law enforcement respond to those looking to skirt the new law and profit off contraband e-cigarettes?

Lindsey Freitas, senior director of advocacy for the American Lung Association (ALA) of California contextualized the new legislation, telling CNN that, “Throughout the history of the tobacco control movement, cities and localities have served as laboratories to see what measures will be most effective to reduce the death and disease caused by tobacco.”

Unfortunately, the FDA’s inaction may have opened the door to this epidemic. As millions of more kids start vaping each year, cities and states will have to decide if they are willing to sit and wait while the numbers of individuals dying and getting life-altering illnesses and diseases from vaping continue to climb.

Get the facts about youth vaping from the U.S. Surgeon General.

Learn more about the potential risks associated with e-cigarettes, including seizures, cardiovascular disease, impaired lung function, and exposure to bacterial and fungal toxins.

Sokolove Law Team

Contributing Authors

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Last modified: September 25, 2020