Prohibition Is A Bad Way to Deal with Flavored Tobacco

On November 8, 2022, Californians will be able to vote up or down a law prohibiting the sale of flavored tobacco products statewide. The referendum, Proposition 31, would undo Senate Bill 793, a 2020 law that bans the sale of many flavored tobacco products but has yet to go into effect. The prohibited products are vapes, menthol cigarettes, and of special note, fruity and sweet flavorings like sour apple and gummy bear.

Californians will be better off without the ban, which disproportionately affects the vaping market. It does more harm than good by pushing users toward unflavored tobacco products, typically cigarettes. Tobacco policy should focus on harm reduction—and vaping is less harmful than smoking.

On the one hand, the state’s legislators should be congratulated for recognizing the costs of SB 793. For example, because the original version of the ban included pipe tobacco, Doug Shaw of Sanctuary Tobacco in San Luis Obispo planned to close his shop. Luckily, the law was amended to exempt pipe tobacco.

Tobacco policy across the country almost always takes a step too far. In the case of flavored vaping products, the emphasis is on children. As the California legislator who authored SB 793 argued, “Using candy, fruit and other alluring flavors, the tobacco industry weaponized its tactics to beguile a new generation into nicotine addiction.”

The worry about children is an important policy concern, but it’s overly broad. Adults also enjoy the same flavors. A glance at cocktail menus at any bar will show drinks with similar flavors. And don’t forget the fruity alcoholic seltzers and craft beers on grocery store shelves.

Not only do fruity flavors appeal to adults, but the vaping products that may be outlawed in the state are safer than traditional cigarettes. Burning tobacco in a paper “tube” delivers nicotine, but it also delivers tar and other additives into smokers’ lungs. To the extent that vaping reduces the harm from tobacco products, banning flavored tobacco (mostly vaping) products will hurt more than it helps.

Much of the ban’s harm comes from making it more difficult to stop smoking. Research suggests that vaping can be a valuable tool to help people quit smoking cigarettes.

Jacob Grier, a journalist who focuses on the alcohol and tobacco industries, pointed out recently that England’s “health services actively promote vaping as a cessation tool.” Californians would do well to look to such international examples, rather than allow SB 793 to take effect.

Vaping’s status as safer does not mean “risk free.” Vaping potentially exposes users to carcinogens. But the proper economic and public health approach recognizes tradeoffs and focuses on limiting and reducing harms. As James Prieger, an economist at Pepperdine University, concluded in his review of research on vaping, “There is great uncertainty about the long-term effects of vaping, the answer to whether using e-cigarettes is better for health than smoking is almost surely yes.”

Still, a focus on children’s tobacco use is an important public policy question. Here again, however, reasons can be found for worrying about bans doing more harm than good. Teens who vape also are teens who smoke. In a hypothetical group of 100 high school students who don’t otherwise use tobacco or nicotine products, only two percent of them vaped frequently.

Research on broad menthol and flavor bans such as California’s SB 793 is underway. But previous age restrictions on e-cigarettes have not been effective in reducing tobacco use. Dr. Michael Pesko at Cornell University studied the effects of age restrictions on purchasing e-cigarettes. He showed that the restrictions didn’t stop students from consuming nicotine—they simply smoked traditional cigarettes instead of e-cigarettes.

SB 793 also strikes at minorities, who tend to prefer menthol cigarettes (introduced in the 1950s and representing 30 percent of the US market). They encourage more of the smuggling that now undermines state excise tax revenue and likely will lead to more dangerous interactions with police for those who smoke.

Californians should focus on inevitable substitution amongst nicotine sources. Banning flavored vaping liquids will cause some people to revert to the riskier alternative of cigarette smoking. Public health rules should reflect the relative risks of consumption activities—even fruity flavored tobacco products are less dangerous than traditional cigarettes.