San Francisco, California, Proposition C, Authorize and Regulate Sale of Electronic Cigarettes and Vapor Products Initiative (November 2019)
| Proposition C: San Francisco Authorize and Regulate Sale of Electronic Cigarettes and Vapor Products Initiative |
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| The basics |
| Election date: |
| November 5, 2019 |
| Status: |
| Topic: |
| Local tobacco |
| Related articles |
| Local tobacco on the ballot November 5, 2019 ballot measures in California Local Ballot Measures Local business regulation on the ballot |
| See also |
| San Francisco, California |
A measure to authorize and regulate the sale of electronic cigarettes and other vapor products was on the ballot for voters in San Francisco, California, on November 5, 2019. It was defeated.
A yes vote was a vote in favor of this initiative to do the following:
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| A no vote was a vote against this initiative, thereby leaving in place city laws designed to ban vapor products not reviewed by the FDA (which currently includes all e-cigarette products) and flavored vapor products starting in 2020 and leaving current regulations and restrictions on vapor product vendors and advertisements. |
On September 30, 2019, Juul Labs, which sponsored the Yes on C: Stop Youth Vaping campaign, announced that it was ending its financial support for the measure. In response, the campaign released a statement, which said, "We understand JUUL’s leadership has decided to cease support for the campaign as part of a larger review of the company’s policies. Based on that news, we have made the decision not to continue on with the campaign."[1]
Proposition C appeared on the November 5, 2019 ballot. Local citizen initiatives cannot be withdrawn later than 88 days prior to the election.
Election results
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San Francisco Proposition C |
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|---|---|---|---|---|
| Result | Votes | Percentage | ||
| Yes | 36,666 | 18.19% | ||
| 164,885 | 81.81% | |||
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- Results are officially certified.
- Source
Text of measure
Ballot question
The ballot question was as follows:[2]
| “ |
Shall the City overturn the law passed by the Board of Supervisors suspending the sale of electronic cigarettes that lack required FDA authorization, and adopt new regulations on the sale, manufacture, distribution and advertising of electronic cigarettes in San Francisco?[3] |
” |
Ballot simplification digest
The following summary of the measure was prepared by the office of the Ballot Simplification Committee:
| “ |
The Way It Is Now: The City and the State of California regulate the sale of tobacco products. The term “tobacco products” includes vapor products such as electronic cigarettes, their cartridges and other parts, and liquid nicotine. Electronic cigarettes are battery-operated devices that vaporize liquid nicotine and deliver it to the user. City and State laws regulate the sale of electronic cigarettes in San Francisco in the following ways:
The City and State regulate the sale of electronic cigarettes as follows:
The U.S. Food and Drug Administration (FDA) regulates tobacco products. Beginning in late January 2020, the City will suspend the sale of electronic cigarettes that have not gone through required pre-market review by the FDA. As of July 2019, the FDA has not completed a review for any electronic cigarette products. The Proposal: Proposition C would authorize and regulate the retail sale, availability and marketing of electronic cigarettes in San Francisco. The measure would:
Proposition C may repeal other City laws that apply to electronic cigarettes, including the City law that prohibits the sale of flavored electronic cigarettes. Proposition C would impose new regulations on the sale and distribution of electronic cigarettes in San Francisco as follows:
Proposition C would also require individuals and entities that sell more than 100 electronic cigarettes per year on the internet to San Francisco customers to:
Proposition C would prohibit advertising electronic cigarettes designed to appeal to minors or using an advertising medium known to be seen primarily by people under 21 years old. A 'YES' Vote Means: If you vote 'yes,' you want to overturn the law passed by the Board of Supervisors that suspends the sale of electronic cigarettes that lack required FDA authorization and to adopt new regulations on the sale, manufacture, distribution and advertising of electronic cigarettes in San Francisco. A 'NO' Vote Means: If you vote 'no,' you want to keep existing laws regulating electronic cigarettes.[3] |
” |
| —Ballot Simplification Committee[4] | ||
Full text
The full text of the measure is available here.
