One of many propositions on the ballot for the Nov. 8 midterm elections is Proposition 31, which if a majority vote yes, would prohibit the sale of flavored tobacco products statewide, including “fruity” and menthol flavors. The move to implement a prohibition on these substances should concern those who are familiar with the history of prohibition policies and could also see a return of failed “war on drugs” policies in a new form, this time focusing on tobacco.

Essentially, a yes vote on Proposition 31 will uphold Senate Bill 793, which banned the sale of flavored tobacco products, passed by the California State Legislature and signed by Gov. Gavin Newsom in 2020. Voting no would overturn that decision and allow for the sale of flavored tobacco products, including menthol products.

The move to swiftly ban flavored tobacco products runs contrary to what might be expected in a state which has had some of the most liberal drug policies in the entire country. In 1996, California became the first state to legalize medical marijuana usage and in 2016 legalized recreational use. These policies have tremendously benefitted the state through generating tax revenues while also importantly reducing amounts of arrests and court cases related to cannabis use, according to data from the Department of Justice. The successes of legalizing recreational marijuana use should have reaffirmed that the “war on drugs” policies of the past didn’t work and that decriminalizing and destigmatizing drug usage was a much more effective way to address the issue. However, now we are seeing these same attitudes of the past reemerge, this time focusing on tobacco products.

A claim made by proponents of Proposition 31 is that the bill will reduce underage smoking. While this may seem like a no brainer, the reality is that this is already illegal and California already has one of the strictest policies on tobacco usage – it’s one of only a few states that sets the legal age to purchase tobacco products at 21. In practice, it’s likely that Proposition 31’s impact will be felt mostly by adults who legally purchase the products, and will have minimal effects in actually taking tobacco products out of the hands of underage users, as those same underage users are already acquiring them by illegal means. Since the bill will only have an effect in California, flavored tobacco products could enter the state illegally through states such as Nevada and Arizona, or from Mexico, where no such bans are in place.

Whether it was the Prohibition of alcohol in the early 20th century or the declaration of the “war on drugs” by President Richard Nixon, tough on crime policies relating to drugs have failed time and time again. Proposition 31 will be no different. Once implemented, the law will only affect those willing to comply with the regulatory agencies in charge of enforcing them, all the while leaving the door wide open for the black market. After all, the demand for flavored nicotine products will surely not decrease immediately following Proposition 31’s passage and the black market will likely swoop in to take advantage of the situation.

As was the case with Prohibition, implemented with the ratification of the 18th Amendment in 1919, alcohol usage did not substantially decline as a result of the law. What is most concerning is that in the years following the Prohibition, nearly 1000 additional alcohol related deaths were caused each year due to tainted, poisoned and overall low-quality “bootleg,” aka black market, alcohol according to a report by PBS. As vaping related injuries have been rising over the years, according to data from the Centers for Disease Control and Prevention, it’s feasible that given the absence of regulation on these products following Proposition 31’s implementation, that these injuries will continue to rise.

Included on the list of “flavors” to be banned are menthol products, which include menthol cigarettes. Banning menthol cigarettes has been touted by supporters of Proposition 31 as a way to address the notoriously predatory marketing of the tobacco industry of menthol products to black communities. Once implemented though, the ban on menthol cigarettes could result in an increased usage of policing in already heavily policed communities. This outcome can have dangerous consequences. Proposition 31 currently lists the punishments for violating the new rules as a measly $250 penalty, but given the nature of enforcing a prohibition policy, the black market will most likely not be affected by the fear of the small fine and would require more to comply than simply issuing fines.

It should be noted that Proposition 31 has big spenders on both sides of the issue, with supporters overall spending more than the opposition. Advocates include Newsom, Los Angeles mayoral candidate Karen Bass, the American Lung Association, as well as national figures such as former New York City Mayor Michael Bloomberg and the California Democratic Party.

On the other hand, critics are being supported by many major tobacco lobbyists. According to the official “No on Prop 31” website, one of the major sponsors of the committee is Philip Morris USA, who owns the rights to the Marlboro tobacco brand and R.J. Reynolds Tobacco Company, who own the rights to the Newport and Camel tobacco brands.

Interestingly, “No on Prop 31” is also being supported by the California Republican Party.

Admittedly, some of the least trustworthy political actors support it. Politics aside, the evidence is clear that prohibition has never worked in practice. While Proposition 31 isn’t getting the same press coverage and polarization as Propositions 26 and 27, the politics behind it may sway people into taking a position that isn’t supported by the facts. Smoking and vaping have become a major public health concern in recent years after years of declining tobacco use, but curbing tobacco use would require much more robust action than simply prohibiting the products in hopes that this would limit their availability.