In 2017, Oakland became one of the first cities in the nation to ban the sale of flavored tobacco products, including menthol cigarettes, at grocery stores, convenience stores, and other shops. But the tobacco industry and retailers found a loophole. Exempt from Oakland’s ban were adult-only shops that primarily sold tobacco products. Suddenly, adult-only flavored tobacco stores started popping up.

“I noticed that almost every corner store in my neighborhood still had tobacco products, and some of them converted their store only for the tobacco products,” said Airion Boatner, a paralegal student at Merritt College. “So one side is like a regular store with food and beverages and one part is, like, only for tobacco products, so it would be considered a tobacco store by how they converted it.”

Boatner grew up in a household of cigarette smokers. He developed asthma at an early age due to secondhand smoke. Now 21, Boatner lives in the Fruitvale district, an area with double the number of asthma sufferers compared to the rest of Alameda County. He volunteers for public health campaigns partly because he’s seen what tobacco can do to people’s health, and he’s seen how difficult it can be for cities like Oakland to regulate the tobacco industry.

Unlike other parts of California, where tobacco regulations greatly cut into sales years ago and caused smoking rates to plummet, Oakland’s low-income neighborhoods have remained profitable for tobacco companies. About 10 years ago, when the industry rolled out an increasing number of flavored products like fruit-scented cigars and vape juice with candy names, Oakland became a growth market. Corner stores and markets throughout the city began stocking these products along with chips and sodas, making them more visible and available to young people.

There were about five adult-only tobacco stores in Oakland when the Oakland Children Smoking Prevention Ordinance was passed in 2017. By early this year, the number had grown to over 56. The majority are concentrated in East and West Oakland in predominantly Black and Latino neighborhoods.

The problem quickly became obvious to city officials and health advocates, but just before they could use an amendment to close the tobacco retail loophole, the COVID-19 pandemic hit Oakland. The coronavirus, which causes a severe respiratory disease affecting the lungs and other organs, has exposed our society’s health inequities, particularly those that fall along lines of race. Coronavirus infection rates are higher in East Oakland than anywhere else in the city,  and health advocates worry that years of aggressive marketing by the tobacco industry has worsened health outcomes during the pandemic.

Targeting Black communities

After the 2017 flavored tobacco ban passed, a corner store in Audrey Abadilla’s Seminary neighborhood converted into a tobacco shop. The storefront’s name changed from “A Market and Deli” to “Tobacco and Cigarette.” Tobacco retailers are supposed to be closed to anyone under 21 years of age, but Abadilla said she’s seen plenty of underage customers enter the store without the store owners asking for identification. 

“It was no surprise to us that these stores popped up in these communities of color in East Oakland where I live,” said Abadilla, who is the manager of advocacy and community impact at Breathe California, a nonprofit that fights lung disease. “The tobacco industry has a long, well-documented history of targeting our marginalized communities, particularly the African-American community.” 

An estimated 45,000 Black people die from smoking-related illnesses in the United States each year, making smoking a powerful contributor to premature death, said Carol McGruder, co-chair of the African American Tobacco Control Leadership Council. 

Flavored tobacco and menthol products mask the harsh taste of tobacco, making them popular with children and teens—whether they’re in the form of combustible cigarettes and cigarillos or e-cigarette and vaping products like Juul and PuffBars. Menthol products are especially popular with Black customers; 95 percent of Black teen smokers use menthol cigarettes. These preferences have been shaped by generations of predatory practices on the part of the tobacco industry. 

“We know that if we could take [tobacco] out of the equation, our health disparities would look very different,” said McGruder. A study in the American Journal of Public Health projected that if menthol products were banned nationwide, nearly a quarter of a million Black deaths from smoking-related diseases could be averted by 2050. 

Decades of research show that the tobacco industry integrated itself in virtually every major Black leadership group dating back to the 1930s in an effort to normalize the presence of tobacco products—menthol in particular—in the Black community. 

One tactic the industry took was to ingratiate itself by sponsoring events, particularly around topics of criminal justice reform. In 2016, Reynolds America Inc., the company that makes Newport menthol cigarettes, hosted a town hall meeting with Reverend Al Sharpton on criminal justice reform at a church in Oakland’s Temescal neighborhood.

“Cigarettes don’t fall from the sky,” said McGruder. “They’ve been systematically targeted to our community. They paid off our leaders for silence.” 

Recently, when public health advocates pushed for a ban on flavored tobacco and menthol products, tobacco industry representatives argued that restrictions on flavored tobacco would criminalize Black people and lead to disparate treatment by the police. 