Estimated fiscal impact
The city controller estimated that the cost of educational and outreach programs proposed in the measure will range from $500,000 to $725,000 per year and have a moderate impact on the cost of government. The educational programs would receive funding from retail permits also required under the measure. The city controller expected the measure to have little effect on tax revenue.[5]
Support
Coalition for Reasonable Vaping Regulation led the Yes on C: Stop Youth Vaping campaign.[6]
Juul Labs was the primary sponsor for Coalition for Reasonable Vaping Regulation. On September 30, 2019, Juul announced it was pulling its support for the campaign. In the announcement, CEO K.C. Crosthwaite, who was appointed the prior week, said, "We must strive to work with regulators, policymakers and other stakeholders, and earn the trust of the societies in which we operate. That includes inviting an open dialogue, listening to others and being responsive to their concerns."[7]
Following Juul's announcement, Yes on C suspended its campaign and released the following statement:
| “ |
We understand JUUL’s leadership has decided to cease support for the campaign as part of a larger review of the company’s policies. Based on that news, we have made the decision not to continue on with the campaign. Yes on C would like to express our deep appreciation to the labor unions, hundreds of San Francisco corner stores, small business and thousands of residents who have used e-cigarettes to quit smoking that comprise the campaign. These folks have worked diligently in support of regulation to address the youth vaping crisis. We will be winding down all campaign activities over the course of this week. The mission of our campaign has always put the health and well-being of all San Franciscan first. Our goal was to implement the nation’s strongest regulation, which is the best and proven means to address youth vaping while protecting adult choice for those who wish to quit smoking.[3] |
” |
Supporters
- Juul Labs
Arguments
- Dr. Neal Benowitz, professor of medicine at the University of California, San Francisco, said, "The logical thing would be to focus more on restricting youth access to these devices. If they wanted to get them out of gas stations and grocery stores, that’s fine, but I think e-cigarettes should have remained available in places like tobacco shops and online access, where there’s verification of age."[8]
- Ted Kwong, spokesman for Juul, said, "These (Prop C) regulations would make San Francisco a national leader in tackling some of the largest contributors to youth access — lax or ineffective ID verification and legal-age customers reselling products to underage peers — while also recognizing that adult smokers should have access to alternatives since cigarettes still kill 40,000 Californians every year."[9]
- The San Francisco Chronicle Editorial Board wrote, "The most absurd result of the [city's ban] would be to render electronic nicotine devices illegal while allowing old analog packs of Camels to populate everyone’s favorite corner store. ... While vaping has known and, given its comparative novelty, possibly unknown risks, it is by every expert analysis safer than smoking, the greatest dangers of which come from compounds other than nicotine."[10]
- Dr. Steven Schroeder, professor of health at the University of California, San Francisco, said, "It’s ludicrous that we would ban e-cigarettes, but permit the sale of tobacco and cannabis."[11]
Official arguments
The official arguments in support of Proposition C were authored by Coalition for Reasonable Vaping Regulation, Including Neighborhood Grocers .[5]
|
Opposition
San Francisco Kids vs. Big Tobacco led the Vote No on Prop C campaign. The group described itself on its website as "a coalition of doctors, parents, and community groups protecting youth from flavored tobacco products and addiction, sponsored by nonprofit health organizations." In June 2018, the group led the campaign in support of Proposition E, which banned local tobacco retailers from selling flavored tobacco products.[12]
Opponents
- Speaker of the House Nancy Pelosi (D)[13]
- California Lieutenant Governor Eleni Kounalakis (D)[14]
- San Francisco District 10 Supervisor Shamann Walton (D)[15]
- Former New York City Mayor Michael Bloomberg (D)[16]
- San Francisco Democratic Party[17]
Arguments
- Shamann Walton, San Francisco Board Supervisor and co-author of the city's ban on e-cigarettes, wrote, "Juul appears to be using the electioneering in San Francisco to systematically advance unauthorized health-related marketing claims about its products’ advantages to consumers ... These messages do not merely portray Juul as a safer alternative to traditional cigarettes — but also as a more effective smoking cessation option than FDA-approved products as Chantix, Nicorette, nicotine patches and gum." Federal law prohibits e-cigarette companies from advertising vaping products as less harmful than cigarettes or as a smoking cessation tool without FDA approval to do so.[18]
- Michael Bloomberg, businessman and former mayor of New York City, wrote, "[S]tudies show that kids who use e-cigarettes are more likely to use real cigarettes. ... Banning flavored e-cigarettes is the most important thing we can do to reduce use among young people."[19]
- Nancy Pelosi, speaker of the U.S. House of Representatives, said, "With all the unknown short-term and long-term consequences of e-cigarettes, we cannot let corporate special interests buy themselves this proposition. So, children, teachers, parents, leaders, policymakers — say no to Juul, no on C."[20]
Official arguments
The official argument against Proposition C was authored by Board of Supervisors President Norman Yee, Supervisor Vallie Brown, Supervisor Sandra Lee Fewer, Supervisor Gordon Mar, Supervisor Aaron Peskin, and Supervisor Shamann Walton.[5]
|
Campaign finance
| Total campaign contributions: | |
| Support: | $15,500,950.00 |
| Opposition: | $7,299,420.00 |
One ballot issue committee, Yes On C - Coalition for Reasonable Vaping Regulation, was registered in support of the initiative. As of October 31, 2019, the committee raised approximately $15.5 million, which was provided by Juul Labs as loans. The loans will be counted on this page as contributions unless the committee repays them.
