In 2022, the California legislature passed SB 793 banning the sale of flavored tobacco and vaping products. The ban exempts hookah, certain flavored premium cigars and flavored loose-leaf pipe tobacco. But despite the ban, these products continue to be available online and through smuggling across state lines. The result is a significant loss of revenue for tax-funded programs, including the first five programs that support pregnant women and children.
Flavors
The flavor ban has yet to prevent flavored tobacco product sales effectively. Many retailers continue to sell flavored vape juices; some even sell them in bulk. These retailers are often located in communities of color. Some have also lobbied for federal law to protect them from the new rule’s impact. In contrast, the tobacco industry has argued that it’s unfair for public health officials to target flavoring as the cause of youth vaping. The industry says that flavors are designed to mask the harsh taste of cigarettes, making it easier for kids to start smoking. It also claims that the California vape ban will harm millions of adult smokers who use e-cigarettes to quit smoking. However, research shows that menthol cigarettes are less appealing to young adults than flavored vapes. In addition, they carry significantly less risk than combustible cigarettes. The Food and Drug Administration acknowledges that e-cigarettes have the potential to reduce smoking-related deaths. In an experiment, researchers found that a statewide flavor ban does not significantly affect current vapers’ behavior choices. The effects of a ban may be partially masked by excluding e-commerce retailers from retailer licensing programs. In addition, the impact of a flavor ban on current users may be complicated by various individual differences, including gender, age, and socioeconomic status.
Taxes
Aside from the obvious loss of tax revenue, businesses could face other serious financial consequences. The state law, which took effect in 2021, prohibits brick-and-mortar sales of flavored tobacco or vaping products. This includes flavored nicotine pouches, flavored vape cartridges and tanks, flavored cigarette and cigar wrappers, and flavored smokeless tobacco such as snus. The only exceptions are menthol cigarettes, flavored cigars, and hookah and pipe tobacco. Retailers who violate the ban will be subject to civil penalties starting at $400-600 per violation. The state’s vaping industry is arguing that the flavor ban will harm millions of adult smokers by making it harder to quit nicotine use through e-cigarettes and could send them back to cigarettes. They also point out that the statewide tax increases will make less-harmful vapor products more expensive than deadly cigarettes. In addition to the lost revenue, a black market will likely develop to sell banned flavors.
Legality
It was a huge victory for anti-vaping activists when voters passed Proposition 31 and banned the sale of all flavored nicotine products in California. Now, regulators hope the move will help reduce teen vaping and smoking rates. But as the state’s new flavor ban takes effect, it’s already revealing some unforeseen consequences. The new law’s scope could be clearer-cut than critics and supporters have suggested. While it prohibits the sale of flavored nicotine, it exempts some premium cigars and hookah tobacco and leaves menthol cigarettes on the market. This makes it far less restrictive than previous e-cigarette flavor bans, which were more narrowly focused on vapes and e-liquids. The ambiguity of the law also has an impact on businesses. Online searches for flavored tobacco and vaping products have increased dramatically in the weeks since California’s flavor ban took effect. This is likely because many retailers are flouting the law. Researchers found that retailers licensed to sell tobacco are more likely to comply with regulations than those not authorized. They recommend strengthening laws to include e-commerce retailers.
Regulation
This year, a state law that takes effect prohibits the sale of most flavored nicotine products. It bans brick-and-mortar sales of flavored vaping liquids, menthol cigarettes, flavored tobacco pouches and flavored smokeless tobacco products, except for certain flavored premium cigars and hookah. Local non-profits focused on health say the flavor ban is coming long. The ban’s opponents say it won’t work because people will buy flavored products online and in other states. In addition, the state has left it to local governments to enforce its prohibition, which may lead to ambiguity. In Sacramento, for example, a city inspector conducts compliance inspections twice yearly on every licensed tobacco retailer. If they find a violation, the business gets a 30-day license suspension, a 90-day for a second offense, and a complete revocation after three violations.
