On August 28, 2020, California Gov. Gavin Newsom signed into law a ban on the sale of flavored tobacco products. California Senate Bill 793 bans menthol cigarettes, e-cigarettes in flavors other than tobacco, as well as oral tobacco products. Exceptions were made for hookah, premium cigars, and pipe tobacco. Retailers selling flavored tobacco products may be subject to a $250 fine for each sale. Proposition 31 on California’s November 2022 statewide ballot seeks to overturn that law, SB 793, so that the sale of flavored tobacco would remain legal in the state.
“Proposition 31 likely would reduce state tobacco tax revenues by an amount ranging from tens of millions of dollars per year to around $100 million annually,” according to the Legislative Analyst’s Office (LAO).
If a substantial number of smokers quit because of the ban, it could engender some savings to the state’s health care system. On the other hand, the LAO points out that if these smokers quit and live longer, it could increase the government’s health care costs. “Given the possibility of both savings and costs, the resulting long-term net impact on government health care costs is uncertain,” LAO concludes.
Arguments in Favor
Supporters of a ‘yes’ vote to uphold the law passed by the state legislature and signed by the governor include California Gov. Gavin Newsom, Campaign for Tobacco-Free Kids, American Cancer Society Action Network, California Teachers’ Association, and many others.
Proponents of prohibition argue flavors such as menthol in combustible cigarettes, sweet and fruit flavors in e-cigarettes, oral tobacco, and little cigars are targeted to and disproportionately impact young people and minorities.
In the case of menthol cigarettes, supporters of the law observe that around 85 percent of black smokers use a menthol cigarette, compared to a little more than a third of white smokers, with the tobacco industry gearing its marketing of menthol cigarettes toward black Americans. It’s also alleged that menthol cigarettes are especially appealing to young people because menthol acts as a cooling agent masking the harsh taste of burnt tobacco allowing new smokers to become hooked easier than they would if they tried a regular cigarette.
Regarding flavored e-cigarettes, the sweet flavors and fruit e-liquids are claimed to be responsible for the upswing in youth vaping that California and the rest of the country experienced beginning in 2017. Supporters of prohibition argue these flavors are hooking a new generation of kids on nicotine. Banning flavors, proponents claim, would help reduce the number of young people trying tobacco products and cause a substantial portion of adult smokers and vapers to quit nicotine for good.
The groups arguing for a ‘no’ vote on Prop. 31 include companies in the tobacco industry, the Howard Jarvis Taxpayers Association, and the Republican Party of California.
Opponents of the bans argue that the increase in the tobacco age to 21 in 2020 has already substantially reduced youth access to tobacco products. While the desire to protect youth may be well-intentioned, opponents say the laws would primarily affect adult tobacco users who enjoy flavors and argue that adults should have the right to choose whether to use these products just like with alcohol and marijuana.
They also say there is an unfairness to the legislation since hookah, pipe tobacco, and premium cigars are exempted.
The opponents warn that prohibition would have a negative financial impact on small businesses operating on tight margins. The ban would transfer flavored tobacco sales to the black market, which would mean not just a loss of tax revenue for California.
A ban would also entail criminal enforcement, which brings with it the possibility of increased targeting of minorities by law enforcement, opponents note. The ban on flavored e-cigarettes is also problematic from a health care standpoint because e-cigarettes are safer than combustible cigarettes and limiting access to these products could cause many vapers to relapse to smoking and prevent some smokers who would otherwise have switched from doing so, limiting tobacco harm reduction.
The claims made against menthol cigarettes in California mirror the arguments that were made to the Massachusetts legislature when it was considering a ban on flavored tobacco in 2019. To date, Massachusetts is the only state in the country to have implemented a comprehensive flavored tobacco ban.
