California Votes "Yes" On Proposition 31 Banning The Retail Sale Non-Tobacco Flavored Tobacco Products; Keller And Heckman Files Supreme Court Amicus Brief In Case Challenging Los Angeles County Flavor Ban

• Published date: 06 December 2022
• Subject Matter: Food, Drugs, Healthcare, Life Sciences, Food and Drugs Law
• Law Firm: Keller & Heckman
• Author: Mr Azim Chowdhury, Eric P. Gotting and Ian J. Murray

On November 8, 2022, California voters approved¹ the Referendum on 2020 Law That Would Prohibit the Retail Sale of Certain Flavored Tobacco Products (Proposition 31). The referendum, submitted in accordance with the provisions of Section 9 of Article II of the California Constitution, asked California citizens to vote on whether to uphold a 2020 law (Senate Bill No. 793)² that banned the sale of most non-tobacco flavored tobacco products at tobacco retailers and in vending machines.

Senate Bill No. 793

In 2020, the California legislature passed, and Governor Gavin Newsom signed Senate Bill 793 (S.B. 793), which added sections to the State's Health and Safety Code that would prohibit tobacco retailers-specifically brick-and-mortar stores and vending machine operators-from "selling, offering for sale, or possessing with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer (emphasis added)." A tobacco retailer is a person who engages in this state in the sale of tobacco products directly to the public from a retail location.

The statute defined flavored tobacco product as meaning "any tobacco product that contains a constituent that imparts a characterizing flavor" and tobacco product flavor enhancer as meaning a "product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product."³ Both terms encompass a broad swath of products, including, but not limited to, e-cigarettes, vape pods, and chewing tobacco⁴.

According to the statute, flavored tobacco products and tobacco product flavor enhancers cannot have a "characterizing flavor." A "characterizing flavor" is defined as a "distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product." The definition continues by listing examples of characterizing flavors, including "tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice."⁵

This law does not apply to hookah lounges that sell non-tobacco flavored hookah (i.e., shisha or waterpipe) tobacco to be used inside the venue⁶. It also excludes certain cigars and loose-leaf tobacco from the ban⁷. Lastly, while this measure does not address online sales of non-tobacco flavored products, legally selling tobacco products online to California is very difficult, as a...