Cigarette photo by Pawel Czerwinski on unsplash.com

Three years ago, advocates for reducing smoking and vaping in California won a major victory when they persuaded the state Legislature to adopt a ban on the sale of flavored tobacco products despite an intense industry lobbying campaign.

But in recent months, those same groups have been largely silent as a first-term lawmaker sought to phase out tobacco sales in the state altogether. His proposal was shelved this week without even receiving a hearing, and he will instead pursue a bill this session to strengthen enforcement of the flavored tobacco ban.

The decision by major anti-tobacco organizations to sit out another legislative fight reflects a broader disagreement among advocates about the best way to reach what they call the “endgame” of a tobacco-free future — and whether that should be their primary goal. Concerns over public backlash, political feasibility and potential cuts to programs funded by tobacco taxes are all factors.

“All these groups have the same goal,” to eliminate the deaths and disease caused by tobacco, said Chris Bostic, policy director for Action on Smoking and Health, one of only a handful of anti-tobacco groups to endorse the sales phaseout bill. “But people have varying opinions of how to get from here to there.”

Assembly Bill 935, introduced in February by Democratic Assemblymember Damon Connolly of San Rafael, would have taken the bold step of banning the sale of tobacco products, including cigarettes, cigars and vaping liquid, to anyone born on or after Jan. 1, 2007.

The legal smoking age in California is 21, so those who would have been affected by the measure aren’t able to buy tobacco from retailers for at least five more years anyway. But the proposal would have had the effect of creating a whole generation of Californians prohibited from ever legally purchasing tobacco products, with the goal of making it more difficult for them to start smoking or vaping.

It’s an idea that remains on the cutting edge globally. New Zealand became the first country to adopt the approach in December, banning the sale of smoked tobacco products such as cigarettes for anyone born after 2008. The Massachusetts town of Brookline passed a more expansive ban on tobacco products, including vapes, in 2020, which faced a legal challenge from retailers and was upheld in court last year.

Lawmakers in Hawaii and Nevada also introduced sales phaseout proposals this year, but neither measure has received a hearing yet either.

Bill did not gain traction
Connolly’s bill struggled to attract backing. By the end of last week, only 10 organizations, including the California chapter of the American Academy of Pediatrics, had sent letters of support to the Assembly Health Committee, where it was first set to be considered, according to an analysis prepared by the committee.

None of seven primary sponsors of the flavored tobacco ban — the American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association, the Campaign for Tobacco-Free Kids, Common Sense, Lt. Gov. Eleni Kounalakis and state Superintendent of Public Instruction Tony Thurmond — took a public position on AB 935. Most declined to discuss their reasons with CalMatters.

“This is not the time to tackle this. We’re trying to do the clean-up on the flavored tobacco ban,” said Autumn Ogden-Smith, director of California state legislation for American Cancer Society Cancer Action Network. “We’re having enforcement issues.”

Jason Maymon, a spokesperson for Common Sense, said that the organization’s priority had shifted to protecting kids and teens from online harms. “Tobacco remains an important issue that we care about but more of our resources are focused on fixing the internet for kids,” he wrote in an email.

Bo Smith, a spokesperson for the American Lung Association, which has a “strategic imperative” to “create a tobacco-free future,” said in an email that the organization has “nothing to add to the story at this time.”

Representatives for the American Heart Association — which has adopted a tobacco endgame strategy and received a $5.6 million grant from the California Tobacco Control Program in 2020 to help position the state to end tobacco use statewide by 2035 — did not respond to interview requests and written questions.

At the Assembly Health Committee hearing on Tuesday, Connolly accepted amendments from the committee that changed the focus of his bill. It will now authorize the California Department of Public Health and the state attorney general’s office to enforce the flavored tobacco ban, in addition to local agencies.

Assemblymember Jim Wood, the Healdsburg Democrat who leads the health committee, declined an interview request. In its analysis, the committee suggested that phasing out tobacco sales in California was less urgent because adult and youth smoking rates are only slightly higher than half the national average.

“The Legislature may want to consider whether it would be more effective to focus on enforcing the flavored tobacco ban rather than engaging on a new front,” the committee wrote, “and attempting to prevent a product that is legal in 49 other states, as well as on sovereign Tribal lands, from entering the state.”

Connolly, who was elected to the Assembly in November and previously worked on tobacco control as a Marin County supervisor, told CalMatters that he plans to revive the sales phaseout proposal next year. He said he would continue to seek the support of anti-tobacco organizations that did not come on board with this version.

“I don’t want to speak for them, but I think certainly there are shared goals around the ultimate objective,” he said. “So what I would anticipate is continuing to work with those groups, and all stakeholders, around a larger set of solutions as originally embodied in AB 935.”

Why anti-tobacco groups were reluctant
Supporters of the measure said they heard a range of objections as they tried to bring advocates into the fold, including both that the bill was too aggressive and that it did not go far enough.

Some groups worry that unintended consequences, such as pushing more tobacco sales into the black market, could set back the overall movement to end smoking. Others believe it would divert finite resources into a politically challenging fight at the Capitol and distract from a nascent local campaign to persuade cities to completely outlaw tobacco sales, which has already found success in Beverly Hills and Manhattan Beach. Some see it as unjust to create a separate group of adults who cannot buy tobacco products while most still can.

John Maa, a Marin County physician and anti-tobacco activist who testified in favor of AB 935 at Tuesday’s hearing, said the most convincing argument he heard was that the bill would give the tobacco industry a pass for decades as sales are slowly phased out and that the endgame should come sooner.

“There’s not going to be one single legislative solution to the enormous problem that the tobacco industry has created over 500 years,” Maa said. “I believe it will require a multi-pronged strategy.”

Then there’s the fiscal reality that taxes on tobacco sales fund programs in California — including health care for low-income residents, disease research, early childhood education and tobacco use prevention — some of which are led by the same groups that are pushing to reduce smoking.

Following a campaign by hospitals, doctors, unions and anti-tobacco groups, California voters passed a massive tobacco tax increase in 2016 that initially promised to raise more than $1 billion annually for the state budget. It provided $30 million for local tobacco control programs and $19 million for competitive grants last year, according to the Department of Public Health.

Bostic, of Action on Smoking and Health, said he viewed it as a victory that the debate over tobacco had reached a point where a statewide phaseout of sales could even be proposed in California. He said he was not surprised that mainstream anti-tobacco organizations did not jump on board with the idea, in part because of fear over how their movement might be perceived, but he pointed to a nationwide Centers for Disease Control and Prevention survey conducted in 2021 that found that more than 57% of American adults support banning the sale of tobacco products

“We’ve got to get public health to catch up with the public, and then we’ve got to get decision-makers to catch up with both,” Bostic said.

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Alexei Koseff covers Gov. Gavin Newsom, the Legislature and California government from Sacramento. He joined CalMatters in January 2022 after previously reporting on the Capitol for The Sacramento Bee and the San Francisco Chronicle, where he broke the story of Newsom’s infamous dinner at The French Laundry restaurant. Alexei is a Bay Area native and attended Stanford University. He speaks fluent Spanish.