Berkeley bans the sale of flavored tobacco and vape pods

Bathroom breaks and passing periods have become excuses to vape for countless high school students in Berkeley. Teenagers who used to shun smoking say they now suck mango- or mint-flavored nicotine out of e-cigarettes throughout the school day.

The Berkeley City Council hopes a new law will keep those sorts of products out of kids’ hands.

On July 23, at its final meeting before its summer break, the council voted unanimously to ban the sale of flavored tobacco, as well as all flavored “e-liquid” and “electronic nicotine delivery systems.” The ordinance, which will come back to the council for a second reading in the fall, also instates price and size minimums for cigar and cigarette packs.

The council already created a “buffer zone” in 2015, prohibiting the sale of flavored tobacco within 600 feet of schools. The July 23 vote takes those restrictions citywide, mimicking similar bans in neighboring cities like Richmond, Albany, Oakland and San Francisco. (However, while the buffer zone applies to all e-cigarettes and vape pens, the new rules only pertain to flavored products.)

“Mentholated and flavored products have been shown to be ‘starter’ products for youth who begin using tobacco, and these products help establish tobacco habits that can lead to long-term addiction,” wrote Councilwoman Cheryl Davila in her original December 2018 proposal to direct staff to explore the potential ban. That item was cosponsored by Councilwomen Sophie Hahn and Kate Harrison. City staff returned with the proposal for outlawing flavored tobacco, as well as limiting package sizes and prices, in July.

For Davila, the new law has personal resonance. She and her relatives have struggled with nicotine addiction for decades, she said.

At the July meeting, the councilwoman said she started smoking cigarettes as a teenager, then later “took up dancing” instead. Health officials say the tobacco industry heavily markets menthol and flavored tobacco to young people and African Americans, who are disproportionately harmed by those products.

“My sister continues to smoke and she goes through serious withdrawals if she tries to stop,” Davila said “This is what tobacco does to people.”

The new ordinance bans the sale of all flavored tobacco products by licensed tobacco retailers, but applies as well to all flavored vaping products, even if they do not contain tobacco. Vaping companies like Juul, which promote their products as healthier alternatives to cigarettes for addicted adults, are often accused of targeting kids with their sleek USB drive-like vessels and fruity flavors. In 2018 the U.S. surgeon general declared teen vaping an “epidemic.”

Berkeley High students say the use of those products is rampant at the school.

“In the last two years, vaping and e-cigarettes have increased in popularity in Berkeley, whereas before, most people were strongly against nicotine in the form of cigarettes,” according to a Berkeley High Jacket article. “The growing popularity of Juuling has gotten so intense, that at Berkeley High you will find students taking ‘nicotine breaks’ in the bathroom during class or at lunch.”

The new ordinance also sets minimum prices —$8 for a pack of 20 cigarettes, $8 for packs of little cigars, and $7 per cigar — for standard tobacco products. Little cigars must also be sold in packs of at least 20 and cigars in packs of six or more. Those elements of the ordinance, as well as the flavor ban, will affect products whose local popularity predates the existence of vaping. Flavored Swisher Sweets, cigarillos often sold in small, cheap packs, are commonly used as blunt wraps.

At the council meeting, a number of Berkeley business owners and representatives pleaded with the council to oppose the ban or at least let the shops sell off their existing inventory before enforcing it. These speakers said they never sell to youth and that their customers shouldn’t be punished because some bad actors break the law.

Around when the buffer zone was established in 2018, city staff said there were 84 licensed tobacco retailers in Berkeley. While local kids were clearly using vaping products, staff said there was no evidence that the city’s shops were making illegal sales.

“It’s going to destroy our business,” insisted one owner at the recent meeting. He warned about the emergence of a “black market” for flavored products.

“Do you really want a person who’s 40, 45-years-old, going to the street to buy their Newports? Or should they come to a store where it’s safe and they can pay their taxes?” he said.

Holly Scheider, a public health professional who was active in advocating for Berkeley’s soda tax, said it’s about time the city cut out flavored tobacco sales.

“The retailers in our neighboring cities of Albany and Oakland will thank you,” Scheider said, noting many advocates in those towns feared consumers would simply go a few blocks over to get their fix in Berkeley. “Now we have a complete corridor that has this ban.”

One East Bay city, Fremont, bucked the trend, deciding against a proposed ban there last month, but instating price and size minimums instead.

Berkeley’s ordinance was ultimately approved on the consent calendar, a package of typically less controversial items voted on simultaneously.

If it passes on second reading as well, the new law will go into effect six months later.

Natalie Orenstein/Berkeleyside