Juul Calls Vaping Ballot Question Language Biased

SAN FRANCISCO (CN) – Vaping giant Juul and its allies sued the city of San Francisco Friday over its “false” and “misleading” descriptions of a ballot measure that could replace the city’s e-cigarette ban with a lighter set of regulations.

Yes On C – Coalition for Responsible Vaping claims the city’s Ballot Simplification Committee is “placing its thumb on the scale” to favor upholding an e-cigarette ban, which was unanimously approved by the city’s Board of Supervisors in June.

The coalition accuses San Francisco City Attorney Dennis Herrera, who approves wording for each ballot question, of bias. Herrera was a major supporter of city legislation that banned the sale of vaping products in June.

The ballot question reads: “Shall the city overturn the law passed by the Board of Supervisors suspending the sale of electronic cigarettes that lack required FDA authorization, and adopt new regulations on the sale, manufacture, distribution and advertising of electronic cigarettes in San Francisco?”

Juul Labs co-founder and Chief Product Officer James Monsees testifies before a House Oversight and Government Reform subcommittee on Capitol Hill in Washington on July 25, 2019, during a hearing on the youth nicotine epidemic. (AP Photo/Susan Walsh)

The petitioners argue the term “required FDA authorization” is misleading because e-cigarette sales are legal under federal law while FDA approval is pending. The Food and Drug Administration classified e-cigarettes as tobacco products subject to regulation in 2016, but it extended the deadline to review those products until August 2022.

Opponents of the e-cig ban also object to a summary description of the ballot measure, which states that its approval “may also repeal other existing City laws,” including one that “prohibits the sale of flavored vapor products.”

Juul and its allies say the ballot measure will not repeal San Francisco’s ban on flavored tobacco. They cite a letter from the San Francisco Office of Small Business, a city agency, stating that the ballot measure would not overturn the flavored tobacco ban.

“Instead of running a campaign on objectively true facts, opponents of the initiative seek to misinform San Francisco voters and falsely tell them that the initiative repeals the flavored tobacco ban,” backers of the ballot measure argue in their complaint.

In a statement Friday, the San Francisco City Attorney’s Office called Juul’s claims of bias “unfounded.”

Though City Attorney Herrera supported legislation to ban e-cigarette sales, spokesman John Cote said his boss has taken no public stance on the ballot measure backed by Juul.

“The Ballot Simplification Committee is an independent body dedicated to giving voters clear, accurate information,” Cote said. “The committee did that in this matter after a thorough public process. We’re confident the court will determine the language regarding the measure is accurate.”

Also on Friday, a federal judge advanced the bulk of a class action claiming Juul falsely advertised highly addictive e-cigarettes as “safe, candy-like products” to teens and adults.

As he indicated at a hearing in June, U.S. District Judge William Orrick dismissed claims of negligent marketing, negligence per se and breach of express warranty. He advanced claims of false advertising, failure to warn, manufacturing defect, warranty, implied warranty and violations of California’s unfair competition law.

Orrick found Juul failed to warn consumers that its Juulpods, or prefilled nicotine cartridges, contained 6.2% nicotine salts instead of the advertised 5% and that each pod contains more nicotine than a pack of cigarettes.

The judge also denied Juul’s motion to compel arbitration for five named plaintiffs who signed up for online accounts on Juul’s website. Orrick found the web link to Juul’s terms of service was not conspicuous enough to put them on notice about an arbitration agreement.

Juul said in a statement that it was pleased that the court partly granted its motion to dismiss and “substantially narrowed the claims at issue.”

A Juul spokesperson noted that the company is not allowed to present evidence at this early stage of litigation and that the court must treat plaintiffs’ allegations as true, “even though they are based on a fundamentally inaccurate premise.”

The company said it is considering appealing Orrick’s decision on the enforceability of its arbitration agreement.

Plaintiffs’ attorney Adam Gutride, of Gutride Safier in San Francisco, did not immediately return an email seeking comment Friday.

Last month, a House panel grilled Juul representatives about a Stanford University researcher’s findings that the company used youth-oriented marketing to target minors and reports that it portrayed e-cigarettes as “healthy” during “anti-vaping” talks in schools.

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