California's Anti-Vaping Ballot Question Isn't About 'Protecting Children'

It's about protecting adults from themselves, which should be none of the government’s business.

Los Angeles Times' columnist George Skelton usually is a sensible guy. But not his latest piece, which calls Proposition 31—a referendum on a law that bans the retail sale of flavored tobacco, including most vaping and smokeless nicotine products—one of the "easiest 'yes' votes you'll ever find." That's because, in his view, it benefits children.

Protecting people from themselves isn't easy—and sometimes the "sensible" policy doesn't make much sense upon closer scrutiny. When it comes to this statewide ballot measure, I prefer the advice of the far more cynical journalist, the late H.L. Mencken, who declared that, "there is always a well-known solution to every human problem—neat, plausible, and wrong."

Two years ago, Gov. Gavin Newsom signed Senate Bill 793, which imposes that ban to combat "the disturbing rates of teen e-cigarette use," according to its author. The opposition gathered enough signatures to put the matter to voters. That put the law on hold until the November election. With all referenda, a "yes" vote approves the law and a "no" vote rejects it.

The latest polling doesn't look good for the law's opponents. According to a Berkeley IGS poll, 57 percent of likely voters support Proposition 31, with only 31 percent opposed. That's the kiss of death this late in the game, especially with only 12 percent undecided.

Given those numbers, pundits were surprised that former New York Mayor Michael Bloomberg—the guy who spent tens of millions of dollars trying to ban sugary soft-drink sales in his home city—dropped $29 million on the "yes" side last month as part of his $160-million national anti-tobacco efforts.

I haven't seen noticeable efforts to engage voters on the "no" side of the issue. Perhaps opponents have recognized that 140 California localities have passed some sort of tobacco flavor ban, making it a tough battle regardless of how Prop. 31 plays out.

That's the politics, but what about the policy? Supporters of reduced-harm products aren't championing Big Tobacco and everyone knows that cigarette smoking is dangerous. But let's use a little common sense rather than emotion. The state already forbids anyone under age 21 from buying nicotine products. SB 793 bans flavored-tobacco sales to adults in an effort to dry up the overall supply.

According to the main British public health agency, vaping is 95 percent safer than smoking combustible cigarettes. A top U.S. Food and Drug Administration official recently admitted that, "e-cigarettes … have markedly less risk than a combustible cigarette product." Sweden has the lowest cancer rates in Europe because Swedes prefer a smokeless (and usually flavored) tobacco pouch known as snus.

When people are addicted to nicotine, they will find some product to satisfy their urge. Yet California is banning the least-dangerous choices but still allowing the sale of the most dangerous ones, which means adult smokers will have limited access to safer (not without some risk, but safer) products that reduce their risk. That isn't sensible at all.

Massachusetts is the only other state to follow this path. A recent peer-reviewed study found its statewide ban resulted in the reduced sale of nearly 30-million packs of cigarettes—but that more than 33-million additional cigarettes were sold over the same period in counties that bordered the state. Massachusetts is small, so its residents drove elsewhere.

It will be harder for Californians to go to other states, but it's extremely difficult to quash demand for an addictive product. People will find a way to get what they want via black markets—or by buying easily available and dangerous smokes. We might at least recognize that, despite their illegality, narcotics aren't hard to find.

What about teens? Recent data shows that teen vaping has fallen since peak levels three years ago. A peer-reviewed study published in Nicotine & Tobacco Research in March found that "if vape product sales were entirely restricted, e-cigarette users were equally likely to switch to cigarettes versus not." Those who are most likely to support flavor bans tended to be less-frequent users or never smokers. These results are not an outlier.

Obviously, no one wants teens to vape, but a sensible policy would enforce age-21 laws while allowing adults access to less-dangerous products.

The ban also applies to menthol cigarettes—a high-risk product that is popular among older African American smokers for a variety of complicated reasons. But, as Reason explained, California's African American youth have low smoking rates, meaning menthol isn't a gateway for youngsters. This ban, which the publication rightly terms "paternalistic," is really about "stopping adults from consuming a disfavored product."

We'll soon see what happens if Proposition 31 passes, but one need only look at the history of any Prohibitionist policy for a clue. Voting for a tobacco ban seems easy, but I'd suggest that a "no" vote is really the true no-brainer way to actually improve public health.