California recently passed two new laws this session: Assembly Bill (AB) 3218 and Senate Bill (SB) 1230. Together, these laws close loopholes in SB 793, California’s flavor law prohibiting the retail sale of most flavored tobacco products, and are aimed at strengthening and streamlining enforcement against prohibited flavored tobacco product sales. The changes will go into effect on January 1, 2025, and should be fully implemented no later than December 31, 2025. Below are some of the highlights from the proposed legislation:

• Creates an “Unflavored Tobacco List” (“UTL”) that is administered by the State Attorney General. The UTL will, per the name, contain only tobacco products that lack characterizing flavors. And any product that is not on the UTL will be deemed a prohibited flavored tobacco product for purposes of California’s flavored tobacco product sales restrictions. To get a product on the UTL, manufacturers and importers must certify to the Attorney General’s office, under penalty of perjury, that their products are unflavored. Based on those certifications and other evidence—including the manufacturer’s marketing of the products—the Attorney General will determine which products belong on the UTL. The Attorney General’s office is tasked with establishing regulations that will generate the creation of the list. The statute requires the UTL to be published by or before December 31, 2025.
• Permits the Attorney General to prohibit unauthorized electronic cigarettes from appearing on the list. The Attorney General is allowed to keep products off the UTL if they have not received FDA authorization. Currently, only 34 e-cigarettes have received authorization from the FDA. That means the thousands of unauthorized e-cigarettes being sold around the nation could be prohibited for sale and distribution in California, whether or not they are flavored. This provision would not be enforced until the list is published. 
• Expands and clarifies restrictions on delivery sales. The changes in the law explicitly prohibit delivery sellers in California—including anyone who sells products through the internet or via remote delivery—from selling tobacco products that are not on the UTL. Just as importantly, it requires all delivery sellers to be licensed under state law and to abide by any state or local tobacco control laws as if the delivery sales occurred entirely within that jurisdiction. Thus, any provisions in a local tobacco retail licensing ordinance will automatically apply with equal force to online and delivery sales.
• Penalizes manufacturers, distributors, wholesalers, and delivery sellers who violate the UTL provisions. If a manufacturer or importer “had no reasonable basis” to certify that their products lacked a characterizing flavor, the Attorney General can seek penalties up to $50,000. And distributors, wholesalers, and delivery sellers are liable for fines ranging from $2,000 (for a first violation) to $10,000 (for the fifth violation within a five-year period) for each prohibited tobacco product they sell in violation of the UTL law.
• Increases the penalties for selling tobacco products to people under 21 years of age. Currently, penalties under the STAKE Act range from $400 (for a first violation) up to $6,000 (for a fifth violation in a five-year period). Those penalties will increase to $1,000 (for a first violation) up to $20,000 (for a fifth violation in a five-year period).
• Repeals the state provision permitting the sale of tobacco products to military personnel who are at least 18 years of age. Current state law prohibits the sale of tobacco to anyone who is under 21 years of age unless the person is in the military. Importantly, despite this exemption in state law, the federal law has set an across-the-board minimum legal sales age of 21 since 2019, so the state-level exemption was no longer valid. This law brings state law in conformity with federal law by repealing that provision, eliminating confusion, and making it clear that retailers cannot sell to anyone who is under 21.
• Authorizes the seizure of prohibited flavored products. The California Department of Tax and Fee Administration or any other enforcing agency, including local law enforcement, will be authorized to seize prohibited flavor products from retailers and wholesalers and to impose a penalty of $50 per individual package of flavored tobacco products or tobacco product flavor enhancers.
• Updates the definition of “characterizing flavor” to include sensation products: Both laws contain provisions updating the definition of “characterizing flavor” in Health and Safety Code Section 104559.5 to include products that produce a “cooling sensation,” which should explicitly capture the new “non-menthol” sensation products marketed by the industry.
• Expands the definition of “nicotine”: Both laws define “nicotine” under state law to include synthetically derived nicotine and nicotine analogs, which should encompass products like Metatine in Spree Bar e-cigarettes.
• Preserves local authority. The laws are not preemptive, and local jurisdictions can enact their own flavor policies provided they are as or more restrictive than state law.

What do local jurisdictions need to know

Most of the laws’ provisions enact changes at the state level. So, to the extent local ordinances incorporate state definitions or enforcement provisions, public health advocates should review the new laws carefully. Otherwise, the laws simply give local jurisdictions more power and authority to combat the commercial tobacco epidemic: they provide new tools to enforce against prohibited flavor products, to capture novel products produced by the industry, and to regulate online or delivery sales.

Summary

These laws create a watershed moment in California’s fight against the commercial tobacco epidemic. The tobacco industry has been furiously working to evade California's flavor restrictions by introducing new products that they argue are not covered by current restrictions. And the laws target importers and delivery sellers, moving flavor restrictions further upstream. AB 3218 and SB 1230 provide some potent new tools to close loopholes and streamline enforcement, providing new tools in California’s fight against dangerous products aimed at youth and frontline communities. The tobacco industry may decide to challenge elements of these laws in court, so the Public Health Law Center will be following developments closely and looks forward to working with its partners to better understand these laws and how they will be implemented.