California Combats Youth Cigarette Use and Vaping

By Shyam Rajan

A 78-percent increase in the use of e-cigarettes by high school students between 2017 and 2018 was just one of the statistics that inspired one state senator to draft a bill to fine the sale of flavored tobacco and vaping products.

Now, State Senator Jerry Hill’s Senate Bill 793 may take effect in January 2021, after being signed by Governor Gavin Newsom this fall. The new law will fine retailers $250 per sale, without criminalizing the sale or possession of the products. However, a referendum to delay enforcement of this new law is already in the works.

The bill aims to prohibit the sale of several different kinds of tobacco products, including flavored e-cigarettes, vapes, menthol cigarettes and smokeless tobacco. Hookah, premium handmade cigars costing more than $12, and pipe tobacco are all exempt from the fine. Possession or use of tobacco products is not illegal under this new law.

“California has taken a giant step to protect its communities against the death and disease associated with flavored tobacco products,” Andrew Twinamatsiko, Senior Staff Attorney of the Public Health Law Center, said.

Jamie Morgan, Government Relations Regional Lead of the American Heart Association, said 15,000 different flavors of tobacco products are sold, including bubblegum, grape, and gummy bear.

“We are concerned about how we’re hooking a new generation of youth to nicotine. They have been heavily marketed to and targeted by the tobacco industry in terms of flavored products,” Morgan said.

Twinamatsiko said this issue is especially pressing for young people since their brains are still developing, and this can create significant health risks.

However, Alex Clark, CEO of the Consumer Advocates for Smoke-Free Alternative Association (CASAA), disagrees.

Image by Daniel Ramos on Unsplash.

“When people share stories of young people experiencing breathing problems, or behavior and attitude changes, their grades are falling,” Clark said. “I don’t think we can lay that all at the feet of vapor products.”

He said he also disagrees that flavored products are targeted to youth and instead are driven by the preferences of former smokers distancing themselves from traditional tobacco flavor.

He said that banning sale of e-cigarette products will create a public health crisis forcing millions of former smokers back to cigarettes. The Progressive Policy Institute found that 70% of the decrease in cigarette smoking was due to switching to e-cigarettes. Banning or taxing e-cigarette products will indirectly increase sales of cigarettes, increasing big tobacco’s coffers counterintuitively, Clark said.

According to Clark, the bill has a negative effect on small businesses, including vape shops, gas stations, and grocery stores. Hundreds or thousands will lose their jobs as vape shops close and convenience store business will stagnate because menthol cigarettes account for 30%of sales.

Margalynne Armstrong, Associate Professor at Santa Clara University School of Law, said the fine on menthol cigarettes disproportionately affects the African American community.

“Almost nine out of ten African American smokers smoke menthol cigarettes,” she said. “That’s a pretty important part of the tobacco market.”

But Armstrong does not think the new law will completely restrict people from smoking menthol cigarettes because it does not criminalize possession and could even lead to under-the-counter sales.

“One of the problems is that the state’s borders are porous, and so people will be able to go to Nevada and buy a lot of menthol cigarettes and then come in and there will be an underground market for it,” Armstrong said.

Jamie Long, staff attorney at the Public Health Law Center, said three California residents are currently working on collecting signatures to get a referendum on the November 2022 ballot. If they get the required 623,212 signatures, California cannot enforce Senate Bill No. 793 until after voters have their say on the November 2022 ballot.

According to a report by the Campaign for Tobacco-Free Kids, the tobacco industry could lose $1.2 billion from the sale of menthol cigarettes if this law takes effect. It also reported about 40,000 more teenagers could start smoking during these two years if the referendum passes.

“Unfortunately, 37,000 kids will start vaping in these two years if the referendum goes forward. So, there is a clear financial incentive, unfortunately, for the industry to delay moving forward with [Senate Bill No. 793],” Long said.

Long said tobacco companies like Phillip Morris and RJ Reynolds have been the main supporters of this referendum effort.

“The industry is likely to spend millions of dollars trying to gather those signatures,” Long said.

Dr. H. Westley Clark, Professor of Public Health for Santa Clara University, said he sees a need for more police education about this law, so African Americans are not looked at with suspicion when smoking menthol cigarettes, especially since under this law, possession is not a crime.

“The people who are trying to help reduce the incidence of police violence should be very adamant about not having the ban on sales be another excuse for stopping Black people [and] racial profiling,” Dr. Clark said. “I think that police need to be directed against trying to police people’s possession of menthol cigarettes. I think police have to be told not to try to extrapolate from the possession of cigarettes any type of criminal activity.”

Both sides argue education is paramount. Dr. Clark noted that community organizations must be involved. CASAA and Alex Clark prefer social solutions over legal ones, recommending compassionate education and helping those in true need, while also preventing stigmatization.

Altria, owner of Phillip Morris, and RJ Reynolds did not respond to our request for comment.

(Editor's Note: This article was originally published in the October 2020 [Volume 51, Issue 1] edition of The Advocate.)