California’s flavored tobacco ban up in the air as Biden moves to prohibit menthol cigarettes

The move by President Joe Biden’s administration to ban the sale of menthol cigarettes and flavored cigars is unlikely to disrupt California’s upcoming referendum on a state law prohibiting sales of those and other tobacco products.

The U.S. Food and Drug Administration on Thursday announced that it plans to go ahead with efforts to ban the tobacco products, building on a previous ban of other flavored cigarettes in 2009. It kicks off a lengthy process that might not be resolved for years.

“Banning menthol — the last allowable flavor — in cigarettes and banning all flavors in cigars will help save lives, particularly among those disproportionately affected by these deadly products,” Acting FDA Commissioner Janet Woodcock said in a statement.

The decision comes as California’s ban on those products remains on hold because an upcoming ballot initiative.

Gov. Gavin Newsom in 2020 signed a bill banning the sale of most flavored tobacco products, including menthol cigarettes. The tobacco industry responding by funding referendum campaign, which in January acquired enough signatures put the question on the ballot.

California voters in 2022 will decide whether to enact the ban.

Even if the federal government goes through with the ban, it won’t affect the vote in California, according to Secretary of State spokeswoman Jenna Dresner.

“There’s no mechanism in the law or (state) constitution for pulling a referendum that has already qualified for the ballot. There’s only a process in statute for eligible initiatives to be withdrawn before they are qualified for the ballot; once qualified, they can’t even be pulled. That said, someone might want to go to court,” she said.

The California Committee for Fairness, the group behind the referendum, declined to comment on the FDA’s actions, and whether it would affect the 2022 referendum.

Altria, one of the tobacco companies behind the referendum campaign, said in a statement, “We share the common goal of moving adult smokers from cigarettes to potentially less harmful alternatives, but prohibition does not work. Criminalizing menthol will lead to serious unintended consequences.”

The FDA’s move was hailed by the Campaign for Tobacco-Free Kids, which is fighting in favor of the ban.

“Following California’s lead, the FDA has taken a strong yet incremental step towards ending the sale of minty-menthol cigarettes nationwide. For more than 60 years, Big Tobacco has profited by deliberately targeting kids, especially in Black neighborhoods and households, with cigarettes containing minty-sweet menthol — a chemical that makes smoking easier to start, harder to quit, and more deadly,” Committee Co-Chair Malia Cohen said in a statement.

California Democratic also commended the Biden administration’s announcement. .

“I urge the federal government to follow California’s leadership to protect public health and advance racial equity by moving to ban menthol-flavored cigarettes. For decades, Big Tobacco has targeted and profited from Black communities with marketing for minty menthol cigarettes and as a result, smoking-related illnesses are the number one cause of death among Black Americans,” Newsom said.

Sen. Dianne Feinstein, D-California, said in a statement that all flavored tobacco products should be taken off the market.

“These products are often marketed to attract as many new users as possible and get them hooked on nicotine, disproportionately affecting youth and communities of color. I hope a ban on menthol-flavored cigarettes is just a first step toward banning all flavored tobacco products,” she said.

This story was originally published April 30, 2021 at 12:07 PM.