Despite the tobacco industry’s efforts, California voters are about to uphold a ban on the sale of flavored cigarettes and e-cigarettes. The measure is known as Proposition 31 and will appear on the November ballot.

The bill prohibits the sale of most flavored tobacco products, including menthol cigarettes. Exemptions are made for loose-leaf tobacco, premium cigars, and hookah tobacco.

Background

When does the flavored tobacco ban start? On December 21, California legislation that forbids flavored tobacco product sales will come into force. Voters overwhelmingly supported it in November of last year. Still, it was implemented after a while because giant cigarette corporations in the state asked the Supreme Court to stop it.

The ban aims to reduce youth smoking and vaping rates in the state, which already has low levels. It covers cigarettes, cigars, e-cigarettes, and flavored ENDS, except for “premium” cigars and hookah tobacco.

Many jurisdictions have imposed restrictions on flavored ENDS in response to a growing concern that these products may appeal to youth and lead them to start vaping or combustible tobacco use. Several US states have implemented bans on flavored ENDS. However, these bans are unique across all jurisdictions, and, in some cases, exemptions to the restriction have been given.

Restrictions are generally a highly effective policy to reduce youth smoking and vaping and have been associated with significant reductions in tobacco sales, cigarette use, and teen vaping in several cities and counties. They have also been accompanied by educational campaigns to help tobacco users quit and avoid vaping [68, 69].

A growing body of evidence shows that youth and adult smokers are more likely to reduce their tobacco use when there are restrictions on combustible and flavored tobacco products. Although banning all flavored tobacco products might seem logical, such a policy can be challenging and must be balanced with other approaches.

For example, many smaller jurisdictions need more resources to monitor and enforce compliance with a ban on flavored tobacco products. It can result in many unlicensed and illegal retailers selling flavored tobacco products.

Similarly, small retailers such as vape shops and convenience/grocery stores are often not included in the Nielsen database, which means that they are not monitored, and their sales are, therefore, not tracked. It can lead to gaps in the data that are not easily captured by population surveys.

Implementation

As part of the Biden Administration’s Cancer Moonshot(sm) strategy, FDA is releasing a regulation that would ban menthol as a characterizing flavor in cigarettes and prohibit all characterizing flavors such as strawberry and menthol in cigars. It is a critical step toward reducing youth tobacco use and helping current smokers quit smoking.

The FDA’s regulations are primarily in response to industry self-regulation and the emergence of novel products such as Juul. However, they will likely be the subject of significant legal challenges that the FDA must overcome to ensure they serve their public health goals.

From the equity perspective, it is also essential to understand whether policies are equitably reaching populations disproportionately burdened by flavored tobacco. It is a crucial question for policymakers who want to reduce disparities by implementing their local flavored tobacco policies.

To determine whether a policy is equitably reaching the populations it is designed to achieve, it is crucial to research the effect of the policy. It includes determining the extent to which the policy’s impact on disparities was unintended (i.e., if the policy did not reduce disparities but widened them) and why.

To address this, we recently analyzed a large sample of flavored tobacco ban policies in the US. We used reach equity metrics to evaluate the degree to which population subgroups impacted by the policy were compared. We found that a majority of the local policies had a positive effect on reducing disparities in vital vulnerable populations.

Additionally, most policies aimed to restrict the sale of flavored tobacco products in all retailers, including grocery stores, convenience stores, and specialty shops. Many participants saw this as a critical element in the success of their policies.

Other essential aspects of the policy’s implementation were robust engagement with retailers and non-compliance concrete measures. These strategies helped ensure that retailers understood the law and were aware of their obligations and provided an opportunity for health professionals to provide education about the policy and its implications. Enforcement of the flavored tobacco policy has also been effective, with high compliance rates and low violation rates. These results provide evidence of the effectiveness and sustainability of a comprehensive flavored tobacco ban. This research can be used by health departments and other jurisdictions seeking to establish or strengthen such a policy.

Enforcement

After passing a referendum and receiving voter approval in November 2022, California will begin enforcing its state law banning the sale of all flavored tobacco products. As a result, retailers are re-examining their product lines and making necessary changes to comply with the new policy.

It will be a complex and challenging process. Fortunately, research has identified several best practices for policy implementation and enforcement related to flavored tobacco products (D’Silva et al., 2021). This information provides important considerations for future policies and can help communities to make the most of their flavor bans and increase public health impact.

Tobacco retailers in jurisdictions with a local flavor ordinance were significantly less likely to advertise flavored tobacco products they could not sell than stores in matched jurisdictions without a regulation. It may be due to comprehensive rules providing a consistent enforcement framework or retailer outreach and education efforts facilitating sales-restriction compliance.

Nevertheless, a significant portion of the population in many flavor ordinance jurisdictions still accessed flavored tobacco products, regardless of their location. It includes youth, young adults, and racial/ethnic minority groups disproportionately burdened by flavored tobacco products.

In the January 2019 wave of the California Student Tobacco Survey, high school students in most jurisdictions with a local flavor ordinance reported using flavored tobacco products. It was significantly higher than youth in matched jurisdictions without a regulation that said using non-flavored tobacco products. It suggests that compliance with the law has not increased youth smoking.

These findings suggest that a broader evaluation of the effectiveness of flavor bans would be necessary to identify potential gaps in implementation or enforcement. Moreover, a focus on data-driven policy development is essential for equitable outcomes from these policies. Researchers must ensure that these policies are selected and formulated through an equity lens, which can include a comprehensive analysis of tobacco industry marketing strategies to target vulnerable populations.

Over 270 US localities have passed restrictions on selling flavored tobacco products in the USA. This rapid growth in policy action highlights the importance of implementing these policies thoughtfully and comprehensively that is geared to long-term impact. Similarly, policymakers should anticipate and prepare for challenges, particularly in light of recent US FDA guidance and industry actions regarding self-regulation.

Legal Issues

Despite a recent court ruling dismissing two lawsuits by the tobacco industry that challenged a San Diego law that bans flavored tobacco products, implementing the Flavored Tobacco Ban in California will continue as planned. The state’s Attorney General, Rob Bonta, expects the law to take effect in December.

The law was enacted to curb the lure of flavored cigarettes and other tobacco products to young people. It was approved by a majority of the California Legislature and signed by Gov. Gavin Newsom in 2020.

While the law was passed with support from many public health and anti-tobacco groups, it was contested by several major tobacco companies. 

In response, the AMA Litigation Center joined several other public health and anti-tobacco groups to file an amicus brief supporting the law. It cited factual data on the increasing trend of youth smoking, the role that flavored tobacco products play in youth smoking initiation, and the harmful effects of flavored tobacco products.

Meanwhile, tobacco companies and trade associations launched a campaign to block the law and seek a referendum. According to California state records, the ballot initiative was endorsed by more than $29 million in donations.

Tobacco retailers and manufacturers also argued that the law would trample on their rights to sell their products as long as they meet federal standards. Specifically, the companies argued that a 2009 law – the Family Smoking Prevention and Tobacco Control Act – preempts local and state laws that are more restrictive than federal standards.

As many local jurisdictions prepare to enact the Flavored Tobacco Ban, researchers and policymakers must consider how this law will be implemented and enforced. It includes consideration of the entire policy cycle – from agenda setting to implementation and evaluation (see Figure 1 for a model) – to maximize its impact on population health.