SB793: W HAT Y OU N EED TO K NOW ABOUT C ALIFORNIA ' S F LAVOR B AN L AW AND R EFERENDUM
PRESENTERS Andrew Twinamatsiko, JD Jamie Long, JD Senior Staff Attorney, PHLC Staff Attorney, PHLC 10/1/2020 2
WHO WE ARE Law and Policy Partnership to End the Commercial Tobacco Epidemic The Law and Policy Partnership to End the Commercial Tobacco Epidemic (the Partnership) is a joint initiative of the American Lung Association and the Public Health Law Center to support tobacco control professionals in their work to end the commercial tobacco epidemic in California. The Partnership provides free technical assistance, research, training, and analysis to help communities pass strong local tobacco ordinances that are both effective and legally sound. 10/1/2020 3
THE PUBLIC HEALTH LAW CENTER 10/1/2020 4
LEGAL TECHNICAL ASSISTANCE Legal Research Policy Development, Implementation, Defense Publications Trainings Direct Representation Lobby 10/1/2020 5
10/1/2020 6
Image credit: Sam Bradd https://drawingchange.com/gathering-wisdom-visuals-for-a-healthy-future/ 10/1/2020 7
THE CHALLENGE YOUTH USAGE • 86% of youth tobacco users in CA use flavored products • 80% of CA tobacco retailers near schools sell flavored tobacco products • 2019 Youth Survey, reported vaping in the last month: – 28% of high school students – 11% of middle school students 10/1/2020 8
THE CHALLENGE MENTHOL • Disproportionately used by racial and ethnic minority smokers, LGBTQ smokers, and youth • Menthol cigarettes are the source of addiction for nearly half of all teen smokers • Today, 7 out of 10 African American youth who smoke use menthol cigarettes 10/1/2020 9
FEDERAL CONTEXT • 2009 Family Smoking Prevention and Tobacco Control Act – Exempted menthol flavored cigarettes – Even with exemption, real public health benefits – FDA has not yet acted on flavored cigars, smokeless tobacco, or hookahs 10/1/2020 10
FEDERAL CONTEXT E-CIGARETTES • E-cigarettes action (Jan 2020) – Prohibited sales of certain flavored e-cigarettes – Exempted menthol flavor – Exempted customizable and disposable products 10/1/2020 11
WHY A FLAVOR BAN? • It works! • New York City – Youth had 37% lower odds of ever trying flavored tobacco products – 28% lower odds of ever using any type of tobacco • Providence, Rhode Island – Use of any tobacco product for high schoolers dropped from 22% to 12% – E-cigarette use declined from 13.3% to 6.6% 10/1/2020 12
SB-793 THE PROCESS • CA Senator Jerry Hill – chief author – Tried to pass a flavor ban last session • Jun. 25: Passed Senate with amendments • Aug. 24: Passes Assembly with more amendments (58-1) • Aug. 28: Revised bill passes Senate (34-0) – Signed into law by Governor – Filed with Secretary of State 10/1/2020 13
SB-793 THE BILL • Bans sale of flavored tobacco products • Covers “tobacco retailers,” their agents and employees – Selling tobacco products from a “retail location” or vending machine • “Characterizing flavor” includes mint and menthol! – Hard fought win for public health and equity 10/1/2020 14
SB-793 EXEMPTIONS - HOOKAH • Exemption added in Senate • Hookah and shisha exempt if: – Licensed to sell tobacco products – No one under 21 allowed – Comply with rules for tobacco retailer • Bill still covers e-hookahs 10/1/2020 15
SB-793 EXEMPTIONS – PREMIUM CIGARS • Exemption added in Assembly • Premium cigars over $12 – Not cheap flavored cigars like those pictured • Must also: – be handmade – have a tobacco leaf wrapper – not have a filter, tip, or nontobacco mouthpiece – be capped by hand • Also exemption for premium cigars sold in a cigar lounge and consumed on premises 10/1/2020 16
SB793 EXEMPTIONS – PIPE TOBACCO • Exemption added in Assembly • Applies to loose leaf tobacco, defined to include “cut or shredded pipe tobacco, usually sold in pouches” • Does not apply to any tobacco product suitable for making cigarettes, including roll- your-own cigarettes 10/1/2020 17
SB-793 PIPE VS ROLL-YOUR-OWN TOBACCO • Look to: – Appearance – Type – Packaging – Labeling • Is it: – Suitable for making cigarettes? – Likely to be offered for making cigarettes? – Likely to be purchased to make cigarettes? 10/1/2020 18
