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Despite the skyrocketing teen use of e-cigarettes, a proposal to make California the nation’s first state to ban flavored tobacco is struggling in the Legislature—and health advocates blame the political potency of the tobacco industry.

With negotiations under way behind the scenes, vaping interests hope to at least weaken the legislation, if not turn it in the industry’s favor.

On the Assembly side, all tobacco-related bills were effectively snuffed out when a key committee opted not to hear them. The committee’s chairman, Merced Democrat Adam Gray, declined to be interviewed. In an email, he wrote that “the authors of the various proposals and the committee are working together to develop a comprehensive proposal that addresses the issue from all sides. We will develop a thoughtful package of reforms and move legislation forward this year.”

In the state Senate, a flavored-tobacco ban has advanced and is heading for a Senate floor vote, but only after it was amended to exempt hookah products and products patented before 2000. Even if it passes the Senate, its future in the Assembly is doubtful.

“What you are seeing there is the influence of big money,” said Kati Phillips of California Common Cause, a government watchdog. “When you can afford to have direct access to lawmakers, they tend to listen to you.”

Tobacco money is nothing new in Sacramento, but now San Francisco-based Juul Labs, the largest electronic-cigarette maker, is also moving thousands of dollars to elected officials—particularly targeting members of the Assembly’s Governmental Organization Committee, which Gray chairs.

Electronic cigarettes—known as e-cigarettes or vape pens—heat, for purposes of inhaling, a liquid that typically contains nicotine.

Health advocates say California needs to ban flavored tobacco, because these products, with flavors such as cotton candy, mango and green apple, lure teenagers and young adults into using e-cigarettes, or vaping. Manufacturers and other opponents of a ban insist the products are not targeted to or intended for young people, and that flavored e-cigarettes help long-time smokers quit traditional cigarettes.

It’s unclear exactly what compromise might emerge from negotiations. Gray mentioned alternatives in his email, suggesting “retailer penalties for selling to kids, penalties for youth in possession, advertising restrictions, age-verified online sales, track and trace systems, regulated packaging, and flavors are all areas where we need to take a good look at how current law is failing. There is no single solution to this problem.”

Gray’s committee “has a long and sordid history of bottling up tobacco bills,” countered Tim Gibbs, senior director of government relations for the American Cancer Society Cancer Action Network. “That’s often where good tobacco bills go to die. There is no mystery why the tobacco companies disproportionately target their campaign contributions to that committee.”

Gibbs said no one has invited the network, the American Heart Association or the American Lung Association to be a part of negotiations to create a package of tobacco bills.

“It’s telling that the deadlines were missed and that they haven’t invited public-health stakeholders to any broader negotiation,” he said. “I would go further and say that it’s a farce, a charade to try to avoid the real issue—to avoid doing anything to hurt the tobacco companies’ bottom line.”

Health advocates reject the idea of criminalizing youth possession, but say they welcome stricter penalties on retailers who sell vaping products to kids. Still, they maintain, that’s not enough.

“It’s a way to pretend that something was done without actually doing anything,” Gibbs said. “We are all in favor of stepping up enforcement and making sure retailers are not selling tobacco products to minors. However, it’s not sufficient. Prohibiting the sale of flavored tobacco products is the most important thing we can do to halt the use of teenage e-cigarette use.”

The Cancer Action Network has created a tracker of elected officials who accept tobacco money, and those who refuse. Of the 21 members of Gray’s committee, 11 didn’t receive tobacco money.

Another possibility: The vaping industry might agree to weaker state restriction if the Legislature simultaneously pre-empts stricter local bans. It’s the same strategy the soda industry used last year, when it escaped city soda taxes by convincing the Legislature to pass a statewide prohibition on local soda taxes.

So far, at least 26 counties and cities have restricted flavored tobacco in some fashion, after Hayward became the first by prohibiting its sale within 500 feet of schools. San Francisco banned its sale entirely—and city voters then overwhelmingly rejected a ballot initiative to overturn the ban. Campaign mailers and TV commercials advocating the overturn were required to acknowledge the source of funding behind the campaign to cancel the ban.

“The local campaigns can backfire, because the more they do, the more you know it’s paid for by the tobacco industry. And it turns voters off at the local level,” said Larry Tramutola, a campaign consultant who defended the ban. “More money spent at the Sacramento level, who cares? It’s just more money for politicians.”

