SAN FRANCISCO (CN) – Vaping giant Juul and its allies won a partial victory Friday against the city of San Francisco in a lawsuit challenging the wording of a ballot question that could replace the city's e-cigarette ban with a lighter set of regulations.
San Francisco Superior Court Judge Harold Kahn found a few words in the ballot question might mislead voters into thinking e-cigarette sales are currently banned under federal law, but he refused to delete language warning voters that a "yes" vote could undo the city's ban on flavored vaping products.
The ballot question reads in part: “Shall the city overturn the law passed by the Board of Supervisors suspending the sale of electronic cigarettes that lack required FDA authorization."
That wording "misleadingly suggests that the rules governing FDA’s authorization of electronic tobacco products currently prohibit the sale of those products unless the FDA has authorized their sale," Kahn wrote in a 5-page ruling Friday.
He ordered the city to replace "that lack required" with "until they receive" to make it clear that e-cigarette sales are not banned pending approval by the Food and Drug Administration.
The FDA classified e-cigarettes as tobacco products subject to regulation in 2016 but extended the deadline for e-cigarette makers to apply for approval until May 1, 2020. The FDA is supposed to decide whether to approve the products by May 2021.
“The decision by the court makes clear that the City Attorney’s office and the Ballot Simplification Committee failed in their duties to write a clear, factual ballot digest for the voters of San Francisco," said Nate Albee, spokesman for Yes on C - the Coalition for Reasonable Vaping Regulation, which is backing the ballot measure.
The coalition sued the San Francisco City Attorney's Office, which approves wording for each ballot question, along with the city's Department of Elections and Ballot Simplification Committee in August.
In his ruling Friday, Kahn also ordered the city to include a five-sentence disclosure in a voter guide clarifying that e-cigarettes are not banned under federal law but will eventually require FDA approval.
The judge denied the coalition's request to remove language warning voters that a "yes" vote could legalize the sale of flavored vaping products. San Francisco voters passed a referendum banning flavored tobacco products in June 2018.
Kahn found it unclear whether the referendum will undo the city's flavor ban and called that lack of clarity an "unfortunate circumstance." Because the ballot measure's language "could reasonably be interpreted" as repealing the ban, Kahn refused to alter a summary description stating that it "may also repeal other existing city laws," including one that "prohibits the sale of flavored vapor products."
In a statement, San Francisco City Attorney Dennis Herrera said Juul could have included language in its ballot measure specifically preserving the flavor ban, but it chose not to.
"This ballot measure’s potential to repeal the flavor ban is entirely of Juul’s own making," Herrera said.
The city attorney added he is pleased with the court's decision to preserve language telling voters that e-cigarettes are subject to FDA authorization.
"San Francisco’s law merely restricts the sale of e-cigarettes that have not received FDA authorization," Herrera said. "This law is not a ban; it is smart regulation."
Juul and its allies have raised $4.5 million to support the ballot measure. Opponents have raised $268,000 as of Sept. 6.
The San Francisco Board of Supervisors unanimously approved a ban on vaping products that lack FDA approval in June, citing a spike in nicotine use among teens. Opponents say the ban will prevent adults from using e-cigarettes to wean themselves off smoking more toxic combustible cigarettes.
The U.S. Centers for Disease Control and Prevention reported initial findings Friday of an investigation which linked vaping products to 450 cases of lung illness in 33 states, resulting in five deaths. The CDC encouraged people to "consider not using e-cigarette products" while the investigation is ongoing and asked those who use vaping products to monitor themselves for symptoms and "promptly seek medical attention for any health concerns."
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