One ballot issue committee, No on C, SF Kids vs. Big Tobacco, was registered in opposition to the initiative. As of October 1, 2019, the committee raised approximately $2.7 million. Michael Bloomberg was the top donor with total contributions over $1.6 million. The second highest donor was Kaiser Foundation Health Plan, Inc., who gave $125,000. The American Heart Association has also donated over $100,000.
Support
The following were contribution and expenditure totals for the committee in support of the initiative.[21]
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Donors
The following was the only donor who contributed to Yes On C - Coalition for Reasonable Vaping Regulation:[22]
| Donor | Cash | In-kind | Total |
|---|---|---|---|
| Juul Labs | $15,500,950.00 | $151,574.42 | $15,652,524.42 |
Opposition
The following were the contribution and expenditure totals for the committee in opposition to the initiative.[23]
|
| |||||||||||||||||||||||
Donors
The following were the top donors who contributed to No on C, SF Kids vs. Big Tobacco:[24]
| Donor | Cash | In-kind | Total |
|---|---|---|---|
| Michael Bloomberg | $1,800,000.00 | $4,808,825 | $6,608,825.00 |
| Kaiser Foundation Health Plan, Inc. | $125,000.00 | $0.00 | $125,000.00 |
| American Heart Association | $111,324.00 | $0.00 | $111,324.00 |
| Arthur Rock | $100,000.00 | $0.00 | $100,000.00 |
| Soma Hotel, LLC | $81,675,00 | $0.00 | $81,675,00 |
Media editorial positions
- See also: 2019 ballot measure media endorsements
Support
If you are aware of a media editorial board position in support of Proposition C, please email the editorial link to editor@ballotpedia.org.
Opposition
- San Francisco Chronicle: "Prop. C threatens to undermine the city’s existing regulations prohibiting flavored tobacco products and sales to young people while tying the hands of public officials. It is by far the worst idea on this ballot."[25]
- San Francisco Examiner: "The long-term safety and health effects of vaping products remain unclear, and recent illnesses and deaths, while likely linked to black market products, have highlighted those concerns. Ultimately, we hope the Board of Supervisors takes up the task of establishing clear regulations around vaping products, after the FDA weighs in. But right now, there is no way we can support a measure that would allow the tobacco industry, in its newest guise, to impose its own set of rules on our city."[26]
- Los Angeles Times: "[Proposition C] presents itself as a seemingly reasonable proposal to replace the ban with new regulations that mostly focus on making it harder for minors to get their hands on vaping products. But it would forbid the city’s elected officials from amending those rules without approval from voters — an unreasonable hurdle, given how much we’re still learning about e-cigarettes — and worse, it would most likely invalidate the city’s ban on flavored electronic-cigarettes passed by voters last year. That’s a step too far. ... [W]e hope San Francisco’s voters will still turn out on Nov. 5 to reject Proposition C and send the message that they aren’t about to let Big Tobacco (Altria, the maker of Marlboro brand cigarettes, owns 35% of Juul) or any other business subvert democracy for its own ends."[27]
Background
San Francisco Proposition E (2018)
On June 5, 2018, San Francisco voters approved Proposition E, which amended the health code to ban the sale and distribution of flavored tobacco products. Juul filed a complaint against San Francisco's Department of Elections regarding the language used to summarize Proposition C for the official voter digest. It claimed the city was swaying the election by implying that Proposition C would overturn Proposition E. On September 6, 2019, a San Francisco Superior Court judge rejected Juul's claim and upheld the language used by the department.[28][29]
Board of Supervisor's e-cigarette ban
On June 25, 2019, the San Francisco Board of Supervisors voted unanimously to ban the sale of e-cigarettes that have not undergone the Food and Drug Administration's premarket review. As of 2019, no vaping product had completed the review. San Francisco Supervisor Shamann Walton and City Attorney Dennis Herrera co-authored the ordinance. The legislation was passed with a related ordinance that prohibits manufacturing, distributing, and selling e-cigarettes on city-owned property. The ordinances would take effect in early 2020.[30][31]
