CA – [Concluded] Vote NO on Prop 31

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.