On August 28, 2020, California passed a broad law prohibiting the sale of most flavored tobacco products. For more on the law, known by its bill number SB-793, see our companion blog post. Three days later, on August 31, a proposed referendum was submitted to the Attorney General of California. On January 22, 2021, the referendum qualified for the ballot, putting SB-793 on hold until the 2022 general election referendum vote. This blog post describes the referendum process to date and next steps.

In October, the tobacco industry also brought a lawsuit against the law, raising federal preemption claims. See our case summary for more information on the lawsuit.

Referendum on the Ballot

Since the referendum has now qualified for the ballot, the implementation of SB-793 is suspended pending the outcome of the referendum. The referendum will occur on the next general election ballot held at least 31 days after the date the referendum qualifies. As a result, SB-793 is suspended until the referendum vote in the November 2022 general election. In other words, the state law prohibiting the sale of flavored tobacco products will have no effect for at least two years. If the voters approve the referendum in November 2022, SB-793 would take effect the fifth day after the Secretary of State certifies the election results. If the voters defeat the referendum, SB-793 will not become law. The referendum process, however, does not prevent local California jurisdictions from adopting and implementing their own flavored tobacco sales restrictions.

Referendum Process (How We Got Here)

Under California’s Constitution, California voters can propose referendums to approve or reject statutes enacted by the legislature. Press reports note that the three voters who submitted the referendum petition on SB-793 have tobacco industry ties. Also, the disclosed top funders of the referendum effort – required to disclose by state law – are tobacco companies R.J. Reynolds, Philip Morris, and ITG Brands.

Once the referendum petition was filed, the Attorney General had 10 days to prepare a circulating title and summary of the chief points and purposes of the measure. On September 10, 2020, the Attorney General met this requirement, clearing the petitions for circulation. The Attorney General provided a copy of the following title and summary to the proponents and to the Secretary of State, who then notified county elections officials:

REFERENDUM CHALLENGING A 2020 LAW PROHIBITING RETAIL SALE OF CERTAIN FLAVORED TOBACCO PRODUCTS. If the required number of registered voters sign this petition and the petition is timely filed, there will be a referendum challenging a 2020 law on the next statewide ballot after the November 3, 2020 general election. The challenged law prohibits the retail sale of certain flavored tobacco products and tobacco flavor enhancers. The referendum would require a majority of voters to approve the 2020 state law before it can take effect. (20-0003.)  

The proponents then are required to collect enough signatures of registered voters for the referendum to qualify to be placed on the ballot. The current requirement is 623,212 signatures (5 percent of the votes cast for all candidates for Governor in 2018). For referendums, proponents have 90 days from the bill’s enactment date to gather these signatures. For the SB-793 referendum, this fell on Thanksgiving, so the date signatures were due was adjusted to the following Monday, November 30, 2020.

Once signatures are collected, the petitions are submitted to county elections officials, who have eight days to submit raw counts to the Secretary of State. When the statewide total exceeds the signature requirement, the Secretary of State directs the counties to randomly verify a sample of signatures. The counties have 30 working days to complete this task. If the sample projects that the signatures will reach 110 percent of the required number, the referendum qualifies for the ballot. If the sample projects that the signatures will reach fewer than 95 percent of the requirement, the referendum will not qualify for the ballot. If the projection falls in between these percentages, all signatures need to be verified.

On November 24, 2020, the referendum proponents publicly stated they had submitted over one million signatures to local counties. The Secretary of State’s office indicated the raw count they received from counties was 1,019,610 signatures. The deadline for counties to complete the random verification was January 21, 2021. On January 22, the Secretary of State published that the results of the random verification found 76 percent valid signatures from the samples, for a projected result of 781,885 valid signatures. Since this number is greater than 110 percent of the required signatures (685,534), the referendum qualified and a full signature count was not required.  

Although the effective date for the law was January 1, 2021, the four referendum petitioners  agreed to a joint stipulation with the California Attorney General and Secretary of State that SB-793 would not take effect on January 1 and would remain ineffective and unenforceable until either the referendum fails to qualify, or if it qualifies until the vote in the 2022 election. This stipulation was approved in California court on December 10, 2020.

Other Recent Referendum Efforts

Using the referendum to delay and perhaps defeat a law that business interests oppose has become an increasingly common tactic in California. In 2014, the plastics industry spent millions pushing a referendum opposing a ban on single-use plastic bags. The law was approved by the voters in a 53% to 47% vote in the 2016 election, but implementation was delayed for two years while waiting for the vote. On the 2020 California ballot was a referendum by the bail industry to overturn a law replacing cash bail with a system based on public safety risk. Because that referendum effort was filed in September 2018, it did not qualify for the 2018 general election ballot and the bail law was suspended for two years pending the outcome of the 2020 general election vote. Voters did not approve of the law in a 43% to 56% vote.

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