The voters of San Francisco will vote on Proposition C, a measure aimed at overturning the city’s sales ban on e-cigarette sales. Regarding the upcoming vote, controversy has arisen over political ads in which Juul declares its vaping products to be safer than regular cigarettes. The Food and Drug Administration has not given authorization to the company to make such a claim, so the federal agency will now be conducting an investigation into the potentially illegal ad campaign conducted by Juul.

Unless the FDA reviews scientific evidence, determines a claim to be true, and then issues permission, tobacco and e-cigarette manufacturers cannot legally make claims that their products are safer than cigarettes or that the products help people stop smoking cigarettes. Because of Juul’s advertised claims about safety, the FDA ordered the company on September 9th to stop making its unproven claims at once or face seizure of products or civil penalties.

Letter to FDA

In mid-September, the FDA was alerted that the Juul-funded campaign committee sponsoring Proposition C is continuing to make unproven claims of safety in election ads and mailers. The information came in the form of a letter to the FDA from Shamann Walton, San Francisco Supervisor, who helped write the recent legislation that forced the sale of e-cigarettes in San Francisco to stop.

The Coalition on Reasonable Vaping Regulation, the committee running the ads and sending the mailers, is entirely funded by Juul, per campaign finance records. On November 5, voters in San Francisco will accept or reject Proposition C. If it passes, the sale of e-cigarettes will be allowed with some new restrictions.

Mr. Walton’s letter cites a Proposition C mailer that included a San Francisco cancer patient’s testimonial in which she stated nicotine patches and gum did not help her quit smoking, only vaping did. The letter also mentions a presentation by Tom Hsieh, Proposition C campaign manager, in which he reports to listeners that vaping is less harmful than cigarette smoking and is “a legitimate off-ramp for people who are addicted to cigarettes.”

Walton further wrote, “Juul appears to be using the electioneering in San Francisco to systematically advance unauthorized health-related marketing claims about its products’ advantages to consumers.” He continued, “These messages do not merely portray Juul as a safer alternative to traditional cigarettes, but also as a more effective smoking cessation option than FDA-approved products as Chantix, Nicorette, nicotine patches and gum.”

The San Francisco Chronicle reviewed an email in which Mitchell Zeller, the FDA’s Center for Tobacco Products director, expressed to Walton’s office that the FDA will review the campaign materials during its Juul investigation. It is not clear if the FDA was already checking into the campaign ads in its process of investigating Juul, or if the agency decided to pursue the course after being contacted by Walton. An FDA spokesperson declined to comment.

Juul Investigations

Juul is 35 percent owned by Altria, the tobacco company that owns Philip Morris. The current dilemma with San Francisco’s Proposition C campaign is only one of the increasing number of issues Juul now faces in various U.S. locations and abroad. Congress is investigating the company, along with the attorney generals in several states, for using marketing tactics that target youth.

While Juul touts its plans to enter two countries, China and India, that have the largest number of cigarette smokers, new hurdles have just been thrown in the company’s path. India began a move in the middle of September toward banning all e-cigarettes nationwide. Then, just days after sales began in China, Juul products were removed from major e-commerce sites.

Ad Campaign Defenses

Proposition C campaign attorney Jim Sutton says the law is being followed. “The law places restrictions on tobacco companies for making claims. If you look at the (Prop. C) ads, there’s no tobacco companies making claims in those ads. Those are individuals who say vaping products help them quit smoking.” He continues, “They have a First Amendment right to say that.” Campaign manager Hsieh referred to Walton’s letter as, “a desperate attempt … to weaponize the federal government and squash free speech.”

Ted Kwong, Juul spokesperson, issued a comment saying, “The statements alluded to in the letter encompass the heart of free, political speech. They are not promotional statements about any particular product, but are advocacy in support of an important policy position.”

Legal experts say there is a slim chance that the FDA will clamp down on this local political campaign, and the agency may not even have the authority to do so. The First Amendment rights of individuals have been interpreted in the courts as giving much more leeway to speech in political ads than in regular consumer ads, to allow for the assertion of claims.

Per Jon Golinger, a Golden Gate University professor who is also a political strategist and an attorney, “There are two totally different standards for selling products to consumers and selling political ads and political campaigns to voters. In the context of ballot measures, there are virtually no truth standards other than the B.S. meter of the voters.”

An Unprecedented Situation

Golinger asserts, however, that “While they may not be violating any political campaign laws – since truth is not required in political ads and the voters are the judges – violations of consumer protection laws are an entirely different matter. If the FDA chooses to take an enforcement action, that would raise novel (no precedent) legal issues that ultimately a court would probably have to decide.”

At issue, helping to make this an unprecedented situation, is the fact that a company has been ordered by the government to cease its unauthorized safety claims. However, at the same time, this company is funding political advertisements for a local election in which it makes identical claims. Mitchell Hamline School of Law’s Public Health Law Center attorney Desmond Jenson weighs in by commenting, “I’d say this is a pretty unprecedented situation.”

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