San Francisco officials are attempting to ban the public use of e-cigarettes under the same laws that restrict smoking cigarettes, which are banned in most public places purportedly because secondhand smoke endangers others. However, the alleged lack of toxic emissions from e-cigarette vapor raises questions about the basis for the crackdown.
Has the crusade against smoking in public really been about protecting the innocent, or is the moralistic motivation to try to save people from their own bad choices also driving the trend? And if so, does that undermine the legal basis for restricting an otherwise lawful product?
Since 2011, the San Francisco Department of Public Health has backed legislation to hold e-cigarettes under the same public smoking laws as traditional tobacco products. Currently, San Francisco's continually expanding smoke-free ordinance bans cigarette consumption in nearly any public place. This consists of Muni stops, festivals, parks, farmers' markets, non-smoking apartments and, unfortunately for all you nicotine-addicted bingo lovers, the obscure addition of "charity bingo games."
San Francisco has yet to pass any regulatory laws regarding e-cigarette consumption, or "vaping." But Nick Pagoulatos, a legislative aide to Sup. Eric Mar, a staunch sponsor of San Francisco's many anti-smoking policies, says a plan is in the works.
"Currently there is nothing on the books," Pagoulatos told the Bay Guardian. "But there has been discussion with the health department [which is] working something up and the Mayor's Office has been talking with them as well. The timing is unclear, but at some point it will happen."
California Senate Bill 648, approved in May and currently on its way to the California Assembly, would elevate similar e-cigarette regulations to a state level. So why are California and San Francisco pushing so hard to regulate these products?
"The suspicion is that allowing people to vape these things reinforces the culture of smoking," Pagoulatos said. "It continues in the tradition of making smoking look cool, even if it's not actual smoke."
Traditionally, San Francisco's smoking ordinances have derived from the hazards of secondhand smoke on innocent bystanders, but the regulation of e-cigarettes evokes an entirely new basis for public smoking laws.
California has an active history of anti-smoking legislation beginning in the 1990s when San Luis Obispo became the first city in the world to ban smoking in all public buildings. In 1998, the public smoking ban elevated to the state level, specifically because of the health risks posed to bar and restaurant employees by secondhand smoke. This year, the San Francisco Board of Supervisors voted to extend the already strict non-smoking laws to cover festivals and street fairs and require landlords to designate their building units as smoking or non-smoking. Now, vapers in California face a similar threat.
E-cigarettes contain a battery operated heating device that vaporizes a combination of nicotine and a binding liquid such as propylene glycol, a substance "generally recognized as safe" by the FDA. Since nicotine is not what kills smokers, e-cigarettes have the potential to exist as a safe alternative for smokers who can feed both the physical and mental habit of smoking without the detrimental effects of tar and the plethora of other chemicals found in traditional cigarettes.
However, conflicting studies exist regarding the safety of e-cigarettes for both users and the public. While the FDA has yet to regulate e-cigarettes, a 2009 evaluation reported the finding of numerous chemicals in e-cigarette liquid, such as those found in antifreeze.
Gregory Conley, legislative director for The Consumer Advocates for Smoke-Free Alternatives Association, told us these reports are misleading.
"Essentially, there is absolutely no evidence that e-cigarette vapor poses any significant threat to public health," said Conley. "The antifreeze chemical was found in one of the 18 cartridges and tested in an amount that was less than 1 percent. Additionally, the amount of the chemical diethylene glycol found by the FDA would take thousands of cartridges to reach a toxic level."
Conley cites the publication Tobacco Control, a premier tobacco science journal in the US with no tobacco industry ties, as the leading evidence in the case for e-cigarettes. The study, funded by the National Institute of Health, tested 17 different brands of e-cigarettes for chemicals known to cause harm in secondhand smoke.
"These amounts were nearly identical to the amounts in the control product, or the FDA approved nicotine inhaler," said Conley. "They are trace levels, and anyone who has been in a room with an e-cigarette knows that there is a vast difference in comparison to a normal cigarette."
