California’s flavor ban prohibiting the sale of most flavored tobacco products, including menthol cigarettes, was set to go into effect on January 1, 2021. However, a petition sponsored by the tobacco industry seeking to challenge the law and send it to ballot referendum has received over a million signatures, well over the required number of 623,212 signatures that is needed to qualify. Assuming enough of these signatures are validated, the referendum will be placed on the ballot for the November 2022 general election. The Tobacco Free Kids Action Fund filed a complaint with the state Attorney General asking for an investigation into illegal signature-gathering tactics for the referendum, and the American Heart Association also signed onto this complaint (learn more here). However, on December 10, California courts agreed to postpone the law’s effective date until the referendum fails to qualify, or, if it qualifies, until the vote in the 2022 election.
Importantly, the referendum process does not prevent local California jurisdictions from adopting and implementing their own flavored tobacco sales restrictions. Read more about the referendum from the Public Health Law Center.
As additional background on the policy, on August 28, 2020, California Governor Gavin Newsom signed into law Senate Bill 793. Under the policy, the sale of tobacco products with a ‘characterizing flavor’, defined as the presence of a distinguishable taste or aroma other than tobacco, would be prohibited in retail stores across the state; this includes flavored e-cigarettes, smokeless tobacco, and cigars in all flavors from fruit to mint to candy, as well as menthol cigarettes. However, flavored hookah tobacco (also called shisha), “premium” cigars, loose leaf/pipe tobacco, and marijuana are exempted.
Menthol provides a cooling sensation that makes it to easier to start smoking and become nicotine dependent and more difficult to quit smoking. Evidence supports that banning menthol would reduce smoking initiation and increase smoking cessation. In fact, a report released by the Food and Drug Administration in 2011 on the impact of menthol cigarettes estimated that the removal of menthol cigarettes from the marketplace would lead to 39% of all people who smoke menthol cigarettes quitting and 47% of Black and African American individuals who smoke menthol cigarettes quitting; plus, in a nine year time span, an estimated 17,000 premature deaths would be prevented and nearly 2.3 million fewer Americans would initiate smoking. Moreover, under this bill, youth would also be protected since, in California, more than 85% of young adults who vape e-cigarettes or smoke cigars choose a flavored version and, across the US, over half of youth and young adults who smoke choose menthol cigarettes. While the product exemptions make this bill less comprehensive than the Massachusetts state policy and leave room for improvement, SB 793 marks significant progress towards a more equitable tobacco retail landscape in California.
Despite significant industry push back and even a targeted ad campaign, California’s legislature passed this bill in sweeping numbers, signifying a major public health victory as California now becomes the second state to pass a policy prohibiting the sale of menthol cigarettes and the fourth state to pass a policy prohibiting the sale of flavored e-cigarettes. This policy, especially with its inclusion of menthol cigarettes, represents a major step towards health equity. Big Tobacco has a long, fraught history of targeting Black and African American individuals with menthol products, which has ultimately led to 85% of all Black individuals who smoke using menthol cigarettes. The industry has been aggressive in falsely claiming that this menthol ban would further increase the criminalization of already marginalized and over-policed groups. They have used this tactic to seed opposition to other flavor sales restrictions in the past (learn more here). However, countering this industry narrative is key – the language of this bill clearly states that purchase, use, or possession of flavored or mentholated tobacco products would not be criminalized. Rather, retailers would be held responsible and face penalization for any sales of these illegal products.
While this referendum represents an attack against the bill, it certainly does not signify a definite end to SB 793. In June of 2017, San Francisco, California unanimously passed a comprehensive ban on the sale of flavored tobacco products, including menthol. However, this policy was swiftly met with an industry referendum that met qualifications in part by paying signature-gatherers for each signature they collected. Despite the industry’s well-funded campaign against it, San Francisco residents ultimately voted to uphold the bill, with 68% of voters saying “Yes” to Proposition E. If California’s SB 793 is forced to a 2022 ballot, California residents may once again vote to protect its state’s youth and other marginalized and targeted populations.