By identifying policy loopholes related to flavored tobacco products, including menthol cigarettes, and informing policymakers’ efforts to close them, TRDRP-funded research is leading the way in tightening regulations and laws that leave adolescents and communities of color particularly vulnerable to tobacco use.
As of December 2022, California’s Flavored Tobacco Ban (SB-793)[i] made the sale of most flavored tobacco products illegal throughout the state in an effort to curb the epidemic of youth vaping. Many tobacco products, particularly e-cigarettes, target adolescents with enticing fruity, buttery, and candy-like flavors.[ii],[iii] The legislation also banned the sale and use of menthol and “cooling” cigarettes which tobacco manufacturers have long marketed towards Black consumers.[iv]
As originally written, SB-793 defined a tobacco retailer as “a place where tobacco is sold or a vending machine” and did not explicitly mention online sales or e-commerce; this unclear language left ambiguity that research has shown was exploited by online retailers.
Informed, in part, by a study[v] led by TRDRP grantee Eric Leas, an assistant professor at the University of California-San Diego (UCSD) School of Public Health and Principal Investigator of the Tobacco E-Commerce Lab, the California legislature passed the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act (SB-1230)[vi] in September 2024. This new law, which went into effect January 1, 2025, clarified language around on flavored tobacco sales and gave the state additional authority to seize and destroy products obtained during inspections. It also increased fines associated with violations of the statewide flavor ban.
The study that, in part, led to the STOP Act originated while Leas was a postdoctoral fellow working with Lisa Henriksen at the Prevention Research Center at Stanford University. Henriksen’s lab has a longstanding surveillance program with researchers going into stores to look for compliance on policies governing retailers, says Leas, such as appropriately displaying signage stating, 'We don’t sell tobacco to anyone under 21,' and looking for sales of banned products, including single-serving cigarettes and flavored tobacco products.
When the COVID pandemic shut down much of the world in early 2020, buying habits shifted, with more and more people turning to online shopping. Many brick-and-mortar stores became “brick-and-click” retailers, selling products online out of necessity. However, Leas noted that Henriksen’s compliance project only assessed brick-and-mortar stores. “That's an issue,” says Leas, “one, because we aren't looking, and two, there's lots of places that compliance can break down in delivery sales, because it's a little bit easier to disguise [products].”
Having been awarded a 2022 TRDRP Pilot Award, Leas set out to investigate compliance within the online retailer realm. The passage of SB-793 created a before-and-after situation that allowed scientists to assess how the law affected consumer behavior—and, it turns out, it had an immediate and dramatic effect.
In the study which informed the STOP Act, Leas and colleagues found that Google searches for cigarettes (including menthol) and vape products spiked 194% and 162%, respectively, in the weeks after SB-793 went into effect, suggesting people were turning online to find banned products.
“Internet searches for vaping online spiked the week that the law came in and stayed elevated for six weeks. Searches for buying cigarettes online spiked the week the law came in and stayed elevated for 11 weeks,” says Leas. Queries for these same search phrases in Oregon, Arizona, and Nevada saw no change in frequency. “It's really suggestive that, because of the loophole, you're seeing the shift in behavior towards e-commerce.”
In fact, a second research team found that adolescents’ use of flavored e-cigarettes remained unchanged in the weeks after SB-793 passed.[vii] Perhaps those individuals sourced products from online shops, as suggested by Leas’ findings. Supporting this hypothesis, Leas’ recently published study revealed the ease by which people in California, and potentially adolescents, could buy tobacco products online.
In his study, “Online retailer nonadherence to age verification, shipping, and flavor restrictions on e-cigarettes,” published in the Journal of the American Medical Association (JAMA) in November 2024, Leas found that San Diego-based consumers could easily purchase banned flavored products online without an age-identifying ID swipe required.[viii]
After compiling a list of 78 online suppliers of flavored vaping products, 16 buyers, all over 21 years of age, attempted to purchase these products online in matched pairs: Half were to be delivered to an address in the City of San Diego, which has a flavored tobacco product ordinance explicitly prohibiting e-commerce sales, and half were to be delivered to an address in the unincorporated portions of San Diego County, which only falls under the state ban, SB-793. Of 114 purchase attempts, 71% were successfully processed with 67% of deliveries completed. Delivery rates did not differ between the city and county, suggesting that even when a flavor ban explicitly mentions e-commerce, it does not effectively reduce delivery of these products.
The study’s surprise findings did not end there. Most products were shipped in violation of the 2009 federal Prevent All Cigarette Trafficking (PACT) Act that made it illegal to ship tobacco products through the United States Postal Service (USPS), and the 2022 Preventing Online Sales of E-Cigarettes to Children Act, which extended the PACT Act to include e-cigarettes. “Not one of them should have come through USPS, but 81% of them came through USPS,” says Leas. Another 9% of the remaining deliveries came through couriers that restrict tobacco shipments, including UPS, FedEx, and DHL.
