California is the “worst state for vaping.” A new index ranks New York, California, New Jersey, Massachusetts and Rhode Island as the top states having the least consumer-friendly regulatory approach to vaping. The states of Virginia, Colorado, Texas and Maryland each received “A” scores.
The findings come from a report by the Consumer Choice Center, which ranks each state “based on its consumer-friendly regulatory approach to vaping products.”
David Clement and Yaël Ossowski, North American Affairs manager and deputy director of the Consumer Choice Center, the study’s authors, wrote in a press release that recent legislative actions on flavored vaping products including restrictions, taxation, and online sales prohibitions were key to each state’s score (graded A, C, or F).
“The worst states … are far behind all the other states because of flavor bans, exorbitant taxation on vaping products, and restrictions on online sales,” said Clement, North American Affairs Manager at the Consumer Choice Center. “Our research indicates these states go above and beyond to deter adult smokers from switching to vaping, which could vastly improve and prolong their lives.”
This week, the San Mateo City Council unanimously approved the first reading of an ordinance that will ban the sales of all e-cigarettes. It will also prohibit the sale of all tobacco products in pharmacies within city limits.
The move comes as the state prepares to enact its own ban on Jan. 1, 2021, though it could be challenged if a proposed ballot referendum garners enough signatures to delay its implementation, according to an article in Halfwheel..
It also does not include an exemption for hookah tobacco, something that is contained in the flavor state’s bill.
The ordinance must still go through a second reading in October before it becomes law. If passed, it is slated to go into effect on Jan. 1, 2021. The ordinance’s original implementation date of April 5, 2021 was amended during discussions to hasten the law’s implementation.
If passed, retailers would be subject to a number of penalties for violating the law, as a retailer’s tobacco sales permit could be suspended, and fines starting at $100 for a first violation, $200 for a second, and $500 for each additional violation within a year. During discussions, council members discussed increasing those penalties, something that could still be changed during the second reading or at a point in the future.
The city joins the surrounding unincorporated areas of San Mateo County in passing the ban, as county leaders banned flavored tobacco sales in those areas in June 2018. It also becomes the second city in the Bay Area to support such a ban this week, with Mill Valley enacting a similar ban this week as well.
San Mateo is located approximately 20 miles south of San Francisco and is home to an estimated 105,000 residents.
If the referendum qualifies with the collection of 623,212 signatures, the sales ban would be placed on hold until voters are given a chance to vote on the issue, possibly in 2022.
The referendum is being pursued by a new political group called the California Coalition for Fairness
“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 group wrote in a statement. “This law goes too far and is unfair, particularly since lawmakers have exempted hookah, expensive cigars and flavored pipe tobacco from the prohibition.”
State Senator Jerry Hill, the author of the bill, denounced the plan to seek a referendum.
“California fought Big Tobacco and won,” Hill was quoted as saying. “This shameless industry is a sore loser and it is relentless. It wants to keep killing people with its candy-, fruit-, mint- and menthol-flavored poison. The adults who are hooked on nicotine aren’t enough for Big Tobacco; it wants our kids too.”
The bill was signed into law by California Governor Gavin Newsom on Aug. 28. The legislation prohibits the sale of tobacco and vapor flavors, including menthol, in the state beginning Jan 1, 2021. The legislation does not make it illegal for someone to purchase, possess or use flavored tobacco or vapor products.
Finding a flavored vapor product in California is now an illegal act. The Golden State’s governor, Gavin Newsom, signed SB793 into law on Friday. His signed the bill after California’s Senate unanimously approved (34-0) an amended version of the bill returned by the Assembly. The law does not apply to online sales.
The bill prohibits a Vape shop owner or tobacco retailer, or any of those entities retailer’s agents or employees, 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, subjecting them to a fine of $250 for each violation. It also allows local governments to impose greater restrictions on the access to tobacco products than the bill imposes.
California joins Massachusetts as the two states having flavored vaping bans, though each have unique exemptions to the laws. In Massachusetts, businesses defined as “smoking bars” are still able to sell flavored vaping and tobacco products.
In California, premium cigars and shisha/hookah products are exempt. The law also does not include the possession or use of flavored tobacco products.
California is on track to ban the sale of most flavored tobacco products, joining states like New York and Massachusetts. The state Assembly passed the ban on Monday, two months after the state Senate passed a similar proposal.
The move sets up negotiations between the Assembly and Senate to resolve differences in the bill before it heads to the desk of Gov. Gavin Newsom, who has indicated his support for the ban.
The bill does not make it a crime for people to possess flavored tobacco products, but it bans retailers from selling them. Violators would face a $250 fine.
There is also a sizable exemption for flavored shisha tobacco that is sold by a hookah tobacco retailer, though the law requires several conditions to be met:
The hookah tobacco retailer has a valid license to sell tobacco products;
The hookah tobacco retailer does not permit any person under 21 years of age to be present or enter the premises at any time;
The hookah tobacco retailer shall operate in accordance with all relevant state and local laws relating to the sale of tobacco products; and
If consumption of tobacco products is allowed on the premises of the hookah tobacco retailer, the hookah tobacco retailer shall operate in accordance with all state and local laws relating to the consumption of tobacco products on the premises of a tobacco retailer.
The two chambers must now resolve the differences in their versions of the bill; the Senate bill did not include the exemptions that were passed in the Assembly.
After enjoying economic growth for 10 years and record low unemployment, small businesses are feeling a disproportionate brunt of the COVID-19 pandemic. After California’s initial stay-in-place order and closure of non-essential businesses, the economic consequences have severely impacted nearly 4 million small businesses in the state.
