California Proposition 31 (2022): Banning flavored tobacco products

Summary

On August 28, 2020, Governor Gavin Newsom signed into law a ban on the sale of flavored tobacco products. The ban encompasses menthol cigarettes, e-cigarettes in flavors other than tobacco and oral tobacco products. Exceptions were made for hookah, premium cigars, and pipe tobacco. Retailers selling flavored tobacco products may be subject to a $250 fine for each sale.

Fiscal Impact

The fiscal impact of banning flavored tobacco products is estimated to range from the tens of millions to roughly $100 million annually, according to Legislative Analyst’s Office (LAO). If a substantial number of smokers quit because of the ban it could engender some savings to the state’s healthcare system. On the other hand, the LAO points out that if these smokers live longer, it will increase the government’s healthcare costs as result of care and treatments needed in later life. On net, it’s not clear whether the ban presents a financial positive or a negative for California’s healthcare system.    

Arguments in Favor

Supporters of a ‘yes’ vote to uphold the ban include Governor Gavin Newsom, Campaign for Tobacco-Free Kids, and the American Cancer Society Action Network. Proponents of prohibition argue flavors such as menthol in combustible cigarettes, sweet and fruit flavors in e-cigarettes, oral tobacco, and little cigars are targeted to and disproportionately impact youth and minorities. In the case of the menthol cigarettes, they observe that around 85 percent of Black smokers use a menthol cigarette, compared to a little more than a third of white smokers, with the tobacco industry gearing its marketing of menthol cigarettes towards Black Americans. It’s also alleged that menthol cigarettes are especially appealing to youth, because menthol acts as a cooling agent masking the harsh taste of burnt tobacco allowing new smokers to become hooked easier than they would if they tried a regular cigarette. Regarding flavored e-cigarettes, the range of sweet and fruit e-liquids are claimed to be responsible for the upswing in youth vaping California and the rest of the country experienced beginning in 2017. Supporters of prohibition argue these flavors are hooking a new generation of kids on nicotine who would never have started smoking. Banning flavors, proponents claim, will slash youth initiation of tobacco products, and cause a substantial portion of adult smokers and vapers to quit nicotine for good.  

Arguments Opposed

Arguing for a ‘no’ vote on Proposition 31 is the tobacco industry, the Howard Jarvis Taxpayers Association, and the Republican Party of California. They argue that the increase in the tobacco age to 21 in 2020 has already substantially reduced youth access to tobacco products. While the desire to protect youth may be well-intentioned, the laws will primarily effect adult tobacco users who enjoy flavors and adults should have the right to choose whether to use these products just like with alcohol and marijuana. They also argue there is an unfairness to the legislation, as hookah, pipe tobacco and premium cigars are exempted. The opponents warn that prohibition will have a negative effect on small businesses operating on tight margins and transferring flavored tobacco to the black market will mean not just a loss of tax revenue but an increase in crime with the possibility of increased targeting of minorities by law enforcement. The ban on flavored e-cigarettes is problematic as e-cigarettes are safer than combustible cigarettes and limiting access to these products could cause many vapers to relapse to smoking and prevent some smokers who would otherwise have switched from doing so, limiting tobacco harm reduction. 

