An Open Letter to the Oakley City Council Regarding Its Proposed Resolution (Agenda Date 6/10/14, Item 4.4)

Oakley City Hall. Photo by Sallie Goetsch.

It is a great pity that my husband and I had to miss the May 13th meeting of the Oakley City Council. As it happens, we were not even aware until afterwards that the outdoor smoking ban and e-cigarette prohibition were on the agenda, because we were too busy preparing for the Appropriations Committee hearing on AB 1500.

It wasn’t until I was reading through my feeds a few days later that I saw Rowena Coetsee’s Contra Costa Times article, “Oakley City Council eyes expanded anti-smoking ordinance,” in my feed list. (I have now signed up to get city council agendas by email, so this will not happen again.)

Going one step further in its attempt to protect residents from secondhand smoke, the City Council is considering an ordinance that would prevent tobacco users from lighting up in virtually every outdoor public place.

The proposed restrictions also would extend to electronic cigarettes. In addition, the city would become the first in Contra Costa County to prohibit minors from using the devices.

At that point, I looked back to find the council meeting agenda online (the minutes weren’t available yet, and as it turns out a video never did appear). Once I had read it, I emailed all of the city council members, but never received a reply.

Reading through the staff report prepared in advance of the meeting by Mr. Galstan, I saw that he had apparently learned something from the last time the City of Oakley discussed restricting the use of e-cigarettes, because he wrote:

The cities of Walnut Creek, Richmond, and the County include e-cigarettes in their definition of “smoking” and preclude use of e-cigarettes in the same areas smoking is prohibited. However, from all of the above discussion, it seems prudent not to regulate e-cigarette use as part of the proposed ordinance. If challenged in a lawsuit, I do not think we could muster sufficient scientific information to justify such regulation, especially as pertains to outdoor areas. The larger and more financially-robust cities mentioned above are in a better position to absorb the costs of litigating this issue than are we.

At the time, Mr. Galstan’s staff report contained a proposal to adopt a resolution that dealt strictly with the marketing of e-cigarettes to minors and the possibility that e-cigarettes would act as a gateway to tobacco use, and the ordinance contained a proposed addition to the municipal code prohibiting the use of electronic cigarettes by minors.

Though the minutes are brief, and the Contra Costa Times article not very extensive, it is clear that not having anyone present to speak against the ordinance did the cause of vaping considerable damage. Mr. Galstan did make his recommendation against including vaping in the definition of smoking, though he also said that it might be possible to prohibit the use of e-cigarettes in certain outdoor areas by claiming they caused a public nuisance.

Lining up to urge the City to include e-cigarettes in the outdoor smoking ban were Mike Burkholder (via online comment), Denice Dennis from Contra Costa Health Services Tobacco Project, Mary Jaccodine, coordinator of the Center for Human Development in Concord, and Wendy Escamilla.

Let’s look at these people for a moment. We don’t need to discuss Mr. Burkholder; if he had been the only person endorsing the inclusion of e-cigarettes, the council would probably have been sure to leave them out just to make their opinion of him clear.

Ms. Dennis, on the other hand, while she has powerful personal reasons for a crusade against tobacco products, works for an organization funded by taxes on cigarettes. That means that if everyone were to switch from smoking to vaping tomorrow, she would be out of a job.

Indeed, the dependency of many such organizations and initiatives on these taxes, or on the Tobacco Master Settlement Agreement, means that funding to pay for the treatment of smoking-related illness could go away before smoking-related illness does. Someone who has smoked for a short period of time and quits today will probably recover. But someone who smoked for fifty years and quits today may well still get cancer or heart disease, even if some damage will be undone by quitting.

Worse than Ms. Dennis’ potential conflict of interest is her repetition of outdated, discredited information about e-cigarettes. So far all studies showing significant levels of either carcinogens or toxic chemicals in e-cigarettes have been shown to have serious flaws in their methodology. For instance, a “smoking machine” such as used by Dr. Talbot does not behave like a real vaper or smoker, and the oft-quoted accusation about “antifreeze” comes from a 2009 FDA press release in reference to samples taken from two—count them, TWO—brands of e-cigarettes imported from China. (For reference, none of the Big Tobacco firms whose TV ads are agitating the anti-smoking lobbies started to produce e-cigarettes until 2013.)

In addition to her work with the Center for Human Development, Mary Jaccodine is co-chair of the Contra Costa Tobacco Prevention Coalition, the same Prop 99-funded organization that Ms. Dennis works for. She has been crusading against e-cigarettes “because of their potential to change social norms around smoking and because they are delivery devices for nicotine, one of the most addictive drugs on earth,” at least since 2013, when unincorporated Contra Costa County voted to include e-cigarettes in the definition of smoking.

In other words, she is afraid of the alleged gateway effect, in the absence of any evidence for its existence. The minutes say “She mentioned smoking prevention education and restricted use have changed social norms with regard to smoking tobacco cigarettes and e-cigarettes are reintroducing smoking as cool which could change social norms again if education and restricted use are not provided.”

Leaving aside the appalling construction of that sentence, e-cigarettes cannot possibly be introducing smoking as cool, and even the articles that express anxiety about never-smoking teens taking up vaping don’t actually suggest that. What they say is that teens will think vaping is cool, that in fact teens do think vaping is cool, according to sources like BuzzFeed and the 2014 Tru Youth Monitor Presentation as quoted in the Legacy for Health’s “Vaporized” study. (Legacy is another one of those problematic organizations: their funding comes from the Master Settlement Agreement, so if they actually succeed at eliminating smoking, they will disappear.)

