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November 25, 2020
4 min to read

California Flavor Ban Will Go On Hold Until Nov. 2022

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Jim McDonald

Note

Nov. 9, 2022 update

Yesterday, more than two years after Governor Newsom signed SB 793 into law, California voters overwhelmingly approved the law in a statewide referendum (Proposition 31). Today it was challenged in federal court by R.J. Reynolds and others.

Note

Jan. 22, 2021 update The California Secretary of State's Office has confirmed that it has validated the required number of signatures to suspend the enactment of the flavor ban law until voters decide whether to approve it in a referendum in November 2022.

The tobacco industry and retail trade groups have so far lined up $21 million for a campaign to convince California voters to oppose the ban, according to the Los Angeles Times. The ban includes menthol cigarettes.

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Note

Dec. 11, 2020 update California Attorney General Xavier Becerra has agreed to suspend the flavor ban until the November 2022 election, according to California vaping advocate Stefan Didak. (The agreement has also been reported in Halfwheel.)

The ban could also take effect next year if the state shows that an insufficient number of qualified voters signed petitions (the process of verifying the signatures will go on past the first of the year, when the law was scheduled to take effect). However, since the group that organized the petition drive collected more than a million signatures, that seems unlikely.

Nov. 25, 2020

The California flavored vape ban scheduled to go into effect on Jan. 1, 2021, will probably be suspended for two years until voters decide whether to keep or overturn the law. Opponents of the ban, which also includes menthol cigarettes and flavored smokeless tobacco and small cigars, have collected what they believe are enough signatures to give voters the choice to reject the tobacco and vape ban in a November 2022 referendum.

The California Coalition for Fairness, a group funded by major tobacco companies, says it has collected more than a million signatures from registered voters in the state opposed to the ban. According to the Los Angeles Times, 623,312 valid signatures are required. Typically, groups like the coalition collect more signatures than required, because many are discarded by state auditors.

The ban covers products sold in physical retail stores only (it does not ban online sales). The bill originally banned all tobacco and vaping products in flavors other than tobacco, but lobbyists were successful in obtaining exemptions in the final version for hookah products, pipe tobacco and premium cigars. It was signed into law by Governor Gavin Newsom on Aug. 28.

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The Coalition for Fairness was funded in large part by cigarette manufacturers Altria (Marlboro) and BAT/RJ Reynolds (Newport, Camel), which spent more than $21 million in the effort to stop the ban. According to the Campaign for Tobacco-Free Kids, the 22-month delay of the ban will mean an additional $1.1 billion in sales for the cigarette manufacturers.

But it will also mean a reprieve for small vape businesses in the state. For many vape shops and e-liquid manufacturers, the law could have been a death sentence. Although it allowed online sales to continue, most California vape shops depend on face-to-face sales of flavored e-liquid.

Unlike some other flavor bans, the California law made no exception even for products approved through the FDA’s premarket review process. In other words, submitting a PMTA to the agency and being approved would still not allow a manufacturer to sell products in the country’s largest state.

Although consumer group CASAA issued calls to action for its California members, there was no visible opposition to the flavor ban organized by independent vape trade organizations, and no participation by industry groups in the signature-gathering effort.

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Jim McDonald

Vaping since: 13 years

Favorite products:

Favorite flavors: RY4-style tobaccos, fruits

Expertise in: Political and legal challenges, tobacco control haters, moral panics

Jim McDonald

Smokers created vaping without help from the tobacco industry or anti-smoking crusaders, and I believe vapers have the right to continue innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I’m a member of the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy

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