California Political Leaders Introduce Punishing Vape Legislation

A bill that would ban retail sales of all vaping and tobacco products in flavors other than tobacco passed the California Senate Health Committee today. The bill also would ban “flavor enhancers,” which might mean any flavoring agents sold with the intent of modifying unflavored nicotine. In other words, bill SB 793 might ban DIY mixing products.

The bill passed the committee by a vote of 8-1, and will now move on to the Appropriations Committee. After appropriations, it will have to pass one additional committee hearing before being voted on by the full senate. A companion bill in the state assembly will probably begin moving through that body soon. If both bills pass, a final version will go to the governor for signature.

CASAA has issued a call to action (link below) for California residents to register opposition to the bill. The call to action URL will be used throughout the bill’s progress through the senate (unless it can be stopped soon!). Please let your elected officials know that you oppose the flavor ban.

Most vaping advocates expected California to be the first state to pass a flavored vape ban. However, a similar flavor ban bill, introduced by the same state senator, was beaten back last year, and several eastern states passed flavor bans, mostly justified by the fear and uncertainty about vaping caused by the lung injury outbreak CDC called “EVALI.”

Those states—Massachusetts, New Jersey, Rhode Island, and New York—all beat California to the punch, and even Florida has a flavor ban awaiting the governor's signature or veto.

Despite no statewide ban, cities and counties around the state have passed their own flavor bans, and some cities—including San Francisco—have banned all vaping products, flavored or not. The Oakland City Councilvoted 8-0 yesterday to eliminate the exemption that allowed vape shops and other adult-only retailers to sell flavored products.

Hey, California, how about another vape tax too?

In addition to the proposed flavor ban, vapers will be fighting a huge tax increase this legislative session. California Governor Gavin Newsom will introduce his proposed budgeton Thursday, May 14, which will include a $2-per-40-milligrams nicotine tax. If the tax passes the legislature, it will take effect Jan. 1, 2021.

That would add $9 to the price of a 60 mL bottle of 6 mg/mL e-liquid. It would add $18.75 to a 30 mL bottle of 25 mg/mL vape juice, $8.25 to a four-pack of JUUL pods, and a whopping $2,500 to a 1-liter bottle of 100 mg/mL DIY nicotine.

California already has a 59.27 percent wholesale vape product tax that adds considerable cost to all e-liquid. Between the wholesale tax and the proposed nicotine tax, smokers considering a switch to vaping will have to think hard about whether they’ll even save money. The governor’s tax, which is obviously designed to keep kids from buying vaping products, will likely drive many adults back to cigarettes.

Because Newsom’s proposed tax increases the cost of high-nicotine vaping products, it encourages vapers to vape larger quantities of low-nicotine e-liquid. If there are any harms in vaping, they aren’t associated with using more nicotine, but by vaping more of the carrier liquids (PG and VG) and flavorings in e-juice. The tax puts vapers at higher risk, rather than reducing the potential harms of vaping.

Gov. Newsom is known for fighting to end the harms caused by cannabis prohibition, first as mayor of San Francisco, then later as lieutenant governor. He supported legalizing recreational cannabis in the state (which the voters did, in 2016), explaining that a regulated, legal market would prevent youth cannabis use.

But the exorbitant nicotine tax he is now proposing—especially in combination with the flavor ban he also supports—will lead to a huge vaping product black market. Newsom understands that, because his tax proposal sets aside $7 million for the California Highway Patrol “to establish a task force in cooperation with the Department of Justice dedicated to combatting the underground market for vaping products.”

There is nothing smart or progressive about creating a black market by first imposing an excessive and unjust tax on the legal market, and then using the tax revenue to punish people who are forced to turn to the less expensive black market. Newsom’s proposal is the product of the very drug war thinking he used to oppose.