By Brian Kabateck
You might have missed the news in the holiday rush, but last month California scored a big victory against big tobacco companies that have been directly harming our kids. The state enacted vital legislation to protect targeted populations—especially youth and communities of color—from the dangers of flavored tobacco products.
It’s been a long time coming.
In 2020, with bipartisan support, California lawmakers voted to ban flavored tobacco products in Senate Bill (SB) 793. They waged a $20 million campaign against the legislation, collecting enough signatures to bring it to a ballot measure. But tobacco manufacturers pushed back. Industry giants like Philip Morris USA and R.J. Reynolds Tobacco Co effectively blocked the law for two years.
But in November 2022, California voters overwhelmingly said Yes to Proposition 31, upholding the ban.
The powerful tobacco industry didn’t stop there, though. The day after the referendum, they sued, taking the case to the US Supreme Court, where on December 12, the high court finally rejected the ongoing bid to repeal the law without dissent.
Doctors, nurses, dentists, child welfare activists, the California Democratic Party, the California Teachers Association, and Governor Newsom have strongly supported a ban on flavored tobacco products, deeming it necessary to curtail the stunning epidemic rise of teen smoking and vaping in recent years.
Kid-friendly flavors like cotton candy, bubble gum, chocolate, honey, vanilla, mint, and all sorts of fruity varieties (over 15,000 flavors are available) that sound like fun treats have enticed children as young as elementary school age to experiment with tobacco products.
In 2020, the CDC reported that nearly 20 percent of high schoolers were using e-cigarettes, including almost 5 percent of middle-grade children.
Of those users, almost 40% of the high school students and 20% of the middle school students said they had vaped on 20 of the last 30 days, with well over 20% of high school users and 9% of middle school users reporting they use tobacco products daily.
“Among all current e-cigarette users, 82.9% used flavored e-cigarettes, including 84.7% of high school users (2.53 million) and 73.9% of middle school users (400,000),” the report stated.
Further, a study in the American Journal of Health Behavior found that nearly 85% of young adults who have used an Electronic Nicotine Delivery System (ENDS) began with a flavored product.
These distressing and damning statistics suggest a clear link between flavored products and young people’s startling rise in tobacco use.
Fancy flavors mask the harsh taste of tobacco to make it more palatable to kids. Social media influencer campaigns have been used to normalize youth tobacco use and make it seem less harmful than old-fashioned cigarettes.
But vaping delivers higher concentrations of highly addictive nicotine than traditional cigarettes. It can harm the developing brain, causing withdrawal symptoms such as difficulty concentrating, restlessness, sleep disturbance, and irritability. It can negatively impact mental health, ramping up stress and anxiety and increasing the risk of future addiction to other drugs.
Anti-tobacco watchdog organizations maintain that the Big Tobacco business model directly relies on hooking kids to ensure profitability now and into the future. Studies have shown that teens who vape are three times more likely to become adult smokers.
The landmark law prohibits retailers from selling most flavored tobacco products, including menthol cigarettes, which the CDC says have long been “aggressively targeted” toward the Black community.
The ban covers all flavors other than tobacco in the following products, as listed by the California Department of Tax and Fee Administration:
- Menthol Cigarettes
- Electronic cigarettes or vape devices that contain or are sold with a flavored liquid or element regardless of whether it contains nicotine;
- Flavored e-liquids, e-juices, or pods, regardless of whether it contains nicotine;
- Components, parts or accessories of a tobacco product that contains or is sold with a flavored constituent regardless of whether it contains nicotine;
- Flavored little cigars or cigarillos, smokeless tobacco, loose-leaf roll-your-own tobacco, blunt wraps, or rolling papers;
- Tobacco product flavor enhancers.
There are exceptions for cigars that wholesale above $12 and flavored loose-leaf pipe tobacco, as well as flavored hookah/shisha products “sold in licensed retail stores that only admit persons 21 or older and operate following all state and or local laws.”
So far, California and Massachusetts are leading this fight—they’re the only states that have imposed a total ban on flavored tobacco products, including menthol cigarettes. However, New York, New Jersey, and Rhode Island currently prohibit the sale of flavored vaping products.
As consumer protection advocates, the attorneys at Kabateck LLP are committed to ensuring the rights of vulnerable consumers in society. Our firm is committed to standing up to big businesses that engage in fraud or unfair practices from gaining an advantage over competitors. This includes protecting the public from false or misleading advertising in situations like “bait and switch” advertising tactics, warranty misrepresentation, defective products, forced arbitration clauses and identity theft. Class action lawsuits can provide recourse for consumers whose rights have been violated by companies that engage in abusive business practices.