If you look at the complete BuzzFeed list, it will remind you that teens have no taste whatsoever, but the Youth Monitor Study makes it clear that the number of teens and young adults who think e-cigarettes are “in” increased from 2012 to 2013, while the number of teens and young adults who think smoking is “in” decreased. That does not sound like the re-normalization of smoking, but rather the introduction of vaping as a new factor.

The Contra Costa Times quotes Ms. Jaccodine as saying that “If Oakley doesn’t limit e-cigarettes, ‘we’re making a suggestion to the public that these are safe’.”

Given that there’s a large body of evidence (cited throughout this article) that e-cigarettes are in fact safe, and especially that secondhand vapor is harmless, what exactly would be wrong with that suggestion? Oh, yes. You can’t prove that e-cigarettes are safe. You can’t prove that the Loch Ness Monster doesn’t exist, either.

Rather than worrying about e-cigarettes, perhaps Ms. Dennis and Ms. Jaccodine should have a talk with the governor, and all the governors past, about the way the State of California has spent the money received from the aforementioned Tobacco Master Settlement Agreement. The agreement does not place any restrictions on how states use the money they receive. According to the Campaign for Tobacco-Free Kids, California will receive $1.5 billion in tobacco-generated revenue during FY 2014. The CDC recommends spending $347.9 million of that on tobacco prevention programs, but California’s actual expenditure on tobacco prevention in 2014 will only be $64.8 million.

Anyone who really wants to step up the anti-smoking education and smoking-cessation programs should be lobbying the governor, not wasting time at city council meetings in small towns trying to outlaw a product that has not been proved to be harmful even to users, never mind to the public. The fuss over e-cigarettes is distracting organizations like Contra Costa Health Services from their primary objective, reducing and preventing smoking. (But if e-cigarettes disappear, so does the threat to the cigarette tax money that pays for the CCHS Tobacco Prevention Coalition.)

Ms. Dennis and Ms. Jaccodine appeared at the City Council meeting not as residents but as representatives of organizations that have a political agenda. Wendy Escamilla is at least a resident of Oakley. In February, when the Oakley City Council addressed the ordinance about smoking in apartment complexes (now article 4.19.102 of the Municipal Code), Ms. Escamilla told a story about dining at the Black Bear with her children and seeing someone vaping indoors at the restaurant. (This is, I suppose, possible, though I’m not sure that Jimmy would condone that if aware of it.) Her primary objection to vaping in places where smoking was prohibited seemed to be the fact that it looks like smoking.

She also mentioned that Oakley, like Brentwood and Antioch, received an “F” for tobacco control from the American Lung Association.

Let’s put that “F” in context, shall we? In spite of the fact that California’s laws on smoking require a 116-page guidebook, most of California’s cities received a failing grade. That fact suggests that the ALA’s standards might be a little bit unrealistic.

Even San Francisco, which is so aggressively anti-smoking that you would think the city had already banned smoking everywhere, and Berkeley, known for being progressive to the point of caricature, only received B grades overall. Yet on an ordinary day in either city, one does not notice much difference in the exposure to smokers than one does in Oakley, and it’s possible that there are more cigarette butts in Golden Gate Park now that there are no ash trays to collect them.

To my knowledge, Oakley complies with all of the state laws that prohibit smoking indoors in public buildings and restaurants; that restrict the sampling of tobacco products; that prohibit sale of tobacco products to minors; and so forth. There is no reason to think of the city as wreathed in a miasma of smoke just because the ALA awarded it an “F.”

The reason the city was even addressing the topic of smoking in multi-unit housing was not the ALA, but numerous complaints received from residents. Smoke does travel through hallways and ventilation systems, so it is difficult to keep a supposedly non-smoking apartment smoke-free if people are smoking in other units in the same building. And that’s with the windows closed. Tenants at The Oaks were complaining, so eventually the City responded. That’s the way it should work: the city should respond to its residents, not to external pressure—especially if all the ALA is going to offer in exchange for offending Oakley residents who smoke is a pat on the head.

In February, Ms. Escamilla did have a complaint based on her own personal experience, though apparently she felt the need to bolster her distrust of e-cigarettes with the American Lung Association’s official opinion on the subject. (It may just be that as a fervent anti-smoker, Ms. Escamilla is in the habit of consulting the ALA website.)

The success of the housing ordinance (which should give Oakley at least 1 point in its next ALA review) apparently failed to satisfy Ms. Escamilla, probably because e-cigarettes were excluded from it. The minutes of the May 13th meeting say only, “Wendy Escamilla commented that e-cigarettes should be banned in public places.”

The First Version of the Oakley City Council’s Outdoor Smoking Ordinance…

I already had issues with the ordinance as written. There were two in particular, as I stated in my unanswered email to the councilmembers on May 16th.

First, it is not necessary to prohibit smoking in all public places. Even the ALA recognizes prohibiting smoking at public events as a useful category of smoking restriction. Many of Oakley’s outdoor spaces are deserted most of the time. A lone smoker walking through Civic Center Park when no one is there is not doing any harm to the public health—and probably not doing detectable harm to the environment, unless s/he fails to use an ashtray, because there is so much traffic on Main Street that one cigarette more or less isn’t going to make a difference to overall air pollution levels.

