The fruits of prohibition: California’s tobacco flavor ban backfires

Last November, 63% of Californians chose to ban flavored tobacco products statewide by voting in favor of Proposition 31. The measure consolidated previous prohibition efforts across several individual cities, including San Diego. Though the statewide ban went into effect Jan. 1, there are clear indications that the public-health improvements voters expected are not materializing.

Most notably, illicit flavored tobacco product sales have increased while state revenues have decreased, products not covered by the ban have entered into the marketplace and the rate of cigarette smoking remains unchanged.

The scope of negative consequences is significant. Take, for example, a recent report by the Tax Foundation that estimates the loss of nearly $300 million in tax revenues due to the ban. These lost funds are not from individuals quitting smoking – the data suggests that cigarette sales will only experience a marginal decline. Instead, those who use flavored nicotine products will purchase from illicit sources and across state lines.

And that lost tax revenue will negatively impact specific social programs in the state, including California’s First 5 program, which directly provides support for pregnant women and early childhood development programs. It is predicted that program will lose 30 percent of its funding just this year, and reductions will continue to increase in the years to come.

Clearly, one would not argue that the funding generated by smoking used in a positive manner is a valid rationale for opposing actions that curb the impact that smoking has on health overall. If the ban were doing what it was intended to, there may be savings from other healthcare programs that could be diverted into programs like First 5, but that is not what is happening.

What has occurred, however, is the measure has actually increased the flow of illicit products due to several border states with lower tobacco tax rates, a border with Mexico and several large ports of entry for consumer products. Even prior to the ban, California had a tobacco smuggling problem. In 2020, the Mackinac Center for Public Policy estimated that California had the nation’s highest illicit tobacco rate; nearly half (44.8 percent) of all consumed tobacco products were from illicit sources.

Additionally, due to the massive effort that would be required to effectively police the flavor ban, additional flavored products have surged into the state. Disposable nicotine vapes are a prime example and the most popular product among youth. These vapes have not been cleared by the FDA and exist only because the costs are cheap and consumers will buy them, legally or not. The overwhelming majority of disposable flavored vapes are imported from China and cost retailers about $2 per disposable, which they can sell for up to $30. This makes the reward lucrative enough to risk law-enforcement intervention.

Ultimately, the overreaching attempt to regulate human behavior through legal restraints rarely, if ever, benefits the individuals most directly affected by these sociological experiments. A recent paper published in the Journal of the American Medical Association reported that targeted enforcement activities such as flavor bans were not associated with a significant change in e-cigarette use in underage vapers, which raises the question: Why are we banning products less harmful than cigarettes that are proven to help adult smokers switch?

Positive tobacco harm-reduction policies, with clear and science-based education, incentivize the switch to reduced-risk products that allow people to make their own personal choices, leads to behavioral changes without criminalizing a subset of our population. A recent research report published in the journal Nicotine and Tobacco Research reported that smokers had greater success in switching to reduced-risk electronic nicotine delivery systems if flavors were available to them. Additionally, other research studies, including one performed by researchers at Yale University, have asked what an ex-smoker would do if their preferred flavor of e-cigarettes was removed from the market. The most likely outcome would be to return to smoking cigarettes.

Regardless of good intentions or political pressures, the current ban is not making California residents healthier. Several states that have previously implemented flavor bans are now second-guessing the strategy. In Massachusetts, several lawmakers attempted to repeal its ban in 2021, and additional efforts to block city bans were attempted in Ohio.

By only allowing tobacco flavored cigarettes and e-cigarette products on the market in California, lawmakers are attempting to solve one problem with a remedy that has already proven ineffective. A more positive approach is one that provides adult smokers with the opportunity to switch to reduced-risk nicotine products, incentivized to do so by having a wide spectrum of available flavors. This will both be more effective in improving the health of the public and bolsters a fair and just marketplace for consumers in which they can legally purchase the products they enjoy.