California’s Vape Flavor Ban Begins With Confusion, Enforcement Threats

    On December 21, California’s nicotine flavor ban finally went into effect, a little more than a month after voters overwhelmingly approved Proposition 31. The law will prohibit the sale of almost all flavored nicotine products—including vapes and menthol cigarettes, but excluding hookah and some premium cigars.

    Many people who switch from cigarettes to vapes find flavors helpful, or even crucial, in doing so. Previous vape flavor bans, like one enacted in San Francisco, have led to increased smoking in some populations. Some vapers will also still find ways to obtain their preferred products. But in other ways, the landscape that will now emerge across the state is hard to predict.

    The legislation behind Prop. 31, SB 793, was technically passed by lawmakers in 2020, but had been delayed following sustained pushback from the nicotine industry and tobacco harm reduction (THR) proponents. Reynolds and other companies had given much of the funding for the campaign against Prop. 31. Billionaire Michael Bloomberg—THR’s leading adversary—almost exclusively bankrolled the committee in support, with much larger sums.

    Questions remain about how California will enforce it—and what type of illicit market will emerge to fill the flavor vacuum.

    After the November 8 vote, Reynolds and a few other tobacco and vapor manufacturers filed an emergency application for writ of injunction with the Supreme Court, in what many observers saw as a last-ditch, Hail Mary effort to stop the flavor ban. (Reynolds had previously failed to persuade district and circuit courts to stop the law.) The Supreme Court refused to block it.

    Now, questions remain about how, exactly, California will manage to enforce a law with technicalities that even seem to be confusing the state government—and what type of illicit market will emerge to fill the flavor vacuum.

    Stefan Didak, a California-based THR advocate, said that though he hoped those carrying out enforcement would at least be consistent, he was not optimistic, especially in the short term: He has already heard that the government, specifically the California Department of Tax and Fee Administration (CDTFA), has given conflicting guidance to retailers—some of whom have been told, for instance, that selling online is legal, while others have been informed that it’s not. (Didak believes the legislation does allow for online sales.)

    He also cited another example, saying that a few retailers were informed that they could sell “clear” disposables (with no characterizing flavor), but others were advised not to do so, as the law bans anything “other than the taste or aroma of tobacco.”

    “In the light of these inconsistencies, it makes me wonder how retailers are supposed to be law-abiding when those in charge of enforcement can’t figure things out,” Didak told Filter. “And if they can’t give clear answers to retailers, how is any of this, if at all, communicated to the local municipalities that are allowed to enforce the new law?”

    “Overzealous individuals tasked with enforcement could do more damage to small businesses than the law itself,” he continued, “because overreach of enforcement leaves the retailer without much option other than to seek legal action, and most are not in a position to do so.”

    Reynolds, for its part, has now sent “formal warning to approximately twenty retailers in the San Jose, Sacramento and Los Angeles communities that are selling flavored disposable vaping products in violation of applicable local ordinances,” threatening legal action against them. The company sells FDA-authorized tobacco-flavored vaping products, as well as menthol cigarettes that are prohibited under the ban. It stated that “the marketing and sale of [flavored disposables in California] harm those—like [Reynolds] and our customers—that comply with applicable legal requirements and responsible marketing practices.”

    “It’s a shame seeing California be a progressive front-runner in other areas of harm reduction, but not for tobacco.”

    California’s legislation is unique, too, in the sense that it bars so-called “flavor enhancers”—preventing a person from buying flavored e-liquid with no nicotine and adding it to flavorless nicotine at home—and seems to shut out any flavored product that could one day, perhaps, be authorized by the FDA.

    But workarounds, of course, have always existed.

    “I’ve been getting my flavored liquids from the black market for actual years now,” Nick “Grimm” Green, who lives in Los Angeles and runs a popular YouTube vaping channel, told Filter. “But I’m a resourceful ex-smoker. The non-hobbyist consumers are going to have a very difficult time and will most likely go for the easier and cheaper option, which in California is tobacco cigarettes. It’s a shame seeing California be a progressive front-runner in other areas of harm reduction, but not for tobacco cigarette smokers.”

     


     

    Photograph by Diana Robinson via Flickr/Creative Commons 2.0

    The Influence Foundation, which operates Filter, has received grants from Reynolds American, Inc. Filter’s Editorial Independence Policy applies.

    • Alex is Filter’s news editor. He previously worked as a reporter and copy editor at VICE, and has been published in The New York Times MagazineThe Columbia Journalism Review, The Los Angeles Times and The New Republic, among other outlets. He was also previously a freelance editorial consultant for the Foundation for a Smoke-Free World; The Influence Foundation, which operates Filter, has received grants from the Foundation for a Smoke-Free World. He is currently based in Los Angeles.

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