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Gun, Tobacco Curbs Give S.F. Model Against Vaping Sales

Gun, Tobacco Curbs Give S.F. Model Against Vaping Sales

S.F. seeks to prohibit shipments to residents.

vape liquidBy Catherine Ho - San Francisco Chronicle

Judy Smith, a retired teacher who uses Juul and other vaping devices, is mad. Smith said she tried to order an e-cigarette charger online from a Florida company a few weeks ago, but it would not ship the product to her San Francisco address. The apparent reason: a city law passed last month that bans e-cigarette sales, including over the internet, in an attempt to prevent kids from vaping.

“I’m so sick of the ‘Just say no’ stupidity,” Smith said. “If we hide stuff from kids, it just pushes them to do it even more.”

Smith’s experience could become common. Starting in January, San Francisco will start enforcing the e-cigarette law—a ban that would be lifted for e-cigarettes that pass a Food and Drug Administration review. Makers of vaping products must apply for the review by next year.

But fully preventing e-cigarettes from being delivered to the city can be tricky. The Constitution, federal laws and court decisions prevent local governments from regulating interstate commerce and carriers such as UPS and FedEx that deliver products. Local officials are limited to going after the retailers directly—a time-consuming endeavor with potentially inconsistent results.

“There are tens of thousands of tobacco retailers. An online vendor might be thousands of miles away,” said Derek Carr, an attorney with ChangeLab Solutions, an Oakland nonprofit that researches and backs tobacco control laws.

Local prohibitions on online tobacco sales, Carr said, “can send a strong message, and even the threat of enforcement is likely to spur most retailers to comply. But truly effective enforcement requires resources beyond the reach of many state and local governments.”

A spokesman for City Attorney Dennis Herrera, who co-wrote the e-cigarette legislation with Supervisor Shamann Walton, declined to discuss specific enforcement tactics or resources the city plans to devote to the effort.

“San Francisco has a successful track record of ensuring that unlawful products aren’t bought online and shipped here,” John Coté, a spokesman for Herrera, said in an email. “The city has multiple ways to make sure the law is followed. It wouldn’t be prudent to publicly disclose specific investigatory or enforcement tools.”

The city attorney and the San Francisco Department of Public Health together enforce the city’s tobacco laws. For any retailer that violates the e-cigarette law, the department can impose a penalty of $1,000 per violation and refer the matter to the city attorney’s office, which can institute civil proceedings and potentially layer on civil penalties of up to $1,000 per violation. The retailer doesn’t have to be located in San Francisco for the penalties to be enforced.

The city could take an approach similar to its recent efforts to stop large-capacity gun magazines from being illegally shipped to California customers. In 2013 and 2017, Herrera sued gun equipment suppliers that were selling magazine kits online and shipping them to California residents. The city won a court order in 2017, stopping the companies from selling and sending the kits to California. The companies must produce affidavits every year certifying that they have, among other things, stopped sending the products into California and removed the state as a shipping option for the items on their websites.

In 2017, city officials outlawed the online sale of upholstered furniture and some children’s products treated with flame-retardant chemicals found to be linked to health problems, and a year later, they banned the sale of fur clothing and accessories. Both prohibitions took effect in January. The Public Health Department, which enforces the fur ban, has not issued fines against online sellers of fur. The Department of the Environment, which enforces the flame-retardant furniture ban, has visited brick-and-mortar chain stores that also sell items online and issued three warning letters, a department spokesman said. It will do follow-up visits after 30 days to ensure that the stores are complying.

Chicago could serve as a potential model for enforcing the online e-cigarette ban, tobacco control experts said. Last year, city officials there used an under-21 decoy to order e-cigarettes from dozens of online sellers—then sued retailers they said were illegally delivering the products to the decoy. Of the 36 e-cigarette companies the city sued, 10 to 15 have settled, paying a collective $300,000 to $400,000 in penalties, with some also agreeing to stop selling their products in Chicago, said Elie Zenner, assistant corporate counsel for the city.