Food and Drug Administration regulation
- See also: Food and Drug Administration
The Food and Drug Administration gave authority to its Center for Tobacco Products to regulate all electronic nicotine delivery systems or ENDS, including e-cigarettes, in August 2016. As of June 2019, the FDA requires that all e-cigarette retailers meet the following requirements:
- Register an establishment and submit lists of products, including labeling and advertisements,
- Submit tobacco health documents,
- Submit ingredient lists, and
- Include warning statements on products and advertisements.[32]
All e-cigarette products on the market are also required to apply for FDA authorization by May 12, 2020. Manufacturers and sellers of e-cigarettes can continue to sell and market e-cigarettes up to that deadline and while their application is pending review.[33]
State and federal restrictions on flavored e-cigarettes
On September 4, 2019, Michigan became the first state to ban flavored e-cigarette retail and online sales. Michigan Governor Gretchen Whitmer ordered the ban, which excludes tobacco-flavored products. The ban must be renewed every six months.[34]
New York Governor Andrew Cuomo called for a similar ban across New York. On September 17, 2019, New York Public Health and Health Planning Council voted to enact the 90-day ban of all flavored e-cigarettes, except tobacco and menthol flavors. After 90 days, the ban would need to be renewed to continue. Late in September, Rhode Island joined New York and banned flavored e-cigarettes.[35][36]
On September 25, 2019, Massachusetts Governor Charlie Baker announced a four-month ban on all vaping products, including non-flavored e-cigarettes. In October, an appellate court judge challenged the ban requiring Governor Baker to either enact emergency regulation or allow the sale of the products.[37][38]
The federal government also stated its intentions to enact a ban on flavored e-cigarettes. On September 11, 2019, U.S. Health and Human Services Secretary, Alex Azar stated, "The Trump Administration is making it clear that we intend to clear the market of flavored e-cigarettes to reverse the deeply concerning epidemic of youth e-cigarette use."[39]
On October 17, 2019, Juul announced that it was suspending the sale of non-tobacco and non-menthol-based flavors in the U.S. Juul had not determined if it was going to include the suspended flavors (mango, creme, fruit, and cucumber) in its premarket tobacco application (PMTA), which all retailers must submit by May 2020. The announcement stated, "As we evaluate what products to submit for PMTA, we will continue to develop scientific evidence to support the use of these flavored products, coupled with strict measures to combat underage use."[40]
Path to the ballot
This measure was put on the ballot through a successful initiative petition campaign. The official proponent of the initiative was Jennifer Hochstatter, the vice president of supply and demand planning for Juul Labs. Proponents of the measure reported submitting 20,302 ballot initiative signatures on July 2, 2019. The deadline to submit signatures was July 8, 2019, which is 120 days prior to the November election. The Department of Elections verified that more than 9,485 signatures were valid and certified the measure for the 2019 ballot on July 10, 2019. In San Francisco, an initiative petition proposing a change in ordinance is required to obtain a total number of signatures equaling at least 5 percent of the votes cast in the last mayoral election.[2][41]
Lawsuit
| Lawsuit overview | |
| Issue: Ballot language; Whether language used in the ballot question and summary description of the ballot measure was false and biased | |
| Court: Filed in Superior Court of San Francisco | |
| Plaintiff(s): Jennifer Hochstatter | Defendant(s): John Arntz, director of Department of Elections; San Francisco Ballot Simplification Committee; and Dennis Herrera, San Francisco city attorney |
