Specifically, these aim to prevent retail stores from selling e-liquids containing a “characterizing flavor,” i.e. a distinguishing taste other than tobacco, and to strengthen age restrictions on deliveries of products bought online.
Because there are no exemptions for adult-only locations, this legislation – SB 38 in particular – has the potential to kill vape stores all across the state, and may encourage other states to take similar action.
For vapers looking to protect the industry and the choices of smokers going forward, this bill is a big deal, but what exactly does it and SB 39 propose? What were the supporting arguments and objections? And what happens next?
SB 38 – The Flavor Ban
SB 38 is the main concern for vapers, and it relates to flavored “tobacco products.” Of course, we’re in legal territory here so “tobacco products” includes vaping devices along with cigars, cigarillos, hookah, chewing tobacco and snuff. The other important legal definition is “characterizing flavors,” which includes anything that imparts a distinguishable taste or smell onto a tobacco product, other than that of tobacco itself. Unlike many flavor ban proposals, this also includes menthol and mint, as well as the usual scapegoats of candies, desserts and fruits.
The ban applies to retail locations that sell directly to the public and vending machines. There is no exemption for vape stores or adult-only locations, despite the stated goal of stopping youth use of flavored tobacco products.
So, in plain language, the bill aims to ban e-liquids, pods or cartridges from being sold at retail locations (including vape stores) in the state if they contain a characterizing flavor. Of course, e-liquid doesn’t taste of tobacco by default, but the same definition of characterizing flavors applies regardless. The result would be that the only e-liquids, pods or cartridges you could pick up from a store in California would be those that taste like tobacco. Vape stores would essentially be limited to hardware sales.
It’s important to note that the rule applies to any products that are marketed to customers as if they’re flavored, as the bill states, “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.”
In short, if there is any indication that the product is flavored then it will be presumed to be flavored (although this can be questioned, as the bill states it’s a “rebuttable presumption”). This is intended to prevent, for example, the marketing of e-liquid using pictures of raspberries, say, but no explicit claim that it tastes of raspberries.
The bill was co-authored by Senators Jerry Hill and Steve Glazer, and introduced along with many other state legislators. Senator Hill commented that:
“Lured by fruit, candy and other kid-friendly flavors, high school and middle school students throughout the U.S. are vaping in record numbers,” adding “We must stop the appalling epidemic of e-cigarette use among youth.
This rhetoric is uncomfortably familiar to vaping advocates. If you look at the actual data on youth vaping, the picture doesn’t seem as concerning as politicians and pressure groups imply, but this is the justification for the bill as stated, regardless.
Under the bill, any store that violates the bill will be fined $400 to $600 for the first offense, increasing to $5,000 to $6,000 for the fifth instance within five years. After the third offense, the store could also have their tobacco license suspended for between 40 and 90 days.
Crucially, the bill also allows local governments to place even more restrictive rules on the sale of vapor products in their localities if they so choose.
SB 39 – The Online Sales Restrictions
SB 39 is an amendment to the Stop Tobacco Access to Kids Enforcement (STAKE) act, which prevents the sale or distribution of tobacco products to anybody aged under 21 through the USPS or any other delivery service. The existing law requires sellers to comply with age verification protocols before making such a sale.
The amendment mainly adds requirements relating to the packaging and the actual delivery process of the products. The first amended portion states that any packages with tobacco products must contain a label stating: “CONTAINS TOBACCO PRODUCTS: SIGNATURE OF PERSON 21 YEARS OF AGE OR OLDER REQUIRED FOR DELIVERY.”
The next new section states that the seller or “nonsale distributor” (i.e. delivery person or company) must obtain a signature of somebody aged 21 or older before completing the delivery. In short, somebody at least 21 years of age needs to sign for the package before it can be delivered.
This isn’t as big an issue for most advocates, but it is intended to prevent online sales being used as a method to evade age restrictions on buying tobacco products.
The Public Hearing: Supporting and Opposing Arguments
The bills were heard publicly on Wednesday March 27th, and many vapers attended after CASAA issued a call to action about bill SB 38 specifically. The Senate Health Committee passed the bill by 8 votes to 1, and referred it to the Senate Appropriations Committee. SB 39 was passed 9 votes to 0 and passed onto the same committee.
The Health Committee published an analysis on the basis of that meeting, which includes supporting and opposing arguments put forward regarding the bill.
The supporting arguments were fairly predictable. Sponsors and supporters of the bill argued that youth are especially susceptible to the effects of tobacco, and that products are marketed to youth through flavors and product design. They spoke of the “epidemic” rise in youth use of vaping products, and drew attention to the tobacco industry’s historical marketing of menthol cigarettes to African-American communities. They also point out that 80 percent of youths who have ever used a tobacco product started with a flavored product.
Swedish Match (the snus manufacturer) focused on smokeless tobacco in particular, pointing out that the FDA has recognized that flavors in their products are unlikely to appeal to youth. They also stressed that their products are safer than tobacco cigarettes, and noted that the American Cancer Society didn’t include smokeless tobacco in their 17 identified risk factors for cancer.
JUUL Labs put forward the opposing arguments from the perspective of vapers, pointing out that the bill would put up roadblocks for adult smokers looking to transition to vaping. They also pointed to evidence that between 40 and 56 percent of adult smokers who bought a JUUL had completely switched over within 90 days, and underlined the steps they’ve already taken to address underage use of their products. Finally, the Vapor Technology Association argued that vaping products are “dramatically safer” than cigarettes, and regulatory efforts should focus on curbing combustible tobacco product use.
While these valid arguments didn’t really get us anywhere, since the bill was approved by the committee anyway, the most important points were made and will continue to be made as the bill continues to move through the legislative process.
What Happens Now?
The bill is now going to the fiscal committee, Senate Appropriations, which could pass the bill, with or without amendments, or defeat the bill. There is also a companion bill in the Assembly, AB 739, which has been introduced but hasn’t been to any committees yet.
Provided the bill continues to pass, the legislative process is still far from over. Bills that pass the committee stage go to a second and third reading, after which they’re voted on. If it’s defeated at this stage, it can be pushed for reconsideration and a further vote. Once it passes one house (the Senate, in this case), the procedure is repeated for the other house. Any amendments in the second house prolong the process, but once everything is agreed it moves to the final stage.
The Governor gets the bill after it’s approved by both houses, and can either sign it into law or veto the bill. In the case of a veto, the decision can only be overridden by a two-thirds majority vote in both houses. If it passes through this stage, the bill becomes law.
So while it’s still early days for SB 38 and the slightly-less-controversial SB 39, the process is trundling along and will continue unless it’s significantly opposed at a future stage.
What the Bills Could Mean for the Vaping Industry
Make no mistake, these bills have the potential to be very disruptive to the vaping industry and will almost certainly make it harder for smokers in California to make the switch to vaping. They’re a symptom of the national overreaction to the issue of vaping, and the “think of the children” line of reasoning so often turned to in justification for restrictive rules that will undoubtedly impact adults trying to quit smoking.
While long-term vapers would find a way to keep vaping, the barriers for smokers who might otherwise pop into a vape store out of curiosity would be raised unnecessarily high. The result would undoubtedly be less switching and more smoking.