But smoking in Civic Center Park during Harvest Festival, which is usually well-attended and always full of children, would be a different matter. Exposure to secondhand smoke in such a situation might be unavoidable, and though there are some studies suggesting that the cancer risk of secondhand smoke has been exaggerated, the risk to people with allergies, asthma, or other pulmonary conditions is real—and besides, it’s just not very nice to be around smoke, especially on a hot day. Restricting smoking to designated areas during festivals and other public events seems like a good idea.

Therefore, my personal recommendation would be to prohibit smoking at public events rather than on public property.

That, however, was a fairly minor point of disagreement, almost a semantic quibble, as long as electronic cigarettes were not included in the outdoor smoking ban. I am a non-smoker, and the fewer places I have to encounter cigarette smoke, the happier I am. I object to a blanket ban on smoking outdoors on public property mainly because it is illogical and unnecessary.

The real problem with the original ordinance, in my mind, was the proposed ban on the use of e-cigarettes by minors.

The use of any electronic cigarette by a minor is prohibited throughout the city of Oakley. “Electronic cigarette” means a device that can provide an inhalable dose of nicotine by delivering a vaporized solution, irrespective of whether liquid nicotine is actually being vaporized.

This seemed extremely discriminatory to me at first, until I finally uncovered paragraph 308(b) of the California Penal Code:

Every person under the age of 18 years who purchases, receives, or possesses any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking of tobacco, products prepared from tobacco, or any controlled substance shall, upon conviction, be punished by a fine of seventy-five dollars ($75) or 30 hours of community service work.

One supposes that a similar penalty would apply for e-cigarette use in Oakley, although the ordinance does not in fact say so.

Although it would be nearly impossible for anyone to tell whether a minor with an e-cigarette or vapor product was using nicotine, “zero nic,” or in fact THC or some other substance, it seems somewhat unfair to punish a child equally for using a substance known to be both harmful and addictive, an allegedly addictive but probably harmless substance, and a substance almost certain to be harmless. (We’ll leave aside vapor products used to deliver THC, which is illegal without a prescription anyway; there’s no way a minor caught using them can or should avoid penalties.)

Punishing a teenager who tries out a nicotine-free e-cigarette with 30 hours of community service is a bit like suspending a child from school for making a gun-shape with his hand. (Oh, wait—that actually happens.) In either case, it’s a punishment far in excess of the crime, and it usurps the parent’s right to decide how best to discipline the child.

It also completely ignores the possibility that some people (like my husband) start smoking as early as thirteen and therefore might be using e-cigarettes to quit smoking before they turn eighteen. Georgia state law, which is, astonishingly, more enlightened than California’s on this topic, reads:

It shall be unlawful for any minor to:

(A) Purchase or possess for personal use any cigarettes or tobacco related objects. This subparagraph shall not apply to possession of cigarettes or tobacco related objects by a minor when a parent or guardian of such minor gives the cigarettes or tobacco related objects to the minor and possession is in the home of the parent or guardian and such parent or guardian is present;

In other words, minors are allowed to smoke or use tobacco-related products with parental supervision. One could take this exemption too far—it would be grotesque for parents to provide young children with either cigarettes or e-cigarettes. But since studies have shown that e-cigarettes are more effective at helping smokers give up tobacco than traditional nicotine replacement therapies like patches and gum, parents who want their teenagers to stop smoking might well wish to provide them with e-cigarettes.

Despite the constantly-repeated fears that e-cigarettes will act as a gateway to smoking for teens, there is no evidence to support such an idea. Among adults, depending on the study you consult, between .1% and .5% of non-smokers become regular users of e-cigarettes. In the UK, only 1% of teens who have never smoked have ever tried an e-cigarette, and none of them use e-cigarettes regularly. In 2012, according to the CDC, only 2.8% of all high school students in the US (smokers included) had used e-cigarettes in the past 30 days, though 14% had smoked at least one cigarette. So far rumors of a gateway effect have been highly exaggerated.

In other words, there is no valid reason to make penalties for e-cigarette use as strict as those for smoking. Any prohibition on e-cigarette use for minors should have lesser penalties than that for smoking, and there should be exemptions for parental supervision.

So that was where I stood on the ordinance as it was written on May 13th.

Then I received the June 10th city council meeting agenda in the mail.

Which brings us to the current state of the proposed ordinance and its accompanying resolution regarding the regulation of use of electronic cigarettes.

Swayed, apparently, by the May 13th testimony (but not by the email I sent on May 16th, to which I received no reply), the City Council decided to revise the proposed ordinance, and therefore did not address it at the May 27th council meeting.

The wording of both the ordinance and the resolution as attached to the June 10th agenda has changed, and although this document is already very long, I think it is worth going through them paragraph by paragraph, starting with the staff report.

Background and Analysis

At the May 13, 2014 meeting, City Council determined that the smoking regulations should, for the most part, include prohibition/regulation of e-cigarettes.

This is spectacularly not clear from either the meeting minutes or the newspaper coverage. That the council was considering doing so, yes. That they had made such a decision, no. The minutes say “The City Council discussed both parts of the proposed ordinance and suggested the proposed ordinance be continued to a June meeting to provide an opportunity to address e-cigarettes in some of the areas in which smoking will be prohibited.”

That seems a great deal different from “determined that smoking regulations should include prohibition of e-cigarettes.” When exactly did this determination take place? Was it really at the meeting, or was it afterwards?

The first part of the regulations is the “old” section, prohibiting smoking in designated enclosed spaces, including restaurants, places of employment, etc. Because Council wishes to include e-cigarettes in the smoking prohibition, the “definition section,” Section 4.19.004(f) has been revised to define smoking as including use of e-cigarettes. With the adoption of this ordinance, and the revised definition, use of e-cigarettes will be prohibited in restaurants and other designated indoor areas.

What we have here is the evolution of a form of NewSpeak. The definition of smoking has been revised to include the use of e-cigarettes, even though no combustion takes place and no smoke is produced. If this is possible, the definition of smoking could theoretically be revised to include any activity that the City wished to prohibit in places that the State of California prohibits smoking. We are back to the child pointing his finger at his playmate and saying “bang.”

I am not a lawyer, but it seems to me that this revision of the definition of smoking is a much more slippery slope than the FDA’s definition of e-cigarettes as “tobacco products.” There is no tobacco in e-cigarettes, but the nicotine in e-liquid, or in the cartridges used for cigalikes, is derived from tobacco. (It is not efficient to extract nicotine from eggplants or tomatoes…yet, anyway.) It is therefore possible to argue that vapor products are tobacco products once removed, like second cousins: there is no escaping the relationship to tobacco.

But vaping is not smoking. It is imitative of smoking, but just as not all consumption of liquid is consumption of alcohol, not all inhalation is the inhalation of smoke. Smoking marijuana is smoking. Smoking crack is smoking. One does not generally need to invoke laws about smoking to deal with either situation, because both substances are governed by laws dealing with drug use, but the Oakley City Council has in fact been very careful to assert that marijuana smoke is smoke.

Using an e-cigarette is not smoking. There is no smoke. There is an existing, accepted definition of smoke, and e-cigarette vapor does not fit it. (Even if you prefer to use the term “aerosol” for the exhalant, it is still not smoke.)

Adding e-cigarette use to the definition of smoking is lazy, sloppy, and inaccurate. If you really want to prohibit the use of e-cigarettes, you need to demonstrate justification for doing so on the basis of public health or public safety and create separate legislation for it.

The second part of the regulations is the “recent” section dealing with multiple family units (apartments), found in Article 2 of Chapter 19. When that set of rules was adopted, Council declined to include e-cigarettes in the regulations dealing with apartments. This decision appears to continue to be a sound one, as prohibiting the use of e-cigarettes within an individual’s apartment does not appear to represent a health risk or a nuisance, based on the currently-available scientific evidence. Thus Article 2 remains unchanged, and e-cigarette use in apartments continues to be unregulated.

While this is a wise decision, it is hard to reconcile it with the statement Mr. Galstan just made in the first part of his summary. Is there, in fact, currently-available scientific evidence that e-cigarettes are either a health risk or a nuisance in every situation but those covered in Article 2 of Chapter 19 of the Municipal Code? Or in any situation but those covered in Article 2? Neither Mr. Galstan nor the City Council have provided any. There is no supporting evidence attached at all.

Worse, it might be hard for the City to maintain the exception for e-cigarettes if someone wanted to bring a suit, given that the City’s definition of smoking now includes e-cigarettes, and Article 2 specifically prohibits smoking.

The third part of the regulations is the “new” section dealing with outdoor smoking, found in Article 3 of Chapter 19. Pursuant to Council’s direction, the definition of “smoking,” in this Article refers back to the definition found in Article 1, treating the use of e-cigarettes the same as smoking tobacco products and prohibiting their use in parks, plazas, outdoor areas of shopping centers outdoor eating areas of restaurants, etc.

We’re missing a serial comma and final conjunction there, but this is the real kicker in terms of unjustified legislation. The City of Oakley is proposing to ban outdoor use of e-cigarettes in spite of the fact that most of the same considerations apply as when vaping in your own apartment: the vapor dissipates much more quickly than smoke, so unless you have a crowd of vapers “blowing clouds,” the risk of public nuisance is very small. The risk to public health, as stated above, is effectively none. There are no demonstrable dangers to secondhand e-cigarette vapor.

Finally, the use and possession of e-cigarettes by minors continues to be a part of the ordinance, and is found in section 4.19.011 (Article 1). Staff believes that this may be the first ordinance in Contra Costa County that prohibits use or possession by minors.

Mr. Galstan sounds rather proud of the possibility of being the first. I don’t know why he should be. This might be an area where it would be prudent to exercise some caution, but at some point between May 13th and now, Mr. Galstan appears to have abandoned prudence entirely.

Staff proposes some fairly lengthy “legislative findings” explaining the rationale for e-cigarette prohibition and regulation which can be adopted by Resolution rather than unnecessarily lengthening the ordinance itself. Thus a separate Resolution making those findings is attached. Also, reference is made to all of the materials presented to City Council by staff on the subject of smoking at the time that Article 2 was adopted, as well as the materials presented at the May 13, 2014 meeting.

There is nothing wrong with the idea of a resolution to avoid cluttering up the ordinance. There are numerous problems with the resolution itself, which has been substantially rewritten since the previous draft, and now contains even more unsubstantiated claims than the first version did. (You can find the first version included in the Agenda with Staff Reports for the May 13th meeting, on the City website.)

Fiscal Impact

No significant impact anticipated. Possible additional workload on Police/Code Enforcement departments.

