Like San Jose, Sacramento County also imposed a ban this summer. Los Angeles, California鈥檚 largest city, and San Diego will implement prohibitions in January.
Even though across the state have already acted, Californians in November will decide whether to enact one of the nation鈥檚 most comprehensive statewide bans on flavored tobacco 鈥� making it illegal for brick-and-mortar retailers to sell flavored cigarettes, e-cigarettes, or vapes, including those flavored with menthol. Sales of gums or gummies that contain nicotine and are not approved by the FDA would also be prohibited.
At issue is a that would have banned the sale of those products 鈥� but never went into effect. Within days of its passage, Big Tobacco launched a referendum drive to overturn the law.
A 鈥測es鈥� vote on the referendum, known as Proposition 31, would uphold the law, banning the sale of flavored tobacco. A 鈥渘o鈥� vote would overturn the law.
If the measure passes, more restrictive would remain in place while the state law would override weaker bans. If the referendum fails, all local bans would remain in effect.
San Jose began prohibiting the sale of flavored tobacco products on July 1. City resident Joseph Smith, who was working in a local tobacco shop on a recent Tuesday, said he started smoking at age 12 when his friend gave him a menthol cigarette. Now 30, Smith said he quit smoking cigarettes two years ago by smoking Puff Bars 鈥� slim disposable vapes that are now illegal to sell under the city鈥檚 ban. He also said he no longer vapes.
Smith said he doesn鈥檛 support Big Tobacco鈥檚 marketing tactics but also doesn鈥檛 support taking away people鈥檚 freedom to buy their favorite product at the local store.
鈥淭hey kill people; they profit off people鈥檚 lives,鈥� Smith said about the tobacco industry. 鈥淏ut overall, I still feel like people have the right to do what they want.鈥�
Proponents of local ordinances and the statewide ban say the measures are primarily intended to protect young people from getting addicted, as Smith did.
鈥淲e can stop Big Tobacco from using flavors to get kids hooked on nicotine and profiting from addiction, disease, and death,鈥� former state Sen. Jerry Hill, who authored the 2020 law, told lawmakers at a recent legislative hearing on the ballot measure. 鈥淚f we can save even a few lives by ending the sale of candy-flavored tobacco, it will all be worth it.鈥�
by the Centers for Disease Control and Prevention found that about 75% of middle school students and 80% of high school students who use tobacco use a product with flavoring, often in 鈥�, such as berry, cherry, apple, cotton candy, and bubble gum,鈥� which mask the harshness of tobacco and act as a gateway for underage smoking.
In 2020, an estimated 4.5 million middle and high school students used tobacco products. Before the pandemic, the number of young people surveyed on school campuses who used tobacco had been climbing steadily, rising from 3.6 million in 2017 to 6.2 million 2019, according to CDC surveys.
鈥淚t鈥檚 not good for young people鈥檚 developing brains,鈥� said Kevin Schroth, an associate professor at the Rutgers University School of Public Health. Schroth previously worked on tobacco control policy in New York City, which banned the sale of flavored tobacco in 2009. 鈥淭here鈥檚 no reason that they should be developing addictions to these products.鈥�
If Californians uphold the state law, theirs would be the to adopt a flavor ban after Rhode Island, New Jersey, New York, and Massachusetts, according to the Campaign for Tobacco-Free Kids. About 345 localities across the nation prohibit the sale of flavored tobacco.
But some of these laws, including California鈥檚, contain glaring loopholes, such as allowing flavors in premium cigars, hookahs, pipe tobacco, and online purchases. While some cities and states have banned internet sales, others have cited legal concerns about regulating interstate commerce 鈥� leaving it to the federal government to act. The FDA in April banning the manufacture, distribution, and sale of menthol cigarettes and flavored cigars, but the rules have yet to be finalized.
In June, the agency ordered vaping company Juul to stop selling its e-cigarettes, but a week and a half later suspended the ban, following a federal lawsuit by the company. The FDA said its order needed further scientific review. Meanwhile, legislation in Congress to ban the sale of flavored tobacco has stalled.
The tobacco industry has spent nearly to overturn the California law compared with $5.7 million spent by supporters of the ban. 鈥淣O on Prop 31鈥� campaign spokesperson Beth Miller said via email that government regulation restricts adult smokers鈥� right to choose and takes away an alternative to cigarettes that some people use to kick the habit. Miller said the campaign agrees 鈥測outh should never have access to any tobacco products,鈥� which have been illegal in California for anyone under 21 since 2016.
Public health officials, however, say that flavored products are clearly marketed to young kids 鈥� and that they use them. A by Santa Clara County, for example, found that 93% of high school students who had used tobacco chose a flavored product. Just over half of those surveyed who vape said they bought their own e-cigarettes.
鈥淲hen products are available, youth may be able to find a way they can get these products,鈥� said Don Tran, policy coordinator for the county鈥檚 Tobacco-Free Communities program. 鈥淏ut when you鈥檙e actually able to physically remove the product from being sold on the shelf, you鈥檙e going to drastically reduce that availability.鈥�
It鈥檚 too early to tell whether the flavor ban is working in San Jose.
At Houdini鈥檚 Smoke Shop downtown, co-owner John Tokhi said the store has lost about 80% of its sales to neighboring municipalities where the sales of products are still legal. Before the ban, he said, a warm summer evening would attract a line of businesspeople and concertgoers. Those crowds have been replaced with clientele sporadically rushing in for packs of cigarettes and smoking paraphernalia.
The back shelves of his shop that once showcased flavored vapes are now nearly empty, populated only with nicotine-free vapes and a few ballcaps.
鈥淭here鈥檚 a bunch of angry customers,鈥� Tokhi said. 鈥淭hey鈥檙e really upset. They don鈥檛 want to drive further. It鈥檚 slowed down a lot.鈥�
Studies show flavored tobacco laws have worked to curb teen use. In New York City, for example, public health officials analyzed declining sales of flavored tobacco and concluded that teens were 37% less likely to try flavored tobacco four years after the local ban passed.
Dr. Achala Talati, director of tobacco policy and programs for New York City鈥檚 Bureau of Chronic Disease Prevention, said young people 鈥渦se tobacco opportunistically鈥� by sharing products with friends or smoking when it is easily available. So, decreasing the availability of flavored products lowers youth nicotine exposure, she said.
鈥淩educing access to products locally results in less use,鈥� Talati said.
This story was produced by , which publishes , an editorially independent service of the .