My husband and I had scarcely returned from ECC 2014 in Ontario when we had to start preparing for the Berkeley City Council meeting on September 9th.

I spent three years living in the People’s Republic of Berkeley when I first came to California at the end of 1998, and I like Berkeley a lot, but it’s one of those cities where you either bought property fifty years ago, have a Section 8 voucher, or live in conditions that inevitably bring the word “squalor” to mind. Or you live in People’s Park: Berkeley is the only city I’m aware of whose homeless population sends a delegate to the city council meetings.

Although I spent one of those years working for a 91-year-old woman who was still something of a political firebrand, I had never attended a Berkeley City Council meeting before, and was unaware that “squalor” could actually describe the conditions in which the council has to operate.

Well, perhaps not so much “squalor” as “decay.”

The Maudelle Shirek Building must have been magnificent in its heyday—a hundred years ago. I’m pretty sure the interior hasn’t been remodeled since the time my parents were born, and it must give the councilmembers, about half of whom come from my parents’ generation, an uncomfortable reminder of their elementary school days.

The building appears still to be primarily a school administration building, unless it’s just a case of no one bothering to remove any of the old signage. (There were no signs indicating the way to the council chambers, though there is a sign on the door.)

Indeed, you can forgive the councilmembers almost anything when you see the bathrooms they have to put up with.

Yes, that’s a single cold-water tap. Possibly Alcatraz was better furnished.

I’ve remarked before that Oakley is not so much a city as a class project, but at least we have a modern city hall with dignified council chambers and wheelchair-accessible lavatories. And though the chairs in Oakley’s council chambers leave a bit to be desired in the comfort department, they are a big improvement over the creaky wooden folding chairs—probably also as old as my parents—supplied to the public in Berkeley. And their council meetings last until 11 p.m.!

You certainly can’t accuse them of planned obsolescence, though.

Why Berkeley, and Why Now?

So what possessed me, the day after I’d driven home from Ontario (with an injured foot, thanks to an unfortunate combination of gravity, clumsiness, and a paring knife), to haul myself and the hubby across the hills into the scarred precincts of the Berkeley City Council? After all, Berkeley was only one in a series of 188 California cities to enact a vaping ban. (Number kindly supplied by the woman from the ALA.)

Oh, but Berkeley was doing it in such style. The Berkeley City Council meeting on which the first reading—or rather, discussion, since I’m not sure city councils ever actually read their ordinances or resolutions—of this ordinance took place on July 8th, when Stefan and I were trapped in the most tedious Oakley City Council meeting we had yet attended, to very little benefit. (I was trying to get them to adopt a better definition of “e-cigarette.” No luck.)

The ordinance itself prohibits “the use of electronic smoking devices in all places where smoking is currently prohibited, with exceptions for the electronic delivery of medical cannabis as follows: Inside a medical cannabis dispensary, by dispensary members; Within 50 feet of a medical cannabis dispensary, by dispensary members; Within the enclosed area of a unit in multi-unit housing.”

I know of no style guide that allows capitalization after a semi-colon, but I digress.

As vaping bans go, it’s remarkable mainly for the exception regarding medical marijuana, which is typically Berkeley but scientifically nonsensical if you are arguing that vapor can produce a nuisance for your neighbors or that the act of heating propylene glycol or other e-liquid substrates causes the release of formaldehyde or dangerous particles.

No, it was the arguments that the councilmembers and the proponents of the ordinance made that got my husband so riled up that he was determined to correct their errors and, if possible, to amass a crowd of vapers in opposition. (Well, “Propylene glycol causes asthma” is pretty fatuous.)

I spent most of July trying to earn a living (my source of income has absolutely nothing to do with either vaping or activism) and much of August too sick to move. Meanwhile, Himself had a few other things to attend to as well, and although he posted calls to action for a month, he also designated someone else to try to organize local vapers to show up. A large crowd, say 40 or 50, would really have made a statement. It might not have changed the council’s minds, but it would have made them think.