It is legal in most states, including California, to buy traditional cigarettes online and have them shipped to your home. But a 2010 federal law, the Preventing All Cigarette Trafficking Act, made it more difficult to do so by imposing requirements on delivery companies including FedEx, UPS and DHL. As a result, some carriers stopped shipping tobacco products. E-cigarettes, however, weren’t widely used at the time the law was passed, and therefore can be bought online and delivered with fewer regulations than conventional cigarettes.

“I suppose you can block certain merchants you’ve flagged as selling this product, but I don’t know how you ban it on third-party marketplaces,” said Sucharita Kodali, vice president and principal analyst at Forrester Research, a market research firm.

Amazon and eBay prohibit the sale of e-cigarettes on their websites; if merchants are found to be offering any illegal products on the sites, the companies may suspend their accounts.

Paypal does not allow its users to buy e-cigarettes in the U.S. either. The San Jose company has dedicated teams to ensure compliance, and users’ accounts can be canceled for violations, said Kim Eichorn, corporate affairs manager at the payment-processing firm.

At least 11 states have laws barring the shipment of tobacco products to residences, but those rules apply mostly to regular cigarettes, not e-cigarettes. In one such state, Arizona—considered one of the most aggressive state enforcers of tobacco laws—the office of Attorney General Mark Brnovich has a full-time investigator dedicated almost entirely to overseeing inspections of brick-and-mortar stores and online sellers to make sure they’re not selling to minors or shipping tobacco to Arizona residents, said spokesman Ryan Anderson.

“It’s an agent sitting there doing a lit of Googling, trying to track down websites and transactions,” Anderson said. When offenders are caught, the office issues cease-and-desist letters to the companies. Of the $9 billion in revenue that e-cigarette and vaping products are expected to generate in the United States by the end of 2019, about $6.4 billion (72%) will come from physical locations like convenience and drugstores, while $2.6 billion (28%) will be generated online and at other sources, according to a March research report by Wells Fargo Securities.

Juul, the San Francisco vaping company that dominates the e-cigarette market in the United States, will stop shipping its products to San Francisco addresses to comply with the ordinance, a spokesman said. But the firm is pushing to stop the ban from taking effect by sponsoring a November ballot initiative that would allow the company to continue selling e-cigarettes in the city.
The debate over whether local governments should restrict access to e-cigarettes centers on whether the potential harm-reduction benefits of e-cigarettes for adult cigarette smokers outweighs the potential harm it causes children. Many smokers who say vaping helped wean them off cigarettes feel they should be able to buy the products freely. But public health officials and parents worry that the popularity of e-cigarettes is creating a new generation of nicotine-addicted teens. Roughly 1 in 5 high school students in the United States uses e-cigarettes.

Smith, the retired teacher who belongs to a Juul-backed coalition that opposes the San Francisco e-cigarette ban, now has to ask a friend in the East Bay to use his shipping address and meet up with him in person to get her supplies.

“It’s another two or three steps I have to take,” she said with irritation.

Chronicle staff writer Shwanika Narayan contributed to the report.

Catherine Ho is a San Francisco Chronicle staff writer. Email:   Twitter: @Cat_Ho

Bay Area Bans

Several Bay Area cities, towns and counties have passed restrictions on the sale of e-cigarettes and some or all flavored tobacco products (menthol cigarettes, little cigars and smokeless tobacco). 

2014: Hayward bans flavored tobacco sold within 500 feet of youth-populated areas.

2015: El Cerrito and the city of Sonoma ban flavored tobacco. Berkeley bans flavored tobacco sold within 600 feet of youth-populated areas. 

2016: Santa Clara County bans flavored tobacco, except in adults-only stores. 

2017: Cloverdale, Fairfax, Novato and San Leandro ban flavored tobacco, Oakland, Los Gatos and Palo Alto ban it except in adults-only stores. Contra Costa County bans flavored tobacco within 1,000 feet of youth populated areas. 

2018: Half Moon Bay, Marin County, Portola Valley, Richmond, San Francisco, San Mateo County, Sausalito, Saratoga and Alameda ban flavored tobacco. 

2019: San Francisco bans the sale of e-cigarettes in stores and online. Livermore bans the sale of e-cigarettes and flavored tobacco in sotes. 

Source: American Lung Association, Chronicle research

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