California's Tobacco Laws: Federal Compliance Or Challenge?

California has passed several laws to strengthen the enforcement of its flavoured tobacco ban and protect children from addiction. The state's flavour ban explicitly prohibits the sale of flavoured tobacco products at brick-and-mortar retail stores and vending machines. However, online sales of flavoured tobacco products were still permitted until January 1st, 2025, when Assembly Bill 3218 came into effect, closing the last remaining avenue for selling flavoured tobacco products to adult consumers in California.

California's ban on flavoured tobacco sales

AB 3218 amends Section 30101.7 of the California Revenue and Taxation Code, which outlines the conditions that tobacco delivery sellers must meet to sell tobacco in the state. This amendment brings online delivery sellers under the same restrictions as physical tobacco retailers, closing the last avenue for selling flavoured tobacco products to California consumers.

The new laws also expand the definition of "nicotine" to include synthetically derived nicotine and nicotine analogs, encompassing a broader range of products. The definition of "characterizing flavour" has also been revised to include "menthol sensation" products, which typically contain synthetic cooling agents.

An "Unflavored Tobacco List" (UTL) will be published by the Attorney General's office by December 31, 2025. This list will include tobacco products that lack characterizing flavours and are eligible for sale in California. Manufacturers and importers must certify that their products are unflavoured to the Attorney General's office under penalty of perjury. The Attorney General is authorized to seek civil penalties against sellers for selling products not on the UTL and can omit any tobacco products within the list lacking FDA authorization.

The new laws also increase penalties for selling tobacco products to people under 21 and repeal the exemption for military personnel, bringing state law into conformity with federal law, which sets a minimum legal sales age of 21.

The state's enforcement powers against flavoured tobacco products

California's enforcement powers against flavoured tobacco products have been expanded by the passing of Assembly Bill 3218 ("AB 3218") and Senate Bill 1230 ("SB 1230"). These laws, which came into effect on January 1, 2025, are expected to have a significant impact on the tobacco, nicotine, and vapour product industries.

AB 3218 makes an important change to Section 30101.7 of the California Revenue and Taxation Code, which outlines the conditions that tobacco product delivery sellers must meet to sell tobacco products in the state. The law now requires delivery sellers to comply with all applicable state laws or local ordinances that impose restrictions on the retail sale of cigarettes or tobacco products. This means that online delivery sellers are subject to the same restrictions as tobacco product retailers, closing the last remaining avenue for selling flavoured tobacco products to California adult consumers.

Both AB 3218 and SB 1230 expand the definition of "nicotine" to include synthetically derived nicotine and nicotine analogs. The revised definition includes "any form of the chemical nicotine, including any salt or complex, regardless of whether the chemical is naturally or synthetically derived, and includes nicotinic alkaloids and nicotine analogs." This expanded definition brings synthetic nicotine and nicotine analog products under the state flavour ban.

The laws also revise the definition of "characterizing flavour" to capture "menthol sensation" products, which typically contain synthetic cooling agents like WS-3. Characterizing flavour is now defined as any "taste or odor, distinguishable by an ordinary consumer either prior to or during the consumption of a tobacco product, other than the taste or odor of tobacco."

AB 3218 establishes an "Unflavored Tobacco List" ("UTL") that will be published on the Attorney General's website by December 31, 2025. The UTL will catalogue all tobacco products that lack characterizing flavours and are thus eligible for sale in California. Entities that sell or intend to sell unlisted products within the state may be fined up to $10,000 per violation. The Attorney General is authorized to issue fines of up to $50,000 against entities that report tobacco products as lacking a characterizing flavour without a reasonable basis.

Both laws also authorize the California Department of Tax and Fee Administration ("CDTFA") and other state or local law enforcement agencies to seize and, when appropriate, destroy flavoured tobacco products from retailers and wholesalers that sold or intended to sell the products. Violators may be fined $50 for each individual package of flavoured tobacco products that was seized.

These laws close loopholes in SB 793, California's flavour law, and are aimed at strengthening and streamlining enforcement against prohibited flavoured tobacco product sales. They provide new tools to enforce against prohibited flavour products, capture novel products produced by the industry, and regulate online or delivery sales.