A Plan of Attack

Unfortunately, there wasn’t enough time for me to think. I wasn’t in charge of strategy on this mission. I’m much more of a tactician in any case, good at handling well-defined tasks on the ground. My understanding was that Berkeley was a city in which we couldn’t possibly win, but it was worth making a stand because we’d have a good video afterwards of vapers taking a stand. And because we couldn’t let the kind of misconceptions and outright falsehoods that had been aired at the previous council meeting go unchallenged. And because certain of the councilmembers were due some comeuppance.

Comeuppance is not my job. I confess to occasional feelings of schadenfreude, but it’s my husband who thinks he’s the incarnation of Shiva. He was champing at the bit to play Bad Cop, and while I’ve learned there’s no point stopping him and his sense of strategy is generally good, that’s not my style. I’d fail miserably at it if I tried. I can do snide, and people keep inexplicably describing me as intimidating, but I have to be pushed pretty far before I become openly antagonistic.

Himself starts at about 85% antagonistic just because he’s dealing with authority figures. Once they turn into authority figures acting stupid, it goes up to 200%.

So the plan was to address as many of the points that had come up in the previous meeting as possible, and correct the errors. I prepared a number of short statements that addressed such issues as flavors, statistics about teen usage of e-cigarettes and tobacco, the relative value of enforcing existing laws vs. passing new ones, parental vs. state responsibility, the myth of the gateway effect, the source of their funding vs. ours, etc. and so on. Each was about 1 minute long, since no one would be allowed more than 1 minute to speak if we had more than 10 people. If we were allowed 2 minutes, statements could be combined. I had two statements that were specific to my own history and others that anyone could have read.

If you look at it one way, we were there to correct misunderstandings. But if you look at it another way, we were there to teach the Berkeley City Council a lesson.

The problem is, when you talk about “teaching someone a lesson,” you’re mainly speaking about punishing them. At best you teach them not to mess with you, which might be the only lesson you care about. But though fights for dominance can lead to friendship and cooperation on the playground and in the wolf pack, it doesn’t always work that way elsewhere. Some people just need to establish the hierarchy, but in politics, you are probably dealing with a room full of people ALL of whom have to be the alpha dog. Make them wrong in front of their peers and/or followers, and they will hate you forever.

Fortunately, it’s unlikely that Gordon Wozniak owns a gun. He’s from Berkeley.

No Battle Plan Ever Survives Contact with Your Allies

The council chambers were packed that night. There were not enough chairs for everyone. Berkeley’s residents had come out in droves to express their opinions about the boycott of Staples, the nurses’ strike at Alta Bates, the residential parking permit proposal, the establishment of Ghadar Day on November 1, the regulation of ridesharing companies, and most especially the resolution opposing the Trans-Pacific Partnership. Many of these people were of the generation that demonstrated on the UC Berkeley campus in the Sixties, and clearly still believed in political activism.

Not so Berkeley’s vapers, apparently.

This despite the fact that many of them are now at risk of being evicted from their multi-unit apartments. (It stands to reason, since you can’t rent a closet in Berkeley for less than $1000/month. Forget a single-family home.)

Efforts to recruit a large crowd were not notably successful. Rick, the owner of Delux Vapor, was detained in court in a custody battle. He promised to send his store manager John, who never appeared. Another of our supporters had just had bad news at a job interview and didn’t think he could face a hostile council on top of that experience. Geoff Braithwaite from Tasty Vapor was on a plane to Washington, DC for a SFATA fly-in. (I’ll accept that excuse.) His wife Ramilya had just flown home from Russia and was flattened by jet lag. His assistant Claire had an opera audition. (We are a diverse crowd, I’ll give us that.)

In the end we had

Stefan Didak (the hubster)

Sallie Goetsch (moi-meme)

Brett Waldon (a young vaper from Martinez)

Breanna Head (Brett’s girlfriend, ditto)

Justin Newman from Emerald Vapors in Oregon (on his way back north after ECC 2014)

Ben Cabie from Grand Vapor Station in SF, who drove from Palo Alto that evening

Jacque Lacey from Vapor Den in Berkeley

Max from Vapor Den in Berkeley.

And we didn’t even know the guys from Vapor Den were coming, or have a chance to make any plans with them ahead of time. They didn’t show up until after the item had been moved from the Consent Calendar back onto the (very end of) the regular agenda.