Gray insisted the contributions are irrelevant to his actions. “If you want to support my agenda, my voting record, and the things I stand for, I’m happy to receive that support,” he wrote. “But it has zero role in how I represent my district or how I make decisions on public policy.”

Lindsey Freitas, senior director of advocacy in California for the American Lung Association, said more people need to stand up to the tobacco industry. “This is how they get the next generation of people addicted to their products: They entice them with these sweet flavors,” she said.

But Greg Conley, president of the American Vaping Association, credited watermelon-flavored tobacco for getting him to quit traditional cigarettes.

“Vaping products are essential to helping adult smokers quit,” said Conley. “Some members may not want to hear this bill, because it will shut down multiple small businesses in their districts. This bans 90 percent of the nicotine-containing products sold at vape shops.”

If the Senate bill, SB 38, from San Mateo Democratic Sen. Jerry Hill, passes the full Senate by the end of the month, it will go to the Assembly, where it’s likely to land in Gray’s committee. That’s the same committee where a similar ban on tobacco-flavored products, Assembly Bill 739 by Sacramento Democratic Assemblyman Kevin McCarty, stalled without even a vote. McCarty declined to be interviewed about his bill.

So far this year, Governmental Organization committee members have received $23,500 from Juul Labs. Those members have also taken in $89,300 from the R.J. Reynolds Tobacco Company, which makes the popular Newport brand of menthol cigarettes. In addition, the “Valley Solutions Ballot Measure Committee,” an initiative committee Gray controls, took in $25,000 from Philip Morris, a tobacco subsidiary of Altria, last year. Altria also has a stake in Juul Labs.

“Our philosophy,” said Juul spokesman Ted Kwong wrote in an email, “is to support people and organizations to improve the lives of the world’s 1 billion smokers and to combat underage uses. … We keep JUUL products out of the hands of young people.”

Last year the U.S. Surgeon General issued an advisory about youth use of e-cigarettes, calling out Juul for making an e-cigarette that looks like a sleek USB flash drive.

“We must take aggressive steps to protect our children from these highly potent products that risk exposing a new generation of young people to nicotine,” the advisory said.

Last year, use of e-cigarettes among middle and high schoolers soared 78 percent over the year before, according to the federal Centers for Disease Control. The agency reported that more than 1 in 5 students now were using them. The popularity e-cigarettes alone drove a 36 percent annual rise in tobacco use among those students.

Juul contends it has never intended for its products to be used by youth. The company said that in the fall, it stopped selling its flavored product through retailers and now offers them only online, which it says is more secure because of a third-party age verification process.

And it has been working to educate legislators about its youth-prevention efforts, emphasizing that it is focused on adult smokers who are using vaping to quit combustible cigarettes. Juul has been running full-page ads in The Sacramento Bee and prominent ads in Politico’s California newsletter, both read by Sacramento insiders.

The company also said it is being mixed up with other smaller players that make candy-flavored pods, which can be used in Juul’s USB-looking vape pens. Juul makes four flavors: mint, mango, creme and fruit.

“While we do not and will not sell flavors which are clearly targeted to youth, we also understand that flavors that drive adults from cigarettes have the potential to appeal to youth,” said Kwong in an email.

Sen. Hill said in an email that his focus is on the Senate floor vote, and that he remains “committed to protecting children and teens from the health risks of flavored tobacco products.”

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics

The California Department of Motor Vehicles has given the public a series of piecemeal explanations as it acknowledged making more than 100,000 errors in recent months while registering Californians to vote.

Software problems, it said in May. Human errors from toggling between computer windows, it said in September. Data-entry mistakes that were corrected but never saved, it said in October.

What DMV officials didn’t acknowledge—and still haven’t—was what may be the underlying problem: The agency rolled out a massive new voter-registration effort with a piecemeal computer system. Instead of the properly integrated computer program that was needed, the agency launched in April with disparate computer systems that didn’t automatically link together, according to advocates who have been working closely with the DMV on the new “motor voter” system. That meant DMV workers had to manually link information from various systems during transactions between April and September, when an integrated system was put in place, said Kathay Feng, executive director of California Common Cause.

All the problems reported so far happened during that period.

