Introduction

Proposition 31 is a statewide referendum on the ballot for the 2022 General Election. It asks voters to approve or reject a bill, Senate Bill 793, which was passed by the state legislature in 2020. With SB 793, the state banned the sale of flavored tobacco products with conditional exceptions for flavored shisha products and blanket exemptions for cigar lounges, loose leaf tobacco, and what the law refers to as “premium” cigars.

SB 793 created a new crime: “sell[ing], offer[ing] for sale, or possess[ing] with the intent to sell or offer for sale” flavored tobacco products. This crime would be an infraction punishable with a $250 citation per offense. Although SB 793 passed, it has never been in force in California due to the successful effort by opponents to initiate a voter referendum on the measure.

The official voter guide for Proposition 31 can be found at the California Secretary of State’s website.

The Legislative Analyst’s Office’s analysis of Proposition 31 is below.

Path to the Ballot

SB 793 was introduced in the California State Senate by former State Senator Jerry Hill (D-San Mateo) on January 6, 2020. It was passed out of the Senate on June 25, 2020, whereupon it was forwarded to the State Assembly. The bill was passed out of the Assembly on August 28, 2020 and subsequently signed the same day by Governor Gavin Newsom.

Opponents of the bill, a group centered around tobacco corporations and retailers, sought multiple avenues to arrest the implementation of the law. Three days after its passage, a group calling itself the “California Coalition for Fairness” filed its intention to seek signatures to put a referendum on the ballot. Six weeks later, the tobacco industry also filed suit against the State of California in federal court, seeking a judge’s ruling that the entirety of SB 793 was unconstitutional and unenforceable. Another six weeks after that, The Coalition for Fairness submitted one million signatures to the state for verification in the referendum process.

The referendum qualified for the 2022 General Election on January 22, 2021, after the Secretary of State certified that it had more than the minimum valid signatures. Because of the state’s rules for voter referendums, the law is legally unenforceable pending the outcome of November’s vote.

[n.b.: This fact also resulted in the ultimate dismissal of the federal case against the state. The judge overseeing the tobacco corporations’s suit determined that there was no jurisdiction for the case to be heard because the law was not currently being enforced, had never been enforced, and, depending on the will of the voters, might ultimately never be enforced.]

What the Vote Means

• A vote of “Yes” APPROVES the ban on most flavored tobacco products passed by the legislature.
• A vote of “No” REJECTS the ban on most flavored tobacco products passed by the legislature.

How I Am Voting

I am voting “No” in rejection of SB 793. The creation of new crimes should not be undertaken frivolously, but that is what the legislature has done here.

Annotations

The War on Drugs has always justified itself as a crusade to save children from moral evil, and yet it has been a failure, utter and without mitigation. Where the War on Drugs has succeeded is only in wreaking titanic moral evils of its own: grinding lives and entire communities into dust, sowing seeds of chaos in countries near and far. This may seem a small front in that war, but, as the question has been put to me (and all Californian voters), I cannot cosign the legislature’s action.

SB 793 would create an infraction, the penalty for which is a citation. An infraction is not a jailable offense.

The era of SB 793 began with the Family Smoking Prevention and Tobacco Control Act (TCA), a federal law passed in 2009, during the first year of Barack Obama’s presidency. The TCA delegated administrative authority over the tobacco industry to the federal Food and Drug Administration and banned all cigarette flavors with the exception of menthols. This ban left many tobacco products untouched. Most prominent among the unbanned products were the flavorings employed by the so-called Electronic Nicotine Delivery Systems (ENDS, better known as electronic or “e-” cigarettes).

The decade of the 2010s saw an immense growth in the popularity of e-cigarettes, which had entered the market about a decade prior, and and in the popularity of the youth culture of “vaping.” By the end of 2018, the Surgeon General of the United States had deemed the rapid ascent of vaping an epidemic. Months later, Massachusetts became the first state in the country to ban the sale of menthol cigarettes and flavored e-cigarettes. They were followed in banning e-cigarettes by three other east coast states (New Jersey, New York, and Rhode Island).

In Los Angeles County, the Board of Supervisors banned the sale of flavored tobacco products in the fall of 2019. Many other cities in the county, including the City of Los Angeles in June 2022, have since followed that course of action.

Such bans, howsoever they may be wielded by liberal politicians, are not magic wands capable of making products or activities vanish. For the brute work of realizing their purpose, the banning crowd rely on law enforcement. While I cannot profess to believe to any great extent in the “gateway” theory of drug use, which here holds that the vaping epidemic is shuttling children into a lifetime of harder drug use and addiction, I do believe a similar principle holds sway in the War on Drugs. Namely: what begins, as SB 793 does, mildly, with the enactment of an infraction for the crime of retailing a product, must inevitably and continuously ramp up the threat of consequences or else at some point admit that it has failed as policy.

This is because of the logic that underlies criminalization. When the ban itself does not eliminate the flavored tobacco product, as indeed it has not in Massachusetts where law enforcement has reported the growth of a black market for e-cigarettes and menthols, the lawmakers must decide how to proceed. If the ban was not a flawed policy, then there must be some other reason that criminals are deciding the risk of apprehension is worth taking. An increase in the severity of the punishment would make them reconsider.

And, with each step on this path, the constructed target becomes less savory, willing to greater and greater lengths to thwart the benevolent intentions of the state. The black market becomes smaller and more lurid. All the participants become thus deserving of greater and greater punishments as they become hardened in the minds of lawmakers as the enemies of a desired state of peace. Though we start now with a fine and only for the seller, we should not be surprised, in time, to see this develop into fines for the purchaser or misdemeanors for possession or felonies importing with intent to distribute. Escalation is the natural course.

SB 793 is already evidence of this escalation. It is already a crime to sell tobacco products of any description to anyone under the age of 21. If the state cannot enforce that existing prohibition, it is only magical thinking to expect that it will be successful with the e-cigarette ban. And, where the black market flourishes, one must be concerned with how the law enforcement apparatus in this country will interface with the public. In the recent past, in New York, Eric Garner was subject to an extrajudicial execution on suspicion of selling black market cigarettes.

It is unacceptable for the state, the county or the city to ignore the question of how policies enacted by them will be administered so as to bring about their aims. That is true in all cases, but must be considered as an especially vital interest where, as here, what the state proposes will create an expansion of the black market concentrated in the underresourced Black communities that are already at high risk of suffering the violence of racist policing. Here, the county and city ordinances are not under consideration and will remain in force even should Proposition 31 fail. However, the state referendum provides an opportunity to reject these policies as the reckless product of a failed mindset.