Brett and Breanna were willing to yield their time to Stefan and me, but not to speak themselves. And the four of us were the only people who were there when the meeting started. Justin was looking for parking and Ben was still driving up from Palo Alto. I seem to remember that they arrived at something like the same time, but I can’t remember exactly when that was. I think it was before I got up to speak, though, because I seem to remember Ben sitting with his video camera. (He’s much happier recording than speaking.)

Here’s How It Went Down

Roughly the first half-hour of the meeting seemed to be taken up by rearranging the agenda: removing a few items entirely (or at least postponing them for a future meeting), making donations from district budgets to various funds, and shifting items from the Action Calendar to the Consent Calendar. The Consent Calendar seems to work a bit differently in each city, but the important thing to know about it is that the items on it get voted on in a bloc.

The vaping ban was Item 59 on the Action Calendar. The council moved to put it on the Consent Calendar. (I can’t remember which councilmember proposed that.) I got a frantic text message with a panicked assertion that this meant we wouldn’t be able to speak to it, but in fact the agenda had a whole section headed “Public Comment on Consent Calendar and Information Items Only,” which explained that up to three people would be allowed to speak for 2 minutes on Consent Calendar items, and if there were more than three people who wanted to speak, the item would be moved to the Action Calendar. (Actually, the agenda says that these items will be moved to the beginning of the Action Calendar, but we got moved to the end.)

Once all this was done, there was a handwritten card listing which items were actually going to be addressed in which section. That led to yet more swapping of eyeglasses: one pair to study my notes, one pair to see the councilmembers and the list of agenda items. I’d brought the computer, but there was no point: the lengthy and otherwise helpful agenda did not provide a Wi-Fi password.

Various items of business took place prior to the Consent Calendar comment period, which was a bit chaotic, as people simply lined up and were expected to state the number of the item they were commenting on and whether they supported or opposed. There was no attempt to move us into any kind of order. I stood with Brett at hand ready to yield his time, and Stefan with Breanna. (Brett is a big guy: having him stand next to me and say “I yield” would have been hilarious in other circumstances.)

At this point, we did not see any of the public health representatives. (Or rather, Stefan didn’t: I didn’t watch the whole of the July 8th video, so I wouldn’t have recognized them. But no one was lined up.) There was a young man behind us that we first thought might be part of our group, but in fact he was an anti-smoking activist who’d lost his sister to cancer. (Dang it, so are we, when it comes to that. And I’m sorry about his sister.)

The Purple Prose

I ended up combining three of the speeches I’d written, and I did need to use up Brett’s allotted time to do so. I thought at the time that my delivery was pretty good, that I seemed to be getting some traction with the audience, if not necessarily with the council. You can judge for yourself, since they make multi-camera video recordings of all the council meetings.

My name is Sallie Goetsch. I have never smoked or vaped. I am here to oppose the ban on electronic cigarettes in multi-unit housing. No one is paying me to be here. Unlike my opponents from the so-called public health organizations, my advocacy efforts are not funded by tobacco industry money or pharmaceutical industry money. I am here at my own expense because I never thought my husband would quit smoking, but he hasn’t touched a cigarette for more than a year, thanks to vaping. If more people followed my husband’s example and switched from smoking to vaping, the air in Berkeley would be cleaner. The population would be healthier. Stanton Glantz would lose his $20 million grant and my opponents would lose their funding. At least the vapers are honest about their motives: they want to be able to vape in their own homes. Our opponents are telling you they want to protect public health when they only care about protecting their budgets. Members of this council have expressed concern that exposure to electronic cigarettes would be a bad influence on children. When I was young, children had parents. What’s more, parents knew how to say “No.” When I wanted Froot Loops and Coco Puffs, my parents said “No” and fed me whole-grain cereal. My parents taught me that smoking was bad for you and cigarettes could start fires. And even though both my parents started smoking for a few years after their divorce, neither my brother nor I ever smoked. Are all the children in Berkeley orphans? My school health classes taught me that smoking could cause cancer. That was in the Seventies. Is health education so much worse now that the mere sight of someone vaping is going to cause teens to forget everything they’ve ever learned at home or at school? Berkeley’s high school students have proved themselves smarter than that on many occasions. Don’t underestimate them. Don’t underestimate their parents. The City of Berkeley probably has more PhDs per square foot than any other place in the East Bay. This council should be too intelligent to fall for claptrap that no freshman at Cal would be allowed to pass off in a paper. If you believed such a thing as the gateway effect existed, you would not subsidize medical marijuana, you would outlaw it. If all forms of nicotine were incurably addictive and dangerous, my opponents would not advocate products like Nicoderm and Nicorette gum. If only children liked the flavors of candy and baked goods, not only would we have no flavored vodka, but I bet we would have no overweight adults in this room. If vapor had an inherently greater penetrating power than smoke, this council would be urging that smoking, rather than vaping, of medical marijuana be permitted. I urge the council to exercise common sense and permit vaporizing nicotine inside of residences in multi-unit apartment buildings.

