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On June 25, 2019, San Francisco’s Board of Supervisors passed a sweeping ordinance banning the sale and distribution of electronic cigarettes (“e-cigarettes”) and flavored tobacco products to any person in San Francisco. Although the ordinance technically applies only to those e-cigarettes that have not received a premarket review order from the FDA pursuant to 21 U.S.C. § 387j, no e-cigarette has yet received such approval. Since the FDA extended the deadline for submitting premarket tobacco applications to August of 2022, San Francisco’s ordinance effectively bans sales of all e-cigarettes for the near future.
Current law already prohibits any retail establishment within the City and County of San Francisco from selling or distributing flavored tobacco products and flavored cigarettes, but the recently passed ordinance amending the Health Code has broader objectives. First, it bans the sale of e-cigarettes. Second, given the definition of “sale,” it also prohibits internet and mail order sales of e-cigarettes and flavored tobacco products—not just brick and mortar sales. Third, the ordinance prohibits the distribution of these products to any retail outlet located in San Francisco.
The ban on sale and distribution of flavored tobacco products applies to cigars, little cigars, pipe tobacco, chewing tobacco, and snuff, with no exception for menthol or mint flavors. But, the recently passed ordinance does not apply to flavored cigarettes. Therefore, while brick and mortar sales of flavored cigarettes remain illegal in San Francisco, internet and mail order sales of flavored cigarettes may continue in compliance with Federal and State law.
Since the Mayor of San Francisco signed the ordinance on June 28, 2019, it will become effective on July 28, 2019. The ordinance becomes “operative” an additional six months later. Manufacturers, wholesalers, distributors, and retailers will therefore have until January 28, 2020, to prepare for inventory changes at retail locations and implement safeguards to prevent internet sales to San Francisco addresses.
There is a chance, however, that the ordinance never takes effect. San Francisco-based e-cigarette manufacturer Juul has reportedly spent $500,000 on a ballot initiative that would allow San Francisco voters to overturn the ban on e-cigarette sales and to curtail future regulation of e-cigarettes and flavored tobacco products. Parties have until July 8, 2019 to submit signatures and need at least 9,485 signatures to qualify for the November 2019 ballot.
Rogers Joseph O’Donnell specializes in working with its corporate and business clients on compliance with regulatory and environmental laws that impact their business. For compliance advice, litigation and defense of claims, attorneys Renee D. Wasserman, Alexis J. Morris and Suhani Kamdar are available to assist.
