On October 7, 2023, AB 935 was signed into California law. The measure was enacted to address some of the implementation concerns about SB 793 (the state’s restriction on the sale of most flavored tobacco products). Changes will go into effect on January 1, 2024.
AB 935 should help state and local commercial tobacco control professionals as well as law enforcement in implementing the law effectively. The new law aligns SB 793 with the enforcement processes set up in the STAKE Act, California’s law addressing the illegal sale of tobacco products to underage individuals. Specifically, AB 935 notes that the state’s licensing board shall suspend or revoke a state-issued license for a retailer who has violated the flavor ban at least three times. Enforcement is further strengthened by clarifying that the Department of Public Health (CDPH) is the state’s lead agency tasked with enforcing the state law, in collaboration with other state agencies and local authorities.
AB 935 also expands the definition of “retail location:”
“(A) A building from which tobacco products are sold at retail.
(B) Any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public.”
The bolded text above is the added language. This clarifies the range of possible retailers and transactions prohibited by SB 793. Local jurisdictions remain at the forefront in regulating and restricting such transactions.
Much of AB 935’s changes come in the form of clarifying enforcement procedures:
Violations of the prohibition on the sale of flavors are to be enforced in the same manner as violations of the STAKE Act – in other words, as civil rather than criminal offenses.
For third, fourth, and fifth violations, the California Department of Tax and Fee Administration or CDTFA will assess a $250 penalty and suspend or revoke a license. AB 935 also clarifies what happens with any revenue from the monetary penalties. The $250 penalties are deposited in the Cigarette and Tobacco Products Compliance Fund, while all other monies collected are deposited into the Sale of Tobacco to Minors Control Account.
Enforcement procedures must follow the general due process provisions required by state law.
AB 935 also adds two new sections to SB 793. These two sections focus on what CDPH is authorized to do as the state’s lead enforcement agency:
CDPH has primary responsibility to enforce the law and may do so using onsite compliance checks.
Other enforcing agencies may likewise conduct inspections and assess penalties
Sharing results of inspections is encouraged
Audio and video recording is authorized when conducting inspections.;
CDPH is authorized to adopt regulations to further implement the flavor law – a vital piece of administrative authority that could go a long way to strengthening the flavor ban.
Because localities remain at the forefront of enforcing SB 793, cities and counties can continue to implement SB 793 and work towards eliminating flavor tobacco sales in California. One approach is to continue to adopt local Tobacco Retail Licensing ordinances. The Partnership provides legal technical assistance to help with these ordinances, using our model policy as a guide.
Neil Sircar, Staff Attorney
October 25, 2023