Good Cop, Bad Cop…

After that, Stefan started in on them. His speech included a comparison to the Weimar Republic and didn’t get any kinder from there. (Is that a lower blow than comparing e-cigarettes to cluster bombs?)

Breanna stepped forward to yield her time when the buzzer went off—and couldn’t.

“That’s three people,” the mayor said.

I frowned and counted on my fingers where I sat. “Two,” I said. But eventually I figured it out: it was three people’s worth of time, because Brett had yielded his spot to me.

The mayor told Stefan that he’d be able to continue when the item came up on the Action Calendar at the end of the meeting. The end of the meeting, you note. Which he was probably hoping we wouldn’t stick around for. Or maybe he hoped that the rest of their business would drag on until 11 p.m. and they’d have to postpone this. Or just that there’d be enough time for the councilmembers most strongly in support of this ordinance to call in their reinforcements.

It was a long council meeting. Several of the councilmembers stepped out briefly, presumably to make use of those appalling bathrooms. One of them almost certainly put in a call to the ALA and Americans for Non-Smokers’ Rights and the city’s Tobacco Prevention Program, unless they were all watching the live stream in case they were needed.

That suggests that between us, Stefan and I did more than just offend them. We made them nervous.

Hours Later…

The room emptied out as the USPS workers and the TPP protestors and the taxi drivers and the nurses all concluded their business. In the main, I formed a fairly positive impression of the Berkeley City Council. Max Anderson proved to be a talented orator and many of the motions had considerable popular support and seemed sensible enough. There was a little sniping between councilmembers, and a few pointed questions with equally pointed answers. Overall the meeting was conducted fairly efficiently and in a spirit of cooperation.

The chairs creaked if you shifted your weight, which you eventually had to because something would start to go numb.

I was impressed at the high percentage of minorities and surprised at the small number of women. I was definitely struck by the fact that only one councilmember appeared to be below the nominal age of retirement. Clearly it’s not a job for anyone who has to make a living. Apart from Randy Pope (this year’s mayor), none of Oakley’s council members is under 40, but several are under 60 and still working.

It got later and later. Pretty much everyone else in our group went out to vape, came back, sat through more of the disordered agenda. (Why they covered item 29 after items 50 and 55, I have no idea.) The council’s voting computers weren’t working, so they were having to do all the votes by voice call. They do that in the Assembly anyway. (At least in Berkeley it appears you have to be present to vote.)

Stefan was taking bets with me that it would be 10:30 before item 59 got back on the agenda, but in fact it was 9:39. Late enough to disrupt our momentum, if we’d had a large group in which we were trying to sustain it. Late enough that Justin, who hadn’t been feeling well, looked dreadful, flushed and glassy-eyed. There was still no sign of John from Delux.

And when Stefan went up to continue his speech, he was refused. “I yield my time to him,” Breanna said.

“You can’t,” the mayor replied. “Only people who haven’t spoken can speak.”

This contradicted what he had said before, though most of the witnesses to that statement were long gone. Breanna herself wasn’t prepared to speak (though we could have given her something to read). Stefan tried to get Justin to read the rest of his speech, but Justin didn’t want to. I can’t entirely blame Justin for that, because it doesn’t suit Justin’s personality, and might be construed as representing his employer.

