Two New California Laws Further Restrict Sales of Vaping Products and Nicotine Pouches
California continues to tighten its regulation of vaping products and nicotine replacement therapy with the passage of two new bills, AB 3218 and SB 1230. The bills, signed by Governor Gavin Newsom in September after being approved by both houses of the legislature in August, introduce additional restrictive measures, including bans on non-menthol refrigerants, nicotine analogues like Metatine, and the online sale of flavored products. They are scheduled to go into effect on January 1, 2025.
These new laws strengthen the existing ban on flavoured vaping and tobacco products, while introducing new measures and additional enforcement powers. Here is a summary of the key provisions:
1. Redefinition of nicotine and flavors
The laws amend the definition of nicotine to include not only synthetic nicotine, but also analogues such as Metatine and Nixotine. In addition, the definition of a characteristic flavour is expanded to also include synthetic refrigerants.
2. Create a list of unflavored products
A list of “non-flavored tobacco products” will be established by the Attorney General by December 31, 2025. Only products on this list may be legally sold in California, whether online or in stores. Any products not on this list will be prohibited from sale, effective immediately upon publication of the list.
The measure is modeled after recent PMTA registry laws passed in several states, pushed by big tobacco companies, that aim to protect traditional cigarettes and vaping devices deemed ineffective from competition.
To have their products listed in California, manufacturers will have to certify, under penalty of perjury, that their products are unflavored. The attorney general will have significant discretion to exclude any product, including those that are not approved by the FDA.
3. Increased powers of authorities and high fines
The laws also give state agencies, as well as local authorities, the power to seize products that violate regulations and impose on-the-spot fines for each item seized. Violators could face fines ranging from $2 to $000.
Additionally, municipalities will be able to pass laws that are even more restrictive than the state's, if they choose. That flexibility could lead to additional bans in some parts of California.
4. Exemptions for cannabis and hookah products
Note that these new laws do not apply to products containing cannabis or hookah products, which benefit from an exemption.
5. Potential impact on the black market
While the laws are welcomed by tobacco control groups, they risk fueling a thriving black market in the country’s most populous state. That could include legitimate retailers willing to risk fines, as well as new informal vendors using social media or other local platforms to peddle banned products. The measures could also exacerbate an existing problem of cigarette smuggling from neighboring states.
En conclusion, the implementation of laws AB 3218 and SB 1230 represent a significant strengthening of California's legislation on vaping products and nicotine substitutes. However, they raise concerns about the emergence of an illegal trade that could escape regulation by authorities.
