If there was ever a universal villain in modern American life, it might be Big Tobacco. Despite legal restrictions on smoking in public spaces, a vigorous public health campaign, higher taxes on cigarettes, and global recognition that smoking is not just a habit but is addictive in ways similar to drugs like heroin and cocaine, the tobacco industry has remained profitable. Despite federal regulations restricting the marketing of cigarettes and a decline in the number of smokers ( from 20 percent in 2005 to 12.5 percent in 2020), lung cancer is still the leading cause of death in the United States. 

One way it has done so is by targeting children as young as middle school with products designed to draw them in as customers. “Vaping”–the practice of inhaling a vapor containing nicotine and flavoring via the e-cigarette–has put a new generation at risk. For obvious reasons, the industry does not promulgate the science-based information that e-cigarettes are just as addictive as conventional cigarettes. The devices, small and easily concealable, some shaped to resemble familiar USB drives, and often colorfully designed and displayed, come in candy-like flavors that researchers know are particularly attractive to youth. According to Truth Initiative, an organization specializing in tracking such figures, 97 percent of adolescents use flavored products, and most choose flavored tobacco as their first and, after that, preferred choice. E-cigarettes are so popular that in 2019, 5.2 million young people nationally used them, 27.5 percent of high school students, and 10.5 percent of middle school students. Between 2019-2020, their use among high school students increased by 100 percent.

This surge has occurred in the wake of scientific evidence that nicotine exposure during adolescence is dangerous to developing brains. Studies have shown that it can impact learning, memory, and attention. It can even increase the risk of future addiction to other drugs by seven or eight times. In addition, the vapors of flavored nicotine through e-cigarettes can expose users to harmful substances such as heavy metals and salts that, in ultrafine particles, are inhaled deeply into the lungs and present other grave dangers.

The industry cites existing federal restrictions on the marketing and selling tobacco products to minors as a sufficient safeguard. Such restrictions first appeared in 2009, and many refinements followed. Yet, all of them have failed in the same way that restricting the sale of alcohol to minors has failed, as everyone who has ever been to a fraternity house or a prom party knows full well. Arguments focusing on the legal restraint against selling tobacco products to pre-teens and teenagers are a distraction. Kids can acquire them easily by buying them from a store or online, buying them from friends, or giving someone of legal age money to purchase them.

The FDA has attempted to regulate electronic nicotine delivery products, issuing marketing denial orders for more than one million applicants. The agency maintains it is close to making decisions on even more applications for products that could account for a significant part of the market. They maintain that their pre-market evaluation of these products will be rigorous, given the fact that e-cigarettes are the most commonly used tobacco product used by young people in the U.S. Still, the outcome will likely be the same: even stricter federal restrictions are not the answer to keeping these products out of their hands. For example, regulations in place contain a loophole prohibiting the sale of fruit, mint, and other sweet flavors in refillable cartridges but exempting all flavors sold in devices that cannot be refilled. When this particular loophole was created in 2021, teenagers caught on fast. They switched to brands that are disposable but which often have a higher nicotine level than the original refillable types.

Another loophole was soon discovered by the tobacco companies: the “concept flavor.” Instead of specific flavors, like mint or apple or berry, new products became available in “concept” flavors such as “Clear and Lush Ice” or “Purple Swish” or “Diamonds” so that specific flavors that might be prohibited were not identified as such. The concept flavors make it difficult for enforcement agencies to determine whether or not a tobacco product meets the legal barriers that a flavored tobacco product would, and anyone challenging it could spend years in court with a well-financed adversary.

Local ordinances entered the regulatory picture because federal restrictions were not presenting a significant barrier. Monterey County was among them.

In January 2020, Pacific Grove became the first local jurisdiction to prohibit the sale of flavored tobacco products, recognizing that “there is increasing evidence that they contain a large amount of nicotine salts that may be responsible for increasing nicotine addiction among youth.” Michelle House, a county public health official, said in a news article that  “We know our children use flavored tobacco to initiate their experience into the world of tobacco.” The Health Department’s tobacco control division began reaching out to other cities in the county to see if any had to interest in banning flavored tobacco.

In March 2022, the Monterey County Board of Supervisors voted unanimously to finalize a ban on the sale of flavored tobacco and single-use e-cigarettes in unincorporated areas of the county, citing both health and environmental hazards. In August of this year, the city of Monterey passed an ordinance prohibiting the sale of flavored tobacco and flavored vape products. By February 2023, selling these products (except those consumed at a local hookah shop) will be illegal within the city limits.

The California legislature has made an effort to stop the sale of flavored tobacco across the state. Senate Bill 793, sponsored by Senator Jerry Hill ( D-13), proposed to end the sale of candy-flavored tobacco products (with exceptions for hookah tobacco, loose-leaf tobacco, and premium cigars). It received nearly unanimous support from both parties in the legislature. In 2020, Governor Newsom signed it into law. Still, Big Tobacco collected enough signatures to require that it be placed as a referendum measure on the November 2022 ballot, thereby suspending the law until that time.

SB 793 has opposition mainly from a group calling itself The California Fuels & Convenience Alliance, a coalition of Big Tobacco supporters and the Republican Party of California. The opposition described the bill as a “misguided policy that will do more harm than good” and “hurt small business, eliminate tax revenue, and perpetuate dangerous and avoidable police interactions in our communities.” SB 793 will appear on the November 8 ballot as Proposition 31, a “Referendum Challenging a 2020 Law Prohibiting Retail Sale of Certain Flavored Tobacco Products.” To stop the sale of flavored tobacco products, voters will have to check YES. The tobacco companies are hoping people will check NO, misunderstanding the wording in the description. To fortify their opposition, they have so far contributed 21 million dollars to defeat it, most of it coming from RJ Reynolds and Phillip Morris.

For most parents, the choice is easy. Eliminating flavored e-cigarettes from all avenues of sale will protect their children from considerable short- and long-term harm.

In an ironic twist, on September 6, 2022, Juul, one of the major manufacturers of e-cigarettes, settled a multi-state suit that included California for $438.5 million. The suit focused on its sales and marketing practices that fueled the teenage vaping crisis. An investigation found that the company hired young models, used social media to court teenagers, and gave out free samples. Forty-five percent of its customer base were ages 13 to 17.

According to the Centers for Disease Control and Prevention, 42 deaths and 2,141 probable lung injury cases have been associated with using e-cigarettes or vaping as of November 13, 2021.

California voters will be able to have their voices heard on November 8. The supporters of Proposition 31 include the American Cancer Society, the American Lung Association, the American Heart Association, the American Academy of Pediatrics, California, the American Cancer Society Action Network, and the PTA.

Former senator Jerry Hill, now a private citizen, has maintained an interest in the passage of this Proposition. He says, “Voting yes will protect the bipartisan progress California has made to protect the health and well-being of the next generations by taking candy-flavored e-cigarettes off store shelves for good.”

Susan Meister is a journalist, columnist, and community activist  living in Pebble Beach. Susan’s writing has been recognized with awards for service writing and news feature writing from the Parenting Media Association.