Update May 23, 2019: Both attempts to ban flavored tobacco have died in the Legislature, with the sponsor of the state Senate’s version pulling his bill after amendments that weakened it led health advocates to withdraw their support.
Despite skyrocketing teen use of e-cigarettes, a proposal to make California the nation’s first state to ban flavored tobacco is struggling in the Legislature—and health advocates blame the political potency of the tobacco industry.
With negotiations underway behind-the-scenes, vaping interests hope to at least weaken the legislation, if not turn it in the industry’s favor.
On the Assembly side, all tobacco-related bills were effectively snuffed out when a key committee opted not to hear them. The committee’s chairman, Merced Democrat Adam Gray, declined to be interviewed. In an email, he wrote that “the authors of the various proposals and the committee are working together to develop a comprehensive proposal that addresses the issue from all sides. We will develop a thoughtful package of reforms and move legislation forward this year.”
In the state Senate, a flavored-tobacco ban has advanced and is heading for a Senate floor vote, but only after it was amended to exempt Hookah products and products patented before 2000, except menthol cigarettes. Even if it passes the Senate, its future in the Assembly is doubtful.
“What you are seeing there is the influence of big money,” said Kati Phillips of California Common Cause, a government watchdog. “When you can afford to have direct access to lawmakers, they tend to listen to you.”
Tobacco money is nothing new in Sacramento, but now San Francisco-based Juul Labs, the largest electronic cigarette maker, is also moving thousands of dollars to elected officials—particularly targeting members of the Assembly’s Governmental Organization Committee that Gray chairs.
Electronic cigarettes—known as e-cigarettes or vape pens—heat, for purposes of inhaling, a liquid that typically contains nicotine.
Health advocates say California needs to ban flavored tobacco because these products, with flavors such as cotton candy, mango and green apple, lure teenagers and young adults into using e-cigarettes, or vaping, and then to smoking combustible cigarettes and, ultimately, nicotine addiction. Manufacturers and other opponents of a ban insist the products are not targeted to or intended for young people, and that flavored e-cigarettes help long-time smokers quit traditional cigarettes.
It’s unclear exactly what compromise might emerge from negotiations. Gray mentioned alternatives in his email, suggesting “retailer penalties for selling to kids, penalties for youth in possession, advertising restrictions, age verified online sales, track and trace systems, regulated packaging, and flavors are all areas where we need to take a good look at how current law is failing. There is no single solution to this problem.”
Gray’s committee “has a long and sordid history of bottling up tobacco bills,” countered Tim Gibbs, senior director of government relations for the American Cancer Society Cancer Action Network. “That’s often where good tobacco bills go to die. There is no mystery why the tobacco companies disproportionately target their campaign contributions to that committee.”
Gibbs said no one has invited the network, the American Heart Association or the American Lung Association to be a part of negotiations to create a package of tobacco bills.
“It’s telling that the deadlines were missed and that they haven’t invited public health stakeholders to any broader negotiation,” he said. “I would go further and say that it’s a farce, a charade to try and avoid the real issue—to avoid doing anything to hurt the tobacco companies’ bottom line.”
Health advocates reject the idea of criminalizing youth possession, but say they welcome stricter penalties on retailers who sell vaping products to kids. Still, they maintain, that’s not enough.
“It’s a way to pretend that something was done without actually doing anything,” Gibbs said. “We are all in favor of stepping up enforcement and making sure retailers are not selling tobacco products to minors. However, it’s not sufficient. Prohibiting the sale of flavored tobacco products is the most important thing we can do to halt the use of teenage e-cigarette use.”
The Cancer Action Network has created a tracker of elected officials who accept tobacco money, and those who refuse. Of the 21 members of Gray’s committee, 11 didn’t receive tobacco money.
Another possibility: The vaping industry might agree to weaker state restriction if the Legislature simultaneously preempts stricter local bans. It’s the same strategy the soda industry used last year, when it escaped city soda taxes by convincing the Legislature to pass a statewide prohibition on local soda taxes.
