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California Proposition 31 - Flavored Tobacco Ban

California Proposition 31 is the referendum on 2020 law that would prohibit the retail sale of certain flavored tobacco products. On the November 8, 2022, the proposal to ban flavored tobacco passed. California is now the second US state after Massachusetts to enact such a ban. This means Proposition 31 (SB 793) prohibits in-person stores and vending machines from selling most flavored tobacco products or tobacco product flavor enhancers. However shisha (hookah) tobacco, premium flavored cigars, and loose-leaf tobacco are not included in the ban. 

What's the Definition of Flavored Tobacco Products?

Under Proposition 31, flavored tobacco products are those that have a flavor, apart from the regular tobacco flavor. For example, flavors include fruit, mint, menthol, honey, chocolate, or vanilla. Tobacco flavor enhancers are products that creates a flavor when added to a tobacco product. 

There are variety of flavored tobacco products:

  • Menthol Cigarettes
  • Electronic Nicotine Delivery Systems (ENDS)
    • Battery Operated: E-Cigarettes, E-Cigars, Vapes, Vape Pens, Cartridges, Tanks, Mods
    • Turning special liquid containing nicotine into an aerosol. Liquids might contain nontobacco flavors, such as fruit or mint flavors. Users also can add flavors separately.
  • Other Tobacco
    • Smoking, inhaling, chewing or other forms of intaking tobacco.
    • Cigars, chewing tobacco, loose-leaf tobacco, shisha tobacco, smokeless tobacco, heated tobacco, nicotine pouches.

Federal Government Regulates Tobacco Products

  • January 2009: Federal Law banned cigarettes with flavors except menthol.
  • 2020: FDA started stepping up enforcement against certain unauthorized ENDS products, including ENDS products targeted towards the youth. 
  • April 2022: FDA proposed banning menthol-flavored cigarettes and banning all nontobacco flavored cigars. FDA is still deciding to whether to finalize these bans.
  • June 2022: FDA authorized 42 new tobacco products — 23 ENDS (tobacco or unflavored) and 19 other tobacco products (menthol, mint, wintergreen, or unflavored). More than 1 million nontobacco-flavored ENDS products have been denied. 

State and local governments can issue stricter rules and regulations for tobacco. In 2016 California raised the minimum age of buying tobacco from 18 to 21. In 2019 the federal government raised the age nationwide. Prior to Proposition 31, certain cities and counties in California banned the sales of certain flavor tobacco. 

Tobacco Tax

California charges tobacco tax on cigarettes, ENDS, and other tobacco products. In 2021, the tobacco taxes raised about $2 billion. The tobacco tax revenues help fund programs in health care, early childhood, tobacco control, medical research, etc. For example one of the major funding programs is Medi-Cal — provides health care coverage to eligible low-income California residents. The tobacco tax revenue gained also contributed to funding tobacco control efforts, such as prevention of tobacco sales to youth. 

Proposition 31: What Does it Entail? 

Proposition 31 (SB 793) prohibits in-person stores and vending machines from selling most flavored tobacco products or tobacco product flavor enhancers. 

  • Exceptions:
    • Shisha (Hookah) Tobacco
    • Premium Cigars
    • Loose-Leaf Tobacco

Shisha (Hookah) Tobacco: Combustible tobacco that is smoked with a hookah waterpipe. Also known as waterpipe tobacco, maaseel, shisha, narghile or argileh) 

Premium Cigars: Handmade containing filler composed of at least 50% natural long-leaf filler tobacco, wrapped in whole-leaf — not reconstituted — tobacco, weights at least 6lbs per thousand, has no filters or tips and has no characterizing flavor other than tobacco.

Loose-Leaf Tobacco: Any leaf tobacco that is not intended to be smoked, but does not include moist snuff. 

What is the Penalty for Violating Proposition 31?

The penalty against stores and vending machine owners is $250 for each violation. 

What are the Fiscal Effects?

It is currently unclear what the fiscal effects are. We can only project the effects, for example the state tobacco tax revenues would be cut down tremendously. Last year the state tax revenue was about $2 billion. With the flavored tobacco restriction, the projection of tax revenue would be around $100 million annually. The size of the revenue is largely on how the consumers respond to the proposition. Consumers may switch to unflavored tobacco products or completely stop using tobacco products. the loss of the tobacco tax revenue will reduce funding for such health care, early childhood, tobacco control, and medical research programs. 

State and local governments pay for health care for their employees and qualifying low-income people. By reducing tobacco use, individuals are a greater percentage for better health. This could reduce the health care costs for state and local governments. Over time, better health could lengthen some individual's lives which could increase health care costs. However, this is very uncertain if there will be health care savings.  

Proposition 31 is Adult Prohibition 

Supporters of Proposition 31 stated that ending the sale of flavored tobacco products would help protect kids from getting addicted to nicotine. 

Those who oppose Proposition 31 have stated it that it's already illegal to sell any tobacco products to anyone under the age of 21. Proposition 31 is Adult Prohibition. The ban of menthol cigarettes, flavored smokeless tobacco, and other flavored non-tobacco nicotine products are made for adults of legal age. Prohibition didn't work for alcohol or marijuana, and it won't work for flavored tobacco products. 

The colored communities feel discriminated against with Preposition 31. Menthol cigarettes are the primary choice for minority neighborhood and communities. Almost half of all cigarettes in California are sold in underground markets, smuggled in from other states or countries like China and Mexico. The passing of Proposition 31 will drive more sales into the black market and increase crime. 

"Proposition 31 is practically unenforceable. It will put criminals in charge and convert a highly regulated tobacco market into an unregulated criminal market, creating unnecessary and potentially dangerous police interactions." —Edgar Hampton, Retired California Police Officer

The state of California will also suffer from the reduction of tax revenue created by the sale of tobacco products, essentially cutting funding for healthcare programs. It's expected the state will lose over $1 billion in the next four years. Due to less money, there will be cutbacks on healthcare, education, senior citizens, and law enforcement. 

Proposition 31 will also limit the choices of legal age adults to purchase. The ban of reduced harmed products are now banned, pushing consumers to traditional tobacco cigarettes. San Francisco became the first city in California to outlaw the sale of flavored tobacco. A Yale University study showed there is a significant increase in cigarette smoking among high school students—the exact opposite result the politicians promised.

California should not abandon what is clearly working and replace it with a failed policy of the past—prohibition—that will increase crime, cost taxpayers, and backfire on the communities we are trying to protect.