According to a pre-print (not yet peer-reviewed) analysis by Reason Foundation Policy Analyst Jacob Rich, one year after the ban, menthol sales within Massachusetts did decline dramatically. But the sales of non-menthol cigarettes within Massachusetts increased substantially. There was also a dramatic rise in cigarette sales in the states bordering Massachusetts. The entire six-state region near Massachusetts reported a net increase in cigarette sales of 7.21 million packs compared to the year before the state ban came into effect. According to the Tax Foundation, the ban also cost Massachusetts $125 million in tax revenue in its first year.
When adult products are relegated to the illegal market consumers often respond by seeking out these products or substitutes on the black market, presenting opportunities for criminals to supply these goods as we’ve seen with alcohol and illegal drugs and sex work.
Supporters of a ‘yes’ vote on Prop. 31 are correct that black smokers, young people and adults, disproportionately use menthol cigarettes. But this obscures some important facts. According to the most recent data from the Youth Risk Behavior Surveillance System in 2017, California’s black youth have the lowest smoking rates of any group, while black adults have the highest. If menthol cigarettes are as appealing to youth as has been suggested it is unclear why youth who are most exposed to menthol have the lowest smoking rates. The data is however in accordance with a Reason Foundation study published in 2020 showing that states with higher menthol sales, such as California, have some of the lowest youth smoking rates in the country. According to the Centers for Disease Control and Prevention (CDC) most of the young people who do smoke, 61 percent, use nonmenthol cigarettes. While we do not have recent data for youth smoking rates in California, nationally, they’re at a record low of 1.5 percent. Considering California’s smoking rate historically underperforms the national average we should expect the state’s smoking rate to be even lower.
While the ban purports to target only retailers, the reality is that prohibition creates a significant potential for menthol cigarette smuggling and black market activity. Given that menthol products are disproportionately popular among black smokers it’s reasonable to assume black communities could suffer from further unnecessary contact with law enforcement if menthols are banned. The American Civil Liberties Union (ACLU) and law enforcement organizations such as the National Organization of Black Law Enforcement Executives (NOBLE) are among the groups that have voiced concerns as it relates to a proposed national menthol ban by the Food and Drug Administration. Similar concerns would exist in California.
The other major target of the flavored tobacco ban is e-cigarettes. As the use of vaping products by young people rose from 2017 to 2019, it’s unsurprising that some legislators saw prohibition as an easy answer to the problem. But it is important to note that e-cigarettes are a much safer form of nicotine consumption than traditional combustible cigarettes and have helped many Americans quit smoking. Because e-cigarettes heat a liquid solution containing nicotine instead of burning tobacco the number and levels of harmful and potentially chemicals are substantially reduced.
The Royal College of Physicians reports that the risks of vaping are unlikely to exceed five percent of those of smoking. There’s also a growing body of evidence showing that e-cigarettes are more effective than traditional nicotine replacement therapies at helping smokers quit. While e-cigarette flavors are portrayed as being targeted at youth, most adult vapers trying to quit smoking use non-tobacco flavors. According to research conducted by Yale University’s Abigail Friedman, vapers using non-tobacco flavors are more likely to successfully quit smoking than those who don’t.
Banning e-cigarette flavors may have the unintended consequence of not just damaging the state’s vape stores, but could push some vapers back to smoking cigarettes. It could also reduce the number of smokers looking to transition to a safer alternative to cigarettes.
While there is limited evidence on the effects of e-cigarette flavor bans thus far, a recent study published in the journal Nicotine and Tobacco Research examining seven California cities that implemented flavored tobacco bans found no significant effect on the likelihood that youth would vape. An earlier study published in 2018 concluded that a comprehensive tobacco flavor ban would reduce overall tobacco use, but there would be more cigarette smoking than the status quo. Fortunately, youth vaping has fallen by 60 percent since 2019, despite there being no federal prohibition of e-cigarette flavors.
California’s voters have to decide whether banning flavored tobacco products is likely to achieve the intended public health benefits at minimal cost to taxpayers and social justice, or whether a path of using e-cigarettes and flavors as a harm reduction tool to reduce smoking in a regulated market can achieve similar outcomes without the unintended negative consequences we’ve witnessed with previous experiments in prohibition.