Sustainable Tobacco Regulation Over Prohibition?
O n November 8, 2022, California voters upheld Senate Bill (SB) 793 effectively banning the sale of all flavored tobacco products in the state of California. Among various reasons cited for such legislation include sustainability issues such as health and environmental effects of tobacco consumption—scientifically demonstrated over many years. At the same time, it is worth considering the effects of such a large-scale regulation, potentially unintended consequences that may arise from SB 793. On a fiscal level, the ban will adversely impact governments’ tax revenue from cigarettes and other tobacco products while raising administrative costs of enforcing existing regulations. Additionally, adjacent to alcohol prohibition from the 1920s and 30s, there is a concern with illicit tobacco transactions — products traditionally regulated in accordance with the Food and Drug Administration’s (FDA) standards being sold in unregulated black markets also poses concerning health risks.
Many proponents for the flavor ban claim that flavors are a conduit for youth tobacco usage and therefore should not be sold. Prior to Canada’s nationwide menthol cigarette ban in 2018, several provinces enacted their own proactive legislation. According to a study by the National Bureau of Economic Research, they found that youth often substituted away from menthol to non-menthol cigarettes (Carpenter and Nguyen, 2020). Additionally, they discovered the ban led to consumer evasion — those who traveled from impacted territories to purchase prohibited flavors from exempt Native Canadian reserves. In the United States, Massachusetts enacted a flavored tobacco ban in 2020, with evidence showing that cross-border sales increased in states including New Hampshire, Vermont, New York, Connecticut, and Rhode Island. Just as strongly ensuring that youth should not be consuming any tobacco or nicotine products, we should also recognize that underage use of traditional tobacco products is at a generational low. Specifically, the 2022 Monitoring the Future study found youth smoking rates to be 2.1 percent, nearly a 93 percent reduction from its highest level in 1997. With electronic nicotine delivery systems (ENDS), past 30-day use among middle and high school students has reduced by nearly 50 percent. At retail, numerous measures have been and are established to prevent youth access including but not limited to point of sale material (e.g. We Card), age validation technology, and retail compliance checks.
To be clear, tobacco products are not risk free. The most health-conscious option for those who use nicotine is to quit. Those who cannot or will not quit should be offered a variety of FDA or regulator-approved alternative products that pose less risk. In this vein, studies have shown that flavors can play an important role in adult smokers transitioning to products lower on the continuum of risk.
Looking ahead, we should consider how sustainability and health align with risk-proportionate regulation. Can prohibition prevail in the long run as black market transactions thrive and consumers seek their desired products? Or will a diverse range of stakeholders — including regulators, industry, and the broader public health community — come together and craft a logical, effective, comprehensive, and sustainable regulatory framework that supports tobacco harm reduction while preventing underage usage? These are the golden questions that many seek the answer(s) to as California becomes another flavor ban case study.
Disclaimer: All views and opinions expressed in this blog post are of my own and do not necessarily represent that of any organization(s), manufacturer(s), think tank(s), or affiliate companies.
