SAN FRANCISCO — On Sept. 22, 2009, the Food and Drug Administration (FDA) banned cigarettes with characterizing flavors like fruit, candy and clove. This marked the agency's first major move after receiving regulatory control over tobacco products — a result of the Family Smoking Prevention and Tobacco Control Act of 2009 that President Obama signed into law that June.
Absent from the ban, however, was menthol. It also only targeted cigarettes.
In the intervening eight years, countless local governments across the United States have enacted their own flavor bans, taking the regulation a step further by including all tobacco products.
More than 100 towns in Massachusetts alone have such restrictions — in fact, as of late April, 43.5 percent of the Bay State's population lived in municipalities that restrict the sale of flavored other tobacco products to adult-only retailers.
Again, absent from these local rules has been menthol.
But that all changed this summer when in June, the San Francisco Board of Supervisors, which has joint jurisdiction over the city and the county, unanimously approved an ordinance prohibiting the sale of all flavored tobacco products including menthol cigarettes.
San Francisco Supervisor Malia Cohen introduced the legislation, unveiling the proposal with great fanfare on the steps of City Hall on April 18.
"It's time for us to focus on flavor," Cohen said that day. "Restricting the sale of flavored tobacco is vital to ensuring that we give the next generation a fighting chance, a fighting chance of living a healthy, full life otherwise cut short by preventable diseases."
The final San Francisco Board of Supervisors vote took place June 20, despite the city's Office of Economic Analysis finding that if enacted, the ban could have a material economic impact on the city. Specifically, its Banning the Sale of Flavored Tobacco Products: Economic Impact Report estimated the value of flavored tobacco cigarettes that would be affected by the legislation at $50 million per year, approximately.
The Board of Supervisors' vote was immediately met with opposition. A coalition of retailers, supporters of small business, and adult consumers formed to bring the issue to the voters. Needing 19,400 valid signatures and collecting nearly 35,000 in three weeks, the Let's Be Real San Francisco coalition successfully brought forward a petition to get the flavored tobacco ban measure on the ballot for voters to decide.
"The unfortunate part, as you see across the country with many local ordinances, is that there is very little input from the business community, especially where the impact of these types of ordinances will hit the most," Jaime Rojas Jr., spokesman for Let's Be Real San Francisco, told Convenience Store News.
"We are dealing with small convenience stores, gas stations, mom-and-pop businesses that follow the rules and regulations — especially in regards to tobacco products, which are already harsh and expensive as it is," Rojas Jr. added.
For example, in June 2016, California raised the legal minimum age to buy tobacco products from 18 to 21. It followed that with a $2 increase in the state's cigarette excise tax this past April.
"We see, specifically with the City of San Francisco and the county, that their initiative and their goal was to limit tobacco products for those under 18. But the impact was really on the local retailer than on children." Rojas Jr. explained. "It's redundant. We already have these rules and regulations not to sell to children, not to market to them, in place."
Pointing to the city's Office of Economic Analysis report, Rojas Jr. noted the economic impact could be even greater than the estimated $50 million when you factor in the loss of payroll tax and property tax, as well as possible small-business jobs.
In early August, the San Francisco Department of Elections validated the signatures collected by Let's Be Real San Francisco, setting up a possible showdown on the election stage.
According to Rojas Jr., when the Board of Supervisors returns from recess in September, it can make one of three decisions:
- Rescind the ordinance,
- Call for a special election, or
- Put the question on the ballot on the next scheduled election in June.
Of the three, he believes a June election vote is the most probable.
"I think the number of signatures we were able to gather in such a short period of time is a good indication that the voters of San Francisco want this opportunity to decide on the freedom of choice," Rojas Jr. said. "I think that is the most important thing."
The ordinance calls for an April 1 enforcement date; however, that is now on hold. The extra time gives the coalition the opportunity to begin educating voters on the impact of what the ordinance means, he added.
For more on the future of menthol, look in the September issue of Convenience Store News.