Flavored Tobacco Ban Is Still in Play in Legislature Despite COVID

The bill to ban flavored tobacco is still in play in the California Legislature despite the shortened legislative session due to COVID-19 shutdowns, and despite that the Food and Drug Association gave the Swedish Match General “Snus,” a “Modified Risk Tobacco Product designation.” 

Swedish Match is the number two player in the non-tobacco nicotine pouch market, as well as the largest producer of chewing tobacco.

Senate Bill 793, authored by Senator Jerry Hill (D-San Mateo), would make it illegal for any store that sells tobacco to sell flavored tobacco or tobacco flavor enhancer products. Current law already bans the sale of tobacco products to anyone under 21 years old.

At the same time, the legislation does not 1) ban cigarettes, despite the fact that we’re in the midst of a respiratory illness pandemic and cigarettes are a huge problem for respiratory health, and 2) touch flavored cannabis vapes, e.g., mango cannabis vapes, despite a bunch of people having actually DIED from vaping cannabis in 2019.

There is also concern among doctors that they might see de facto pay cuts for a bill that isn’t going to actually improve public health, because Medi-Cal, California’s medical system for low income individuals relies on tobacco taxation for funding.

Using the COVID crisis to circumvent the regular legislative process, in Late June the Assembly Rules committee decided to give the flavor ban bill a single referral. The bill was referred to the Health Committee only and not the normal double-referral to the Governmental Organization committee too. California Globe was told that the behind the scenes story is that Assembly Speaker Anthony Rendon pressured the Rules Committee Chairman to only give the bill a single referral.  

Also in late June, California Globe sent several questions to Sen. Jerry Hill about his flavored tobacco ban proposal:

Q: Is Sen. Hill is aware of Zyn? If not, I assume that is not what he is attempting to ban, but I’d like confirmation. The legislation is drafted rather broadly, and encompasses obvious harm reduction products including the flavored versions of the only product ever given a Modified Risk Tobacco Product designation by the FDA: Swedish Match General Snus. 

Q: Does Sen. Hill know the FDA gave the product that designation and that his legislation would ban all flavored versions of it?

Here is Sen. Hill’s response:

SB 793 would not prohibit the sale of any tobacco cessation products. There is a rightfully rigorous process at the FDA to get a tobacco product authorized as a cessation device. The product Swedish Match is trying to have exempted from the bill is not a cessation device.

Swedish Match is a $14 billion company. The firm has the resources and expertise to apply to the FDA to have its products designated as a cessation device. The fact that the firm hasn’t is telling. If the product is as safe and helpful as the firm claims, it could apply to the FDA to get authorization as a cessation product and would not be impacted by SB 793. It has not.

Furthermore, tobacco product is defined in statute: (8) (A) “Tobacco product” means any of the following:(i) A product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff.(ii) An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah.(iii) Any component, part, or accessory of a tobacco product, whether or not sold separately.

Flavored products have long been a favorite tobacco industry strategy for targeting young people. Eighty percent of young people who have ever used tobacco started with a flavored product. Menthol cigarettes, sweet cigars, candy vapes, and other flavored tobacco products serve one purpose – to mask the harshness of tobacco and get users hooked to a dangerous life-long addiction. Kids use smokeless tobacco products. Each day, more than 900 kids ages 12-17 use smokeless tobacco for the first time. Tobacco companies have used a variety of strategies to entice youth to use smokeless tobacco: sweet and kid-friendly flavors, sponsorship of events popular with youth, advertisements with youth-oriented messages, and affordable prices.

I am skeptical when tobacco companies downplay the dangers or addictive nature of their products. From Phillip Morris to JUUL and Swedish Match, this tactic is regularly used to cast doubt about the dangers of nicotine addiction and this type of messaging is part of the reason we are in the midst of a youth nicotine-use epidemic and why 1,300 people die every day from tobacco related diseases.

–State Senator Jerry Hill, D-San Mateo and Santa Clara Counties

Does Sen. Hill think the FDA is engaged in fake science having, granted Swedish Match an MRTP designation where it has steadfastly refused to do the same with any vapor product or products like Philip Morris’ iQOS product?

A critic of the bill who asked not to be named said, “Sen. Hill is basically saying the FDA is full of it and can’t be trusted. That’s a very anti-science perspective and speaks to the fact that Hill’s solitary objective here is banking a legacy political win at the expense of public health and fiscal responsibility. Other legislators who aren’t exiting the arena and have higher priorities than building out the ‘legacy’ portions of their Wikipedia pages should think twice before siding with Hill against the interests of Californians trying to reduce their harm from nicotine consumption and California public employees trying to stave off more drastic compensation cuts in the midst of a pandemic.”

“Banning flavored tobacco products is a bad public-health move given that many smokers have used smokeless tobacco products such as Snus and other flavored nicotine pouches to break their dangerous habit,” said Steven Greenhut, Western director for the free-market R Street Institute. “It’s a bad fiscal-health move, also. California receives hundreds of millions of dollars in annual revenues from flavored tobacco products and needs that money to help plug a gaping budget hole.” 

Greenhut points out in a recent article, “Large numbers of ex-smokers do in fact use these e-cigarettes and vape pens, which are 95 percent safer than combustible cigarettes, according to a well-respected British public health agency.”