SD City Council bans the sale of flavored tobacco products

SAN DIEGO (CNS) — The San Diego Council passed an ordinance Monday spearheaded by Councilwoman Marni von Wilpert to ban the sale of flavored tobacco products — including menthol — in the city, effective Jan. 1, 2023.

The move follows similar actions in local cities such as Imperial Beach, Encinitas and Solana Beach, along with San Diego County for unincorporated areas. It also comes months before a statewide referendum tackling the issue in November.

For von Wilpert, the ordinance couldn’t wait until the general election. She presented petitions with thousands of signatures from area high school students supporting the ordinance, many of whom would not be of legal age to vote on the November referendum.

“Candy flavored tobacco products are intentionally marketed to kids, and today, the San Diego City Council took bold action to prevent the sale of these products and protect our youth,” she said. “I thank my colleagues for standing with me to stop Big Tobacco from addicting an entire new generation of youth on tobacco products.”

The ordinance does not apply to the sale of shisha, premium cigars or loose-leaf tobacco and unflavored or tobacco-flavored e-cigarettes, as well as FDA-approved cessation devices that will also be exempt from the ban.

Hundreds of speakers spent nearly five hours trying to persuade the city council — which voted 7-2 in favor of the ban — one way or another. Some of the groups presenting their case for the ban included the American Lung Association, the American Cancer Society and Kaiser Permanente. Councilwoman Jennifer Campbell said in her 40 years practicing medicine, she had seen the impact on children who lived in homes with smokers.

“If it doesn’t get done at a local level, it will not get done,” she said. “We have to help protect our people.”

According to findings presented by von Wilpert’s office, in the most recent completed study of the city’s tobacco retailers in 2019, 14.7% of retailers sold to an underage police decoy. In a study to come, she said, those numbers have increased to nearly 30%.

In opposition to the law were dozens of small business owners, who claimed flavored tobacco made up anywhere from 25% to nearly half of their business. Nearly all of them claimed they were law-abiding business owners who had been commended by the San Diego Police Department for their above-board operations. Several also decried the paternalistic nature of the city council’s new law, saying parents should be in charge of how children were raised, not the government.

In response to the loss of income, Councilman Joe LaCava said he wanted to find a remedy for businesses who were selling a product that was “legal today and illegal tomorrow.”

“I would ask our liaisons in Sacramento to find a way for relief for these small businesses,” he said.

He was joined in the sentiment by Council President Sean Elo-Rivera and Councilman Stephen Whitburn.

“This will significantly impact small business owners and their employees and their families,” Whitburn said. “I hope to work with store owners to track the impact of this measure.”

Council members Chris Cate and Vivian Moreno were the two no votes on the ordinance, although they cited different reasons.

For Moreno, she said she believed it made little sense to pass a local ordinance just months before the voters of California would decide in the November election. She said a far more effective strategy would be to increase enforcement of existing laws rather than adding more regulations to small businesses. She asked the SDPD to bring forward an enforcement plan on the matter.

Cate said he believed the ban would not prevent youth from illegally purchasing and consuming tobacco products, but drive them back to traditional cigarettes, use of which has dropped among younger generations in the past decade.

“It is wrong to believe that this is the silver bullet we have been looking for,” he said.

He also noted the hypocrisy of banning a legal product when the city council just months previously reduced taxes for cannabis businesses sent a message to small businesses that the city clearly favored one over the other.

Councilwoman Monica Montgomery Steppe supported the ordinance not only from a public health perspective, but also from a racial justice one. She said large tobacco companies have targeted the Black community with menthol for decades, with Black smokers preferring menthol-flavored cigarettes 85% of the time.

“We can call out institutional racism without calling anyone individually racist,” she said.

Another aspect of the ordinance passed Monday was to officially update San Diego’s codes to change the age of sale for tobacco products from 18 to 21. Although then-Gov. Jerry Brown raised the state’s age of sale to 21 in 2016, San Diego had not updated its laws since.