So far, at least 26 counties and cities have restricted flavored tobacco in some fashion, after Hayward became the first by prohibiting its sale within 500 feet of schools. San Francisco banned its sale entirely—and city voters then overwhelmingly rejected a ballot initiative to overturn the ban. Campaign mailers and TV commercials advocating the overturn were required to acknowledge the source of funding behind the campaign to cancel the ban.
“The local campaigns can backfire because the more they do, the more you know it’s paid for by the tobacco industry. And it turns voters off at the local level,” said Larry Tramutola, a campaign consultant who defended the ban. “More money spent at the Sacramento level, who cares? It’s just more money for politicians.”
Gray insisted the contributions are irrelevant to his actions. “If you want to support my agenda, my voting record, and the things I stand for, I’m happy to receive that support,” he wrote. “But it has zero role in how I represent my district or how I make decisions on public policy.”
“We need more folks to stand up and say no to the tobacco industry,” said Lindsey Freitas, senior director of advocacy in California for the American Lung Association. “This is how they get the next generation of people addicted to their products, they entice them with these sweet flavors.”
But Greg Conley, president of the American Vaping Association, credited watermelon-flavored tobacco for getting him to quit traditional cigarettes.
“Vaping products are essential to helping adult smokers quit,” said Conley. “Some members may not want to hear this bill because it will shut down multiple small businesses in their districts. This bans 90 percent of the nicotine-containing products sold at vape shops.”
If the Senate bill, SB 38 from San Mateo Democratic Sen. Jerry Hill, passes the full Senate by the end of the month, it will go to the Assembly, where it’s likely to land in Gray’s committee. That’s the same committee where a similar ban on tobacco-flavored products, Assembly Bill 739 by Sacramento Democratic Assemblyman Kevin McCarty, stalled without even a vote. McCarty declined to be interviewed about his bill.
So far this year, Governmental Organization committee members have received $23,500 from Juul Labs, the maker of e-cigarettes and flavored pods, in political contributions. Those members have also taken in $89,300 from the R.J. Reynolds Tobacco Company, which makes the popular Newport brand of menthol cigarettes. In addition, the “Valley Solutions Ballot Measure Committee,” an initiative committee Gray controls, took in $25,000 from Philip Morris, a tobacco subsidiary of Altria, last year. Altria also has a stake in Juul Labs.
“Our philosophy,” said Juul spokesman Ted Kwong wrote in an email, “is to support people and organizations to improve the lives of the world’s one billion smokers and to combat underage uses we keep JUUL products out of the hands of young people.”
Last year the U.S. Surgeon General issued an advisory about youth use of e-cigarettes, calling out Juul for making an e-cigarette that looks like a sleek USB flash drive.
“We must take aggressive steps to protect our children from these highly potent products that risk exposing a new generation of young people to nicotine,” the advisory said.
Last year use of e-cigarettes among middle and high schoolers soared 78 percent over the year before, according to the federal Centers for Disease Control. The agency reported that more than 1 in 5 students now were using them. The popularity e-cigarettes alone drove a 36 percent annual rise in tobacco use among those students.
Juul contends it has never intended for its products to be used by youth. The company said that in the fall, it stopped selling its flavored product through retailers and now offers them only online, which it says is more secure because of a third-party age verification process.
And it has been working to educate legislators about its youth prevention efforts, emphasizing that it is focused on adult smokers who are using vaping to quit combustible cigarettes. Juul has been running full-page ads in The Sacramento Bee and prominent ads in Politico’s California newsletter, both read by Sacramento insiders.
The company also said it is being mixed up with other smaller players that make candy-flavored pods, which can be used in Juul’s USB-looking vape pens. Juul makes four flavors: mint, mango, creme and fruit.
“While we do not and will not sell flavors which are clearly targeted to youth, we also understand that flavors that drive adults from cigarettes have the potential to appeal to youth,” said Kwong in an email.
Sen. Hill said in an email that his focus is on the Senate floor vote, and that he remains “committed to protecting children and teens from the health risks of flavored tobacco products.”