Even efforts by state legislators to address the state’s pandemic-caused budget deficit, too many of the policies aimed to close the gap will severely burden small businesses. That list includes Senate Bill 793, introduced by state Sen. Jerry Hill, a Democrat from San Mateo, a ban on the sale of all flavored tobacco products, which will profoundly impact California’s 12,000 convenience stores.
Even during years of economic growth, many small businesses operated on relatively tight margins, leaving them poorly positioned for a financial setback from COVID-19. Yet, the state budget attempts to squeeze even more out of battered businesses, including $4.4 billion in tax increases.
Julian Canete /Credit: CalMatters
They will also feel the downward pressure of a gas tax increase that will increase distribution and production costs, and for those selling gas, they will likely see a decrease of customers at the pump. To top it all off, these businesses are also feeling the impact of new minimum wage, family leave and other mandates and environmental regulations.
For convenience stores, SB 793 presents an even greater risk. The threat of a sales ban on flavored tobacco products, which includes menthol, coupled with Gov. Gavin Newsom’s decision to enact a second wave of shutdowns could spell disaster. With individuals encouraged to again stay home and businesses unable to open, this potential ban on a high revenue generator – flavored tobacco products – could spell the end for many of small businesses and the thousands of jobs they provide.
What’s worse is this ban penalizes otherwise law-abiding, compliant business owners. According to FDA data, California’s statewide compliance rate of selling tobacco to legal age adults was 95%, 97% in Sacramento. Yet, lawmakers seem to trust the internet over hard-working men and women who would do anything to keep their business open and profiting.
The most recent analysis by the Mackinac Center found almost 50% of the cigarettes consumed were smuggled in, or acquired through tax avoidance or evasion. Furthermore, the Centers for Disease Control and Prevention found the strange string of vaping deaths in 2019 was caused by products illegally obtained on the black market, not from regulated products sold in stores.
If lawmakers want to curb youth vaping – their stated goal of this legislation – putting more faith in illegal, predatory online vendors over vigilant store owners and their trained employees does the exact opposite: it puts children at risk.
The National Federation of Independent Business July jobs report shows the small business labor market has continued to weaken. Firms reduced employment by 0.28 workers per firm in June, weaker than the decrease of 0.17 workers per firm in May. These figures are not likely to improve as data was collected well before the recent renewal of state-imposed business shutdowns. And with the money provided by the federal government’s Paycheck Protection Program loans essentially used up, coupled with the unknown length of shutdowns, who knows how long convenient stores can weather the storm.
There’s no doubt we need to address the rise in youth vaping. But to water down the problem and propose a unilateral flavored tobacco ban as the solution is at best a half-hearted approach. Convenience store owners have proven to be responsible sellers – they are not the problem. It’s not too late for legislators to go back to the drawing board and, with input from the small business community, find a comprehensive solution to tackle a community problem without putting key members of the community out of business.
Julian Canete is the president and CEO of the California Hispanic Chamber of Commerce, canetej@cahcc.com. This commentary was originally written for CalMatters.org.
A newly enacted Palmdale city ordinance banning the sale of flavored e-cigarette products has vaping advocates fighting back, according to court papers.
The suit, filed by the California Smoke & Vape Association and tobacco retailer Cigs Plus against the city, alleges the law is “overbroad” and will “destroy Palmdale’s nicotine vapor product industry, and damage the livelihoods of the workers that it employs,” according to a story on pe.com.
The Los Angeles federal court complaint, filed Sunday, also contends that the ordinance “will likely precipitate a public health crisis, as vapor products users turn either to combustible cigarettes or to black market sources to obtain vapor tobacco products.”
A message seeking comment from Palmdale’s city attorney was not immediately answered, according to the story.
The law intends to curb tobacco use among youth, and also prohibits the sale of tobacco- and menthol-flavored vaping products, which have “little to no effect on the recent increase of youth tobacco consumption,” the lawsuit alleges.
The ban, approved by the City Council six months ago, is aimed at the fruit- and candy-flavored products popular among high school-aged youth.
The vape association is comprised of wholesalers, manufacturers of nicotine-containing flavored e-liquids, and brick-and-mortar retailers. The suit alleges that Cigs Plus and its employees “now face financial ruin as a result of the ordinance.”
The complaint seeks a court order permanently halting enforcement of the law, and reimbursement of legal fees.
When Governor Gavin Newsom submits his revised budget proposal on Thursday, it will include a vapor tax increase. California currently taxes vapor products at 59.27 percent of wholesale value, but the proposal would impose an additional tax at a rate of $2 for each 40 milligrams of nicotine in the product.
The tax would take effect January 1, 2021 and is forecasted to raise $32 million in FY 2021. Collections would be allocated to administration, enforcement, youth prevention, and health care workforce programs. The budget summary also stipulates that the governor supports a statewide ban on all flavored nicotine products (including menthol cigarettes), according to an article on taxfoundation.org.
The impetus for this proposal is increased youth vaping in the state. A nationwide survey of high schoolers, published in the fall of 2019, found that 27.5 percent of students had vaped at least once in the prior 30 days, though only 10 percent of students were considered regular users (defined as vaping 20 days out the prior 30). While youth uptake is a very real concern which deserves the public’s attention, punitive level taxes and outright bans could impede historically high smoking cessation rates.
California is the latest state to try to increase vapor taxes. This year, Kentucky, Utah, Virginia, and Wyoming have already passed increases to vapor taxes, which means 25 states and the District of Columbia now tax vapor products.
