A flavor ban has recently gone into effect in California. This ban prohibits the sale of flavored tobacco products, including menthol cigarettes, though flavored premium cigars and flavored loose-leaf pipe tobacco are exempt. Similar arguments about youth were made during hearings on SB-793 and its predecessor, SB-38. However, SB-793 hearings had more significant discussion about the more considerable societal impact of a flavor ban.
The Flavor Industry
The flavor industry is a multibillion-dollar business that makes its money by obscuring the harmful effects of tobacco products. It is, therefore, no surprise that the industry opposes evidence-based tobacco policies such as flavored tobacco bans and has used litigation to reject state efforts to mitigate tobacco harm. Why did California ban flavored tobacco? In 2022, California voters approved a ballot measure banning the sale of most flavored tobacco and vaping products, except for menthol cigarettes. The law, known as SB 793, became effective on December 21, making the state the second in the nation to prohibit the sale of flavored tobacco (the other is Massachusetts). Its enactment was the culmination of a years-long campaign led by public health advocates and backed by research showing that flavored tobacco products are a driving force behind youth addiction to combustible cigarettes. Despite California’s ban on flavored tobacco, shops still sell the products. The state is losing money from lost sales tax revenue and fewer Master Settlement Agreement payments. This decline is not from people giving up menthol cigarettes or tobacco in general, however – it’s because those consumers have found ways to purchase the products they want, often through smuggling and illicit markets. The smuggling problem is particularly acute for California, which shares a border with Oregon and Nevada and hosts two of the country’s largest ports of entry.
The Public Health Impact
When a law enacted to prevent people from buying flavored tobacco products pushes consumers and producers into the black market, that raises prices and increases criminal activity. It also increases the likelihood of a backlash that will make it harder to reduce smoking rates or increase access to cessation programs. California voters overwhelmingly approved a statewide ban on flavored tobacco in 2020, which has already taken effect. But the public health improvements that voters expected still need to be evident. Instead, state revenues have decreased, and the number of smokers has remained unchanged. A recent study found that in areas with comprehensive sales bans, adolescent tobacco use is significantly lower than in places without such policies. However, that study did not look at flavored cigars or smokeless tobacco, which are still available in some areas. The research also did not examine whether non-cigarette tobacco products, such as menthol cigarettes, replaced flavored cigars or smokeless tobacco. Some groups that support a statewide flavored tobacco ban worry that the bill’s language might be misinterpreted or could create unintended consequences. For example, the bill exempts flavored hookah tobacco and certain types of premium cigars, which would be pushed into the black market by a statewide ban. In addition, many cities have local laws that restrict tobacco sales. Code enforcement officers conduct compliance inspections at retail stores twice a year in Sacramento. Each time a store is found to be selling banned products, its business license is suspended for 30 days, 90 days for the second violation, and completely revoked after the third.
The Economic Impact
Last year, 63% of California voters approved a ban on flavored tobacco products in a statewide ballot measure known as Proposition 31. The state law took effect on January 1, and it is already evident that the public health improvements promised by advocates need to materialize. While anti-tobacco groups support the policy’s goals, they have remained silent as legislators try to strengthen and implement the ban. This silence reflects disagreement among advocates about the most effective path to reaching the endgame of a tobacco-free future and whether banning flavored tobacco is a wise strategy to achieve those ends. Research has shown that residents of jurisdictions with a comprehensive sales ban experience significantly lower odds of using flavored tobacco. However, these findings are based on correlational rather than causal analyses, and how much the ban has contributed to that decline needs to be clarified. Moreover, the impact of a sales ban may be offset by unintended consequences. For example, a statewide ban could lead to a higher incidence of cigarette smuggling as individuals seek their products from neighboring jurisdictions where the prohibition does not exist or on the black market.
Moreover, a sales ban would likely have fiscal implications that reduce state revenues and necessitate increases in the rates of other tobacco taxes or cuts to other government programs. Specifically, banning menthol cigarettes—which account for about a third of the cigarette market—would decrease state revenues by an estimated $329 million annually from decreased excise taxes on cigarette sales and reductions in Master Settlement Agreement payments.
The Political Impact
Supporters of the ban claim it was necessary to put a stop to a staggering rise in teen smoking. They argue that menthol cigarettes make up about a third of California’s market and that prohibition would help reduce tobacco use in the state by giving smokers an incentive to switch to e-cigarettes, which are much less dangerous than combustible cigarettes. Opponents of the ban warn that it will have a negative financial impact on small businesses operating on tight margins and transfer the sale of flavored products to the black market, leading to increased criminal activity in some areas and a loss of tax revenue for the state. Moreover, the evidence suggesting that flavored tobacco prohibitions are effective is limited and primarily based on short-term data that may not accurately reflect an accurate picture of the impact of these policies. Specifically, the available data do not indicate that a one-to-one substitution of flavored tobacco products to unflavored ones occurred, and there was no increase in cigarette smoking rates among high school students after the flavor ban went into effect.
Furthermore, the scope of negative consequences likely to follow a statewide prohibition on flavored tobacco sales is enormous. It will have an immediate impact on public health in the state. This includes the loss of tax revenue that could be used to fund programs that benefit the public’s health, including those that address tobacco-related diseases and illnesses.
