Extending California's Ban on Flavored Tobacco Products Across America

John Maa, MD and Jeffrey Wigand, PhD

To increase their profits over the decades, the tobacco industry has specifically targeted two vulnerable populations – Black Americans and our youth - with a variety of flavored tobacco prod-

ucts. Slick marketing campaigns first appeared in Black media and magazines in the 1960’s designed to hook a new generation of young Black Americans on menthol cigarettes. In the 1950s, fewer than 10% of Black Americans who were smokers used menthol cigarettes, but today over 80% of Black Americans who smoke use menthol cigarettes. An estimated 45,000 Black men and women now die as a result of nicotine addiction every year, and menthol cigarette use also carries a heavy toll in the Hispanic and Asian American communities. Unfortunately, this formula for marketing success was repeated years later when the electronic cigarette industry promoted flavored vaping liquids in colorful packaging mimicking candy to target youth, in addition to menthol e-cigarette flavors. The CDC reported that one-third of American high school students used e-cigarettes in 2019.

In 2009, the Obama Administration banned the sales of all flavored cigarettes, but exempted menthol. In 2011, the US Food and Drug Administration (FDA) concluded that “removal of menthol cigarettes from the marketplace would benefit public health in the United States.” But the implementation of that FDA recommendation was delayed for years after a lawsuit filed by the tobacco industry, while other nations worldwide including Brazil, Canada, Ethiopia, Turkey, Moldova, the European Union and the United Kingdom all passed national menthol bans.

To address this dual public health threat of menthol and flavored vaping liquids, in June of 2017 Mayor Ed Lee signed landmark legislation introduced by then SF Supervisor Malia Cohen to ban the sale of all flavored tobacco products across San Francisco. This proved to be his final public health legacy before his untimely passing later in December 2017. An attempt by RJ Reynolds to overturn Mayor Lee’s legislation was overwhelmingly defeated by San Francisco voters by a 68 to 32 margin in June of 2018, and a repeat attempt by Juul in 2019 to overturn the legislation was defeated once again by SF voters by a 82

to 18 margin. A national movement was catalyzed forward by Supervisor Cohen’s 2017 legislation – much of Marin County in California soon passed legislation identical to SF’s, followed by cities across America including Sacramento in December of 2019, and the entire state of Massachusetts in November of 2019. On August 28th, 2020 the State of California joined Massachusetts when Governor Gavin Newsom signed into law SB 793 by State Senator Jerry Hill, which outlaws the retail sale of most flavored tobacco products in California, after the bill arrived on the Governor’s desk just hours before. Governor Newsom also commented “I have been very expressive in terms of my absolute condemnation of this tobacco industry that continues to find ways to target our youth.”

Protecting our youth and the vulnerable from products that result in nicotine addiction and increase smoking rates has been long-standing public health policy. Decades of research have shown that smoking remains a leading cause of preventable death in the United States, claiming nearly 500,000 lives annually. The Covid-19 pandemic has only made the need for strong public health action in tobacco control even more urgent, to offset the healthcare burden to our States already strained by the Covid pandemic. Smoking and vaping have now both been linked in scientific studies to transmission of the virus and worse outcomes from Covid-19, and it is essential for policymakers to implement every effort to curb the spread of Covid-19 and reduce the addictiveness of tobacco products. The Covid pandemic has been a difficult time for Juul. The Federal Trade Commission filed litigation in April of 2020 to end the Juul-Altria partnership as a violation of the Sherman Act, and class action lawsuits went further to allege the Altria-Juul deal was a conspiracy to create an illegal monopoly. Later in April, Juul laid off one-third of their workforce, and announced they were leaving SF and moving to Washington DC. Juul also exited five European markets including France and Spain (Austria, Belgium and Portugal), as well as South Korea. In July of 2020, Juul filed an FDA premarket application to market both Virginia tobacco and menthol flavored electronic cigarettes, amidst calls

to the FDA from Congressional lawmakers to temporarily clear e-cigarettes from the market during the Covid pandemic.

We must do all we can to stop the alarming trend of e-cigarette and flavored tobacco use across America. Given the severity of the Covid pandemic, it is also time to do everything appropriate to curb the spread of the virus. The UK has reported record numbers of adult smokers trying to quit after recognizing the risks posed with Covid-19 and active smoking. In August of 2020, regions of Spain effectively banned smoking in public places over concerns it increases Covid-19 transmission. As we anticipate a second wave of Covid-19 to arrive shortly in the Fall of 2020, strong proactive public health action is necessary to avoid overwhelming our healthcare delivery system this Winter. In July of 2020, the FDA ordered 10 e-cigarette manufacturers to immediately halt sales, after accusing three of illegally marketing their e-cigarettes. Further action now by the White House to follow the lead of California and implement a national menthol and flavored tobacco products ban could help reduce nicotine addiction and the spread of Covid-19. Another strategy would be to restrict the FDA premarket application from Juul to exclude the sale of menthol flavored Juul pods, given the long history of the tobacco industry targeting Black Americans with menthol flavors. Around the time of the Spanish Flu in 1918 came important major social changes like woman’s suffrage, and perhaps Covid-19 will accelerate stronger public health action towards the Tobacco Endgame, and a future nation free of tobacco and nicotine addiction.

John Maa, MD is a general surgeon in San Francisco a former president of the San Francisco-Marin Medical Society, and chair of the California Advocacy Committee for the American Heart Association.

Jeffrey Wigand, PhD is a medical biochemist and former vice president of research and development and environmental affairs at Brown & Williamson Tobacco Corporation who worked on the development of reducedharm cigarettes and in 1996 blew the whistle on tobacco tampering at the company. A version of this piece first appeaerd on The Hill.com.