Amid Other State and Federal Actions, Newsom Issues Executive Order Targeting Electronic Cigarette Sales and Use

On Monday, Governor Gavin Newsom issued an executive order aimed at confronting the growing use of electronic cigarette utilization, particularly among youth and young adults. Flanked by California Health and Human Services Agency (CHHS) Secretary Mark Ghaly and California Department of Tax and Fee Administration (CDTFA) Director Nicolas Maduros, Governor Newsom announced his intent to “push the envelope” administratively in the absence of substantive legislative proposals this year. Governor Newsom’s executive order largely consists of the following executive branch directives:

• Warning Labeling and Signage – The California Department of Public Health (CDPH) is directed to develop recommendations to reduce the availability of electronic cigarette devices to person under 21 years of age, including the establishment of warning signs regarding the health risks of electronic cigarette use at retailers where any vaping product is sold. CDPH is also directed to make recommendations regarding the establishment of standards for nicotine content and uniform packaging. These recommendations are due to Governor Newsom by October 14, 2019.
• Increased Enforcement of Electronic Cigarette Products – CDTFA is directed to develop recommendations to remove illegal and counterfeit electronic cigarette products from stores and reduce youth vaping through increased enforcement. CDTFA is also directed to consider the taxation scheme of electronic cigarettes, including the collection of revenues from a nicotine-based tax. These recommendations are due to Governor Newsom by October 29, 2019.
• Electronic Cigarette Awareness Campaign – CDPH is immediately directed to allocate at least $20 million in Proposition 56 (tobacco tax) and Proposition 64 (cannabis tax) funds for a statewide vaping awareness campaign, including digital and social media messaging targeted at youth, young adults, and parents. Governor Newsom indicated the campaign will launch next month.

Notably, the Governor’s actions do not include any steps to curb or limit flavored tobacco products. When questioned by reporters during Monday’s press conference, Governor Newsom indicated that he thinks flavored tobacco products “should be banned” and that he has directed his agencies to do everything in their power to limit these products; however, Governor Newsom firmly and repeatedly stated he cannot take any action to limit flavored tobacco without legislative authority.

Assembly Members Kevin McCarty and Jim Wood and Senator Jerry Hill released a statement shortly after Governor Newsom’s issuance of the executive order calling for “a strong, comprehensive legislative package to attack this problem in California – and get to the heart of the problem: the products themselves.” Recall, Assembly Members McCarty and Wood earlier this year carried a measure to ban flavored tobacco products in California, a proposal that ultimately stalled amid industry pressure.

Governor Newsom’s announcement follows the actions of Governors of Michigan and New York to enact emergency regulations to prohibit the sale of flavored tobacco products statewide. In both states, the governors utilized existing administrative powers to declare a public health emergency and issue regulations to take effect immediately limiting such products. At the federal level, President Donald Trump announced last week that his Administration would pursue over the coming weeks a comprehensive plan for removing flavored electronic cigarettes and nicotine pods from the market. The federal ban would reportedly include mint and menthol flavors, but exempt tobacco flavors.

This flurry of actions has been initiated by a recent spike in electronic cigarette utilization and vaping-related respiratory injuries, which now exceed 500 cases in over three dozen states and have a possible role in seven deaths. It was also reported this week that the U.S. Food and Drug Administration (FDA) has launched a criminal probe into the supply chain of electronic cigarette products, parallel to that of the federal government’s health-related investigations being carried out by the U.S. Centers for Disease Control and Prevention (CDC) and FDA.

Electronic cigarette manufacturers, including California’s JUUL Labs, have faced increased scrutiny over their role in the rising numbers of product utilization and illnesses. Last week, the U.S. Food and Drug Administration (FDA) issued a warning letter to JUUL Labs for marketing their products as a safer alternative to traditional combustible cigarettes, among other misleading marketing and advertising actions and claims.

Relatedly, Governor Newsom also announced on Monday that he signed into law SB 39 by Senator Jerry Hill which strengthens packaging and delivery requirements of online- and mail-order tobacco products. CHEAC supported SB 39 to limit tobacco product access by children and youth.

While recommendations and substantive actions on the issue from the Newsom Administration are under development, it remains to be seen what legislative and/or regulatory actions at the state and federal levels will be enacted in the coming weeks and months. Governor Newsom’s Executive Order N-18-19 is available here.