Hazy Regulations For E-Cigarettes on the Vapory Coast

The Mission’s first store selling only e-cigarettes, the Vapory Shop, greeted customers with the scent of fresh cedar walls when it opened this month at Folsom and 23rd streets. Exposed Edison bulbs hang over gleaming glass cases. The place feels less like the neon-lit stores peddling bongs and hookahs along Mission Street than an upscale watch shop.

The futuristic e-cigarettes — think the Jetsons meet a Marlboro glowing with an LED light instead of an ember — are thought to be less harmful than traditional smokes. Controversy seems miles away.

Yet the calm belies a haze of messy regulations and unanswered questions as at least eight exclusively e-cigarette stores have popped up throughout San Francisco in the last year, by Mission Local’s count.

In a health-zealous city that bans Happy Meal toys, prohibits pharmacies from hawking cigarettes, and ousts smokers from all workplaces and a wide swath of outdoor space — we are living in what, one day, may be remembered as the heady Wild West days of e-cigarettes on the Barbary Coast.

The FDA hasn’t weighed in definitively on their health effects, and local officials have yet to regulate them. For now, the self-nicknamed “vapers” are puffing both e-cigarettes and the devices known as vape pens in bars that ban old-fashioned Camel Lights. Unlike Los Angeles, the city’s public health department doesn’t require e-cigarette merchants to get a tobacco seller’s license as cigarette merchants do. The Planning Department hasn’t enforced its zoning restrictions on the shops. Merchants are confused about how to classify their own businesses — and they’ve been skipping over the permits altogether.

“We just don’t have all the answers with these new products,” said Derek Smith, a programs coordinator in the public health department’s tobacco outreach project. “Is it a gray zone? Absolutely.”

Unclear Permits

Bodegas selling e-cigarettes alongside Camels and Black & Milds already are covered in all the traditional permits and licenses for tobacco sales in the city.

But the city’s planning department first took notice of the new class of smoke shops peddling just e-cigarettes last year, from — what else in San Francisco? — a complaint. A neighbor reported a new e-cigarette store called Vapor City on Polk Street in July, believing it was in violation of planning code. The Planning Department’s zoning administrator Scott Sanchez decided to categorize e-cigarette vendors as “tobacco paraphernalia establishments,” falling into a 2008 law that bans smoke shop-saturated areas like the Haight and along Polk, and requires the shops to get a “Conditional Use (CU)” permit prior to opening everywhere else.

Vapor City was able to stay open on Polk by tweaking its business model to sell jewelry and reduce its e-cigarettes inventory to under 10 percent of its total merchandise, as permitted in the ordinance, says Sanchez.

Yet so far, no shop has pursued a CU permit, he says, which entails a public hearing before the planning commission. To trigger the permit process, the merchants have to classify themselves as a “tobacco shop” on their business license application with the Department of Building Inspection, Sanchez says, but many merchants argue they are not selling any tobacco.

“If they say their business is ‘retail use,’ and if that’s all the information they provide, then we don’t investigate,” Sanchez said. “If the previous use was retail at the same location, they may not be even coming in for permits.”

Once they’re open, usually planning will only step in if there’s a complaint made — and besides the original Polk store, there haven’t been any, Sanchez says.

In the few weeks Vapory Shop has been open, co-owner Alfie Reyes has explained to several walk-in customers that his store isn’t a cannabis dispensary, and the public-at-large has yet to get hip to the new type of cigarette.

“If you’re holding one in public, a lot of people automatically assume you’re doing drugs,” Reyes said.

“There’s still this stigma around it,” said Shawn O’Leary, the manager of Local Mission Eatery who uses e-cigarettes. He has yet to see someone light up at the restaurant, and says he himself never smokes them inside. “It looks like smoking, and you feel like you’re around someone smoking.”

“Vapes” on the Rise

Hitting the market in 2007, e-cigarettes are also known as vaporizers — “vapes” to their fans. They contain a battery and heating element that vaporize a liquid solution that usually contains nicotine, but can be just flavored juice — nicotine-free. E-cigarettes are marketed as having none of the carcinogens or tar of traditional cigarettes, nor do they emit the toxic second-hand smoke. Though not totally refuted, there have been some studies countering these claims. Many vapers are former smokers looking for a healthier way to feed their habit without quitting cold turkey.

Despite their growing popularity — USA Today recently reported that the sale increased 24 percent from 2011 to 2013 — the FDA has yet to make any specific e-cigarette regulations. It has issued some early warnings to the public, citing there’s some early research of harmful effects of ingesting the chemicals in vape juice.

Much of the legislation across the country has been at the state or local level.

In California, Senator Ellen Corbett, a democrat representing Alameda and Santa Clara counties, introduced SB-648 in early 2013 which would ban the use of e-cigarettes in public buildings and restrict how they could be advertised. The bill has been amended twice and is currently in committee.

Richmond and Petaluma recently passed a ban on the use of e-cigarettes in enclosed public places, but San Francisco is still figuring out how to proceed. A 2011 resolution  by the San Francisco Health Commission recommended banning e-cigarettes in smoke-free zones — arguing that there’s not enough evidence to prove that their second-hand smoke is benign to health.

Yet so far that has not been done. The Board of Supervisors is set to debate an ordinance that could make e-cigarettes illegal to smoke in the same places as traditional cigarettes and require e-cigarette stores to acquire a tobacco permit. Supervisors Eric Mar, David Chiu and John Avalos sponsored a successful motion in October to add the issue to the board’s 2014 agenda. Vaporizers are already prohibited in several public places, including the San Francisco airport, any Department of Public Health facility and at AT&T Park.

Selling to Minors is Banned in California — Yet Fears of Flavors Attracting Teens

Last year, California legislators banned the sale of e-cigarettes to minors. Of the store owners Mission Local talked to for this story, most said that they card their customers. (One seemed unaware that it was the law, and not just a best practice).

“We do what we can to stay out of trouble,” said Vapory Shop co-owner Reyes, who also runs its online store with six business partners. Reyes says he always cards the customers. “I know there’s a school down the street,” he said in reference to Cesar Chavez Elementary, “but there’s two liquor stores flanking the block. How bad can we be in comparison?”

For some health officials, the age limits on e-cigarettes aren’t enough to keep teens away.

“People are seeing what appears to be smoking, and we have some concerns about modeling behavior and their effect on youth,” said Derek Smith, from the city’s tobacco outreach project.

There’s also the issue of the flavors attracting younger users, one of the concerns of the city’s health commission in their 2011 resolution. The 2009 federal Family Smoking Prevention and Tobacco Control Act banned candy-flavored cigarettes, yet e-cigarettes have no such restrictions. The Vapory Shop sells nicotine juice flavors like snickerdoodle, dark chocolate, gummy bear, and pink starburst — offered as in-store puff samples in the same way Humphry Slocombe offers tastes of ice cream around the block.

“We’re not targeting anyone who doesn’t already smoke,” Reyes said.

While it’s probably only a matter of time until tighter local laws come down, some businesses have already taken it upon themselves to regulate the use of e-cigarettes among their customers. At The Homestead, a bar a few blocks up Folsom from the Vapory Shop, bar manager Deb Welch says she asks patrons to take their e-cigarettes to the curb.

“Who knows what it is they’re smoking?” Welch said. “I know some friends who really like them who tell me, ‘I don’t smoke anymore,’ and I’m like, ‘Doesn’t it have nicotine and this and that in it?’ And they’re like, ‘No, it’s different’… And they never can explain how it’s different. Bottom line: just do it outside.”