I would be interested to know, actually, how often the police actually cite teens for underage smoking. Oakley is not a high-crime neighborhood; it might not be a complete waste of police time to nab teenagers smoking (or vaping) behind Raley’s and assign them to do community service. I’m pretty sure, however, that even Oakley’s police force has better things to do with its time than enforce an outdoor vaping ban. New York’s Finest certainly couldn’t be bothered.

It’s possible there would be some income for the City if the police issued tickets for smoking at public events, though. I remember a town I once lived in issuing tickets for jaywalking when it was hard up for cash.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF OAKLEY AMENDING PARAGRAPH (F) OF SECTION 4.19.004 AND ADDING ARTICLE 3 TO TITLE 4 CHAPTER 19, AND ADDING SECTION 4.19.011 TO THE OAKLEY MUNICIPAL CODE, DEALING WITH SMOKING IN OUTDOOR AREAS AND PROHIBITING USE AND POSSESSION OF ELECTRONIC CIGARETTES BY MINORS

(No, of course they can’t write it in English.)

Section 1. Paragraph (f) of Section 4.19.004 is hereby amended to read as follows:
(f) “Smoke” and “Smoking” shall be defined as follows: “Smoke” means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization, when the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human inhalation of the byproducts, except for smoke from incense. The term “smoke” includes, but is not limited to, tobacco smoke, marijuana smoke and gases, particles, and vapors from electronic cigarettes. “Smoking” means engaging in an act that generates smoke, such as, for example: possessing a lighted pipe, a lighted hookah pipe, an operating electronic cigarette as defined in Section 4.19.011, a lighted cigar, or a lighted cigarette of any kind and a lighted marijuana joint, pipe, or other implement an [sic] includes smoking marijuana for medicinal or for recreational purposes; or lighting or igniting a pipe, a hookah pipe, a cigar or a cigarette.

Apart from the issues I already mentioned with defining e-cigarette vapor as smoke when it isn’t, three things jump out at me:

  1. Apparently burning incense is exempt from any of these restrictions, even though people with sensitivities to smoke will suffer just as much from exposure to incense as from any other smoke, and prolonged exposure to incense is presumably likely to cause pulmonary disease in otherwise healthy people.
  2. Oakley is preparing for the legalization of marijuana. There’s no other reason to keep mentioning it. And they appear to have been doing so since before they started worrying about e-cigarettes.
  3. No one proofread this, because the “an” for “and” typo is not mine.

Section 2. Article 3 is hereby added to the Oakley Municipal Code, to read as follows:

Article 3: OUTDOOR AREAS

4.19.202. Definitions.

For the purposes of this Article, the terms “smoke” and “smoking” shall have the same definitions as are contained in Section 4.19.004(f) of this Chapter.

4.19.204. Prohibition of Smoking at City-Owned Facilities.

Smoking, as defined in Section 4.19.004(f), is prohibited at any enclosed or outdoor area owned by the City of Oakley, including, but not limited to the following: parks, sports facilities, picnic areas, playgrounds, walking paths, hiking trails, amphitheaters, plazas, nature interpretive areas, or special-use recreational facilities such as ball fields, fishing piers, swimming pools, skateboard parks, etc. This section does not apply to smoking in privately-owned vehicles traveling on City-owned streets, nor to pedestrians on concrete sidewalks. However this Section shall apply to streets or sidewalks closed for authorized farmer’s markets, festivals or parades. The presence or absence of signs prohibiting smoking shall not be a defense to a charge of smoking in violation of this Section.

Clearly, the author does not know that you don’t need “etc.” when you have used “such as.” You do, however, need a comma with “however.”

More importantly, although I can see a good argument during a dry summer for prohibiting smoking outdoors in some park areas due to the risk of fire, vaping does not present the same danger.  Yes, a very few people who skipped the class on batteries when they were in high school have had close calls, but vapers do not toss smoldering cigarette butts casually onto the ground while hiking on deserted trails in the hills.

I go fairly often to Big Break Regional Shoreline, since I live down the street from it. I rarely see another person there except at a distance, unless the Delta Science Center is having an event. Whom would vaping in that park even annoy, much less endanger? It’s hard to imagine that even the wildlife would be more than curious.

4.19.206. Prohibition of Smoking at Designated Private Facilities.

Smoking, as defined in Section 4.19.004(f), is prohibited at any outdoor area which is privately owned at the following locations: outdoor dining areas at bars and restaurants; all areas within twenty feet of doors, windows, air ducts and ventilation systems; exterior areas of shopping centers and malls; automobile or vehicle display areas; swap meets, nurseries, Christmas Tree lots, temporary outdoor sales and display areas, bus shelters, movie lines and outdoor sales areas and other similar locations. “No smoking signs” consisting of letters of not less than one inch in height, or the international “no smoking” symbol shall be conspicuously posted in every building or other place where smoking is regulated by section by the owner, operator, manager or other person having control of the place. The lack of a sign being posted shall not be a defense to a charge of smoking in violation of this section.

Here is more ambiguous wording, which should be clarified before the ordinance is approved. Does “All areas within twenty feet of doors, windows, air ducts, and ventilation systems” refer to the doors, windows, air ducts, and ventilation systems of bars and restaurants in Oakley? Or does it mean any doors, windows, air ducts, or ventilation systems on anyone’s property, anywhere in Oakley city limits? The latter would be a nightmare to police, and could lead to some serious arguments with people who were standing in their own doorways to smoke, as my husband once did.