Discussion

The claims made against menthol cigarettes in California mirror those made to the Massachusetts legislature when it was considering a ban on flavored tobacco in 2019. To date, Massachusetts is the only state in the country to have implemented a comprehensive flavored tobacco ban. According to an analysis by Reason Foundation Policy Analyst Jacob Rich, one year after the ban, menthol sales within the Commonwealth did decline dramatically. But the sales of nonmenthol cigarettes within Massachusetts increased substantially. There was also a dramatic rise in cigarette sales in the states bordering Massachusetts, so much so that analyzing the entire six-state region there was net increase in cigarette sales of 7.21 million packs compared the year before the ban came into effect. According to the Tax Foundation, the ban cost Massachusetts $125 million in revenue in its first year. When adult products are relegated to the illegal market consumers will respond by seeking out these products or substitutes, presenting opportunities for criminals to supply these goods as we’ve seen with alcohol and illegal drugs and sex work. Supporters of a ‘yes’ vote on Prop. 31 are correct that Black smokers both youth and adults disproportionately use menthol cigarettes. But this obscures some important facts. According to the most recent data from Youth Risk Behavior Surveillance System in 2017, California’s Black youth have the lowest smoking rates of any group, while Black adults have the highest. If menthol cigarettes are as appealing to youth as has been suggested it is unclear why youth who are most exposed to menthol have the lowest smoking rates. The data is however in accordance with a Reason Foundation study published in 2020 showing that states with the higher menthol sales such as California, and Maryland have some of the lowest youth smoking rates in the country. According to the Centers for Disease Control and Prevention (CDC) most of the youth who do smoke, 61 percent, use nonmenthol cigarettes. While we do not have recent data for youth smoking rates in California, nationally they’re at a record low of 1.5 percent. Considering California’s smoking rate historically underperforms the national average we should expect the state’s smoking rate to be even lower. 

It should be noted that the Food and Drug Administration (FDA) is pursuing a rule to ban menthol nation-wide. If California proceeds with prohibition prior to the implementation of a federal ban it will prove especially vulnerable to the illicit tobacco market as one of only two states with a ban on menthol cigarettes. This is especially concerning given the demographics of menthol users and how California plans to enforce this prohibition. While the ban purports to target only retailers, the reality is that prohibition creates a significant potential for menthol cigarette smuggling. Given that menthols are disproportionately popular among Black smokers it’s reasonable to assume this smuggling will be concentrated in Black communities, which could suffer from further unnecessary contact with law enforcement. These concerns have been voiced as it relates to a national menthol ban by the American Civil Liberties Union (ACLU) and law enforcement organizations such as the National Organization of Black Law Enforcement Executives (NOBLE). 

The other major target of a flavored tobacco is e-cigarettes. As youth use of vaping products rose from 2017-19 it’s unsurprising that some legislators saw prohibition as an easy answer to the problem. But the problem is that e-cigarettes a much safer form of nicotine consumption than combustible cigarettes and have helped many Americans quit smoking. Because e-cigarettes heat a liquid solution containing nicotine instead of burning tobacco the number and levels of harmful and potentially chemicals are substantially reduced, with the Royal College of Physicians reporting that the risks of vaping are unlikely to exceed five percent of those of smoking. There’s a growing body evidence showing that e-cigarettes are more effective than traditional nicotine replacement therapies at helping smokers quit. While e-cigarette flavors are portrayed as being targeted at youth, most adult vapers trying to quit smoking use nontobacco flavors. According to research conducted by Yale University’s Abigail Friedman, vapers using nontobacco are more likely to successfully quit smoking than those who don’t. Banning e-cigarette flavors may have the unintended consequence of not just damaging the state’s vape stores, but pushing vapers back to smoking cigarettes and failing to transition many of the state’s current smokers to a safer alternative. While there is limited evidence on the effects of e-cigarette flavor bans, a recent study published in the journal Nicotine and Tobacco Research examining seven California cities with flavored tobacco bans found no significant effect on the likelihood that youth would vape.  An earlier study published in 2018 concluded that a comprehensive tobacco flavor ban would reduce overall tobacco use but there would be more cigarette smoking than the status-quo. Fortunately, youth vaping has fallen by 60 percent since 2019, despite there being no federal prohibition of e-cigarette flavors. 

Voters will have to decide whether the prohibition model will achieve the intended public health benefits at minimal cost to taxpayers and social justice or whether a path of harm reduction in a regulated market can achieve similar outcomes without the unintended consequences we’ve witnessed with similar experiments in prohibition.

The post California Proposition 31 (2022): Banning flavored tobacco products appeared first on Reason Foundation.