By The ETR Team | March 10, 2023
On December 21, 2022, Proposition 31 went into effect in California, banning the sale of most flavored tobacco products. This ended a two-year referendum of senate bill 793 (SB 793) signed into law in August 2020.1,2 The passage of this law has sparked conversation across the state as the tobacco industry adapts its product lines, and residents and public health advocates work to understand what the flavor ban will look like in practice.1 Let’s explore key facets of the law, and how it promotes health equity and empowers local policy efforts.
The law specifies the penalties that retailers face (up to $250 fine for each violation) if they continue to sell banned products, but it does not name local entities responsible for enforcing the restrictions. At first glance, this may seem like an oversight.3 However, it actually leaves room for each community to decide what is best for their local structures. What works for Beverly Hills may not work in rural Yuba County. Additionally, because the law is not pre-emptive, it leaves ample space for local licensing to go even further than the law, addressing product exclusions like flavored hookah, premium cigars, and loose-leaf pipe tobacco.4 Opponents of the law have claimed that the law is another example of adult prohibition, but these two nuances of the law demonstrate opportunities for communities to wield their local authority to protect and empower themselves.5
Commercial tobacco companies disproportionately target youth, ethnic minorities, and residents of rural and/or low-income communities.6 Because of this, it is vital that any enforcement of a product restriction be drafted in a way that does not lend itself to the criminalization of already marginalized groups. The law does a great job of excluding product users from the equation entirely, which reduces future harm to communities of color, and communities already grappling with generational addiction, poverty, and the impact of preventable disease from using commercial tobacco products. This is a huge win for health equity in California!
The law is written to prohibit the sale of flavored tobacco products which means fines apply to retailers in California, including California-based agents of retailers out of state.7 Users can still purchase products online, consume, and be in possession of flavored products. But these sale processes cannot utilize California businesses for the storage or distribution of banned products without running the risk of being fined as an agent for the sale of banned products. Simply put, retailers can’t sell it to you, hold, or store it for you, but you are still allowed to buy and have it.
This highlights a crucial next step in this fight against commercial tobacco since this law does nothing to regulate the manufacturing of deadly products like menthol cigarettes, giving opportunities for tobacco companies to change their tactics. In 2009, the Federal Drug Administration was faced with responding to research that showed the role of flavored tobacco in addicting minors, and they responded by enacting the Family Smoking Prevention and Tobacco Control Act. Unfortunately, this milestone legislation had a glaring exception - it excluded menthol products.8 It is estimated that over 200,000 preventable African American deaths can be attributed to this exclusion in 2009.9 We must continue to advocate for federal standards that hold tobacco companies accountable, and increase the national health of youth, families, and communities.
ETR’s tobacco projects develop high-quality educational materials and social media assets for tobacco projects across California to utilize and draw inspiration from. This work remains important in preventing further disease from commercial tobacco use. Our funded tobacco projects will continue to work with communities across the state to mitigate the effects of secondhand smoke, create and distribute educational materials, provide technical assistance, and reach priority populations that are disproportionately impacted by commercial tobacco products, and secondhand smoke. To learn more about all our funded projects, explore our projects page and visit their specific websites.
9. Levy DT, Pearson JL, Villanti AC, Blackman K, Vallone D, Abrams D. Modeling the future effects of a menthol ban on reduced smoking prevalence and deaths averted in the United States. Am J Public Health. 2011;101(7):1236-1240. doi: 10.2105/AJPH.2011.300179