A study by the Fraunhofer Wilhelm-Klauditz-Institut in Braunschweig, Germany found similar results, reporting that the release of toxins from e-cigarettes were marginal to non-existent. In fact, researchers attributed many of the low level chemicals detected in the tests, such as formaldehyde and acetone, to the test subjects, since our lungs naturally exhale these chemicals in small amounts.
Conley says e-cigarettes not only provide a safe alternative, but also offer a public promotion of smoking cessation by illustrating the addicting effects of nicotine.
"It's a walking advertisement to show how addictive cigarettes are," Conley said. "The fact that you have to buy one of these things to quit smoking, with a battery and everything, it's ridiculous."
Equating e-cigarettes and traditional cigarettes does tend to disregard the potential benefits safer nicotine alternatives can have on addicts. The language of the FDA and the DPH appears to dismiss the advantages of e-cigarettes over smoking. While issues certainly arise with the lack of regulation and quality control of e-cigarettes, much of the discussion from these groups pertains to reversing social views on smoking.
"The major concern for us is about social norms," Derek Smith, a health program coordinator at the Tobacco Free Project, told us. "People get confused about the use of these products in public where they might think tobacco use is allowed. That's one of the major concerns because there are limits to where people can safely smoke indoors. It's the idea of a copycat item."
According to Smith, AT&T Park, San Francisco General Hospital, and the San Francisco Airport Commission have all already banned the use of e-cigarettes on their premises. Some Bay Area cities, such as Petaluma, have already classified vaping under their smoking ordinances. In Canada, the sale of e-cigarettes is entirely prohibited due to a lack of regulation and quality control, while cigarettes remain legal.
FDA regulation could certainly alleviate much of the pressure e-cigarette companies face from the public. However, if a safe e-cigarette is proven to exist via an official FDA evaluation, organizations like the DPH may still not allow public vaping for the sake of remaining strictly against the use of tobacco related products in public places.
Many of the arguments against the use of e-cigarettes are seemingly arbitrary to the discussion of public use since San Francisco's public policy holds so much blunt hostility toward anything tobacco related (but, of course, anything marijuana related is okay with the city). Oddly, e-cigarettes continue to get flack from the FDA, while other nicotine delivery systems such as patches and gum are FDA approved.
Under what legal grounds could San Francisco's government have the right to ban e-cigarette usage in public places if they are proved harmless? If the legislation passes, residents of non-smoking apartments would be unable to legally vape a scentless, allegedly toxin free e-cigarette in the privacy of their own home.
In March the FDA appointed Mitch Zeller as the new director of the Center for Tobacco Products. According to his FDA profile, Zeller, a lifelong proponent of FDA tobacco regulation, has deep-rooted ties to the anti-smoking movement and is currently an executive of a pharmaceutical consulting firm working closely with sellers of FDA approved, nicotine-replacement pharmaceuticals.
But Zeller has openly advocated the idea of harm reduction through nicotine-replacement systems, much more than his predecessor, Dr. Lawrence Deyton. So hope may yet exist for the plight of vapers who don't want to be lumped in with smokers. So much of the anti-smoking conversation is drenched in black-and-white thinking, promoting a system of total abolition over harm reduction. Unfortunately for smokers, this could impede their transition to a safe nicotine delivery system that they can use virtually anywhere, and one that may consequently help save lives. As of now, public discourse and education may act as the most important catalyst toward a widespread understanding of e-cigarettes.
For anyone who has seen an e-cigarette, the soft glow of the LED light at the end has little resemblance to a traditional cigarette, which is on fire and emitting a cloud of noxious smoke. If an FDA approved, emission-free e-cigarette eventually hits the market, users in San Francisco could still face a loss of freedom solely backed by the ideological social standards of the anti-smoking movement, which would bar them from vaping in public. But for now, San Francisco's vapers should enjoy their freedom while it lasts.
CORRECTION: This article was corrected to change the chemical name in Conley's quote from propylene glycol and to clarify that the FDA studied the liquid in e-cigarettes, not their emissions.