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California vape ban prevails but court challenge possible


Illustration: Sarah Grillo/Axios

Californians on Tuesday voted in strong numbers to ban the sale of flavored vapes and menthol cigarettes. But the Supreme Court may yet have the final say on the matter.

The big picture: California joined a handful of other states and cities that have leapfrogged the Food and Drug Administration on banning all flavored e-cigarettes that are popular with youths, as well as menthol cigarettes.

  • The move “will send a clear message to the federal government” on the need for action, Matt Myers, president of the Campaign for Tobacco Free Kids, told Axios.

Yes, but: R.J. Reynolds Tobacco Company last month asked the Supreme Court to review its challenge to a similar ban in Los Angeles County, arguing that local and statewide bans infringe on the federal government’s authority to regulate tobacco products.

  • Justices haven’t signaled whether they’ll take the case.
  • There are also a handful of active legal challenges in circuit courts brought by vapor companies against the FDA for denying their products’ marketing orders.

Zoom out: The FDA has been weighing individual companies’ applications to market e-cigarette products, so far only approving tobacco-flavored products.

  • The California result saw 62% of voters opt to uphold a 2020 state law banning flavored products that tobacco interests challenged, forcing a popular vote.

The other side: Vaping interests say the statewide ban harms millions of adult smokers in California who used e-cigs as a cessation device and may be forced to go back to cigarettes.

  • The ballot did not make exceptions for products that the FDA can approve for modified risk use, to wean smokers off cigarettes, Greg Conley, director of legislative and external affairs at the American Vapor Manufacturers Association, told Axios.

By the numbers: The ballot measure, Prop 31, will cost California as much as $100 million in decreased tobacco tax revenue.

  • As of late September, the tobacco industry spent more than $22 million trying to defeat the measure.
  • Health organizations and the California Democratic Party, with significant help from philanthropist Michael Bloomberg, spent more than $6 million to support it.

Editors note: This article has been corrected to reflect the correct name of the president of the Campaign for Tobacco Free Kids.


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