But perhaps most shocking was the complete lack of ID verification upon delivery, which means that minors can relatively easily order such products online. “Every single person in the study should have had their ID swiped in an identification verification system,” says Leas. Yet, “Only one person did, and that [was] not because the delivery person asked for it, but because they missed their package and had to go down to the mail room and verify it. Essentially, no one got ID-verified.”
Another loophole was closed in August[ix] 2024 when the state legislature passed the Unflavored Tobacco List[ix] (Assembly Bill 3218), eliminating questions about which tobacco products are still legal in California. All unflavored tobacco products must be registered with the state Attorney General, and anything not on the list is illegal as of January 1, 2025. This and the STOP Act substantially reduce ambiguity that allows flavored product sales to slip through the cracks. However, as Leas’ studies have shown, more closely regulating online sales of tobacco products will prove essential to ensuring tobacco of any sort, flavored or otherwise, does not end up in the hands of youth.
With the success of his pilot project, Leas received a new $1 million TRDRP grant in 2024 to scale the program his lab piloted in San Diego to the rest of the state. After completing a census of California-based brick-and-click retailers that sell tobacco products, Leas and his team will again attempt to make online purchases of products banned in the state, as they did in the San Diego pilot project. This information will feed development of a dashboard for local health departments and other interested parties, who will be able to download the compliance assessment results from various counties.
Leas has also been reporting his team’s compliance findings to state and local health departments. “I'd love for this to be a safe marketplace but not everybody wants to play by the rules,” says Leas. Yet, by way of their votes, Californians have voiced their desire for a safer marketplace where youth are not able to order tobacco products online without age verification and banned flavored products aren’t available for easy delivery. Ultimately, these steps are part of the “California Endgame,” a coordinated campaign to eliminate commercial tobacco use in the state.
[i] California Senate Bill No. 793. California Legislative Information. Available: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB793 [accessed 5 Jan 2025].
[ii] Rose SW, Johnson AL, Glasser AM, et al. Flavour types used by youth and adult tobacco users in wave 2 of the Population Assessment of Tobacco and Health (PATH) Study 2014-2015. Tob Control. 2020 Jul;29(4):432-446. doi: 10.1136/tobaccocontrol-2018-054852. https://pubmed.ncbi.nlm.nih.gov/31542778/.
[iii] Goldenson NI, Leventhal AM, Simpson KA, et al. A review of the use and appeal of flavored electronic cigarettes. Curr Addict Rep. 2019 Jun;6(2):98-113. doi: 10.1007/s40429-019-00244-4. Epub 2019 May 17. https://pmc.ncbi.nlm.nih.gov/articles/PMC6709993/.
[iv] Richardson A, Ganz O, Pearson J, et al. How the industry is marketing menthol cigarettes: the audience, the message and the medium. Tob Control. 2015 Nov;24(6):594-600. doi: 10.1136/tobaccocontrol-2014-051657. 25178275. https://pubmed.ncbi.nlm.nih.gov/25178275/.
[v] Section 2f of SB-1230 reads, “Even after California’s ban on the sale of flavored tobacco products took effect, researchers at the University of California, San Diego found that online shopping for flavored tobacco products increased significantly in the weeks after the implementation of Senate Bill 793.” This references the following publication Leas EC, Mejorado T, Harati R, et al. E-commerce licensing loopholes: a case study of online shopping for tobacco products following a statewide sales restriction on flavoured tobacco in California. Tob Control. 2023 Nov 7:tc-2023-058269. doi: 10.1136/tc-2023-058269. https://pubmed.ncbi.nlm.nih.gov/37935483/.
[vi] California Senate Bill No. 1230. California Legislative Information. Available: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240SB1230 [accessed 5 Jan 2025].
[vii] Chaffee BW, Donaldson CD, Couch ET, et al. Flavored tobacco product use among California adolescents before and immediately after a statewide flavor ban. Nicotine Tob Res. 2024 Nov 12:ntae261. doi: 10.1093/ntr/ntae261. https://academic.oup.com/ntr/advance-article/doi/10.1093/ntr/ntae261/7890933.
[viii] Harati RM, Ellis SE, Satybaldiyeva N, et al. Online retailer nonadherence to age verification, shipping, and flavor restrictions on e-cigarettes. JAMA. 2024 Dec 24;332(24):2113-2114. doi: 10.1001/jama.2024.21597. PMID: 39527068; PMCID: PMC11555574. https://pubmed.ncbi.nlm.nih.gov/39527068/.
[ix] California Assembly Bill No. 3218. California Legislative Information. Available: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240AB3218 [accessed 5 Jan 2025].
Written by Wendee Nicole Holtcamp
MEDIA CONTACT
trdrp@ucop.edu
