California flavored tobacco ban loophole may be putting teens, youths at risk

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 are 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 youth.

Yet, teenagers are still getting access to them and retailers are still confused on the rules.

We spoke with Sanjiv Patel, the owner of a chain of National Petroleum gas stations.

Sierra: "How many teenagers come into your store per day?"

Patel: "We have a 7/11 where we get 100+ teens every single day."

Confusion over banned products isn't the only problem. Patel says teenagers still come in everyday trying to buy tobacco products, often using fake IDs.

"Sometimes it's a real looking fake ID," Patel said. "Teens know where they can get it."

Patel has 15 locations across the Bay Area, including Berkeley, Oakland, Union City, Hayward, San Jose, and Sunnyvale. He estimates that some locations see more than 100 teenagers per day, and they're persistent.

"There are times we have employees saying, 'We see you every single day, I'm not going to sell it to you,'" Patel said. "And they say, 'OK, maybe the next employees will.'"

But his other locations have a stricter reputation.

According to the California Department of Public Health, the ban includes menthol cigarettes, e-liquids, e-juices, pods, or any other vape device or tobacco product accessory that contain any flavored liquid, regardless of whether it contains nicotine.

But as we found out, the law isn't exactly clear.

For example, the state's special notice to retailers shares what some say is a confusing message. It says the ban includes flavored cigars and flavored smokeless tobacco, but certain flavored premium cigars and flavored loose-leaf pipe tobacco are exempt.

"There's so much confusion," said Patel.

And it gets more confusing.

While the state has implemented its own ban, local cities and counties may have more restrictive laws in place. For example, the definition of sweet versus flavored tobacco products may be differently interpreted in various cities because of pre-existing ordinances restricting tobacco sales.

"These are legal in Newark," said Patel, pointing to a product on his shelf. "But these are not legal in Hayward."

The state has created a resources page on their website to help inform retailers of the current tobacco law, including a letter that breaks down how the new law defines prohibited products.

Sierra: "Do you know if it's the health dept. supposed to be doing these checks? Have you heard any word?"

Patel: "No I haven't. Seriously, I have no idea."

Sierra: "Have you had any agency come to your store to conduct an inspection?"

Patel: "Uh, not that I know of."

The I-Team visited and called dozens of local retailers across the Bay Area to see if they received this letter or any direction on enforcement from the state. The majority, like Patel, told us they haven't received any guidance, letter, or visit from an enforcement agency to conduct a check or inform them of the new tobacco law. A handful in San Francisco we spoke with says the health department has stopped by annually since the ban was implemented in 2019.

CDPH told the I-Team the legislature did not empower them to be the enforcement agency. Instead, local law enforcement agencies have jurisdiction to enforce this law.

"Each city is so understaffed with police officers now, is this even their priority?" asked Amarjiy Sekhon, a former retailer and anti-tobacco advocate. "This just isn't being handled properly."

Sekhon is worried about her four grandkids. She says they're able to order flavored tobacco products online without any age verification.

"You just go online and can order whatever you want," one kid told the I-Team.

It took less than two minutes for her son to order a 40-pack of flavored e-cigarettes

"My biggest concern is the underground market that's coming, that's already here," Sekhon said.

The I-Team saw that in San Francisco's Mission district.

We asked, "Where do teens usually buy e-cigarettes around here?"

A teen pointed us across the street. "Right there," they said.

When asked if they card.

One teen said, "No," while others in the crowd remained silent. "There's stores in the city that sell it underground, they will just sell it out of their trunks."

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.

Take a look at more stories and videos by the ABC7 News I-Team.