When California passed its law prohibiting the sale of flavored tobacco products in 2020, including menthol cigarettes, RJR and other tobacco interests forced a referendum to try and block the law. Voters upheld the law in 2022, and it went into effect. This law prohibited retail sales of tobacco products with a “characterizing flavor,” loosely defined as products that taste or smell like a fruit, candy, or menthol/minty flavor. In an effort to hold on to the menthol market, RJR Reynolds (maker of the leading menthol band, Newport), immediately responded by starting to market “non-menthol” cigarettes with virtually the same packaging as the menthol version in California, claiming that these products didn’t taste or smell like menthol. These cigarettes used other cooling agents to achieve menthol’s cooling effect. While the California Attorney General told RJR that these cigarettes were still “flavored” under California law, and so illegal to sell, RJR argued that “cooling” is not a flavor.
On September 28, 2024, California Governor Gavin Newsom signed two new laws, California AB 3218 and SB 1230, that eliminate any argument as to whether sale of these”non-menthol” products are prohibited by the law. The new laws go into effect January 1, 2025. These laws were guided by the experience of the Attorney General’s office in dealing with how the tobacco companies were trying to skirt the law.
First, the definition of “characterizing flavor” was expanded to explicitly include cooling sensations. Now, California law states
“Characterizing flavor” means a taste or odor, distinguishable by an ordinary consumer either prior to or during the consumption of a tobacco product, other than the taste or odor of tobacco, including, but not limited to, tastes or odors relating to any fruit, vanilla, chocolate, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice, or a cooling sensation distinguishable by an ordinary consumer during the consumption of a tobacco product. [emphasis added]
The laws also made several important technical improvements to simplify and extend enforcement
The Unflavored Tobacco List
The law now requires the AG to establish and maintain an “Unflavored Tobacco List” (UTL) by no later than December 31, 2025. Only products on that list will be legal for sale in California, eliminating arguments with retailers and wholesalers about what is legal to sell.
Any product not on the UTL will be deemed a prohibited flavored tobacco product and illegal for sale. The AG’s office will administer the UTL and manufacturers and importers will have to apply to the AG’s office and certify, under penalty of perjury, that their product proposed for sale in California is unflavored. A company wishing to sell its tobacco product in California must also demonstrate that it obtained FDA PMTA authorization and, upon request of the AG, must provide additional information regarding the packaging and marketing. This is because in determining whether a product has a characterizing flavor, the AG is not limited to the smell or odor, but “shall [i.e., must] presume” that a product has a characterizing flavor if the company, employees, or agents have made “a statement or claim directed to consumers or to the public” that the product has a characterizing flavor, and this includes, but is not limited to, “any text, color, or images on the product’s labeling or packaging, that explicitly or implicitly communicates” that the product has a characterizing flavor. Importantly, the law thus shifts the burden to the manufacturer to prove that its product is legal to see or to rebut a presumption that the product is flavored, rather than putting the burden on the AG’s office to prove that it illegal because it is flavored.
Also, the AG may decline to include a product on the UTL that is “adulterated” or “misbranded” under FDA law. Section 902 of the federal Family Smoking Protection and Tobacco Control that gave the FDA jurisdiction over tobacco says that an “adulterated” product includes one that violates the rules about modified risk claims (MRTP, section 911) because its labeling or advertising implicitly or explicitly represents that the product is lower risk, less harmful, light, mild, reduced exposure to harmful substances, without explicit FDA authorization. The Tobacco Control Act (section 903) says a “misbranded” product includes one whose labeling or advertising is “false or misleading in any particular, which provides public health authorities and advocates more avenues to contest products being included on the UTL.
And like many other health and environmental rules California develops, the UTL will be publicly available to other states and localities who want to copy or refer to it.
Specific enforcement authority
The law clarifies that the flavor ban can be enforced by the State Department of Health or another another state agency, including but not limited to, the Attorney General and local law enforcement agencies, including, but not limited to, a city attorney, district attorney, or county counsel.
Comprehensive definitions of covered tobacco and nicotine products
The definition of “tobacco product,“ which is the foundation of the definition of a “flavored tobacco product,” includes products made or derived from tobacco or nicotine, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, so it would include flavored nicotine pouches, the latest product that the tobacco companies are pushing to kids. “Tobacco product” also explicitly includes “an electronic device that delivers nicotine or other vaporized liquids,” which means flavored non-nicotine vapes are included as prohibited flavored tobacco products.
Importantly, “nicotine ” is defined to include natural or synthetically derived nicotine, and explicitly includes “nicotinic alkaloids and nicotine analogs,” which means products like Spree and other containing Metatine or similar substances used in products to mimic nicotine would be captured.
(The one disappointing thing is that “tobacco product” excludes “loose leaf tobacco, premium cigars, and shisha tobacco products,” so while electronic hookah is explicitly covered as an “electronic device,” regular flavored hookah is excluded from the flavor prohibitions. Others writing such laws should avoid these exclusions.)
No preemption
The law explicitly provides that local governments are not preempted from enacting more restrictive provisions.
Altogether, the law is very strong and a great model for other jurisdictions while we continue to wait for the FDA to be allowed to deal with menthol.
This post is based on an analysis provided by Lauren Lempert.
Stanton Glantz blog 
Thank you, Stan and Lauren. This blog is so clearly written and provides those of us stretched from doing this work to be able to articulate how far we’ve come in protecting Californians and modeling for others to follow. I read this and feel that we are actually steps ahead of the industry. It feels good having a moment not trying to play catch up. We might be getting chased, but personally, am enjoying this Sha Carri – head turned right as I say “see ya,” moment.
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