Who Should We Blame for Banning the Sale of Flavored E-Cigarette Cartridges in California?

By Dave S. Posted February 22, 2013

Jeanne Finberg
California Deputy Attorney General Jeanne Finberg

California Deputy Attorney General Jeanne Finberg has taken it upon herself to impose a non-existent ban on the sale of flavored cartridges, igniting the anger of the e-cigarette community with a move that flies in the face of logic and reason. According to Ms. Finberg, the flavors available in e-cigarette cartridges attract minors to e-cigarettes. Not only is this unsupported by state or federal law, it’s also a completely redundant move because the sale of e-cigarettes to minors has been specifically outlawed in the state since 2010. Regardless, she pursues any company who supplies flavored e-liquids or cartridges with threatening letters and orders to cease selling anything other than tobacco and menthol flavors in the state.

 

How Did it all Start?

 

California Governor Jerry Brown started the entire façade during his stint as Attorney General, when the state sued the company Smoking Everywhere for the same reason. It was argued that flavors such as chocolate and strawberry could appeal to youths, and in the resulting settlement Smoking Everywhere agreed to remove all “appealing” flavors, as well as agreeing to not market to youths and several other concessions.

 

What Does the Law Say?

 

The California Health and Safety Code Section 119405 contains legislation relating to e-cigarettes, and Ms. Finberg spuriously cites the regulations as the reason for her actions. However, it actually simply states that nobody is allowed to “sell or otherwise furnish” (give) an electronic cigarette to anybody younger than 18 years of age. The “(b)” clause defines “electronic cigarette,” the “(c)” clause outlines penalties for violation and the “(d)” clause states that if any locality has more stringent regulations in place, section 119405 doesn’t render it invalid. The section is very straight-forward, and at no point does it as much as mention flavors. The final clause allows for other laws to be brought into effect, but no such laws have been instituted.

 

So, What is She Doing?

 

Assumedly using the Smoking Everywhere case as a legal “precedent,” Jeanne Finberg and her team is sending letters to suppliers of liquid and pursuing manufacturers in the hopes of getting them to stop selling flavored cartridges. Essentially this amounts to legislative bullying; dishing out strongly-worded demands neither supported by the law or common sense in order to pursue an ill-informed agenda.

 

Do Flavors Really Attract Minors?

 

This is really at the heart of the issue, even if the law doesn’t even address it. This criticism has been raised numerous times in the past and the answer is pretty straightforward. Smoking, for whatever reason, is inherently appealing to some minors. Teens have smoked cigarettes illegally long before electronic cigarettes were even invented, so the flavor aspect is clearly irrelevant. Minors do like sweet flavors, but so do adults. If the “appealing” taste was an issue, the state of California would have to similarly outlaw all liqueurs, since the sweet, sugary flavors would also attract minors. Jeanne Finberg must also agree that if crack-cocaine or crystal meth were available in flavors like strawberry and chocolate, the state would be inundated by child-addicts drawn into illicit drugs by the appealing flavor profile. If they want flavor, they can buy some candy a hell of a lot easier than an e-cigarette.

 

There is a final, crushing point that must be addressed. E-cigarettes (as mentioned earlier) are not legally available to anybody under the age of 18. This means in order to buy one, a minor would either have to evade an ID check at a physical store or steal their parents’ credit card to purchase one online. In other words, the existing law is pretty effective, since you get statements with credit cards so you can check for fraudulent purchases and any store attended worth his salt would ask for ID if anyone who looked remotely young tried to purchase something age-restricted. So without any imaginary legislation, the only way a minor could gain access to an electronic cigarette is through the irresponsibility of another adult or if they committed theft and fraud.

 

Despite all of this, Jeanne Finberg still attempts to punish manufacturers and vapers in the state of California through her make-believe laws. The flavors on offer have nothing whatsoever to do with whether e-cigarettes are sold to minors. Even if they were appealing to under 18s (which no evidence has been presented for), they aren’t allowed to have e-cigarettes anyway. It’s the actual law.

 

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