Much like Jeff Bridges in the 1980s, young people these days are being targeted online. Public health concerns are not just about social media’s pernicious influence on mental health, nor are they only about trading active behavior for couch surfing. Young people are increasingly being targeted and converted online by tobacco companies intent on finding new customers to perpetuate their profits. This behavior allows tobacco companies to avoid and undermine state and local public health policies. To reach a tobacco endgame, jurisdictions can consider prohibiting online sales of tobacco products.

Online Landscape

As marketing has moved into the internet age, tobacco giants are turning to TikTok influencers and trying to enter youth consciousness across the world using youth-appealing practices that skirt existing advertising restrictions. Organizations working in commercial tobacco control have noted that products illegal to sell in the U.S. can be advertised by tobacco companies across platforms from influencers in other countries, reaching U.S. youth where they live online.

It should come as no surprise then that young people report that the internet is the second highest source of e-cigarette advertising they see (second only to advertising in retail stores). Indeed, recent studies have shown not only that e-cigarette advertisers have moved into youth-targeted music videos and other youth media, but also that those advertisements persuade young people to try the products. One study suggests that internet advertising is the most effective medium for converting youth to use e-cigarettes.

Young people, including those who are underage, can often purchase products online, showing that age verification processes at online point of sale and delivery have been ineffective in preventing access to tobacco products—even in jurisdictions with supposedly strong delivery sales laws. By controlling and prohibiting delivery sales of tobacco products, jurisdictions can interrupt the provisioning of social sources, who then provide products to youth.

Statewide Legal Landscape

Although California has not prohibited online sales of tobacco products, under the STAKE Act’s delivery sales rules, the state has enacted restrictions designed to minimize the online accessibility of tobacco products for young people. The law leaves space for local enforcement of age verification and other requirements, with fines rising to $10,000 for every violation. A court decision in April 2021 showed how local jurisdictions can use this law to punish bad actors with millions of dollars in fines.

Local jurisdictions can go further than state law, and a growing number of California communities have enacted stronger policies. Locals have broad authority to protect public health under the California state constitution, and prohibiting online sales facilitates regulatory control and ensures that licensed retailers can be inspected and checked for compliance with commercial tobacco sales restrictions. San Francisco decided to prohibit the sale of flavored tobacco products and e-cigarettes and applied this policy comprehensively to online sales. Similarly, within their tobacco retailer licensing policies, San Diego County and the cities of Oakland and  Oxnard, to name a few, require that all tobacco retail sales must be conducted in person at a licensed retail location, effectively prohibiting all delivery sales.

Tribal and Local Leadership is Key

While the federal government has limited online sales of certain tobacco products, progress has been slow, and restrictions, to date, have generally failed to stop the tobacco industry from expanding its base of youth users with new kid-friendly products. State initiatives like SB-793, which prohibits the sale of flavored tobacco products, have been slowed down by industry action (and would arguably not impact online sales). Tribal and local governments are well-positioned to enact laws prohibiting delivery sales to help protect young people from falling victim to the industry’s predatory practices and help the state get to a commercial tobacco endgame.

The Public Health Law Center’s comprehensive Tobacco Retail Licensing model contains provisions that prohibit anything but in-person and face-to-face sales, and this language can be adapted to community conditions and concerns. With comprehensive online tobacco product sales policies throughout California, hopefully someday soon we can get to game over with the tobacco industry.

For more information on online sales policies and developments in California check out the Center’s archived webinar.

By Hudson Kingston, Staff Attorney
December 6, 2021