California’s ban on flavored tobacco sales blocked as referendum qualifies for ballot

A California law banning the sale of flavored tobacco products was placed on hold Friday after state officials said a referendum by the tobacco industry qualified for the November 2022 ballot.

The announcement means the law approved last year by the Legislature and signed by the governor is suspended until California voters decide late next year whether to affirm or repeal the ban.

“It’s a sad day for California when the money of Big Tobacco is able to delay the inevitable while continuing to addict and kill more Californians,” said former state Sen. Jerry Hill (D-San Mateo), who authored the law before he left office.

The Secretary of State’s Office confirmed Friday that it had validated at least 623,312 signatures from registered voters on petitions that were turned in, the number needed to qualify the referendum.

More than 1 million signatures had been submitted by the California Coalition for Fairness, a group funded largely by tobacco giants including R.J. Reynolds Tobacco Co., Philip Morris USA and its affiliated U.S. Smokeless Tobacco Co.

The industry group said in a statement Friday that it “will focus on educating voters about why this law is unfair and goes too far. We agree that youth should never have access to any tobacco products, but this can be achieved without imposing a total prohibition on products that millions of adults choose to use.”

The law signed by Gov. Gavin Newsom bans the retail sale of flavored tobacco products including menthol and fruit flavors, as well as those used in electronic cigarettes. The measure exempts hookah, expensive cigars and pipe tobacco, as well as flavored tobacco sold over the internet.

Although the law was set to take effect Jan. 1, state officials held off enforcement to allow the secretary of State to finish the signature certification process.

“This is Big Tobacco’s latest attempt to profit at the expense of our kids’ health,” Newsom said when the referendum drive was launched last year. “California will continue to fight back and protect children from Big Tobacco.”

In approving the ban, legislators cited a 2018 study by the Centers for Disease Control and Prevention that found that 67% of high school students and 49% of middle school students who used tobacco products in the prior 30 days reported using a flavored tobacco product during that time.

Hill said his law was needed to address an increase in the use of electronic cigarettes by teens who he said are attracted by fruit and candy flavors.

During the legislative debate, the tobacco industry angered lawmakers with television ads alleging that by exempting hookah, expensive cigars and flavored pipe tobacco from the ban, legislators gave “special treatment to the rich, and [singled] out communities of color” by outlawing the sale of menthol cigarettes.

The coalition made the same argument Friday in a preview of the coming campaign. It added that the law it is seeking to overturn would also ban the sale of FDA-approved vaping products that are alternatives to smoking combustible cigarettes, which it argued would set back efforts to reduce smoking.

“And it will hurt small, local businesses and jobs as products are pushed from licensed, conscientious retailers to an underground market, leading to increased youth access, crime and other social or criminal justice concerns for many California residents,” the coalition said.

The tobacco industry has raised more than $21 million so far for the campaign to overturn the ban, but health groups said Friday they are ready to fight back.

“This is a battle between the people of California and Big Tobacco over the health, lives and future of our kids,” said Matthew L. Myers, president of Campaign for Tobacco-Free Kids, a health advocacy group that includes leaders of the American Cancer Society and American Heart Assn. “Big Tobacco is going to use every deceptive trick in their playbook just so they can continue to market and profit from hooking young kids on their candy-flavored products.”

Opponents of the referendum say the tens of millions of dollars the tobacco industry is spending will be more than recouped as sales of menthol products alone will bring the industry $1.1 billion in revenue during the nearly two years the California law will be delayed.