Furthermore, this paragraph means that councilmember Doug Hardcastle will be required to prohibit both smoking and vaping in his outdoor RV sales lot (though perhaps not in the storage lot; the wording is unclear). The ordinance takes away the business owner’s right to decide what is and is not acceptable behavior on his or her own property.

Suppose the owner of a particular café did a lot of business on Tuesday nights because all the recovering alcoholics came over after the AA meeting and sat at the outside tables drinking coffee and smoking? (Newly sober alcoholics are notorious smokers; it’s easier to transfer an addiction than cut out all addictive behavior.) All that reliable custom will go somewhere else now—not just to another restaurant, but out of Oakley altogether.

Smokers still make up 18% of the population. That might be the market segment that makes the difference between profitability and going out of business.

What’s more, the ordinance will require business owners to incur the cost of purchasing and posting signs, which they will have to do if they did not previously prohibit smoking in their outdoor dining areas, car lots, etc. The ordinance might not cost the City money to implement, but it’s going to cost the City’s business owners money.

And let’s think for a minute how this applies to vaping. Imagine I am having lunch outdoors at La Costa in downtown Oakley. Among the smells I might be exposed to are baking from the Republic of Cake next door; competing food smells from Carpaccio two doors down; automobile exhaust, since La Costa is on a busy street; dust and pollen, because Oakley is both dusty and windy, and something is growing at almost every season; the smell of asphalt melting in the hundred-degree-plus heat of summer; strong perfume or cologne on fellow diners; body odor from someone who hasn’t bathed recently enough; pollution from passing trains; construction or demolition dust and debris containing who-knows-what, but probably asbestos.

And the City wants to single out catching a whiff of piña colada-scented e-cigarette vapor as a particular offense to my nose in that environment? Really?

4.19.011 Use/Possession of Electronic Cigarettes by Minors Prohibited.

The use and/or possession of any electronic cigarette or electronic cigarette paraphernalia by a minor is prohibited throughout the City of Oakley. “Electronic cigarette” means a device that can provide an inhalable dose of nicotine by delivering a vaporized solution, irrespective of whether liquid nicotine is actually being vaporized. “Electronic cigarette paraphernalia” means any part of an electronic cigarette, or any cartridge or other liquid used for the purpose of vaporizing the liquid in an electronic cigarette. The legislative findings supporting this provision and portions of Section 4.19.004 are contained in a separate Resolution adopted by the City Council.

This paragraph is much longer and more elaborate than the original prohibition on use of e-cigarettes by minors. It is also nearly unintelligible. The tortured construction of “any cartridge or liquid used for the purpose of vaporizing the liquid in an electronic cigarette” suggests that the author has only the vaguest idea of how open vapor products actually work. The liquid is not used to vaporize the liquid. The coil is used to vaporize the liquid. Advanced users like my husband usually build dual coils, or even quad coils. “Paraphernalia” breaks down into parts with names like “mod,” “battery,” “tank,” “dripper,” and “drip tip.” (There are lots more, though.)

We are approaching perilously near to “The Internet is a series of tubes.” If you are going to legislate something, try to learn something about it. The author of this paragraph sounds incapable of recognizing e-cigarette paraphernalia if it hit him in the face, which would make it difficult to identify to law enforcement, who might (this is Oakley) be as clueless as Council and staff.

Speaking of enforcement, the paragraph makes no mention of the penalty for violating the prohibition. At least state law is clear about the penalty for use or possession of tobacco by minors. This ordinance does not even propose suggest the type of penalty. So what, exactly, is law enforcement supposed to do with a youth found with these mysterious e-cigarette paraphernalia, anyway?

In the interest of time, space, and the attention span of my readers, I will skip the CEQA Finding (CEQA doesn’t apply), Severability (invalidation of one part does not invalidate the others), and Effective Date and Publication (the ordinance will take force 30 days after it is passed, and must be published within 15 days of passage).

That rhetorical device, skipping something without skipping it, is called praeteritio, and is a favorite of Cicero’s.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY MAKING LEGISLATIVE FINDINGS REGARDING THE REGULATION OF USE OF ELECTRONIC CIGARETTES AND PROHIBITING THE USE AND POSSESSION THEREOF BY MINORS

If one of my undergraduate students back in the 1990s had given me this document as an assignment, I would have given it back and insisted that s/he rewrite it after actually doing some homework. Since both city staff and the Oakley City Council seem to be hampered in the research department, I have provided several research studies to accompany the printed version of the report that I delivered to City Hall at approximately 4:30 p.m. today, June 9th. (They are linked throughout this post.)

WHEREAS the Oakley City Council is updating its ordinances dealing with smoking and wishes to address the use of electronic cigarettes, which are defined in the ordinance under consideration; and

WHEREAS the use of electronic cigarettes is being studied by federal health agencies and several private health entities, but the studies are ongoing and no definitive conclusions or recommendations have as yet been made by the federal government; and

WHEREAS the City Council does not wish to expose its citizens to second-hand vapor from electronic cigarettes which may be harmful to their health;

Don’t worry about the “whereases”—lawyers write like that because they’re afraid that if they didn’t, you might think you didn’t need them. The problem is that third paragraph: “second-hand vapor from electronic cigarettes which may be harmful to their health.”

