Showdown in San Francisco Over Proposed Flavor Ban

    A controversial citywide ban on flavored tobacco products is heading to the ballot box.

    San Francisco Proposed Tobacco Flavor Ban

    Though many in the industry have been focused on the continuing deadlines and regulations brought about by the U.S. Food and Drug Administration’s deeming regulations, state and local governments continue to seek to pass legislation that attempts to hinder the sale of tobacco products at the retail level. Throughout the country, at the state, county and city level, governmental bodies are introducing—and ultimately passing—legislation that sets both logistical and financial barriers in place for consumers of tobacco products. These barriers have included raising the minimum legal age to purchase tobacco products from 18 to 21 and setting price floors and minimum pack sizes for cigars, as well as seeking to ban certain categories of tobacco products from store shelves entirely.

    Action came to a fever pitch last June, when former San Francisco Mayor Ed Lee signed into law an ordinance banning the sale of all flavored tobacco products within the city. The ordinance, initially sponsored by San Francisco Board of Supervisors representative Malia Cohen, prohibits the retail sale of all flavored tobacco products, including menthol cigarettes, flavored cigars and cigarillos, hookah tobacco, flavored e-liquids and other vapor products. In drafting the ordinance, Cohen stated that its main purpose was to combat the years of predatory and systemic targeting of African-American communities by Big Tobacco through the sale of menthol-flavored cigarettes, as well as to curb the sale of flavored e-liquids and e-cigarettes because such products are often available in flavors such as cotton candy and bubblegum, which are appealing to youth.

    The initial draft of the ordinance was met with swift criticism from multiple groups, including:

    • small-business owners and operators of c-stores throughout the city, who declared that flavored tobacco products were an anchor product and that the loss of their sales would cause a significant number of small businesses—many of which are run by immigrant families—to permanently close down, and
    • advocates of vapor products, who stated that flavored e-liquids and e-cigarettes had helped significant numbers of people quit smoking traditional cigarettes.

    In response, the board of supervisors disputed the group’s claims, indicating that the jury was still out on whether e-liquids and e-cigarettes were any safer than traditional cigarettes, and telling small-business and c-store owners that they would have to find other products to make up for the lost revenue in flavored tobacco sales.

    However, the board of supervisors will not have the last word on the fate of sales of flavored tobacco products in the city. In response to the passage of the ordinance, several groups, including coalitions of small-business owners and pro-vapor organizations, have banded together to form Let’s Be Real San Francisco, a grass-roots movement seeking to overturn the ordinance. The movement had instant success, gathering over 34,000 signatures from residents of San Francisco in the span of roughly two months, nearly double the required amount to force the San Francisco Board of Supervisors to either repeal the ordinance or have it put up for a vote in California’s next primary election.

    In response, the board of supervisors refused to repeal the ordinance, and the issue was placed on the June 2018 primary election ballot. In the interim, Let’s Be Real San Francisco, along with other advocacy groups opposed to the ordinance, have put boots on the ground within the city, attempting to educate the local populace about the negative impacts the ordinance will cause, including financially hurting small businesses, losing millions of dollars in annual revenue from taxes on tobacco products and blocking access to vapor products as an alternative to traditional cigarettes.

    They also stated that the effect of the ordinance would likely not have much success in reducing the number of smokers in the city because consumers could merely travel a short distance to other communities, including nearby Daly City, to purchase flavored tobacco products unencumbered. In addition, there is also a high possibility that a black-market economy for flavored tobacco products would emerge in the city, with sellers of said products, unlike legal retailers, not caring whether they sold such products to minors.
    Therefore, the fate of the sale of flavored tobacco products within San Francisco rests in the hands of the voters as they go to the ballot box on June 5. Regardless of the outcome, the reaction shows that members of the industry are ready and willing to actively mobilize and oppose state and local legislation, and that they will keep fighting to make sure consumer rights are protected.

    Story by Andrew Schmidt, an associate general counsel in Kretek International’s legal department.

    This story first appeared in the March/April 2018 issue of Tobacco Business magazine. Members of the tobacco industry are eligible for a complimentary subscription to our magazine. Click here for details.

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