Referendum on CA's Flavored Ban

On August 28, 2020, California passed a broad law prohibiting the sale of
most flavored tobacco products. For more on the law, known by its bill
number SB-793, see our companion blog post. Three days later, on August 31,
a proposed referendum was submitted to the Attorney General of California.
If this referendum qualifies for the ballot, SB-793 will be suspended
until the referendum vote in the 2022 general election. This blog post
describes the process going forward for the proposed referendum.

In October, the tobacco industry also brought a lawsuit against the law, raising
federal preemption claims. See our case summary for more information on the lawsuit.

Proposed Referendum Process

Under California’s Constitution, California voters can propose referendums to
approve or reject statutes enacted by the legislature. Press reports note
that the three voters who submitted the referendum petition on SB-793 have
tobacco industry ties. Also, the disclosed top funders of the referendum
effort – required to disclose by state law – are tobacco companies R.J. Reynolds,
Philip Morris, and ITG Brands.

Once the referendum petition was filed, the Attorney General had 10 days to prepare
a circulating title and summary of the chief points and purposes of the measure.
On September 10, 2020, the Attorney General met this requirement, clearing the
petitions for circulation. The Attorney General provided a copy of the following
title and summary to the proponents and to the Secretary of State, who then
notified county elections officials:

REFERENDUM CHALLENGING A 2020 LAW PROHIBITING RETAIL SALE OF CERTAIN
FLAVORED TOBACCO PRODUCTS.
If the required number of registered
voters sign this petition and the petition is timely filed, there will
be a referendum challenging a 2020 law on the next statewide ballot after
the November 3, 2020 general election. The challenged law prohibits the retail
sale of certain flavored tobacco products and tobacco flavor enhancers. The referendum
would require a majority of voters to approve the 2020 state law before it can
take effect. (20-0003.)

The proponents then are required to collect enough signatures of registered voters for
the referendum to qualify to be placed on the ballot. The current requirement is
623,212 signatures (5 percent of the votes cast for all candidates for Governor in 2018).
For referendums, proponents have 90 days from the bill’s enactment date to gather these
signatures. For the SB-793 referendum, this fell on Thanksgiving, so the date
signatures were due was adjusted to the following Monday, November 30, 2020.

Once signatures are collected, the petitions are submitted to county elections officials,
who have eight days to submit raw counts to the Secretary of State. When the statewide
total exceeds the signature requirement, the Secretary of State directs the counties
to randomly verify a sample of signatures. The counties have 30 working days to complete
this task. If the sample projects that the signatures will reach 110 percent of the
required number, the referendum qualifies for the ballot. If the sample projects that
the signatures will reach fewer than 95 percent of the requirement, the referendum will
not qualify for the ballot. If the projection falls in between these percentages, all
signatures need to be verified.

On November 24, 2020, the referendum proponents publicly stated they had submitted over
one million signatures to local counties. The Secretary of State’s office has published
a spreadsheet indicating the raw count they received from counties was 1,019,610 signatures.
The deadline for counties to complete the random verification is January 21, 2021 (30 working
days, excluding the Christmas, New Year, and MLK holidays). The Secretary of State’s office
indicates it will update its spreadsheet regularly as counties submit signature numbers,
which can be tracked here.

If counties use their full time to complete the verification, this would run past the
effective date for the law of January 1, 2021. The four referendum petitioners, though, have
agreed to a joint stipulation with the California Attorney General and Secretary of State
that SB-793 will not take effect on January 1 because the submission of over 100 percent
of the required signatures has suspended the effective date, and that SB-793 will remain
ineffective and unenforceable until either the referendum fails to qualify, or if it
qualifies until the vote in the 2022 election. This stipulation was approved in California
court on December 10, 2020.

For the verification process, once counties submit enough verified signatures to meet the
110 percent signature threshold for the random sample (685,534 signatures), the
Secretary of State stops the count for other counties and moves forward with certifying
the referendum.

Referendum on the Ballot

If the referendum qualifies for the ballot, the implementation of SB-793 would be
suspended pending the outcome of the referendum. The referendum will occur on the
next general election ballot held at least 31 days after the date the referendum qualifies.
As a result, if the referendum qualifies, SB-793 would be suspended until the referendum
vote in the November 2022 general election. In other words, the state law prohibiting
the sale of flavored tobacco products would have no effect for at least two years.
If the voters approve the referendum in November 2022, SB-793 would take effect the fifth
day after the Secretary of State certifies the election results. If the voters defeat
the referendum, SB-793 will not become law. The referendum process, however, does not
prevent local California jurisdictions from adopting and implementing their own
flavored tobacco sales restrictions.

Other Recent Referendum Efforts

Using the referendum to delay and perhaps defeat a law that business interests oppose
has become an increasingly common tactic in California. In 2014, the plastics industry
spent millions pushing a referendum opposing a ban on single-use plastic bags. The law
was approved by the voters in a 53% to 47% vote in the 2016 election, but
implementation was delayed for two years while waiting for the vote. On the 2020
California ballot was a referendum by the bail industry to overturn a law replacing
cash bail with a system based on public safety risk. Because that referendum effort was
filed in September 2018, it did not qualify for the 2018 general election ballot and
the bail law was suspended for two years pending the outcome of the 2020 general
election vote. Voters did not approve of the law in a 43% to 56% vote.

If your jurisdiction is interested in modifying its existing flavor policy or pursuing
a new one in light of this state law, don’t hesitate to contact the Law and
Policy Partnership to End the Commercial Tobacco Epidemic (a project of the Public
Health Law Center and the American Lung Association in California).

Jamie Long, “What the Referendum on California’s Flavored Tobacco Sales Ban
Means” Public Health Law Center, accessed December 11, 2020,

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