“What we’re finding out is that they were really patching together an old system with several new systems,” Feng said. “We still don’t know if … they had planned all along to have an interim process between April and September, or if this is something they cobbled together because something wasn’t ready.”

The DMV declined to answer CALmatters’ questions about the computer systems, instead providing a statement saying the motor-voter program “has been implemented in phases, allowing DMV to roll out additional functionality.” The latest upgrade, the statement says, was on Sept. 26.

The botched rollout of the motor-voter system—which comes as the state and the country prepare for midterm elections—points to two long-standing problems in California. One is the state government’s pattern of failure on large information technology projects; the other is its history of flouting the federal voter-registration law.

Common Cause and other voter-rights advocacy groups sued the state in 2015, alleging it had failed to follow federal law requiring that states register people to vote and update their voting registrations when they get or renew a driver’s license or ID card. The Legislature then passed a law creating automatic voter registration at the DMV, and the advocacy groups have been working with the government to implement it.

The idea was that rather than duplicating information by filling out a voter-registration form and a driver’s license form, Californians who are legally eligible to vote would automatically be registered when completing the DMV’s computerized application for a driver’s license or ID card.

Since the program launched in April, about 1.4 million Californians have registered to vote or updated their voter registration through the motor-voter process—and the DMV has acknowledged three batches of mistakes:

• A software error affected 77,000 registrations, resulting, in some cases, in two registration forms indicating different party preferences being issued for one voter (reported in May).

• A window-toggling error affected 23,000 registrations, resulting in changes to voters’ party preference, vote-by-mail options and language choices (reported in September).

• A data-entry error resulted in 1,500 people being registered to vote even though they are not legally eligible, because they are not U.S. citizens, are younger than 18 or are on parole for a felony conviction (reported in October).

Though the problems are serious, none indicate intentional acts of fraud or hacking. Instead, they appear to be the result of human error and glitchy technology—which officials say are being fixed with software updates and employee training. The secretary of state said erroneous registrations have been canceled, and DMV leaders say they’ve put new procedures in place to prevent mistakes in the future.

“We continue to review the efficiency and accuracy of the program and will make additional upgrades as needed,” said the statement from DMV spokeswoman Jessica Gonzalez.

Secretary of State Alex Padilla has said the errors amount to a small fraction of the transactions processed by the DMV and maintains that the corrective steps he’s taking, including a third-party review of the motor-voter system, “are crucial to ensuring voter confidence in our democracy.” National experts have repeatedly found that voter fraud is isolated and rare. Still, with the state government run entirely by Democrats, the motor-voter problems have fueled Republican arguments that voting systems are plagued by fraud. In a new digital ad this month, Padilla’s GOP opponent, Mark Meuser, highlights cases of fraudulent voting and says he wants “to end California's rigged elections.”

The potential for politicizing the problem is why the state government needs to come up with a big picture fix, said Mike Madrid, a Republican political consultant who is an outspoken critic of President Donald Trump.

“There is a way to salvage this, but it requires not dismissing it as ‘no big deal,’” he said. “The president of the United States is questioning the integrity of our electoral system, and we have just legitimized that fear-mongering.”

Madrid wants to see a bipartisan commission formed to examine California’s voting system—not only the motor-voter problems, but also issues like the incident during the June primary when more than 118,000 names were erased from Los Angeles County voter rolls. An audit found that case was caused by a formatting mismatch between state and local computer systems that left blank spaces where dates of birth should have been, causing the computer to misclassify those voters as underaged.

The state’s Department of Finance will examine the motor-voter program as part of its audit of the DMV, which has been plagued by numerous problems this year, including massive wait times. But critics say that review is insufficient, because the Department of Finance, like the DMV itself, is part of the governor’s administration.

This summer, lawmakers rejected a Republican assemblyman’s request to have the state’s independent auditor investigate the DMV. Now the Democratic assemblywoman who wrote the law creating the new motor-voter system said she is going to ask for the audit when the Legislature reconvenes in January.

“We gave them plenty of time. We increased their budget twice in order to implement this. We allowed them to delay implementation because we wanted it done right,” said Assemblywoman Lorena Gonzalez Fletcher of San Diego. “When they told us they were ready, obviously they weren’t quite ready.”

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics