California cities are supposed to be cracking down on sales of flavored vapes, which are now illegal across the state. But even cities that have banned such vapes for years are unwilling — or unable — to police the sellers.
STAT visited 24 vape shops earlier this month in Oxnard, Ventura, Pasadena, El Monte, Carson and West Hollywood — all of which have had bans on flavored vapes on the books for at least a year; most for two or more years. Seventeen of the shops, or 70%, were selling the products anyway. One city is doing much better than the others: In Oxnard, where we hit five shops, none of the stores sold flavored vapes.
Many of the sellers of these products appeared to be openly flouting the law with impunity. In the city of Ventura, which banned flavored vapes in December 2019, five of the six shops STAT visited were selling illegal products. Two shops selling vapes were located on the city’s bustling main street, less than a block from city hall.
thers are making a minimal effort to appear to comply. One smoke shop in El Monte, which banned flavored products in January 2021, kept a handmade sign that read “not for sale” above its vape display. An employee there sold STAT an “energy” flavored vape when asked, with no protest. (Buying a flavored vape is not illegal in California; only selling the products is.)
The open defiance of those local laws portends badly for the state’s newly enacted flavor ban. Voters in California enacted a statewide ban on flavored vapes in November, which took effect in December. Enforcement of the new law will primarily be handled by the same local jurisdictions that have failed to enforce their own policies, not the more powerful state attorney general. The newly enacted state law is also strikingly weak: Retailers can be fined $250 for each violation, but the law does not include increased penalties for repeat offenders. Retailers also cannot lose their license for repeatedly flouting the law, like they can if they’re caught repeatedly selling products to kids — though cities and counties with stronger laws can continue to apply them.
Former state Sen. Jerry Hill, a Democrat and the chief sponsor of the statewide ban, said he was “shocked” and “outraged” by STAT’s reporting. Hill, who had to step down at the end of 2020 because of term limits, was optimistic more and more retailers would stop selling these products, but acknowledged the law may eventually have to be amended to strengthen the state’s enforcement powers.
“It would have been better to have a stronger penalty … but politics is the art of compromise,” said Hill, who admitted he “did not think that businesses would completely ignore [the law].”\
“If it’s not working … then something else will follow,” he added.
At the federal level, Rep. Nanette Barragán, a Democrat who represents Carson, where STAT found four shops illegally selling flavored vapes, expressed similar dismay.
“I’m very concerned that shops appear to be selling flavored tobacco products when a ban is in place,” she said when told of STAT’s reporting. “The ban needs to be enforced so we can ensure that these dangerous products stay out of the hands of young people.”
California’s enactment of the statewide flavor ban could also have national implications. The state — the largest in the nation and the fifth state to completely ban all flavored vape products — is seen as a model for other states to follow. Eight states have introduced similar legislation so far this year.
“The nation’s eyes are on what California does,” said Matt Myers, the president of the Campaign for Tobacco-Free Kids, which supports the flavor ban. (The Campaign, like STAT, receives funding from Bloomberg Philanthropies.) “If California succeeds, it will demonstrate clearly the potential of flavor bans to reduce both youth use and minority use [of tobacco]. If California fails, it will give the industry an argument that these laws aren’t effective.”
The continued prevalence of flavored products is at least partially due to cities’ lack of oversight efforts. When STAT requested the number of inspections and violations issued by each city it investigated, only Pasadena and Carson provided that data. Pasadena said it has fined one business since it started actively enforcing its ban last July. Carson hasn’t issued a single fine, and has only completed two inspections since it began enforcing the ban in 2021.
At many of the vape shops STAT visited, you wouldn’t know the products were illegal. Their shelves were overflowing with the types of cheap, disposable flavored products increasingly being used by young people.
One store in West Hollywood, for example, displayed roughly thirty flavors of Elf Bars and at least twenty flavors of Flum, two of the most prevalent vape brands. They make products in flavors like bubble gum, gummy drop, and rainbow skittles.
Often shops openly advertised the sale of these products. One store in Ventura displayed a window decal advertising it was an authorized Flum retailer, for example, and had 27 flavors of the product — the shopkeeper even volunteered that he had the newest flavor, Rums Freeze.
Some shops were more clandestine about their sales. Ten of the stores STAT visited only pulled out flavored products when asked. An employee at a vape shop in Ventura admitted that the products were sold “on the low” after she pulled a cart of vapes out from behind a curtain.
One shop in Pasadena, which displayed a window decal opposing the flavor ban, told STAT that disposables — and disposables only — had to be bought with cash.
Another shop had a sign on its counter warning, “effectively immediately, California law prohibits the sale of flavored tobacco products,” but then sold STAT a Pear Ice Hyppe Bar without question.
The only city where STAT could not find a wide assortment of flavored vapes was Oxnard, which was one of the earliest cities to ban these products, in 2019. There, STAT could only find tobacco and “clear” flavored vapes, largely unflavored products that are advertised online as having a “light menthol” flavor.
Already, there’s debate on whether these “clear” products are legal under the California law. Tobacco control advocates insist they should be illegal, though some vape shops have been reportedly told by regulators they can sell these products, according to the industry publication Filter.
Even with Oxnard’s flavor ban working largely as intended, it was easy to find flavored vapes close by.
One shop employee in Oxnard suggested STAT visit Port Hueneme, a neighboring town that had not implemented its own flavor ban ahead of the state law. There, STAT found three vape shops selling flavored products all within a two-mile radius, including one with signage outside that read “We carry all your flavored goods.”
The stores STAT visited in Port Hueneme were not included in its tally of 24 stores because the city only enacted its flavor ban when the state law was enacted.
It remains unclear how California will fix the enforcement issues. Some are hopeful that the situation will begin to resolve on its own.
Shopkeepers in a few stores STAT visited did volunteer that they were selling off their leftover inventory in the wake of the November referendum. While that is illegal, it remains to be seen if those businesses will begin to follow the law after they recoup their investment.
One city, El Monte, also told STAT that it was planning to launch a “full enforcement campaign” on March 1, after it had “paused some of our enforcement activities during COVID.”
Former state Sen. Richard Pan, a Democrat and a vocal proponent and co-sponsor of the ban, said he hoped the situation would improve as retailers get educated about the policy. He argued that an effort financed by tobacco companies to put the law, which was first signed by the governor in 2020, to a statewide ballot could have led some retailers to be confused about what they currently can sell.
“There’s a lot of confusing messages out there. Now that everything is settled, it’s time for everyone to get on the same page,” said Pan, who acknowledged he was assuming most store owners want to follow the law.
When STAT described certain shops’ open defiance of the law, however, even Pan argued that there may need to be additional “enforcement efforts.”
“They need to understand there’s consequences for that,” Pan said.
In California, different jurisdictions place the responsibility of regulating vape shops on different agencies with wildly different missions.
In El Monte, enforcement of the ban is handled by the police department and code enforcement. However, in Carson it’s handled by the city’s finance department. In Pasadena, it’s the public health department.
It’s also unclear how long it’ll take municipalities without longstanding flavor bans to set up their own enforcement program. The state law does not specify what local agencies should be tasked with enforcing the law, nor does it set timelines for each localities’ enforcement program to be established. The law also doesn’t provide funding for local agencies to do this enforcement.
Bill Lockyer, a former California attorney general and state senator, argued the state needed to send a strong message that it would enforce the law. But he struggled to articulate how that could happen.
“I would think some enforcement that would put people on notice, ‘We are coming,’ might be useful,” Lockyer said. “I don’t know who is going to do that.”
Supporters of the law acknowledge that it may need to be amended to give the state more power to go after retailers that ignore the law.
Eric Lindblom, a senior scholar at Georgetown University, pitched a number of ways the law could be strengthened, including giving regulators the ability to shut down stores that repeatedly violate it, and giving inspectors the ability to seize and destroy illegal products they find on the shelves.
“It’s terrific that it’s in place. It’s a very, very clear statement that flavored tobacco products should not be on the market. [But] it looks like we’ve got some procedural, enforcement, and administrative problems,” said Lindblom, who has helped states and cities craft similar policies.
Some advocates are also calling for the attorney general to test its legal authority by going after manufacturers and distributors of vapes that are banned in the state.
“If California doesn’t enforce this law against the manufacturers and distributors quickly, then trying to do it store by store [will be] an enforcement nightmare,” said Myers, of the Campaign for Tobacco-Free Kids. “They have a strong law that will not be effective unless they take statewide action against the stakeholders who make and distribute these products across the state.”
Myers was adamant that the state has the power to go after these industries, despite the fact that the law does not mention fines or other sanctions against these industries. Other legal experts were less certain California has that power because, they said, it might be considered unlawfully regulating interstate commerce, which only the federal government can regulate.
“There is a chance that somebody might raise an alarm about affecting a national player,” said Andrew Twinamatsiko, an attorney who previously advised California on tobacco control laws and is now associate director of the Health Policy and the Law Initiative at Georgetown University’s O’Neill Institute. “There could be a fine line to walk there.”
The decision on whether to take such action will likely fall to Rob Bonta, California’s attorney general. Bonta declined an interview with STAT and declined through a spokesperson to say whether he would take a more active role in prosecuting violators of the law.
In a written statement, the AG’s office said that “prosecution and enforcement of retail flavor bans, like Ventura’s ordinance or SB 793, is typically handled at the local level.” The AG did not directly answer STAT’s question on whether the office has the power to go after manufacturers and retailers directly, but did note that the agency can “[crack] down on the trafficking and distribution of illegal products.”
The office also highlighted millions of dollars in grant funding the office has supplied to local jurisdictions to help with enforcing the law, and several speaking engagements the office has done with local health and law enforcement agencies.
STAT’s coverage of the commercial determinants of health is supported by a grant from Bloomberg Philanthropies. Our financial supporters are not involved in any decisions about our journalism.
https://www.statnews.com/2023/01/27/california-flavored-vape-ban/
