California voters will decide in November whether to uphold or block a law Gov. Gavin Newsom signed in 2020 that banned the sale of certain flavored tobacco products, an effort by anti-tobacco advocates to stop a youth vaping crisis and weaken the industry's influence in the state.
Senate Bill 793 would have prohibited retailers in California from selling flavored tobacco products, popular among teens, with exceptions made for hookah, some cigars and loose-leaf tobacco. The bill passed the Legislature with bipartisan support, despite intense lobbying by the tobacco industry and other interest groups.
After it was signed, opponents gathered enough signatures from Californians to put the issue on the statewide ballot, which delayed the law's implementation until voters could weigh in on the new policy. It will appear on the Nov. 8 ballot as Proposition 31.
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A "yes" vote means the law will go into effect, while a "no" vote means it won't.
Proponents of the ballot measure said the new rules would help prevent tobacco use among younger people, who often gravitate toward e-cigarettes that contain what the federal Centers for Disease Control and Prevention calls "kid-friendly" flavors such as cotton candy, berry and cherry.
The opposition said the ban would incentivize a black market and remove products that smokers use as a way to quit standard cigarette smoking.
Lindsey Freitas, advocacy director for the Campaign for Tobacco Free Kids, said passing Proposition 31 is critical to stopping the sale of products she describes as the industry's way "to hook a new generation."
"These youth are drawn in by the flavors but hooked by the nicotine," Freitas said.
A CDC youth survey in 2020 found that 20% of high school and 10% of middle school students reported current e-cigarette use.
"This policy is really about protecting our kids from an industry that sees them as dollar signs and nothing more. If not us stepping up and standing in the way, they will spend millions and millions of dollars to go after them," Freitas said.
The "Yes on 31" campaign is supported by Newsom, the California Democratic Party, the California Teachers Assn. and a slew of organizations representing doctors, dentists, nurses and public health professionals. The campaign to pass Proposition 31 has raised more than $6.1 million, according to state campaign finance records.
R.J. Reynolds Tobacco Co. and Philip Morris USA are supporting the campaign against Proposition 31, and the California Republican Party endorsed a "no" vote against the initiative. The opposition has raised more than $1.7 million.
These groups argue that the flavored tobacco ban is akin to "prohibition," and that it was would disproportionately affect those who favor menthol-flavored products, particularly people of color.
They've also pointed out Proposition 31's likely reduction of state tobacco tax revenues. The independent Legislative Analyst's Office estimates that loss could range from "tens of millions of dollars to around $100 million annually," depending on if tobacco users stop smoking altogether or simply switch to unflavored products.
Beth Miller, a spokesperson for the "no" campaign, called Proposition 31 a "sweeping ban" on products that are already heavily regulated.
Federal law prohibits the sale of tobacco products to anyone under 21. The U.S. Food and Drug Administration has in recent years cracked down on flavored tobacco and e-cigarette products and in April announced a plan to ban the sale of menthol cigarettes. Dozens of California cities have already passed some level of restrictions against the sale of flavored tobacco products.
"What Proposition 31 would do is take this adult choice of what adults want to choose away from them," Miller said. "We believe that prohibition doesn't work."
Miller said the "no" campaign agrees that kids shouldn't have access to these products but that Proposition 31 would make it harder to enforce the law "because there's nobody selling underground cigarettes who is going to stop and ask kids for ID."
The "yes" side has countered those claims by saying some products will still be available on the California market.
"This is not something that is going to ban [all] tobacco products," said Dr. Michael Ong, chair of California's Tobacco Education and Research Oversight Committee and a professor in residence of medicine and health policy and management at UCLA.
"But it's going to ban specific flavors that unfortunately are addicting kids, and also unfortunately are sustaining addiction among particular populations that is unfair, because they've been targeted by the tobacco industry."