But Justin’s speech was mumbling and incoherent to the point where the council may have wondered if he’d been drinking. So he didn’t finish out his two minutes. Ben had been prepared to yield his time to Justin, but that was no longer an option. He managed tolerably given that he wasn’t prepared.

After that the public health representatives materialized and repeated their shtick. It was the same shtick they’d repeated before, suggesting they had not been around to hear my remarks about tobacco industry funding.

The final speakers were unexpected: Max and Jacque from Vapor Den. I was thrilled that someone had actually come from the community and on behalf of the vendors. I was glad when Jacque, I think it was, mentioned that the majority of their customers were between 35 and 70 years of age. I was moved by their personal stories of switching from smoking to vaping.

But I was horrified that they seemed to have no awareness whatsoever of what they are and aren’t permitted to say, as vendors.

This is the oldest vape shop in Berkeley, but its owners appear to be unaware that making any smoking cessation claims about the products they sell would leave them open to being regulated by the FDA as medical devices, meaning applications equivalent to those for pharmaceuticals, even more expensive and rigorous than what the FDA is already proposing. In 2010 Sottera, Inc. fought a famous lawsuit for the right not to have e-cigarettes regulated as medical devices.

Consumers can make any claims they want, just as with vitamins, supplements, superfoods, and magic elixirs. Vendors have to be very, very careful, no matter how many people they’ve seen stop smoking, no matter what their own personal experiences are. It’s not fair, but it’s the law.

And while Councilmember Wozniak appeared not to be familiar with Sottera at the July 8th Berkeley City Council meeting, it seems someone brought him up to date, because he slammed the Vapor Den guys—and by implication all the rest of us—on that very point.

And I couldn’t help but wonder whether, if Rick from Delux Vapor had been there, the same thing wouldn’t have happened. Rick’s whole purpose is to help people stop smoking. It’s why he keeps his prices reasonable and takes time to teach people how to use their devices properly. It’s why he’s dedicated to making diacetyl-free e-liquids. Could he really have refrained from using language that implied e-cigarettes are a cessation device, without advance coaching?

The problem is, of course, that you have scientists publishing articles insisting that it’s “urgent to promote e-cigarettes to save lives,” that “long-term e-Cigarette use can substantially decrease cigarette consumption in smokers not willing to quit and is well tolerated,”and that “Health professionals may consider advising smokers unable or unwilling to quit through other routes to switch to EC as a safer alternative to smoking and a possible pathway to complete cessation of nicotine use.” And then there are the infuriating claims from our opponents that there is no evidence that e-cigarettes can be effective in smoking cessation. It’s almost impossible not to respond to that.

But if you are a vendor, you have to resist the temptation, or you’ll do more harm than good. Find a consumer spokesperson. Heck, find a non-smoking relative like me as a spokesperson. Just don’t make those claims yourself, scientific backing or no scientific backing. You’ll only give the other side ammunition.

Outcome

The council approved the ordinance, unanimously.

No, we were not surprised.

Max and Jacque stayed after to talk to the reporters and to the councilmembers, presumably about what this implied with regard to vaping in vape stores. (I had not gotten as far as thinking about that, but I presume they had, even though they didn’t address it in their speeches.)

Brett, Breanna, Stefan, Justin and I went to Nation’s for dinner before we passed out. It was the only place left open. Ben went back home across the bridge. I had developed a nasty headache from always seeming to have the wrong pair of glasses on when I needed to look at something.

Naturally, it was past midnight when we got home.

I spent the whole of yesterday doing the laundry and grocery shopping that I would have done on Tuesday if we hadn’t had to prepare for the Berkeley City Council meeting. That, and putting out fires for clients.

I began thinking about this blog post, but there was no way I was going to have a chance to write it, especially when the need to track down some research papers that I thought I’d bookmarked (my Delicious plugins for Chrome aren’t always reliable) left me awake past midnight again.

l’Esprit de l’Escalier

I had a restless night, thanks to the Sudafed Dilemma (breathe or sleep?), and woke early with the feeling I’d missed something important.

