As of December 21, 2022, Proposition 31 has taken effect in California. The new law will further exacerbate one of the biggest public health problems prevalent in the United States: tobacco use.

Proposition 31 essentially upholds SB 793, a bill passed in August 2020 but never put in effect, which was designed to ban flavored tobacco products, flavored e-cigarettes and menthol cigarettes. This restriction will hurt businesses and the state government and, most importantly, leave nicotine users worse off physically and economically. Instead of eliminating alternatives to combustible cigarettes as a means for harm reduction, California and other states should remove flavor and e-cigarette bans.

With nicotine users increasingly turning to vaping and ditching the pack, conversation about the impact this shift might have on public health has been constant. As e-cigarette products are relatively new, many have worried about the harm they could impose, especially for young people.

However, studies continue to show that e-cigarettes — while not risk-free — are far safer than combustible cigarettes and are a better means to ditch cigarettes than traditional nicotine replacement products.

Members of the California State Legislature argued for their support of Proposition 31 on the basis that they seek to protect kids from a tobacco industry that targets them as prospective customers. State Senator and SB 793 sponsor Jerry Hill summed up their sentiment when he stated, “Using candy, fruit and other alluring flavors, the tobacco industry weaponized its tactics to beguile a new generation into nicotine addiction while keeping longtime users hooked. SB 793 breaks Big Tobacco’s death grip.”

To combat the “youth vaping crisis,” proponents of Proposition 31 think a ban on “alluring” flavors is the solution.

Yet according to the Centers for Disease Control and Prevention (CDC), only 14.1% of high school students and 3.3% of middle school students reported current e-cigarette use in 2022. Although these statistics warrant some concern, they certainly don’t substantiate claims of a “crisis” or “epidemic.”

Moreover, in a 2019 study, when students were asked what was “the main reason [they] have used electronic vapor products,” only seven percent of high schoolers reported using e-cigarettes because of flavors. A CDC survey last year corroborated this low percentage, finding that among middle and high school students currently using e-cigarettes, only 13.2% cited using them because of flavors.

California also already prohibits those under the age of 21 from buying nicotine products. Lawmakers shouldn’t pin the blame for underage nicotine use on law-abiding businesses that sell vape products, but, rather, on young people’s circumvention of the law to access such products. Claims that Proposition 31 will “protect the kids” or any other variation of such paternalistic rhetoric are empty and distract from the effects the policy will have in practice.

The new law will have negative implications for a variety of groups. For businesses, retailers would be fined $250 for each sale in violation of the law. Nearly 12,000 of California’s small businesses are convenience stores, which generate 33 percent of their revenue from tobacco products, including vaping products. In other words, convenience stores would lose a dollar for every three that they make. Regarding a similar New York proposal to ban flavored tobacco products, Regional Economic Models estimated that it would “cost them nearly $500 million in lost sales revenue and would eliminate at least 1,200 jobs in the convenience retail segment.”

As a larger black market will emerge to satisfy previously non-prohibited demand, legal vendors of nicotine products will be at a disadvantage relative to illicit suppliers operating in an untaxed, unregulated market.

Businesses won’t be the only entities to take a hit from the new law — the state government will as well. Americans for Tax Reform points out that California conservatively estimates a loss of $218 million annually in tax revenue.

Most directly, Proposition 31 will impose far-reaching consequences on vape users and smokers. With a ban on flavored tobacco products, many will go back to using combustible cigarettes. As the American Consumer Institute (ACI) highlights, a study by Yale University and another study in 2020 found that “a ban on all flavored tobacco products would cause combustible cigarette use to increase by 2.7 percent,” and that “a flavor ban would cause 17.1 percent of adult e-cigarette users to stop vaping and smoke instead.” The ramifications for young adults are far worse, as researchers at George Washington University and Stanford University have found.

Moreover, as former ACI analyst Janson Prieb points out, 40 percent of smokers said restricting flavors would make them less likely to quit altogether.

Users who rely on nicotine will also resort to less effective smoking cessation methods such as nicotine patches and gum. Not only have studies shown repeatedly that e-cigarettes are more effective to quit smoking, but surveys have shown that smokers seek out e-cigarettes as an effective means to quit and at a higher rate than traditional cessation aids.

With consumer choice diminished in these two regards, the only other option vape users will have is the illicit market. Users entering this market would face three key dangers — increased transaction costs, the threat of law enforcement and potentially adulterated products.

With cigarette-related deaths accounting for one of every five deaths in the U.S. and more than 480,000 deaths occurring annually, California’s new ordinance will only add to that gruesome statistic.

The state can still stop its course, and other state legislatures can steer clear of worsening this problem by considering the role of e-cigarettes as a viable smoking alternative. As ACI highlights, Georgetown University Medical Center estimated that “largely replacing combustible cigarettes by e-cigarettes over a 10-year period would result in up to 6.6 million fewer premature deaths in the United States.”

Though well-intentioned, California’s newly enacted Proposition 31 will have an overwhelmingly negative impact on the state, especially on those struggling to get off cigarettes. Seeking to reduce the harm associated with tobacco use in general is commendable; however, eliminating vaping products is not the way. Allowing the free sale of alternatives that pose lower levels of harm is a safer solution. California should rescind this legislation before things become fatal.

Nigel Reid is a Policy Analyst with the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit us on www.TheAmericanConsumer.Org or follow us on Twitter @ConsumerPal.