California’s Senate Bill 793 Takes Aim at Flavored Tobacco Products

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If passed, California’s Senate Bill 793 would take flavored tobacco products out of the state. The bill is designed to build on the existing law, Stop Tobacco Access to Kids Enforcement (STAKE) Act, which prohibits a person from selling or providing tobacco products to anyone under the age of 21.

Senate Bill 793 would prohibit a tobacco retailer and his or her employees from selling, offering for sale, or pressing with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer. Under this bill, it would be an infraction punishable by a fine of $250 per violation should a retailer go against this law. If passed, this bill would not preempt or prohibit the adoption and implementation of local ordinances related to the prohibition on the sale of flavored tobacco products. The bill would state that its provisions are severable and by creating a new crime, the bill would impose a state-mandated local program.

The bill goes on to set a definition of what a “characterizing flavor” is: it’s one with a distinguishable taste or aroma, both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. These flavors include anything relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. Flavors, under this bill, won’t hinge on if they were added to the product through additives or flavorings; instead, it will be a matter if the tobacco product has a “distinguishable taste or aroma, or both” that will constitute a characterization flavor. The bill goes on to point out that hookah retailers are included in this bill as well and that for the purpose of this bill, a tobacco retailer is one in California who “engages … in the sale of tobacco products directly to the public from a retail location.”

Another part of the bill that should alarm manufacturers is that the bill also takes aim at how manufacturers market their products to consumers. Here is part of the bill that addresses the marketing and branding of a tobacco product, providing a broad scope that would potentially impact a variety of covered tobacco products including vapor, cigars and pipe tobacco:

“There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees, in the course of their agency or employment, has made a statement or claim directed to the consumers or to the public that the tobacco product has or produces characterizing flavor, including, but not limited to, test, color, images, or all, on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.”

The original bill was amended to exempt shisha sales in hookah tobacco retailers and passed California’s Senate Appropriations Committee on June 18, 2020. You can review Senate Bill 793 in its current form by clicking here.

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