NO SAFE TOBACCO • Hookah may pose a greater risk to human health than other combustible tobacco products • Hookah water does not filter out toxins • One large cigar can contain the nicotine equivalent of an entire pack of cigarettes • Pipe smoking increases risk of several types of cancer 10/1/2020 19
10/1/2020 20
CA VS. MA • Exempted sales – MA requires onsite consumption – CA allows direct sale • Exempted products – MA exempts sale of any flavored tobacco product, so long as consumed onsite at a smoking bar 10/1/2020 21
OTHER STATES AND E-CIGS • California is fifth state to ban menthol flavored e-cigarettes, joining: – Massachusetts – Rhode Island – New Jersey – New York 10/1/2020 22
SB-793 ENFORCEMENT • $250 fine per violation • Enforcement is on the retailer or their agents or employees – Prohibited from selling or possessing with the intent to sell a flavored tobacco product covered by the law • No purchase, use, or possession penalties • Localities can enforce – L.A. County example: “The Tobacco Shop must comply with all applicable federal and State law” 10/1/2020 23
REFERENDUM • Filed on Aug. 31, 2020 • Must gather 623,212 signatures – 5% of 2018 governor vote total • If qualifies, then will go on 2022 ballot – Law would be suspended until then • YES vote affirms law 10/1/2020 24
10/1/2020 25
REFERENDUM BACKERS 10/1/2020 26
SIGS FOR CIGS • Industry will likely spend millions to gather the signatures • Must be “wet ink,” not virtual signatures • Must be registered voters in their own county • According to Campaign for Tobacco Free Kids: – Industry has $1.1 Billion in revenue to lose on menthol cigs alone before Nov 2022 – 37,000 kids will start vaping in those two years 10/1/2020 27
LOBBYING VS. ADVOCACY • For those funded by Prop 99/56 funds: – Public funds cannot be used for lobbying – This includes: “to promote or influence ‘support’ or ‘opposition’ on a particular … ballot measure” • Appropriate: – “Neutrally analyze the pros and cons of … a ballot measure where the primary purpose is not lobbying” • Inappropriate: – “Place paid advertising in the mass media that makes reference to a particular … ballot measure and urges a yes/no vote” 10/1/2020 28
OTHER RECENT REFERENDUMS • Industry use of referendum in CA increasingly common • Plastics industry – Delayed single-use plastic ban by two years – Voters approved law in 2016 by 53%-47% vote • Bail bond industry – Filed in Sept. 2018, on the Nov. 2020 ballot – Has delayed law since 2018 10/1/2020 29
NO PREEMPTION! EXISTING LOCAL LAWS • Will not impact the 99 CA jurisdictions with flavor bans (25% of state population!) • Many already have comprehensive flavor bans (all products, all flavors, all places): • Alameda • Marin Cty • Berkeley • Oxnard • Carson • Palo Alto • Contra Costa Cty • Sacramento • Cupertino • San Francisco • Davis • Santa Cruz Cty • Delano • Santa Maria • Fremont • Watsonville • Los Angeles Cty • Yolo Cty • Livermore 10/1/2020 30
NO PREEMPTION! NEW LAWS • Explicitly does not preempt local action going beyond state law – Sets a minimum standard • Local governments can pass laws that: – Close state bill product loopholes – Cover all sales in their jurisdiction • Stress public health message – There is no safe form of tobacco – All flavored products make it easier to start, harder to quit, attract youth • Exemptions entrench inequities • Local action can help build support for state referendum 10/1/2020 31
OUR MODEL ORDINANCE Best Practices Jurisdiction-wide ban Menthol flavors prohibited All tobacco products No retailer exemptions – hookah or tobacco bars – retail tobacco stores – adult-only shops 10/1/2020 32
LITIGATION AND LOCAL REFERENDUMS • Flavor tobacco bans are durable • Litigation – RJ Reynolds vs. LA County • Dismissed Aug. 7, 2020 • Court found no federal preemption of the County’s flavor ordinance – Other courts around country reached similar conclusion (IL, MN, NY, RI) • Local referendums – In 2018, San Francisco voters upheld flavor ban 68% to 32% • R.J. Reynolds spent over $11M on the losing effort 10/1/2020 33
KNOW YOUR RESOURCES 34 10/1/2020
KNOW YOUR RESOURCES 10/1/2020 35
CONTACT US 651.290.7506 publichealthlawcenter@mitchellhamline.edu www.publichealthlawcenter.org/caltobacco @phealthlawctr facebook.com/publichealthlawcenter 10/1/2020 36
Recommend
More recommend
