California Voters Approve Flavored Tobacco Product Ban

The state is the second in the U.S. to ban these products, which include menthol cigarettes.

November 10, 2022

ALEXANDRIA, Va.—California voters have decided to allow a law banning the sale of flavored tobacco products to go into effect, reports the Associated Press.

The ban impacts the retail sale of certain flavored tobacco products, including fruit flavors and menthol cigarettes. It also bans the sale of pods for vape pens, tank-based systems and chewing tobacco. The law exempts hookah, expensive cigars and pipe tobacco.

In August 2020, the California legislature passed Senate Bill 793, which banned flavored tobacco products, including menthol, and Gov. Gavin Newsom signed the measure. The law would have taken effect in January 2021. However, the ban was put on hold after state officials said a petition calling for a referendum qualified for the November 2022 ballot, placing Proposition 31 before California voters on Tuesday.

Proposition 31 passed with 76.5% of the vote, reports AP. Those in favor of the ban included doctors, child welfare advocates and the California Democratic party. They argued the law was needed to stop the increase in teenage smoking rates.

During the 2020 legislative debate on the ban, the tobacco industry charged that by exempting hookah, pricey cigars and flavored pipe tobacco from the ban, legislators gave “special treatment to the rich, and [singled] out communities of color” by outlawing the sale of menthol cigarettes. The industry added that the proposed ban would also ban the sale of FDA-approved vaping products that are alternatives to smoking combustible cigarettes.

California’s Republican Party also opposed the ban, saying it would cause a massive tax revenue loss. The independent Legislative Analyst’s Office estimated it could cost the state tens of millions of dollars to around $100 million annually.

California is the second state to ban the sale of flavored tobacco products, including menthol cigarettes. Massachusetts was the first. This summer, Los Angeles unanimously voted to outlaw the sale of flavored e-cigarettes, menthol cigarettes and flavored cigars. The restrictions go into effect January 1, 2023. Other California cities have similar bans, including San Diego.

In April, the U.S. Food and Drug Administration (FDA) released two proposed tobacco product standards: one bans menthol as a characterizing flavor in cigarettes and the second bans all characterizing flavors, including menthol, in cigars.

The menthol market accounts for roughly 34% of cigarette sales, and flavored cigars account for 51% of cigar sales. Given the existing market and current user base, NACS believes a ban on these products will push sales to the illicit market, which undermines the efforts of responsible retailers and poses a greater risk to communities.

“History has proven that prohibition of a legal product that has an established user base doesn’t work and has negative consequences for our communities,” stated Anna Blom, NACS director of government relations. “Unfortunately, many current users of these products will seek out illicit sources who don’t check IDs and who sell counterfeit products smuggled into the country.”

The comment period on the two standards closed in August, and the FDA said it received nearly 250,000 comments on these two proposed rules combined, including about 175,000 for the menthol cigarettes proposed rule and about 71,000 for the flavored cigars proposed rule.

“NACS believes that adopting these regulations that ban two of the most popular tobacco products in the U.S. will push a portion of current smokers to the illicit market and severely injure the convenience store industry,” wrote NACS in its comments to the FDA on the ban. “These bans seek to prohibit the use of two of the most popular tobacco products among adult users, and it is unrealistic to assume that demand for these products will just disappear. Instead, an illicit market for these products will emerge, creating a larger problem within tobacco regulation than the FDA hopes to solve by instituting these bans.”

The FDA said it will provide additional updates on the status of the rulemaking process “as additional information is available.”