Credit: Darrow Montgomery

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The D.C. Council had a lot to say about drugs on Tuesday. 

The 13-member legislature voted to bar DC Public Schools from drug testing contractors for marijuana and volunteers for any substances. Lawmakers also voted to ban the sales of flavored tobacco products, but made an exception for businesses that offer hookah. Chairman Phil Mendelson believed the Council is making it easier to smoke marijuana, but harder to smoke tobacco. “There is a contradiction there, and not one that I support,” he said. (The chairman voted yes to the first bill, and no to the second.) 

Ward 6 Councilmember Charles Allen led the effort to pass the DCPS drug testing bill following City Paper’s report two weeks ago about a new policy to test volunteers and contractors for marijuana. Chancellor Lewis Ferebee, in a letter sent the evening before the Council was set to vote, said he’s OK with removing the drug test requirement for volunteers but not for contractors who work inside schools.

“These adults are paid to be in schools and are more likely to be alone with children without supervision from DCPS personnel,” Ferebee wrote in his letter. “Given their specific roles and time spent with children, we believe that continuing to require pre-service drug screening, including for marijuana, is an appropriate level of review for partner organization employees.”

Allen argued that drug testing for a legal substance makes a moral judgment about a person who consumes marijuana, and “that’s just wrong.”

At-Large Councilmember Elissa Silverman pitched an amendment that she says would have aligned Allen’s emergency bill with current law that allows the District government to test its employees in “safety sensitive” jobs such as truck drivers. Silverman suggested that nurses would be exempt from drug testing under Allen’s bill, as they’re hired on a contract basis. Allen said that’s incorrect. Silverman could not specifically explain who else at DCPS her amendment might apply to, and the measure failed.

The emergency bill passed 10-2 with Ward 5 Councilmember Kenyan McDuffie and Ward 2 Councilmember Brooke Pinto voting no. At-Large Councilmember Christina Henderson voted “present”. She said during the meeting that she felt like she didn’t have enough time to fully understand the bill’s impact.

“The Council did the right thing by passing emergency legislation to protect workers and volunteers from a discriminatory and unnecessary barrier to employment and service,” says Matthew Hanson, the chief of staff of DC Action (an advocacy group that focuses on D.C.’s young people). “Yesterday’s vote was a step in the right direction and will allow us to get back to what matters, meeting the needs of young people and their families, especially at a time when there is an increased demand for programming and service.”  

The Flavored Tobacco Product Prohibition Amendment Act passed 9 to 3. Councilmembers Mendelson, Janeese Lewis George (Ward 4), and Trayon White (Ward 8) voted no. McDuffie voted present. Specifically, the bill would outlaw the sale or distribution of any flavored tobacco products, including menthol cigarettes, to anyone over the age of 21. (Already, D.C. bans the sales of tobacco products to anyone under 21.) It also bans the sale or distribution of any flavored tobacco products and electronic smoking devices within a quarter mile of a D.C. middle or high school. 

“Tobacco use is the leading cause of preventable deaths in the United States, contributing to more than 480,000 deaths annually. That’s more than all COVID deaths in 2020,” said Allen, a lead co-author of the bill. “More than 800 D.C. residents die every year from tobacco.”

Henderson introduced an amendment to the bill that would make an exemption for hookah bars, so these businesses do not shut down should the bill become law. This could include restaurants, bars, taverns, and nightclubs. D.C. law already outlaws smoking indoors, so the city’s tobacco bars have to register with DC Health if patrons smoke on site. Henderson envisions businesses that offer hookah registering with DC Health as well. Some councilmembers expressed concerns about the registration process because only nine businesses have a smoking exemption. They wondered whether the DC Health website was outdated. A DC Health spokesperson says the businesses listed on the website are the most updated, however the certification expiration dates for two businesses named were extended. “For exemptions, we are currently following the DCRA’s lead on extension of expired licenses. The grace period for renewals extends through August 1, 2021,” the spokesperson says via email.

