The November 2022 election put Proposition 31 before California voters, a ballot measure on the SB-793 law enacted in August 2020 prohibiting the sale of certain flavored tobacco products. Proposition 31 overwhelmingly passed, which will result in SB-793 going into effect once the election results are certified.  

Now that the Ballot Measure is approved, when does it take effect?

SB-793 will take effect the fifth day after the Secretary of State certifies the election results. The Secretary of State will certify the results by December 16, 2022, so the latest effective date is December 21, 2022.

Who funded the Ballot Measure effort?

The top funders of the ballot measure effort – required to disclose by state law – were tobacco companies R.J. Reynolds, Philip Morris, and ITG Brands. California companies have a history of running ballot measure efforts against new laws they oppose (even if they believe the ballot measure will not succeed in their favor) as a way to delay its implementation until the next election.

What does SB-793 cover?

SB-793 sets a statewide floor prohibiting certain flavored tobacco product sales by anyone selling tobacco products from a retail location or vending machine in the state of California.1 It covers a broad range of flavored tobacco products, including menthol cigarettes, chewing tobacco, snuff, little cigars, e-cigarettes, and roll-your-own tobacco.2

Three flavored product categories can be sold under SB-793:3

  • Flavored hookah and shisha: Must be sold by a licensed hookah tobacco retailer that limits entry to those aged 21 and over; does not apply to electronic hookah products
  • Flavored pipe tobacco: Applies to loose leaf tobacco, defined as “cut or shredded pipe tobacco, usually sold in pouches,” but not any tobacco product suitable for making cigarettes, including roll-your-own cigarettes
  • Flavored premium cigars:4 Cigars must be handmade; have a tobacco leaf wrapper; have a wholesale price of no less than $12; not have a filter, tip, or nontobacco mouthpiece; and be capped by hand

What does this mean for local tobacco retailers?

Once the law takes effect, tobacco retailers will no longer be allowed to sell products prohibited under SB-793 and will need to remove this inventory from their shelves. Tobacco retailers that violate SB-793 are guilty of an infraction punishable by a $250 fine per violation.5 Local tobacco retailers are also subject to any local regulations in their jurisdiction that may prohibit the sales of additional products or impose more significant fines or penalties than the state law.

Would SB-793 preempt local flavored tobacco ordinances?

No. SB-793 does not preempt local action that goes further in prohibiting the sale of tobacco products.6 It will not override comprehensive flavor bans with no retailer or product exemptions enacted by more than 25 California jurisdictions, such as laws in effect in Sacramento, San Francisco, Los Angeles County, Berkeley, Fremont, and Oxnard, nor will it override jurisdictions that have completely prohibited the sale of all tobacco products like Beverly Hills and Manhattan Beach. For a more complete description of approaches to flavor prohibitions in different jurisdictions, see this Public Health Law Center resource

What if a local jurisdiction wants to close the loopholes in SB-793?

It can! SB-793 leaves open the opportunity for local jurisdictions to close the exemptions created in state law. In addition, localities will likely be the primary enforcement mechanism for SB793. 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 use our model policy or contact us directly.

For more information on the harms of hookah tobacco in particular and the importance of keeping hookah in flavored sales restrictions, see this Partnership publication or this webinar.

Jurisdictions interested in an endgame approach to end all sales of tobacco products – as pursued by Manhattan Beach and Beverly Hills – can also contact us for technical legal assistance.

Will there be legal challenges against SB-793?

Yes. R.J. Reynolds sued California over SB-793 in 2020, arguing that the law was preempted by the federal Tobacco Control Act and violated the Commerce Clause of the U.S. Constitution. On August 6, 2021, the court dismissed the case on ripeness grounds, finding that there was no ongoing case or controversy because the ballot measure had effectively made the law’s implementation uncertain. In other words, if voters reject the law, it will never go into effect, so it was premature for the court to decide the law’s legitimacy. For more on the lawsuit, see our case summary.

Now that voters have SB-793 and it is going into effect, the industry plaintiffs may decide to challenge the law again. Of note, since the prior lawsuit’s dismissal, the Ninth Circuit recently upheld Los Angeles County’s flavor sales prohibition against similar preemption claims. This sets a strong precedent that a court would likely find binding in a challenge against SB-793.

Can local governments enforce SB-793?

Yes, local law enforcement agencies will be able to enforce SB-793. The law does not specify which local entity should enforce the law, so each community will need to decide the agency best suited to enforce. For jurisdictions that have their own flavor sales policy, or that are considering options for how to enforce the state law, this Partnership publication about enforcement options could be a helpful resource.  

 

By Jamie Long, Senior Staff Attorney
November 9, 2022


1 Cal. Health and Safety Code §§ 104559.5(1)(a)(16) & (1)(b)(1) (2020).
2 Cal. Health and Safety Code §§ 104559.5(1)(a)(14) (2020) (referencing Cal. Health and Safety Code § 104495(a)(8)).
3 Cal. Health and Safety Code §§ 104559.5(1)(a)(3), (a)(5), (a)(6), (a)(8), (a)(10), (a)(13), (c), & (e) (2020).
4 There is also an exemption for premium cigars sold in a cigar lounge and consumed on the premises. Cal. Health and Safety Code § 104559.5(1)(b)(1) (2020).
5 Cal. Health and Safety Code § 104559.5(f) (2020).
6 Cal. Health and Safety Code § 104559.5(1)(g) (2020).