By February 2014 my husband had already listed—and made the City Council aware of—thirteen investigations of the contents and safety of second-hand e-cigarette vapor. Thirteen studies, most of them conducted by completely separate teams and funded by separate groups (a few were follow-up studies conducted by the same teams), all of which concluded that although there are trace quantities of harmful substances in the “aerosol” that vapers exhale, these substances exist at a level comparable to that of ordinary outdoor air.

There is absolutely no justification for a claim that secondhand vapor might be harmful to the health of Oakley’s residents. 

NOW, THEREFORE, the City Council hereby makes the following legislative findings:

  1. Use of electronic cigarettes often creates a nuisance to persons near the user of the electronic cigarette in that the vapor cloud can contain odors of the liquid being vaporized and unknown biologic materials from the user’s body may be contained within the vapor cloud;

  2. Use of electronic cigarettes exposes persons near the user to toxins, albeit fewer than are experienced with tobacco cigarettes. The level of safety of such exposure is unknown at this time. The FDA has detected diethylene glycol, a toxic chemical used in antifreeze, as a component of the vapor of some e-cigarettes. Also, carcinogens called nitrosamines have been found in the vapor of some e-cigarettes. Some studies have also found formaldehyde and metal particles in e-cigarette vapor.

  3. The National Association of County and City Health Officials, and the American Lung Association, both encourage local agencies to regulate e-cigarettes in the same manner as tobacco products.

  4. In adopting California Health and Safety Code Sec. 119405, the state Legislature determined that the FDA studies warned the public about potential health risks associated with the use of e-cigarettes, and further found that e-cigarettes are sold with flavored cartridges to appeal to minors, and that a prohibition on sale of e-cigarettes to minors is necessary to protect the health of minors from a product with contents that have not been comprehensively studied.

  5. There is a recognized danger of that the use of e-cigarettes by minors may be an entrance point and encourage young people to move on to smoking tobacco products;

  6. E-cigarettes may tend to re-glamorize smoking in general;

  7. The adoption of an ordinance regulating the use of e-cigarettes and prohibiting the use/possession of e-cigarettes by minors will help protect the public health.

Point by Point

    1. “Often creates a nuisance”? How often? How many complaints has the City actually received, apart from Ms. Escamilla’s? I’m not denying that a large group of people vaping can create a visibility problem, particularly if they are vaping in an enclosed space for a long period of time. And there are a few vapers who seem to go out of their way to be rude and blow clouds into people’s faces. But “often creates a nuisance” seems exaggerated, and there is no evidence provided to back this claim up.

“Unknown biologic materials” is a delightful coinage, but it amounts to saying “They might have germs.” And that statement is no more true of vapers than of anyone else. In fact, because propylene glycol, one of the main ingredients in e-liquid, has been known to kill germs since 1943, it’s quite possible that you are less likely to catch a cold from a vaper than from someone else. Several recent studies have examined the contents of e-cigarette exhalants exhaustively, and almost everything they found was found in such tiny quantities that most people get greater exposure to them through ordinary outdoor air. (I live by the railroad. Who knows what I might be breathing, in terms of metal particulates? I haven’t asked the City to ban trains.)

      1. OMG antifreeze! This is the study I referred to above, done in 2009 on two brands of e-cigarettes from China. Diethylene glycol has not been found in any e-cigarettes since that time, but the word “antifreeze” is repeated over and over in the media.

As for the nitrosamines, yes, they have been detected in trace quantities in some studies. Nevertheless, the conclusion of the researchers detecting them was “no discernable health impact from exposures to the vapor.” The main thing that researchers in another study wanted to watch out for was the possible effects of long-term exposure (of the vaper) to propylene glycol and vegetable glycerin. Again, there is no remotely convincing evidence to suggest danger of any kind from secondhand vapor. None. The City is—pardon the expression—blowing smoke.

      1. Yes, the American Lung Association actually goes so far as to say “There is no way for the public health, medical community or consumers to know what chemicals are contained in e-cigarettes or what the short and long term health implications might be.” It’s true that not enough time has elapsed since the introduction of e-cigarettes for anyone to be sure of the long-term health implications.

It is not true that there is no way to know what is contained in a given brand of e-cigarettes, since many tests have been performed and reputable manufacturers are up-front about their labeling. In most cases, e-liquid contains just four ingredients: propylene glycol, vegetable glycerin, nicotine, and flavoring. In many cases, it’s even possible to know which brands of flavoring are used. Some vapers make their own e-liquid and most assuredly know what goes into them.

NACCHO’s statement on e-cigarettes is extremely skewed, including some outright errors, such as the statement that “little scientific evidence exists to show that e-cigarettes are effective cessation devices,” which might have been true in March 2012 when the document was first produced, but was certainly no longer the case by the time it was updated in April 2014.

It mentions the toxins contained in e-cigarette vapor without mentioning the fact that their concentration is almost too low to be measured and certainly too low to pose a health risk to bystanders.

The NACCHO statement also quotes the CDC summary of the National Youth Tobacco Survey. In mentioning that “use” (which in this case means “tried it once”) of e-cigarettes among middle and high school students “more than doubled” between 2011 and 2012, they neglect to mention that the number went from 1.4% to 2.7% among middle school students—not what you would call an epidemic. They also fail to mention that during the same period, cigarette smoking decreased.

And, of course, NACCHO can’t resist mentioning antifreeze.

Though one might hope that such national organizations would be reliable sources of information for the City, neither one of them makes a credible statement supported by evidence.