Tobacco companies and their lobbyists have even argued that flavored tobacco bans could lead to a spike in police brutality against Black people. The industry was quick to argue that a proposed ban on menthol products in New York City could lead to more police violence after Eric Garner was killed by police officers in 2014 while selling loose cigarettes. Tobacco industry lobbyists connected with many community leaders from the Black community in New York to advance their argument, according to The New York Times.

“That’s a sad testimony in our country that that could even be a legitimate argument,” said McGruder. 

“Cigarettes don’t fall from the sky. They’ve been systematically targeted to our community. They paid off our leaders for silence.”

Carol McGruder

Targeting kids

Maxwell, 17, is an incoming senior at Oakland Technical High School who used to be addicted to nicotine after picking up vaping his freshman year. He asked that The Oaklandside not use his last name because of the stigma associated with using tobacco. Maxwell has since quit vaping but said he is the only one of his friends that has successfully been able to. 

“I think it’s a combination of it being too accessible, too cheap, the cool factor of it, and the constant social media pressures of it are coming together and brewing a perfect storm,” said Maxwell.

The U.S. Surgeon General deemed teen vaping a public health epidemic in 2018. There are more than 15,500 flavors on the market for e-cigarette products (a category that includes vapor pens, tank systems, and pod systems), according to Tobacco Free Kids. Many of the products look like candy, smell like candy, and are marketed and packaged like candy.

Research shows that dual-use between e-cigarettes and combustibles is common, but Maxwell said that teens in his community consider vaping to be cool while smoking is taboo. 

“It’s not acceptable to bring cigarettes to a party but it’s fine that everyone’s vaping,” Maxwell said.

“We’ve been telling kids for so long tobacco is bad, tobacco is bad, don’t smoke, don’t smoke, and in a way the vaping industry took advantage of that,” said Abadilla.

The advertising for different tobacco products is aggressively tailored to different populations: For example, a study showed that California high schools with more Black students have a greater number of menthol cigarette ads on billboards or other public locations nearby compared to other schools.

“It’s not acceptable to bring cigarettes to a party but it’s fine that everyone’s vaping.”

Maxwell

While attending Fremont High School in East Oakland, Boatner, who graduated in 2016, said he saw many of his peers smoking Swisher Sweets cigarillos, the most popular tobacco product. A few students would vape, near and sometimes even on campus.

In Oakland, 99% of tobacco retailers sell a pack of five little cigarettes for less than $2, and a single cigarillo can cost as little as 49 cents, packaging and pricing that is affordable to kids. Comparatively, popular name brand e-cigarette devices such as Juul or Sourin can cost upwards of $20 for the device and $4 per replacement pod, though a new product by Sourin, PuffBar, is a cheaper disposable e-cigarette that has been popular with youth. 

What Boatner and Maxwell have to say fits with the findings of a 2019 study that collected e-cigarette and combustible cigarette waste from high schools throughout the Bay Area. The majority of e-cigarette waste was from Juul products and was collected at middle- and upper-income high schools. Across four low-income high schools with predominantly Black and Latino students, 71 pieces of combustible cigarette waste was collected, 94% of the litter was from flavored products, and only eight pieces of e-cigarette waste was found total. No combustible cigarette waste was found at high schools in the higher-income communities. 

Closing the loophole

District 7 Councilmember Larry Reid used to smoke, but quit due to health concerns, and has since become an advocate of greater restrictions on tobacco sales. He supported the 2017 flavored tobacco ban and was concerned to see the sudden proliferation of adult-only tobacco stores across Oakland over the past two years. Earlier this year, Reid introduced the city’s new emergency Tobacco Retail Licensing (TRL) ordinance to close the loophole that allowed some tobacco retailers to continue selling flavored products.

At an Oakland City Council meeting on May 12, around 50 community members, including representatives from the African American Tobacco Control Leadership Council, the Alameda County Tobacco Control Council, and advocates like Boatner and Maxwell, spoke out in favor of the emergency ordinance.

Reid’s legislation closed the flavored tobacco loophole by eliminating the exemption that allowed adult-only stores to continue operating. It also banned pharmacies from selling any tobacco products, set a minimum price of $8 for a package of cigarettes or cigarillos, and set a minimum pack size of 20 for cigarettes or cigarillos. The new law also requires retailers to take extra precautions when selling tobacco to young people.

Now, any tobacco retailer needs to ID anyone who appears younger than 30, even though the age to purchase tobacco remains set by state law at 21. Tobacco products can only be sold in-store and not delivered.

Before voting on the loophole-closing ordinance, Councilmember Loren Taylor, District 6, emphasized the importance of this ordinance for bridging health disparities resulting from tobacco use in his district, which included a large number of stores that used the loophole to continue selling flavored products.

“The health impacts are something that I cannot overlook, and I look forward to voting to support this,” said Taylor. 

