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Supervisors pass temporary vape ban

San Diego Union-Tribune - 1/15/2020

Nicotine is on notice in San Diego County.

The county Board of Supervisors on Tuesday voted 3-2 for a one-year moratorium on electronic smoking devices, a temporary prohibition on flavored vaping liquid and a prohibition on smoking or vaping in outdoor dining areas.

The vote came despite cries that their actions would force some to return to smoking cigarettes and that the restrictions would not affect Internet stores used by teens.

The new set of rules applies only to unincorporated parts of San Diego County outside the boundaries of the region's 18 cities, an area that is home to about 500,000 people. No local cities have yet taken similar actions.

The board heard from dozens of angry residents, most who said they are involved in the vaping industry in one way or another, who made it clear that they thought the stated reasons for the bans are misguided.

Supervisors Nathan Fletcher and Dianne Jacob proposed the local rules in October shortly after the U.S. Centers for Disease Control and Prevention recommended that everyone stop vaping until it could fully investigate a nationwide outbreak of severe vaping-related lung injuries and deaths.

At the time, it was not yet clear exactly which products were responsible for the heart-breaking string of cases often among teens who said they regularly vaped many different substances. But subsequent statements from the CDC have zeroed in on marijuana-related products, usually obtained from unlicensed shops or Internet-based purveyors, adulterated with vitamin E acetate. Though other substances have been found in the lungs of affected patients, and the CDC is still investigating those substances, the biggest culprit appears to be vitamin E acetate.

The three supervisors who supported the ban — Jacob, Fletcher and newly-elected board chair Greg Cox — said they were acting out of an abundance of caution given that the CDC has not yet concluded its lung-injury investigation.

"With the public health data available to us, and with all of the facts around this issue, it is the appropriate thing, in an effort to protect public health, that we move forward with this ban," Fletcher said.

"To me the issue is between do we support big tobacco today or are we gonna side on the health side, in protecting public health?" Jacob added.

That comment echoed a large number of tobacco prevention advocates who spoke during Tuesday's hearing on the ever-growing number of school-aged children who are vaping throughout the county. Massive increases in childhood vaping has spurred concerns among educators and public health officials alike that the current trend is creating a generation of kids addicted to nicotine that is significantly larger than the cohort that used to get its fix smoking cigarettes in the boys room.

Supervisors Kristin Gaspar and Jim Desmond, who both voted against the vaping bans, said they were simply unconvinced that the raft of local legislation would do much of anything to keep kids from vaping nicotine products, which are easily purchased online.

Vaping shop owners like those who showed up to testify Tuesday afternoon, Desmond said, are the ones following the rules. Most lung injury cases, he noted, have been sold through illicit "pop up" shops, according to the CDC.

"I feel this is a strong overreach of government," Desmond said. "The County of San Diego should step up enforcement of the laws that are already in place, which are that no one under 21 should have access to these products. If every one of these vape shops in the unincorporated areas were to shut down, it wouldn't make a dent in the kids having access to these products."

Gaspar agreed.

"I'm not a smoker, nor have I ever been, and I certainly have never supported big tobacco, but this ban won't do what we intend for it to do," she said.

After the hearing was over and the decision was made, Remon Mansour of El Cajon, who said he is a wholesaler of vape products, predicted that the decision would cost jobs and negatively affect small business owners. He said he did not believe that the supervisors who voted for the new rules Tuesday ever fully addressed the fact that lung injury has been very strongly connected to marijuana products by the CDC.

The vote, Mansour added, was particularly galling given the Trump administration's announcement earlier this month that the federal government will soon ban all flavored cartridge-based vape liquids later this year. These cartridges, the most popular of which is the embattled Juul brand, are widely known to be favored by teens because they are very compact and easily concealed compared to much larger vape pens with refillable reservoirs that the new federal enforcement rules allow to continue being sold.

"What makes San Diego's population any different from the rest of the country?" Mansour said.

Hundreds of local shop owners have banded together to create Communities for Safer Vaping which is committed, organizers said, to never selling to anyone younger than 21.

The board's decision to move forward with local bans, Mansour said, leaves the organization with few other options than the courts.

"It's very clear to us that this would not hold up in a court of law, and I would say we're seriously considering out options," Mansour said.

Of course, flavored tobacco products have been a hot issue for decades, starting with fights over menthol flavoring that advocates got banned in cigarettes by indicating that flavors are designed to appeal to young people.

Debra Kelley, director of Tobacco Free Communities Coalition, said that many were excited to see the county take the actions it did Tuesday. Many, she said, have been actively fighting flavored tobacco in all forms for many years previous to the current lung injury investigation. Though her organization did not take a formal position on the policies that the board ultimately approved, they cheered them none-the-less.

"We just cannot pass up any opportunity to protect these kids from being addicted and heading onto a path of death and disability," Kelley said.

The ordinances passed Tuesday still must pass a second reading scheduled for Jan. 28. Though the electronic smoking device moratorium would technically start on Feb. 28 and run for one year, the county will not start enforcement on any of the regulations until July 1. The flavored products ban would be lifted when and if the CDC's investigation concludes and does not implicate nicotine products.

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