As states and cities race to impose new sales restrictions on e-cigarettes — now linked to more than 1,000 lung-related illnesses and close to two dozen deaths nationwide — almost none is taking action against traditional tobacco cigarettes, which have killed far more people.
Rates of youth vaping are skyrocketing, while rates of youth use of cigarettes are falling to record lows — which may explain why politicians and regulators have a sudden new interest in cracking down on e-cigarettes. About 3.6 million high school and middle school students vape, compared with 1.4 million who smoke regular cigarettes, according to 2018 data from a survey by the Centers for Disease Control and Prevention.
But regular cigarettes kill about 439,000 Americans each year, according to the CDC, far more than the figure for e-cigarette use — the latter of which health officials believe are linked in part to black-market THC products. With the exception of Beverly Hills, which banned the sale of almost all tobacco products in May, cigarettes are largely being left untouched by public officials.
“Every death is tragic, but when we look at deaths from e-cigarettes compared to tobacco, tobacco is absolutely getting a pass. And it shouldn’t,” said Tim Hubbard, an assistant professor of management at University of Notre Dame’s Mendoza College of Business who studies executive leadership and follows the e-cigarette industry. “This is an opportunity for us to look at the whole scope of products that use nicotine and see what is the best way forward for the country and the world.”
At the federal level, only Congress — not the Food and Drug Administration, which regulates tobacco products — can ban the sale of cigarettes, legal experts say. The 2009 Tobacco Control Act, the federal law that gave the FDA authority to regulate tobacco products, specifically forbade the agency from banning the sale of cigarettes — or cigars, little cigars and smokeless tobacco products such as chew and snus. But at the time the 2009 law was passed, e-cigarettes were relatively new, and the law did not explicitly address them. It wasn’t until 2016 that the FDA came out with a rule saying e-cigarettes are considered tobacco products and are therefore regulated by the FDA. It is this rule that requires e-cigarette companies including San Francisco’s Juul to apply for an FDA review by May so they can continue selling their products.
Cigarette sales bans can also be enacted at the local level, said Chris Bostic, an attorney and policy expert at Action on Smoking Health, an anti-tobacco group in Washington, D.C.
“It’s up to cities and states to step up,” Bostic said. “Beverly Hills … is not going to be the last.”
At least one other California city is testing the waters. Last week, officials in Manhattan Beach (Los Angeles County) moved forward on a sales ban on all tobacco products. Because of the urgency of vaping illnesses, the council is prioritizing banning vaping products first and will phase in the ban on cigarettes and other tobacco products later, said Manhattan Beach Mayor Nancy Hersman.
In Carson, also in Los Angeles County, the mayor proposed a ban on the sale of all tobacco products, but it was tabled by the City Council in August. In Santa Clara County, council members in Saratoga discussed the possibility of banning all tobacco sales last year, but ended up banning just flavored tobacco products. And in 2014, health officials in Westminster, Mass., considered a proposal banning the sale of all tobacco and nicotine products. Residents expressed anger about the potential encroachment on their civil liberties, and the proposal was quickly dropped.
San Francisco Supervisor Shamann Walton, who co-wrote recent legislation suspending the sale of e-cigarettes until they clear an FDA review, did not directly answer whether he would support future legislation banning the sale of tobacco cigarettes — saying just that he is focused now on stopping Proposition C, the ballot measure to overturn his ban that Juul had been pushing. Juul ended its financial support for the initiative last week, shutting down the Prop. C campaign, but the measure will still appear on the Nov. 5 ballot.
Vaping companies such as Juul have sought to present e-cigarettes, which do not contain the combustible carcinogens present in tobacco cigarettes, as a way to wean off smoking. Many public health researchers acknowledge the harm reduction potential of vaping compared with smoking, but say e-cigarettes have their own dangers.
Walton told The Chronicle’s editorial board last month that a cigarette prohibition could be on the table in the future.
Experts say there is something visceral about seeing images of young, formerly healthy people hooked up to ventilators after vaping for relatively short amounts of time — as is the case with many of the vaping illnesses. The same immediacy is not there with cigarettes, even though most people know, and scientific evidence shows that smoking leads to high rates of cancer and other deadly diseases decades later.
“There’s a lot of momentum behind addressing e-cigarettes, given the huge increase in youth use,” said attorney Derek Carr, a tobacco policy expert at ChangeLab Solutions, an Oakland nonprofit that backs tobacco control laws. “Nothing gets people motivated like protecting kids. It’s a bigger political hill to go up to start talking about cigarettes and cigars. Given the (vaping) illnesses going on, they prioritize getting the policies that can be put in place the quickest rather than the ones that are more comprehensive.”
Government officials and individual plaintiffs went after the tobacco industry in the 1990s for many of the same things they’re going after Juul for now —including marketing and advertising tactics — which resulted in the landmark 1998 Master Settlement Agreement. The agreement allowed the sale of cigarettes to continue but prohibited tobacco companies from advertising to youths and in certain public spaces such as billboards and public transit systems. It also allotted billions of dollars to states’ public health care programs to help pay for their residents’ smoking-related illnesses.
“A lot of people feel like we did it, we’ve done what we should in that industry,” Hubbard said. “Most people have accepted that we’re going to sell tobacco in this country and it will be sold to people 18 and older, behind the counter and with large labels that say they are going to kill you. We’re at a similar moment now with e-cigarettes. We’re taking a hard look. We have some data but not enough. Whatever happens the next few months, it’s going to have the same feeling we had with regular tobacco. We did what we were going to do, and it might go back to business as normal, if not enough is done.”