The U.S. Supreme Court declined to hear a case that challenged the anti-vape status quo in California. The case, brought to court by R.J. Reynolds Tobacco Company, attempted to overturn the flavor ban.
California politicians established an anti-vape precedent in late 2022 when Senate Bill 7931California Legislative Information, “SB-793 Flavored tobacco products,” [Online]. Available: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB793. [Accessed: Jan. 16, 2024] came into effect. This bill prohibits any tobacco retailer or tobacco retailer’s agents or employees from selling most flavored tobacco products. This includes flavored e-cigarettes, menthol cigarettes, and tobacco product flavor enhancers such as flavored tobacco rolling papers.
Shortly after, R.J. Reynolds Tobacco Company, brick-and-mortar vape shops, and retailers went to federal court over the issue. They argued that legislators created a tobacco product standard which, according to the 2009 federal Tobacco Control Act, is a power that is only available to the FDA.
Following that, R.J. Reynolds Tobacco Company appealed to both the District Court for the Southern District of California and the Ninth Circuit Court of Appeals but was swiftly rejected. The company would not be dissuaded and proceeded to ask the Supreme Court for an emergency injunction to stop the law from going into effect. That request was denied without comment, much like the latest appeal to the U.S. Supreme Court.
As of October 7, 2023, Governor Gavin Newsom signed Assembly Bill 9352California Legislative Information, “AB-935 Tobacco products: flavored tobacco products,” [Online]. Available: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240AB935. [Accessed: Jan. 16, 2024] into law. The law, which came into effect in January of this year, has increased penalties for retailers who do not adhere to the law and changed the legal definition of a retail location, encompassing more establishments than before.
Now, a retail location is not just a “building where tobacco products are sold at retail”;3California Department of Public Health, “California’s Flavor Tobacco Law,” [Online]. Available: https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/Pages/CAFlavorTobaccoLaw.aspx. [Accessed: Jan. 16, 2024] it is also “any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public.”
As of now, the only e-cigarette flavor allowed in California is tobacco. California raised eyebrows when it eliminated menthol, challenging the consensus that both tobacco and menthol flavorings are distinct from fruit and candy flavors.
Despite legislators taking a definitive stance against flavored e-cigarettes, they are still available for purchase online. One group of researchers posed as people under the age of 21 and found that their purchase success rate increased after Bill 793 passed.4Fast Company, “California banned sales of flavored e-cigarettes in 2022, but stores are still selling them, a new study says,” [Online]. Available: https://www.fastcompany.com/91002375/california-banned-sales-of-flavored-e-cigarettes-in-2022-but-stores-are-still-selling-them-a-new-study-says. [Accessed: Jan. 16, 2024] Another study analyzed search data from the week Bill 793 was implemented and found that shopping queries were 161.7% higher than expected for e-cigarettes.5Tobacco Control BMJ, “E-commerce licensing loopholes: a case study of online shopping for tobacco products following a statewide sales restriction on flavoured tobacco in California,” [Online]. Available: https://tobaccocontrol.bmj.com/content/early/2023/11/01/tc-2023-058269. [Accessed: Jan. 16, 2024]
If the introduction of Bill 793 has created a black market for e-cigarettes, it won’t be the first time. State legislators all over the U.S. are struggling to manage a near-constant influx of illegal vapes. In July of 2023, the FDA seized 1.4 million e-cigarettes that were being smuggled into the U.S. from China.
R.J. Reynolds Tobacco Company declined to comment on the outcome of the appeal, and it is unclear how this vape giant will handle such an overwhelming defeat. Given the Supreme Court’s lack of comment, it is unlikely that vape manufacturers will be treated with leniency going forward.
