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.
Proposed Referendum Process
Under California’s Constitution, California voters can propose referendums to approve or reject statutes enacted by the legislature. The first step is to submit the text of the proposed referendum to the Attorney General, which the proponents have done. Press reports note that the three individuals submitting the petition have tobacco industry ties.
The Attorney General then 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 notifies 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 next step is for the proponents 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 would fall on Thanksgiving, so the date signatures are due is adjusted to the following Monday, November 30, 2020.
The law requires that petitions be printed in a specific format and that the top donors to the referendum campaign be disclosed either on the petition or in a separate document presented to signers. For this referendum, the disclosed top funders are tobacco companies R.J. Reynolds and Philip Morris.
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.
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. Since early voting in California begins on October 5 for the upcoming 2020 general election, the referendum would not qualify in time for the 2020 general election and would be placed on the 2022 general election ballot. 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 this year’s California ballot will be 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 has been suspended for two years pending the outcome of the 2020 general election 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).
By Jamie Long, Staff Attorney
September 18, 2020