      1. In case you are unfamiliar with California Health and Safety Code 119405, which we encountered in the course of AB 1500, it reads

119405.  (a) To the extent not preempted by federal law, including, but not limited to, the regulation of electronic cigarettes by the United States Food and Drug Administration, it shall be unlawful for a person to sell or otherwise furnish an electronic cigarette, as defined in subdivision (b), to a person under 18 years of age.

(b) “Electronic cigarette” means a device that can provide an inhalable dose of nicotine by delivering a vaporized solution.

(c) A violation of this section shall be an infraction punishable by a fine not exceeding two hundred dollars ($200) for the first violation, by a fine not exceeding five hundred dollars ($500) for the second violation, or by a fine not exceeding one thousand dollars ($1,000) for a third or subsequent violation.

(d) Nothing in this section nor any other law shall be construed to invalidate an existing ordinance of, or prohibit the adoption of an ordinance by, a city or county that regulates the distribution of electronic cigarettes in a manner that is more restrictive than this section, to the extent that the ordinance is not otherwise prohibited by federal law.

The law itself does not actually say anything about flavors and their possible appeal to minors. I would think that comprehensive studies notwithstanding, one would want to restrict the sale of nicotine products to minors, even though there is actually some reason to doubt that nicotine is as addictive as people believe. It’s generally a good idea to keep drugs, legal or otherwise, away from undeveloped brains. Since California already prohibits sales to minors, Oakley doesn’t need to do anything but enforce that law.

      1. There is not a recognized danger that use of e-cigarettes will encourage young people to move on to smoking tobacco products. There is an alleged danger for which there is no credible evidence. People keep repeating “We’re afraid it will happen,” yet there is no sign of it happening.

For adults, e-cigarettes represent an unintended gateway out of smoking, because they become unable to tolerate the inhalation of tobacco smoke. There is no reason to believe e-cigarettes would work differently for minors.

      1. The detractors of e-cigarettes cannot have it both ways. E-cigarettes cannot be a danger to youth because flavors, lack of odor, ease of concealment, etc. make them more attractive than tobacco cigarettes, and simultaneously glamorize smoking. The thing that makes e-cigarettes attractive (to adults as well as teens) is that they have what analog cigarettes do not.
      2. There is not much evidence that the ordinance will protect the public health, and some evidence to the contrary that the City has failed to consider. What about the health of the vapers themselves? By defining vaping as smoking and then prohibiting smoking in outdoor as well as indoor locations, the City is condemning people who have finally found a way to quit smoking to go stand with the smokers in the designated smoking areas and breathe secondhand smoke. Furthermore, the City will be exposing the family members of those vapers to the smoke that they will bring home on their clothes and skin and hair.

Before you say “Well, they should just quit, then,” remember that they’ve tried. The people who are vaping now are the ones who tried everything else to quit smoking, without success. The City of Oakley is proposing to reward them for finally cleaning up their lungs by forcing them to breathe secondhand smoke.

In conclusion, the Oakley City Council will not be safeguarding the public health if it approves this ordinance, and this resolution, as they stand.

If everyone who smoked switched to e-cigarettes today, millions of lives would be saved—but millions of dollars would be lost, because there would be no more Master Settlement Agreement money. The inclusion of e-cigarettes in smoking bans is not supported by science, only by political interests dependent on tobacco and pharmaceutical money for their continued survival.

Go back and rewrite this, after you do your homework.

Sallie
WordPress fangirl, ghostwriter, linguistic alchemist, podcast consultant, and accidental vapor advocate. Married with 2 cats.

6 Comments

  1. Greetings,

    What a great article and while the time spent reading it is time I’ll not get back, in this case (the exception these days) it’s not time I’d take back even if I could. I am more informed and while not new to vaping, I am still cutting my teeth in the sometimes odd world of advocacy. You and your husband (I know his name and have spoken with him via FB a few times) are more effective advocates than you likely realize, and far more effective than “a million faxes sent in real-time”, could ever…, well, if you don’t get the reference, he will.

    Thank you for fighting this battle in your backyard and for helping those of us who are preparing to deal with our own purveyors of misinformation. It is both critical and incredibly appreciated.

    Best,
    Drew

    1. Thank you for your kind words, Andrew. If we don’t fight the battle in our back yard, who will? At least there won’t be much wear and tear on the car for this one–though I did go through quite a bit of toner in the course of printing out all those studies to hand over along with the printed version of the letter.

  2. Sallie,
    Your blog is amazing! Clear, extremely well presented and to the point. I did take the time to read the entire blog and am not surprised that the staff did not do their homework – again. This seems to be a recurring theme. They did the same when they approved the Carpaccio loan, approved a home based gun dealer without following their own rules, and wrote the City of Oakley Firearms Dealer ordinance wherein the original version required a 15 day waiting period when purchasing a firearm, contrary to a 10 day waiting period as required by state law (which, by the way, cannot be overridden by a city). This was a result of inadequate research and is often the case. They seem to think they can do it better and make it a point to refuse assistance from outsiders who are actually experienced in the field. I don’t often agree with the city attorney, but in this case, let the big boys try it on for size. But, on a personal note, when I first read the article about banning possession of e-cigarettes by minors within city limits, my first reaction was they’re treading on our personal liberties. Anything that helps kids (and adults) quit smoking should be a positive thing. Many kudos for taking the ball and running with it!

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