| Plaintiff argument: The official ballot question and summary description drafted by the city’s Ballot Simplification Committee and approved by San Francisco City Attorney Dennis Herrera are biased and will sway the results of the election against the initiative. | Defendant argument: Both the official ballot question and summary description were drafted and approved by neutral and independent entities. City Attorney Dennis Herrera has not taken a public position on the ballot measure, and the city's Ballot Simplification Committee is an independent body that conducts its proceedings in public view. |
Source: California Superior Court, Court House News, San Francisco Chronicle
On August 23, 2019, Jennifer Hochstatter, sponsor of Proposition C, filed a lawsuit against John Arntz, director of San Francisco Department of Elections; San Francisco City Attorney Dennis Herrera; and the city's Ballot Simplification Committee claiming the city was "placing its thumb on the scale" by publishing a biased official ballot question and summary of the measure to appear in the city's voter digest. The complaint argued that the city's actions do not comply with the standards laid out in the 2012 case McDonough v. Superior Court (City Of San Jose) that required election information written by the state to "not be false, misleading, or partial to one side."[42][43]
The lawsuit argued that the official ballot question and summary language was false and misleading because it did the following:
- implied that electronic cigarettes are required, as of 2019, to be authorized by the Food and Drug Administration and failing to obtain authorization is to market and sell them illegally,
- claimed the initiative would repeal the recently passed city ordinance that prohibits the sale of flavored vapor products, and
- used speculative language in the summary description to mislead voters on what the measure would do.
The complaint filed by Hochstatter reported that the initiative's proponents complained several times about the language used, but the city refused to make any changes. In a statement released the day the lawsuit was filed, the City Attorney's Office said: "Juul’s claims of bias are unfounded. The work our office produced reflected our best professional judgment and we stand by it unequivocally.”[44]
The San Francisco Department of Elections publishes a Voter Information Pamphlet one month prior to the election, which includes the digest of each measure, the city attorney's official ballot question, the controller's financial analysis of the measure, and other related information. Before the pamphlet is published, there is a ten-day window for parties to review the information and seek a writ of mandate or injunction to amend or delete information if it is "false, misleading, or inconsistent with the purpose of the Voter Information Pamphlet."[45]
On September 6, 2019, a San Francisco Superior Court judge rejected Juul's claim regarding the flavor ban and upheld the language used by the department. The judge concluded there was a lack of clarity on whether or not Proposition C would overturn the ban of flavored tobacco products; therefore, the use of "may" in the voter digest language was appropriate. The judge changed the language regarding FDA authorization to clarify that products on the market currently have until the deadline to be authorized by the FDA.[46]
See also
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External links
Support |
Oppposition |
Footnotes
- ↑ San Francisco Examiner, "Campaign for pro-vaping measure to be suspended after JUUL pulls funding," published September 30, 2019
- ↑ 2.0 2.1 San Francisco Elections Office, "Qualified Local and District Measures," accessed August 12, 2019 Cite error: Invalid
<ref>tag; name "BallotMeasures" defined multiple times with different content - ↑ 3.0 3.1 3.2 3.3 3.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ San Francisco Ballot Simplification Committee, "Information About Local Ballot Measures," accessed August 12, 2019
- ↑ 5.0 5.1 5.2 San Francisco Elections, "Official Voter Guide," accessed October 2, 2019
- ↑ Yes on C: Stop Youth Vaping, "About," accessed September 12, 2019
- ↑ Juul Labs, "Statement Regarding San Francisco Ballot Initiative," published September 30, 2019
