California’s Prop. 31 would ban flavored tobacco products. What to know
Two years after Gov. Gavin Newsom signed into law a ban on the sale of most flavored tobacco products, Californians will get their say, in a referendum vote this November.
A “yes” vote for Proposition 31 is to uphold the ban, preventing retailers from selling items like sweet-flavored cigars, vapes and menthol cigarettes. A “no” vote is to repeal the law, allowing such sales to proceed.
The proposition is supported by Newsom, the California Teachers Association, the California Democratic Party and health advocacy groups such as the Campaign for Tobacco-Free Kids and the American Cancer Society Cancer Action Network.
It is opposed by the tobacco industry and the California Republican Party. Also speaking out against the proposition are Jon Coupal, president of the Howard Jarvis Taxpayers Association, and Steven Greenhut of the R Street Institute, a D.C.-based free market think tank, and the Southern California News Group editorial board.
WHAT DOES THE LAW DO?
It penalizes retailers who sell flavored products such as menthol cigarettes or fruit-flavored cigarillos by fining them $250 for each violation. The law carves out several exemptions, including hookah, pipe and loose-leaf tobacco and high-dollar cigars.
Proponents hailed the menthol provision because of the industry’s aggressive marketing in communities of color.
“Menthol cigarettes are disproportionately used by Blacks, LGBTQ and low-income communities already burdened by tobacco-related disease, including lung cancer. Black men are more likely to be diagnosed and die from lung cancer than any other population,” said Jim Knox of the American Cancer Society Cancer Action Network in a statement at the time the bill passed out of the Assembly. It cleared the chamber by a 50-0 margin with 30 members not voting. It passed the Senate 34-0.
Newsom signed the bill into law Aug. 28, 2020.
“I have been very, very expressive in terms of my absolute condemnation of this tobacco industry that continues to find ways to target our youth,” he said. “And it will be a point of deep pride and personal privilege — as a father of four and as someone who’s had many, many family members die at the hands of the tobacco industry — to sign that bill.”
WHAT’S THE CASE FOR REPEAL?
The tobacco industry spent millions of dollars circulating petitions to place a referendum on SB 793 on the November ballot. By January 2021, it collected enough signatures to qualify.
”More than 1 million Californians, undeterred by an unprecedented pandemic, raging wildfires, heatwaves and power outages, agreed, and signed petitions to give all Californians the opportunity to vote on an unfair law that benefits the wealthy and special interests while costing jobs and cutting funding for education and healthcare,” the California Coalition for Fairness, the tobacco industry-funded group behind the petition campaign, said in a statement at the time.
The coalition argued that the law exempts the more expensive forms of tobacco, enjoyed by wealthier Californians, while targeting the cheaper products.
By moving so rapidly against SB 793, which was scheduled to go into effect on Jan. 1, 2021, the industry notched another success: it was able to block enforcement of the ban until the election. The delay enabled the industry to continue making millions of dollars on the sale of flavored products in the state.
WHY SHOULD THE LAW BE RETAINED?
A Centers for Disease Control and Prevention survey in 2021 found that about 75% of middle school students and 80% of high school students who use tobacco use a flavored product. It makes flavored tobacco a gateway to underage smoking.
“Proposition 31 could not be more critical to protecting our youths from these products,” said Lindsey Freitas, advocacy director for the Campaign for Tobacco-Free Kids.
Freitas points to the more than 200 organizations and 130 elected officials who have signed on in support of Proposition 31.
She said that that organizing advantage is necessary because the tobacco industry can spend massive sums in opposition.
“Not only does voting yes on Proposition 31 help protect our kids, but it also helps save tax dollars because of the enormous cost to taxpayers of treating tobacco-related disease,” Freitas said.
ISN’T IT ALREADY ILLEGAL TO SELL TO THOSE UNDER AGE?
Federal law has bars sale of nicotine or tobacco products to anyone under 21. The US Food and Drug Administration (FDA) is responsible for enforcement.
The No on 31 campaign says that while it opposes underage use of tobacco, total prohibition of flavored products will have several consequences.
Spokeswoman Beth Miller said products that the FDA does allow, such as those for harm reduction intended to get people to stop smoking, would be affected by the ban, as many of them are flavored.
“Prop. 31 would negate a lot of those efforts,” Miller said.
Miller pointed to Californian retailers’ efforts to stop underage tobacco use, saying that they have been very successful.
She added that taxes from tobacco products go toward important causes and that banning flavored tobacco products would eliminate vital revenue.
It would also, Miller said, drive the cigarette market underground, “where they don’t enforce the 21 and over law.”
Miller said that prohibition not only doesn’t work, it also can backfire.
“The choice is a choice for over-21 adult smokers. It would push people towards regular cigarettes, so it’s not a zero-sum game,” she said.
FOLLOW THE MONEY
In 2020 alone, the California Coalition for Fairness, the predecessor to the No on 31 campaign, spent more than $20.2 million to prevent SB 793 from becoming the law.
In 2022, the No on 31 campaign has spent significantly less, dropping just $743,000 between January and June, according to the Secretary of State’s Office.
Top funders for the No on 31 campaign include R.J. Reynolds Tobacco Company and Philip Morris USA.
By comparison, the Yes on 31 campaign is a much bigger spender this year, spending $2.2 million between January and June.
Top funders for the Yes on 31 campaign include former New York Mayor Michael Bloomberg and the Kaiser Foundation Health Plan.
This story was originally published September 15, 2022 at 5:00 AM with the headline "California’s Prop. 31 would ban flavored tobacco products. What to know."