WASHINGTON — On Tuesday, Californians overwhelmingly voted to ban all flavored tobacco products in the state.
The move makes California by far the largest state to ban such products, which are already illegal in a smattering of smaller states, including Rhode Island, New Jersey, and Massachusetts.
Regulators have targeted flavored products in particular because they are overwhelmingly preferred by young people. More than 84% of young people who vape reported using flavored products, according to recently released survey data by the Centers for Disease Control and Prevention.
California’s ban would also outlaw menthol cigarettes, which federal regulators have proposed banning nationwide because they argue such products are easier to start and harder to quit. Survey data also show that menthol cigarettes are overwhelmingly preferred by Black smokers.
Tuesday’s vote is the latest twist in a more than two-year fight between California legislators and the tobacco industry. Lawmakers first passed the state’s flavor ban in 2020, but the tobacco industry quickly launched a multimillion dollar campaign to put the initiative to a popular vote.
“Tonight, once again Californians voted in support of protecting kids and standing up to Big Tobacco,” said Michael Seilback, the national assistant vice president of state public policy at the American Lung Association. “This is a game changer.”
Philanthropist Michael Bloomberg contributed the vast majority of the financial support for the pro-flavor ban campaign. (Bloomberg Philanthropies also supports STAT’s coverage of the commercial determinants of health, but is not involved in decisions about our journalism.)
The fate of the California ban, however, could ultimately be determined by a legal fight over a previously enacted ban in Los Angeles County. The tobacco company R.J. Reynolds is currently challenging that initiative, on the grounds that federal tobacco law doesn’t allow states and localities to prohibit the sales of tobacco products. A federal appeals court ruled in March that states and municipalities do have the power to ban flavored products, but the company asked the Supreme Court to review that decision in October.
If the Supreme Court agrees to take that case and sides with R.J. Reynolds, it could torpedo California’s ban, as well as bans on the books in other states and localities, according to Desmond Jenson, the lead senior staff attorney for federal regulation at the Public Health Law Center.
“There’s very good reason to be concerned about a Supreme Court decision,” Jenson said. “No court at any level has ever struck down a policy prohibiting the sale of flavored tobacco products on federal preemption grounds, but that doesn’t mean the Supreme Court couldn’t decide otherwise and that ruling would apply everywhere.”
Pro-vaping advocates are likely to criticize California’s new ban as depriving adult tobacco users of flavored vaping products, which are less harmful than combustible cigarettes. There is not reliable data available on how many adults currently use flavored vaping products, though the CDC estimates that 3.7% of adults nationwide vape.
Tobacco control advocates argue flavor bans will ultimately keep people — particularly kids — from getting hooked on nicotine, and they plan to use California’s newly enacted policy to increase pressure on other states to enact similar bans.
“We know that flavor prohibitions are going to save lives and we are not going to stop until we can remove these products in all communities and fight back against big tobacco’s efforts to hook another generation of kids,” Seilback added.
Advocates also told STAT they hope the ban will send a signal to federal regulators about the public support for flavor bans.
“It will send a strong message to the Biden Administration and the FDA that there is strong support for eliminating the flavored e-cigarettes that have caused the youth e-cigarette epidemic and finally stopping the tobacco industry’s targeting of the African American community with menthol cigarettes,” said Matt Myers, the president of the Campaign for Tobacco Free Kids. (The Campaign receives funding from Bloomberg Philanthropies.) Myers called California’s ban “the most significant tobacco control action taken in the United States in years.”
STAT’s coverage of the commercial determinants of health is supported by a grant from Bloomberg Philanthropies. Our financial supporters are not involved in any decisions about our journalism.