On August 28, 2020, California became the second state in the nation, after Massachusetts, to pass a broad law prohibiting the sale of most flavored tobacco products. This follows the action of over 270 localities in nine states across the U.S. that have enacted flavored tobacco bans. The California bill bans the sale of menthol cigarettes and all flavored e-cigarettes statewide, as well as flavored non-cigarette tobacco products such as smokeless tobacco and some cigars. Unfortunately, it does contain several exemptions for hookah, premium cigars, and pipe tobacco.
Governor Gavin Newsom signed the legislation, but a referendum on the law has since qualified for the 2022 general election ballot. In other words, the law will be suspended until it goes before the voters in November 2022. The referendum process, however, does not prevent local California jurisdictions from adopting and implementing their own flavored tobacco sales restrictions. For further details on the referendum, see our companion blog post. In October 2020, the tobacco industry also brought a lawsuit against the law, raising federal preemption claims. See our case summary for more information.
Unfortunately, it does contain several exemptions for hookah, premium cigars, and pipe tobacco.
Under the 2009 Family Smoking Prevention and Tobacco Control Act, the federal government restricted the sale of some flavored tobacco products, including most flavored cigarettes. However, the Tobacco Control Act exempted menthol flavored cigarettes and flavored non-cigarette tobacco products, such as cigars, smokeless tobacco, hookahs, and e-cigarettes. Despite these exemptions, this law has had measurable public health benefits, A recent study found the federal flavor ban led to a 43 percent decline in smoking among youth ages 12-17 and a 27 percent decline among young adults ages 18-25.
In January 2020, the U.S. Food and Drug Administration prohibited sales of certain flavored e-cigarettes, but also exempted menthol flavored products and only applied the restrictions to cartridges or pods, not customizable products (tank or mod systems), and not disposable systems. (For more, see our blog post.) The gaps in coverage of flavored tobacco products at the federal level make actions like California’s even more important for protecting public health against the harms of flavored tobacco.
California’s New Law
The new California law, known by its bill number SB 793, was sponsored by state Senator Jerry Hill. The law states that...
A tobacco retailer, or any of the tobacco retailer’s agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product.
“Tobacco retailer” includes anyone selling tobacco products from a retail location or vending machine. “Flavored tobacco product” includes any tobacco product that has a characterizing flavor, which is defined to cover any distinguishable taste or aroma other than that of tobacco, explicitly listing mint and menthol flavors as examples. A violation of the flavor ban by a retailer or a retailer’s agent or employee is an infraction punishable by $250 per violation.
The bill was subject to a significant lobbying effort by the tobacco industry to try to exclude menthol cigarettes from the ban, but the effort was unsuccessful. This was a big win for health equity, as menthol cigarettes continue to be used disproportionately by racial and ethnic minority smokers, LGBT smokers, and youth. For instance, 85 percent of Black smokers use menthol cigarettes versus 29 percent of white smokers. Also, menthol cigarettes are the source of addiction for nearly half of all teen smokers.
The new law includes three exemptions from its blanket ban on flavored tobacco products:
First, the California law exempts hookah and shisha if sold by a licensed hookah tobacco retailer that limits entry to those aged 21 and over. The hookah exemption was not in the bill as introduced but was added before passage by the California Senate. The law still prohibits flavored electronic device products, such as electronic hookahs.
Second, the California law exempts the sale of premium cigars. This exemption was not in the bill as it first passed through the California Senate but was added in the Assembly. Premium cigars are defined as a cigar that is handmade, has a tobacco leaf wrapper, has a wholesale price of no less than twelve dollars, does not have a filter, tip, or nontobacco mouthpiece, and is capped by hand. There is also a separate exemption for premium cigars sold in a cigar lounge and consumed on the premises.
Third, the California law exempts the sale of pipe tobacco. This exemption was also added in the Assembly. The exemption applies to loose leaf tobacco, which is defined to include “cut or shredded pipe tobacco, usually sold in pouches,” but not any tobacco product suitable for making cigarettes, including roll-your-own cigarettes.
These exemptions go further than the flavor ban exemptions in Massachusetts by allowing direct sale to consumers, while Massachusetts requires onsite consumption. However, the Massachusetts law exempts the sale of any flavored tobacco product for onsite consumption – not just hookah or cigars – so long as the sale is at a smoking bar that limits food and beverage consumption and meets other requirements.
The product exemptions also present other concerns. There is no safe form of tobacco. Hookah, for instance, may pose a greater risk to human health than other commercial combustible tobacco products, and hookah water does not filter out toxins. As for the cigar exemption, one large cigar can contain the nicotine equivalent of an entire pack of cigarettes. The pipe tobacco exemption is also concerning, since pipe smoking increases the risk of several types of cancer.
The new California law does not preempt local action that goes beyond state law in prohibiting the sale of flavored tobacco products. This leaves open the opportunity for local jurisdictions to close the exemptions created in state law. Also, the state law will not override laws passed by California jurisdictions that have already enacted comprehensive flavor bans with no retailer or product exemptions, such as Oakland, Sacramento, San Francisco, Burbank, Palo Alto, Berkeley, and Santa Cruz.
For a brief overview document of SB 793 and the referendum effort, you can also see our fact sheet.
If your jurisdiction is interested in modifying its existing flavor policy or pursuing a new one in light of this state law, don’t hesitate to contact the Law and Policy Partnership to End the Commercial Tobacco Epidemic (a project of the Public Health Law Center and the American Lung Association in California).
By Jamie Long, Staff Attorney
January 25, 2021