What You Need To Know About California’s Ban On Flavored Tobacco Sales

Chocolate, cotton candy, cinnamon roll, menthol. Those are just some of the flavors of tobacco products that are now illegal for stores and vending machines to sell in the Golden State.

Starting on Dec. 21, California becomes the second state after Massachusetts to ban the sale of many flavored tobacco products, including vape pens, cartridges and menthol cigarettes. Advocates say the goal is to make it harder for children and teens to become addicted to nicotine by banning the sale of sweet flavors that appeal to them.

The implementation of the new law brings a years-long effort to a close. Most recently the U.S. Supreme Court refused to hear a last-ditch petition by tobacco company R.J. Reynolds to block it from going into effect.

“It's substantial. I think that part of what the tobacco industry fears here is the possibility that now after Massachusetts and California, there will be other states that enact similar laws,” said UC Irvine law professor Michele Goodwin.

“This means that if other states enact similar laws, the Supreme Court may continue to pinch its nose and say this is not something that we want to get involved in,” she said.

Lawyers for the manufacturer of Newport menthol cigarettes and other tobacco companies argued that states lack jurisdiction to ban tobacco products and told the justices they face “substantial financial losses” from the law, noting that menthol cigarettes make up about a third of the cigarette market.

“In California, closing the door on flavored tobacco products will be a [financial] hit for the tobacco industry. But simply because an industry is financially hit or disadvantaged in a particular market doesn't mean that they actually have a constitutional claim or a viable claim before the United States Supreme Court,” Goodwin said.

A 2020 law banning the sale of flavored tobacco products had been set to go into effect early last year, but days after its passage, Big Tobacco companies launched a referendum drive to overturn the law, bringing its implementation to a halt. The law remained suspended while voters considered the referendum challenging it.

That referendum became Prop. 31, which California voters overwhelmingly rejected in November.

Which Products Are Covered In The Ban?

The new law makes it illegal for stores and vending machines to sell flavored cigarettes, e-cigarettes, or vapes, including those flavored with menthol. The sale of hookah tobacco, some types of cigars, and loose-leaf tobacco are not affected. Sales of gums or gummies that contain nicotine and are not approved by the FDA are also prohibited.

The law defines a flavored tobacco product as one that “has a flavor, apart from the regular tobacco flavor. Flavors could include fruit, mint, menthol, honey, chocolate, and vanilla, for example.”

When Does The Flavored Tobacco Ban Take Effect?

By Dec. 21, 2022 at the latest, California retailers will be required to stop selling, offering to sell, and possessing with the intent to sell flavored cigarettes and tobacco products banned by the law.

What's The Penalty For Selling Flavored Tobacco?

Retailers who violate the law face a $250 penalty for each violation. It will be enforced by local jurisdictions, often local police departments. People can also report a store for violating tobacco laws to the state.

Can Store Clerks Be Charged With A Crime For Selling Flavored Tobacco?

Yes, but prosecutors have considerable discretion, Goodwin said.

“Clearly these laws would apply to the owner of any stores that sell these products, and also the people who manage these stores. They're higher level employees, there would be an expectation that they know the law,” she said. “The target of the law are really those people who own and manage these kinds of shops, because these are the people who would be responsible for the inventory, ordering the inventory, distributing the inventory, making account of the inventory, and not necessarily low-level employees who are not paying attention to the distinction between the types of cigarette products on the shelf.”

My City/County Already Has A Flavored Tobacco Ban. Does The New State Law Change It?

No. The statewide law is the floor, rather than the ceiling. Local ordinances that are more restrictive than the state law will remain in place, while the state law overrides any local bans that are weaker.

“It resolves the patchwork of local bans,” said David Timberlake, an associate professor of public health at UC Irvine. “That’s an important point. A fair number of the local tobacco flavor bans, added exemptions such as certain tobacco categories including vape. That's the other big advantage, I think of the state law, is it's closing the loopholes.”

Many large and small communities in California already have their own flavored tobacco bans. The cities of Los Angeles and San Diego will implement prohibitions in January 2023.

Other States Don’t Ban Flavored Tobacco Sales. If I Can Buy It In Nevada, What's The Point?

Most of California’s population is concentrated on the coast, making an hours-long drive to another state to purchase flavored tobacco products expensive and time consuming, Timberlake said. That inconvenience may sway adults to quit.

It’s illegal to sell any tobacco product to people under the age of 21 in the U.S., though it does happen.

“It's not going to be that youth will have no access at all. But I think as with the other tobacco products, the new law will have a big impact on youth smoking and vaping in California,” Timberlake said.

Big Tobacco Spent Millions To Fight The Ban. What Could They Do Next?

“The only other thing that they could possibly try to do would be to lobby the legislature, to try to get [another] referendum on a future statewide ballot,” Goodwin said.

“The tobacco industry is very resilient. And it's one that has very deep pockets and uses the force of its lobbying strength, both at the state and federal levels. And this is going to be a space in which they've gone down fighting. We don't know if they'll continue to fight, very likely they might, given the economics that are at stake,” she said.

I Want To Quit. Where Can I Get Help?

You can get one-on-one help quitting any nicotine product from Kick It California, a free statewide program sponsored by the state health department. Contact them on the website or call 1-800-NO-BUTTS.

Check your health insurance. Some plans offer prescription nicotine replacement therapies such as nicotine inhalers, gum, sprays and medications at no additional cost when prescribed by a physician.