FLAVORED TOBACCO BAN UNANIMOUSLY APPROVED BY CALIFORNIA ASSEMBLYSeptember 2nd, 2020
Bill is Also Amended to Include Exemption for Some Premium Cigars
SACRAMENTO, CA – On Monday, August 24, in a 50-1 vote, the California State Assembly unanimously approved SB 793, a bill that will prohibit the sale of virtually all flavored tobacco products, including flavored e-cigarettes and flavored vaping products.
As a result, the vote moves the legislation forward and sets the stage for negotiations between the Assembly and Senate to resolve any differences in the bill before it is handed over to Governor Gavin Newsom for signing. Newsom, a progressive who has strongly endorsed anti-smoking regulation since taking office in 2011, also supports the ban on flavored tobacco.
Although flavored tobacco products are the prime target, SB 793 did include several exemptions starting with premium cigars—but not all premium cigars. According to the Assembly’s version of the bill a “premium cigar” is defined as being “any cigar that is handmade, is not mass produced by use of mechanization, has a wrapper that is made entirely from whole tobacco leaf, and has a $12+ wholesale cost component. A premium cigar does not have a filter, tip, or nontobacco mouthpiece, and is capped by hand.”
The law also includes two other exemptions. One for loose leaf tobacco, like that used for pipe smoking, which the bill defines as “cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.”
A second exemption is for flavored shisha tobacco. However, several conditions would have to be met by hookah tobacco retailers, many of whom permit hookah smoking on the premises. For one, the retailer would have to have a valid tobacco sales license. Secondly, no one under 21 could be present or enter the premises of the shop or lounge at any time. Also, the retailer would have to operate “in accordance with all relevant state and local laws relating to the sale of tobacco products.” And if smoking is allowed on the premises, “the hookah tobacco retailer shall operate in accordance with all state and local laws relating to the consumption of tobacco products on the premises of a tobacco retailer.”
One irony of SB 793 is that it does not prohibit the sale of flavored cannabis products, including marijuana, which is currently legal under California state law.
It should also be noted that the state Senate version of the bill does not include the exemptions passed by the Assembly.
What seems to be most problematic for the cigar industry is the $12+ wholesale price requirement. For example, a flavored cigar with a $12 wholesale cost would have a retail price in the neighborhood of $24. Flavored cigars at that high a price point are either extremely rare or nonexistent altogether.
If the Governor signs the bill, retailers would also be subject to a $250 fine per occurrence. Moreover, the bill gives local municipalities the ability to enact laws that are even more restrictive than the state, itself. For example, local governments could increase the cost of fines as well as remove the aforementioned exemptions at their whim.
The Cigar Association of America contends that all cigars, including premium cigars, should receive the same treatment as loose leaf tobacco and shisha. And while some estimates calculate lost revenue to the state of California as over $400 million within the first two years of enactment, the state will see significant savings in terms of healthcare costs.
If the bill is passed into law, chances are the ban will be challenged in court. One U.S. District Court Judge has already set precedent by dismissing a similar ban enacted by Los Angeles County. In that Judge’s opinion, that ban did not violate federal laws with regard to regulation of flavored tobacco products.
And so, the debate as to whether flavored tobacco products are a health risk, as well as a gateway for those under the age of 21, especially teens to engage in smoking, marches on.