Further restrictions to California’s flavored tobacco ban will go into effect Jan. 1, with regulations being overseen by Attorney General Rob Bonta.
The aim of the bill is to forbid the sale of tobacco products that use flavors appealing to minors.
“Young children across our state are still being lured into harmful addiction through flavored tobacco products,” Bonta said in a statement. “It’ll take a collective effort, including state and local enforcers, to address illicit access to these products. This new law will provide my office with the tools and support needed to hold those who are responsible for illegal sales accountable and help sellers looking to meet their obligations come into full compliance with the law.”
The bill creates amendments to the Stop Tobacco Access to Kids (STAKE) Act that increase civil penalties ranging from $1,000 to over $20,000 by the California Department of Public Health (CDPH) for tobacco retailers that sell or possess with the intent to sell flavored tobacco products. Additionally, the attorney general as well as other state agencies have the authority to consider and enact increased civil penalties. Tobacco sellers will also have their cigarette and tobacco retail licenses revoked if they receive at least a third violation during a five-year period in addition to having their products seized.
The bill also expands the bans to apply to sellers that accept online orders or make remote deliveries and will be subject to fines up to $5,000, a misdemeanor and imprisonment in county jail for up to one year if the law is violated.
In compliance with AB 3218, Bonta has issued guidelines for tobacco product sellers and California agencies with the authority to enforce flavored tobacco laws and a list of the allowed unflavored tobacco list ahead of the new year.
The bill modifies the definition of “characterizing flavor” to include tobacco products that provide cooling sensation that are marketed as “chill,” “ice” or “cool.” Additionally, products labeled as “clear” will fall under the banned flavored tobacco products.
“Since California’s flavor ban passed, several flavored e-cigarette products have been marketed as ‘clear’ flavored,” reads Bonta’s guidelines. “California’s flavor ban law establishes a rebuttable presumption that a tobacco product is flavored where its manufacturer or agent ‘has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.’ Clear products that contain statements or images communicating that they are flavored are prohibited under the flavor ban.”
Additionally, the bill will broaden the ban to apply to nicotine analogs and products whose packaging labels it as “nicotine-free” or “not subject to FDA regulation.”
However, some organizations, including the Cigar Association of America, (CAA) are concerned with the broad discretion given to the attorney general to determine what counts as a “characterizing flavor” under this bill.
“CAA says under the authority given in this bill, the AG may decide to block a particular brand of cigar from being included on the UTL despite the fact that it is unflavored and legal to sell pursuant to FDA regulation,” reads a statement from the CAA. “This decision could be made for any reason at all, whether motivated by a legitimate concern or a political one.”
Additionally, the California Fuels and Convenience Alliance (CFCA) brought forward concerns over the fact that those illegally selling flavored products are unmonitored and unregulated, further endangering those that consume them, noting that 43% of cigarettes smoked in California are smuggled in from out of state according to the Peace Officers’ Research Association of California.
“The flavor tobacco ban has not reduced consumption of these products and has only benefited bad actors in the illicit marketplace,” reads a statement from the CFCA. “Bans have not ended the sale of flavored tobacco in California, only merely shifting the location of their sale. CFCA says where previously flavored tobacco was sold in well-regulated, licensed stores with a stake in their community, now flavored tobacco products are sold by unscrupulous actors from primarily overseas, to individuals of all ages with little regulatory enforcement.”