- ↑ Yes on C: Stop Youth Vaping, "Experts," accessed September 13, 2019
- ↑ San Francisco Business Times, "Anti-Juul coalition kicking off campaign to snuff out Prop C," published September 3, 2019
- ↑ San Francisco Chronicle, "Editorial: San Francisco has a case of the vapors over Juul," published June 7, 2019
- ↑ Yes on C, "What Do Public Health Experts Say?," accessed September 12, 2019
- ↑ SF Kids vs. Big Tobacco, "About," accessed September 12, 2019
- ↑ San Francisco Examiner, "Pelosi comes out against JUUL ballot measure," published August 22, 2019
- ↑ San Francisco Chronicle, "California lieutenant governor slams Juul’s SF ballot measure," published September 4, 2019
- ↑ City of San Francisco, "Qualified Local and District Measures," accessed September 12, 2019
- ↑ San Francisco Chronicle, "SF campaign to stop Juul measure gets support from Bloomberg’s $160 million pledge," published September 10, 2019
- ↑ San Francisco Democratic Party, "Endorsements," accessed October 16, 2019
- ↑ San Francisco Chronicle, "FDA to investigate Juul over SF ads claiming vaping is safer than cigarettes," published September 21, 2019
- ↑ The New York Times, "Ban Flavored E-Cigarettes to Protect Our Children," published September 10, 2019
- ↑ Utah Vapor Business Association, "Say no to Juul’: Pelosi slams SF vaping ballot measure," published August 26, 2019
- ↑ City and County of San Francisco Ethics Commission, "Proposition C: Supporters," accessed September 12, 2019
- ↑ City and County of San Francisco Ethics Commission, "Proposition C: Supporters," accessed September 12, 2019
- ↑ City and County of San Francisco Ethics Commission, "Proposition C: Opponents," accessed September 12, 2019
- ↑ City and County of San Francisco Ethics Commission, "Proposition C: Opponents," accessed September 12, 2019
- ↑ San Francisco Chronicle, "Editorial: No on SF Prop. C, vaping company’s disastrous overreach," published October 5, 2019
- ↑ San Francisco Examiner, "Here are the Examiner’s recommendations for the November ballot’s local measures," published October 5, 2019
- ↑ Los Angeles Times, "Editorial: San Francisco’s e-cigarette ban was bad. The industry’s fix is worse.," published October 7, 2019
- ↑ Tobacco Free Kids, "Factsheets," accessed September 12, 2019
- ↑ 48 Hills, "Judge rejects Juul’s ballot argument effort," published September 6, 2019
- ↑ NPR, "San Francisco Bans Sales Of E-Cigarettes," published June 25, 2019
- ↑ San Francisco Health Code, "Restricting the Sale, Manufacture, and Distribution of Tobacco Products, Including Electronic Cigarettes," accessed September 13, 2019
- ↑ U.S. Food and Drug Administration, "How FDA is Regulating E-Cigarettes," accessed September 12, 2019
- ↑ U.S. Food and Drug Administration, "Vaporizers, E-Cigarettes, and other Electronic Nicotine Delivery Systems (ENDS)," accessed September 12, 2019
- ↑ The Washington Post, "Michigan becomes first state to ban flavored e-cigarettes," published September 4, 2019
- ↑ CNN, "New York state bans most flavors of e-cigarettes," published September 17, 2017
- ↑ The Independent, "RI announces ban on flavored e-cigarettes," published September 25, 2019
- ↑ Wicked Local, "Massachusetts is first state to ban vaping products," published September 25, 2019
- ↑ WCVB, "Massachusetts Gov. Charlie Baker's vape sales ban in limbo after appeals court ruling," published October 24, 2019
- ↑ CNBC, "Trump administration readies ban on flavored e-cigarettes amid outbreak of vaping-related deaths," published September 11, 2019
- ↑ Juul Labs, "Juul Labs Suspends Sale of Non-tobacco, Non-menthol-based Flavors in the U.S."
- ↑ San Francisco Department of Elections, "Guide to Qualifying San Francisco Initiative Measures," accessed August 28, 2019
- ↑ Court House News, "Vaping Ballot Complaint," accessed August 28, 2019
- ↑ Leagle, "McDonough v. Superior Court No. H038126," accessed August 28, 2019
- ↑ San Francisco Examiner, "Vaping proponents sue SF over language for November ballot measure," accessed August 29, 2019
- ↑ San Francisco Department of Elections, "Guide to Qualifying San Francisco Initiative Measures," accessed August 28, 2019
- ↑ 48 Hills, "Judge rejects Juul’s ballot argument effort," published September 6, 2019
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