The council voted unanimously on May 12, 2020 to close the loopholes. 

COVID-19 and tobacco: overlapping inequities

Dr. Christina Tam, a research scientist focusing on health disparities who was recently hired as an epidemiologist with the Alameda County Tobacco Control Program (ACTCP), mapped out the locations of tobacco retailers selling flavored and unflavored products in Oakland and found that they were mostly concentrated in East and West Oakland’s lower-income neighborhoods. The zip codes with the most tobacco retailers are also the zip codes with some of the highest rates of COVID-19 cases, according to data from the Alameda County Public Health Department.

“We know based on the literature there are greater numbers of tobacco retailers in low-income communities of color,” said Tam. “We also consider what’s going on with COVID-19, in terms of the greater hospitalizations and mortality in the Black community, so there’s a disparity there.”

Tam said tobacco use is known to suppress people’s immune systems and cause diseases like asthma, cancer, and other conditions that worsen people’s outcomes if they contract COVID-19. “The research on the linkages between smoking and COVID-19 is constantly evolving, but there is evidence to support cessation efforts,” said Tam.

According to the World Health Organization, tobacco use is now considered a known risk factor for COVID-19, and a review of research indicates that smokers are more likely to develop severe COVID-19 and/or die. Experts are calling on people to quit smoking and vaping to reduce the risk of lung disease from COVID-19. 

“By putting the tobacco products there we’re affecting these communities’ resiliency in responding to infectious diseases like COVID-19, we’re affecting their lung resiliency,” said Rosalyn Moya, co-chair of the Alameda County Tobacco Control Coalition.

While the Latino community accounts for the majority of COVID-19 cases and deaths in California, the Black community has accounted for nearly three percent of cases in California but nearly nine percent of deaths, according to state-level data from the Kaiser Family Foundation. 

Black and Latinx communities have been the most severely impacted by COVID-19 in Alameda County as well. The Latinx community has a COVID-19 case rate of 1,600 per 100,000, and death rate of 13.7 per 100,000. Though the Black community has a much lower COVID-19 case rate at 412.6 per 100,000, Black COVID-19 patients die at a disproportionately higher rate than all other racial groups. 

In Oakland, the devastation of the COVID-19 pandemic really begins in Fruitvale and moves east. The zip codes with the highest number of COVID-19 cases are in majority Black and Latinx communities in East Oakland: 94601, 94621, and 94603. 

These are the same neighborhoods where flavored tobacco retailers have operated for years. The maps created by Tam on behalf of the Alameda County Public Health Department show that flavored tobacco retailers are primarily concentrated in majority Black and Latinx neighborhoods with high poverty and a high youth population. Just a glance at the map of flavored tobacco retailers in Oakland and the county health department’s COVID-19 dashboard illustrate overlapping public health crises in East Oakland.

Will the stronger ban be effective?

By strengthening its flavored tobacco ban, Oakland is hoping to greatly reduce youth access and long standing health disparities, especially along racial lines.

“I know we always talk about [how] the conversation has been about targeting youth, but I think at the end of the day it’s specifically about youth of color,” said Tam.

To enforce Oakland’s flavored tobacco ban, retailers can expect the Oakland Police Department to conduct yearly compliance checks, with violators receiving more routine compliance checks from OPD. Retailers who break the law face steep fines of between $500 and $1000 for each infraction. The compliance burden is on the tobacco retailers, not on individuals or young people who may be in possession of banned flavored tobacco products. The city intentionally wrote the law to avoid criminalizing the use of flavored tobacco products. 

“We want to address this as a public health issue, not a criminal issue,” said McGruder about tobacco control efforts.

Oakland police will have no grounds to arrest anyone for using or possessing a banned tobacco product.

Despite California’s pioneering tobacco control efforts, tobacco companies continue to target youth and non-white communities with flavored tobacco and vape products. But as major cities like Oakland and San Francisco have moved to ban flavored products, public health officials and advocates say the state is one step closer to greatly reducing tobacco use. 

“A comprehensive tobacco retail license is really the only way to ensure that you are not continuing to perpetuate the health inequities that exist and persist as a result of the tobacco industry’s smart and deceptive tactics,” said Adabilla. 

However, banning the sale of flavored tobacco does little to help the individuals who are struggling to quit. Boatner said some of his family members were able to successfully quit smoking after his asthma diagnosis, but some have been unable. Sometimes they would come home with pamphlets from the doctor, but accessible and affordable healthcare services to help people quit tobacco, which is highly addictive, has been lacking.

Oakland’s newly strengthened tobacco laws do not allocate additional funding or resources to scale up health care services for those who want to quit, but we have summarized some community resources that are available to anyone who wants to quit smoking or vaping.