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TWO LOCAL GOVERNMENTS IN California have
adopted bans on the sale of flavored tobacco products
that include a prohibition on the sale of menthol flavored
products and menthol cigarettes. In the past, local govern-
ments have generally excluded menthol from a flavor ban
and not banned the sale of menthol cigarettes. However,
flavor ban ordinances adopted by the Santa Clara County
Board of Supervisors and the Yolo County Board of Su-
pervisors have included menthol as a banned flavor and
do not permit the sale of menthol cigarettes.
Both of these ordinances apply to what is known as
the unincorporated portions of the counties that gen-
erally include areas outside the legal boundaries of cit-
ies and towns. Besides the territorial limitations of the
two ordinances, there is one difference between the
Santa Clara County and Yolo County ordinances. The
Santa Clara County ordinance allows flavored tobacco
products—including menthol cigarettes—to be sold in
adult-only tobacco stores, while the Yolo County ordi-
nance does not contain this same exemption.
Both of the ordinances are scheduled to go into effect
next year, with the Santa Clara County ordinance to go
into effect on July 1, 2017 and the Yolo County ordi-
nance to become effective on May 1, 2017.
Despite being informed that federal law preempts a
ban on the sale of menthol cigarettes, the board of su-
pervisors for both Santa Clara County and Yolo County
proceeded to pass their respective flavor ban ordinances.
When Congress passed the Family Smoking Prevention
and Tobacco Control Act (the federal law that autho-
rized the Food and Drug Administration to regulate to-
bacco products), a provision was included that prohibits
a local or state government from banning the sale of
menthol cigarettes.
Specifically, the federal law precludes any local or state
Menthol
and
Local
Flavor
Bans
Local governments are
seeking to overstep their
bounds with flavor bans.
Such a severe
reduction in
product sales
will jeopardize
jobs and possi-
bly even force
retailers out of
business.
government from adopting what is known as a “product
standard” that is different from or in addition to feder-
al product standards relating to cigarettes and tobacco
products. Congress enacted the first product standard
for tobacco products by prohibiting the sale of cigarettes
with certain characterizing flavors, but allowing the sale
of cigarettes with the flavors of tobacco or menthol.
In fact, rather than banning menthol flavored ciga-
rettes, Congress directed the FDA to study the issue of
menthol in cigarettes. The study was necessary because
Congress recognized that a ban on menthol cigarettes
could lead to the potential creation of a black market.
On average, the sale of tobacco products account for
as much as 40 percent of in-store sales. Those retailers in
Yolo County that sell tobacco products will be forced to
remove literally hundreds of cigarette, cigar, pipe tobac-
co, smokeless tobacco and electronic cigarette products
from their stores’ shelves if the flavor ban ordinances ac-
tually go into effect. Such a severe reduction in product
sales will jeopardize jobs and possibly even force retailers
out of business.
There is no question that a ban on the sale of flavored
tobacco products will result in significant losses of tobac-
co product and cigarette sales by law-abiding retailers
and will require law enforcement to devote more resourc-
es to respond to the likelihood of criminal behavior in
trafficking of these legal, yet banned tobacco products.
The irony is that these ordinances do not cite any
evidence that Santa Clara County or Yolo County re-
tailers are selling flavored tobacco products to underage
youth. Moreover, there is no data showing that prohibit-
ing the sale of all flavored tobacco products will reduce
youth access to tobacco products. In other words, the
two ordinances do not offer any supporting information
to justify such severe restrictions on the sale of legal to-
bacco products.
With the federal preemption issue being disregarded
by both the Santa Clara County and the Yolo County
Board of Supervisors, one probable scenario is that lit-
igation will be considered that would seek to overturn
the ordinances. At times, the judicial system needs to be
relied upon to correct improper actions taken by local
governments.
TBI
Thomas Briant is the
executive director and
legal counsel of NATO,
the National Association
of Tobacco Outlets.
NATO NEWS
[
TOM BRIANT ]
TOBACCO
[ T O B O N L I N E . C O M ]
TOBACCO BUSINESS INTERNATIONAL
[ 49 ]