Despite ban, CA's flavored tobacco 'black market alive and well' due to loophole

Stephanie Sierra Image
Saturday, April 1, 2023
CA's flavored tobacco 'black market' alive and well: ATF
Despite the passage of Prop 31, an ATF director says California's flavored tobacco 'black market' is alive and well due to a loophole.

This story is part of a three-part series by ABC7 I-Team reporter Stephanie Sierra. To learn about our detailed investigation and how to watch, go here.

The sale of most flavored tobacco products is prohibited in California, but the I-Team has discovered an enforcement loophole that may be putting youth at risk.

In December, a statewide ban went into effect suspending the sale of most flavored tobacco products and e-cigarettes across the state. The ban applies to anyone but there's special attention to keep these highly-addictive products away from teens.

CA's Prop 31: What to know about measure upholding flavored tobacco product ban

Yet, why is it so easy for them to get it?

More than three million middle and high school students in America use tobacco, according to new data released from the FDA and CDC. For the ninth year in a row, e-cigarettes have been the most popular tobacco product among middle and high school students, a nationwide survey has found. But, despite a statewide ban prohibiting the sale of these products, the I-Team has found teens are still able to get them.

Is the ban working?

While the statewide ban went into effect in December last year, several other cities and counties already had flavored tobacco bans in place - including Sunnyvale.

The I-Team asked an 18-year-old high school student to accompany us to check out several smoke shops in Sunnyvale. We watched the young man walk into the store and followed shortly after to hear the conversation with the store clerk.

He asked to buy Menthol Juul pods - one of many flavored tobacco products included in the state and local city ban. The student told the I-Team that the store clerk had them in stock.

"As I was paying I gave her my vaccine card," the teen told the I-Team. "She said I need a physical ID."

The sale didn't take place. But once he got back into the car, the 18-year-old was able to go online and order 19 different options of flavored tobacco with 50mg of nicotine. The store clerk told him in the store they allow online pick-up orders, which is not allowed under local city ordinance.

"What we've found through inspections is they are indeed selling flavored tobacco," said Christy Gunvalsen, the city's neighborhood preservation manager who works with code enforcement.

The I-Team obtained public records that showed the store failed the last four inspections dating back to April last year. Yet, nothing's changed.

Stephanie: "So what happens next for businesses like this? I'm seeing on their website, they are still selling these products."

Gunvalsen: "Yes. They will be cited."

Sierra: "How many citations until it stops?"

Gunvalsen: "Well we're working with the property owner, the business owner currently of that retail establishment. Because ultimately they're responsible for the businesses that they own."

Records show this store is one of 67 tobacco retailers in Sunnyvale. The city's code enforcement says the majority of them were in compliance for at least one inspection this year.

But, that's not the case everywhere.

We visited and checked dozens of smoke shops across the Bay Area.

Some say they're strict, some admit they're not, and others have told us they're still confused about the rules.

"Have you been given any direction from the state?" the I-Team's Sierra asked.

Dozens of the retailers the I-Team visited told us they haven't received any direction from the state on the new tobacco law or received a visit from a local enforcement agency.

CA's tobacco black market

If you ask well-informed critics, they say strict or not, the ban simply doesn't make sense. In part because of the apparent loophole; anyone can seemingly access illegal products with just a few clicks.

"It's so easy," said retired Assistant Director with the ATF, Richard Marianos.

Marianos has conducted enforcement operations involved in criminal tobacco trafficking. He says the state's ban lacks an enforcement strategy and because of that the demand for the tobacco black market in California is one of the highest across the U.S.

"The black market is alive and well in California," said Marianos.

Marianos says former ATF investigators have conducted a market survey to see how effective the ban is in different California communities. He says teams made purchases to try and identify problem areas across Northern California.

"Seven out of the 10 places they visited they were able to purchase contraband, illegal products with impunity," Marianos said. "That's an issue that seven out of 10 are just selling to anybody."

One flavored tobacco product well-known in the black market across the U.S. is starting to gain popularity in California. It's called 'gummies' and experts worry the product is attractive to kids.

"Is the problem worse in California compared to other states from what you've seen?" Sierra asked.

"It's bad all across the US, but California is one of the places where it has gathered the most attention," Marianos said.

Go here to watch ABC7 News I-Team reporter Stephanie Sierra's three-part series on California's flavored tobacco ban for a look at how it's being enforced, if it's working, and the problems that have arisen.

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