The second and final vote is scheduled for June 29. Before it can become law, the mayor needs to sign the bill and the Council needs to fund it. The chief financial officer says the bill costs an estimated $3.6 million in fiscal year 2022 and $13.9 million over the next four years in reduced revenue and implementation costs. 

The bill prompted a spirited debate among councilmembers, including over race. “We have been remarkably successful as a country in the last 50 years in reducing significantly the consumption of tobacco and significantly changed public health as a result,” said Mendelson. “And we have done that not through prohibitions. What we have seen generally where there are prohibitions, there are often problems that come with it.” “I’m actually quite shocked at that position,” responded Ward 3 Councilmember Mary Cheh, referring to his argument as a “liberatrian streak.” “The tobacco industry—you will make them gleeful if you oppose this,” she continued. 

Councilmembers who voted for and against the bill cited an assessment from the Council’s Office of Racial Equity. The assessment notes that Black adults are more likely to use tobacco products. In 2017, roughly one in five Black Washingtonians identified as a smoker, compared to about 1 in 20 White residents. This is a “direct result of the tobacco industry’s targeted menthol marketing efforts,” the report says. 

“Positively, banning the sale of flavored tobacco products may reduce the number of young people who start smoking or vaping. The ban may also encourage some smokers or vapers to quit, resulting in immediate positive effects. These outcomes would advance racial equity,” the report continues. “Concerningly, the enforcement of the bill could increase interactions with police, which can range from inconvenient to traumatizing to fatal—especially for Black residents.”

A few councilmembers voiced their complicated feelings about the bill. “I wholeheartedly support the intent of this legislation … I support it because it encourages smokers to quit. I think smoking and vaping are both harmful and dangerous addictions,” said McDuffie. “Given the racial differences of who does and doesn’t smoke menthol cigarettes—people have pointed out and I think they are curious as to why only certain smokers’ choice of cigarettes need to be banned while those who smoke non-menthol are entrusted to make decisions about their health.”

“Enforcement of minor violations has often been the pretext for catastrophic encounters with law enforcement for residents like Eric Garner and George Floyd and even recent incidents like the teen who was tased and tackled in Ocean City this past Saturday for vaping at the beach,” added George. “I don’t know if I’m persuaded that we have fully removed the risk.” She also worried that the bill penalizes communities of color for their addiction. 

In an attempt to address these concerns, Allen said enforcement of the bill is left to the Department of Consumer and Regulatory Affairs, not to the Metropolitan Police Department. McDuffie wants to explicitly bar MPD enforcement and intends to work with Allen before the second vote to add said language to the bill. As currently written, the bill proposes fines as low as $25 for an individual and as high as $10,000 for a business. 

Henderson also addressed concerns that the bill penalizes people for their addiction. Citing the U.S. Food and Drug Administration, she pointed out that tobacco products with menthol can also be more addictive and harder to quit, and that traditional treatment methods are therefore less likely to work. “There is strong evidence that a menthol ban will help people quit,” the FDA says

Some health groups support the bill, while some business-centered groups do not. Flavors Hook Kids DC—a coalition of organizations including the American Cancer Society Cancer Action Network, American Heart Association, American Lung Association, Campaign for Tobacco-Free Kids, and the D.C. chapter of NAACP—supports the bill but not the amendment exempting hookah and urges lawmakers to remove the language ahead of the second vote. “[T]he DC Council sent a strong message that they are committed to standing up to protect DC Kids from Big Tobacco and advancing health equity,” the group says in a statement. Meanwhile, Kirk McCauley, with WMDA Service Station Assn. and the Mid-Atlantic Petroleum Distributors Assn., the trade associations representing thousands of convenience stores and energy marketers, says: “D.C. Council is kicking small businesses when we are down, driving D.C. customers away from our stores and out of town, and shutting us out of discussion on major bills that will impact our livelihoods.”

—Amanda Michelle Gomez and Mitch Ryals. (tips? agomez@washingtoncitypaper.com)

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