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CA – [Concluded] Vote NO on Prop 31
Are vapes banned in California?
*Several tobacco products are exempt from this flavor ban, and they include premium cigars, hookah, and loose leaf pipe tobacco.
The ban takes effect 5 days after the election is officially certified, so it will be sometime on or before December 21st.
Frequently Asked Questions
In 2020 a bill called SB 793 was passed in California and signed into law by the Governor, but the bill never went into effect because cigarette companies challenged the legislation in what’s known as a veto referendum. Essentially they were able to get enough signatures from California voters to argue that the legislation was unpopular and should not become law. This meant that the law would not take effect until it was voted on by all California voters in the next election, which was the one that just took place in November. On California ballots it was known as Proposition 31, and it unfortunately passed, meaning it will now become law.
SB 793 bans the in-person sale of all tobacco products (with some restrictions we’ll cover in a moment) in characterizing flavors other than tobacco. The legal definition of tobacco products in California includes vapor products. This means that no vapor products, cigarettes, smokeless tobacco, etc can be sold in any flavor other than tobacco.
Menthol cigarettes are included in this ban, which is why the tobacco companies challenged the law in a veto referendum in the first place. The law also does not currently have an exception for products which have been authorized by the FDA (given a PMTA), so they are also banned if they are in flavors other than tobacco.
The legislation also specifically bans “tobacco product flavor enhancers” which means that short-fill bottles and flavor shots are also banned.
The law has an exemption for flavored premium cigars, flavored loose leaf pipe tobacco, and flavored hookah and shisha products. All other products are only allowed to be sold if they are “tobacco” flavored only. The law states that the determination for what is flavored is based on the marketing and packaging of the product, so any flavor names, flavor profiles, or images on the product cannot portray anything other than tobacco flavoring. The law also does not ban online sales, it applies to in-person brick and mortar sales only.
The law will take effect 5 days after the California election is officially certified, which has to be done by Dec 16th at the latest. So at the latest, (barring any court-ordered delays) the law would become effective Dec 21, 2022.
The tobacco company RJ Reynolds and some of its affiliates and partners have filed a lawsuit against the state of California over SB 793, however it should be noted that RJR filed similar lawsuits with similar arguments in Los Angeles and San Diego, which failed (pending supreme court appeal). RJ Reynolds requested an injunction against the law while they litigate in court, which would further delay the law from taking effect, however on November 16th it was reported that request was denied by the judge. They are likely to appeal.
It’s also important to understand that the arguments in this lawsuit are about product standards that only apply to products legally on the market (meaning ones with a PMTA or that are legally on the market pending PMTA review). So the likely best-case scenario outcome is that FDA authorized products are exempt from the ban.
In 2020 a bill known as SB 793 was passed in California, which sought to ban the sale of many tobacco products – including vapor products – in flavors other than tobacco in all brick and mortar locations within the state. But enactment of the bill was stopped short by a campaign (entirely funded by cigarette companies) challenging the legislation and putting the decision to California voters in what’s known as a veto referendum. This means that the flavor ban is in limbo until it’s voted on this November in California’s General Election.
The referendum is designated as Proposition 31 on California ballots, and a “No” vote will stop the flavor ban from ever taking effect.
While vapes are not technically banned in California, the issue is complicated at the federal level. The only vapor products that are legally allowed to be sold anywhere in the US are the limited products that the US Food & Drug Administration (FDA) has authorized for sale, or certain products which have been battling the FDA in court while their applications are being reviewed.
To date, the FDA has refused to authorize any vapor product in a flavor other than tobacco. So while there are still retailers selling a variety of vaping products in California, and across the country, technically they are subject to enforcement by the FDA, which can issue warning letters and other penalties and legal actions at any time.
Even if FDA were to eventually authorize some vapes in flavors other than tobacco, they would still be banned in California if this referendum passes.