The definition of 'characterising flavour'

The definition of a "characterising flavour" is a complex and subjective matter. In the context of tobacco product regulation, flavours that are present at levels that impart a strong non-tobacco smell or taste are considered "characterising".

The European Union Tobacco Products Directive 2014/40/EU defines a characterising flavour as:

> a clearly noticeable smell or taste other than one of tobacco, resulting from an additive or a combination of additives, including, but not limited to, fruit, spice, herbs, alcohol, candy, menthol or vanilla, which is noticeable before or during the consumption of the tobacco product.

The FDA does not directly define "characterising flavours" but used the following language in guidance on the flavoured cigarette ban in 2009:

> a cigarette or any of its component parts (including the tobacco, filter, or paper) from containing as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, liquorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke.

Assembly Bill 3218, which went into effect in California on January 1, 2025, further bolsters enforcement efforts of the state's ban on all flavoured tobacco sales in the state. It revises the definition of a prohibited "characterising flavour" to specifically include products that impart menthol-like cooling sensations, as well as other flavours that are "distinguishable by an ordinary consumer."

The state's smoke-free workplace laws

California's smoke-free workplace laws are among the most comprehensive in the country. The state's Labor Code Section 6404.5 prohibits smoking in enclosed spaces at places of employment, which includes lobbies, lounges, elevators, stairwells, and restrooms that are structurally part of the building. This law is enforced by local agencies, such as health departments, and violations can result in fines. California also requires employers to take reasonable steps to prevent non-employees from smoking in prohibited areas.

There are a few exceptions to the smoke-free workplace laws in California. Retail or wholesale tobacco shops and private smokers' lounges are exempt, as are truck cabs or tractors when no non-smoking employees are present. Theatrical production sites where smoking is integral to the story, medical research or treatment sites where smoking is necessary, and private residences (except licensed family day care homes during operational hours) are also excluded from the smoke-free workplace laws. However, employers with five or fewer employees may permit smoking in designated areas if all employees present agree and no minors are present.

In addition to the state laws, local city or county laws can implement their own regulations regarding smoking in the workplace. For example, the city of Berkeley has passed an ordinance prohibiting smoking within 25 feet of any public building. California's smoke-free workplace laws also do not supersede local authority to regulate exempted work environments or to require the provision of separate break rooms for smokers and non-smokers.

California's smoke-free workplace laws are designed to protect the health of employees and the public from the dangers of second-hand smoke. While federal law does not generally require smoke-free workplaces, California has taken a proactive approach to address this health hazard. Employers are required to post "No Smoking" signs at each workplace entrance and may face fines for violations.

The state's ban on tobacco sales in pharmacies

California has taken a strong stance against the tobacco industry, with a particular focus on protecting the health of its citizens, especially the youth, from the harmful effects of tobacco products. The state's efforts to curb tobacco sales and usage are evident through various laws and regulations, including those that ban the sale of tobacco in pharmacies.

The ban on tobacco sales in pharmacies is part of California's comprehensive approach to tobacco control. This includes measures such as the prohibition of smoking in the workplace, as outlined in the California Labor Code Section 6404.5, which protects employees from secondhand smoke and creates healthier work environments. Additionally, the state has strict laws prohibiting the sale of tobacco products, including electronic cigarettes, to anyone under the age of 21, as stated in the California Penal Code Section 308(a) and the STAKE Act.

California's commitment to tobacco control is further demonstrated by its ongoing efforts to strengthen enforcement and close loopholes. For example, the state's Assembly Bill 3218, which went into effect on January 1, 2025, bolsters enforcement of the existing ban on flavored tobacco sales. This law closes the avenue for online sales of flavored tobacco products, ensuring that delivery sellers are subject to the same restrictions as brick-and-mortar retailers. Additionally, Senate Bill 1230 expands the definition of "nicotine" to include synthetically derived nicotine, ensuring that a wider range of products fall under the state's flavor ban.

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