The French term for the snappy comeback you think of on your way out of the building is “l’esprit de l’escalier“: staircase wit. This insight came to me less as a snappy comeback than a blinding flash of the obvious.

We had assumed that we couldn’t win in Berkeley without actually defining what “winning” would mean in a city like Berkeley.

Winning—really winning—would mean no vaping ban at all, with the result, as one member of the opposition said, that it would be legal for someone to sit and vape right in the council chambers.

That’s not likely to be a realistic expectation in any city. At an absolute minimum, you would expect the city to prohibit vaping in government buildings and on school grounds. And almost certainly in restaurants. Yes, we’d like to have that be up to the business owners, at least for outdoor seating areas, but this is California.

In a city like Berkeley, it’s unlikely that you’d get as far as limiting the ban to a few small areas. But there were certain exceptions made for vaporizing marijuana, and it might have been possible to argue for parallel exceptions for vaporizing nicotine and zero-nic e-liquid, because the inconsistency of allowing one and prohibiting the other was their weakest point, legally.

If every single one of us had asked specifically for an amendment allowing those two exceptions: vaping in vape shops and vaping in multi-unit apartments, using language as close to that for the marijuana exceptions as possible.

If there had been at least a dozen of us to make the argument on grounds of legal consistency, keeping business in Berkeley, discrimination against lower-income residents, etc.

And if I had thought of it in time.

Now What?

It’s too late for Berkeley, but it’s not too late to think about this lesson with regard to the cities that haven’t yet enacted their ordinances. Remember that the opponents of vapor products are better-funded and better-organized than we are. Remember also that they aren’t the only ones who get money from Prop 99 and the Master Settlement Agreement: many cities’ own Tobacco Control Programs also get Prop 99 money, and MSA money is probably coming into your county and even your city in ways it may not be easy to track. It may not be going directly into any councilmember’s pocket, and in fact it probably isn’t, but there are city programs at risk if Big Tobacco goes down.

Unless the members of your local city council have all been your best friends since childhood, they are not likely to be on the side of the vaping community. Even if your vape shop has been paying them a pile of money in business license fees and sales taxes, they have more incentive to support bans than to oppose them.

The opposition—which is Big Tobacco and Big Pharma by any other name—wants to drive vapor products out of existence, so they want to ban all use, everywhere. Your councilmembers may be more reasonable than that. They may be willing to make a few exceptions, and permit vaping in vape stores and in private homes. Maybe even in some outdoor areas.

There’s not always a lot of advance notice to try to discuss a proposed ordinance with city staff or one of the councilmembers, but if you can talk to them individually and get a sense of how open or hostile they are, it may help. (And if you can get them some of the research material in advance of any proposed bans, it may help more, though history suggests they don’t read much.)

I’m at a loss to suggest ways to get a large group to show up. Incentivizing political action is likely to lead to accusations of astroturfing at the very least. You’d think that the possibility of eviction or going out of business might motivate folks, but in fact the ones most at risk are the ones least likely even to know that the item is on the agenda, and the vapers who are easiest to reach through the Internet seem least motivated to participate.

But whoever you can get to show up, make sure all of them are prepared and know how long they have to speak and what they can and can’t say—and above all, what to ask for. If everyone asks for the same thing, and it’s a thing that the council can do without appearing to back down completely, your chances are better.

P.S. About the Title of This Post

(Added 9/12/14)

Some of you may be familiar with the expression “Murder your darlings,” but wondering what it has to do with city council meetings. Others may never have heard it. I’d been planning to make the connection explicit, but by the time I got to the end of the post it was late, I was losing my edge, and Himself wanted dinner. Here is the quotation in full, from Arthur Quiller-Couch’s series On Style:

“Whenever you feel an impulse to perpetrate a piece of exceptionally fine writing, obey it—wholeheartedly—and delete it before sending your manuscript to press. Murder your darlings.“

I perpetrated some fine writing upon the Berkeley City Council. So did my husband. But, like the ornament against which Quiller-Couch is warning, it did not really serve the ultimate purpose for which I was there, or for which I should have been there. Less clever rhetoric and more strategic thinking would have served me better. I will keep that in mind when next called upon to write anyone a speech.