The New Jersey legislature recently introduced a bill that would ban “characterizing flavors” (except tobacco, clove or menthol) in cigars. (The law’s ban on characterizing flavors in tobacco products currently extends only to cigarettes, thereby mimicking the federal ban.)
The New Jersey law defines a “characterizing flavor” to include where the tobacco product or its smoke “imparts a distinguishable flavor, taste, or aroma other than tobacco, clove or menthol prior to or during consumption, including but not limited to, any fruit, chocolate, vanilla, honey, candy, cocoa, desert, alcoholic beverage, herb, or spice flavoring.” Characterizing flavors further include, but are not limited to, circumstances where the tobacco product is advertised or marketed as having such flavors.
On the other hand, the Tobacco Control Act — which gives FDA regulatory authority over tobacco products — bans characterizing flavors (except tobacco or menthol) only in cigarettes, and the Tobacco Control Act does not define the term “characterizing flavor.” FDA regulations pertaining to food labeling and flavorings could provide some indication how FDA may interpret the term, defining it by reference to whether the “labeling or advertising of a food makes any direct or indirect representation with respect to the primarily recognizable flavor(s).” This definition obviously is considerably narrower than the definition in the New Jersey statute, which covers not only the labeling of the product, but also where the product imparts a “distinguishable” (but not necessarily predominate) flavor.
The legislative history of the Tobacco Control Act makes clear that the cigarette characterizing ban does not prohibit the use of flavored ingredients in cigarettes, as long as those ingredients are not the characterizing flavor. For instance, a cigarette can contain licorice as an ingredient as long as licorice is not used as an additive to give the cigarette (or its smoke) a characterizing flavor of licorice.
However, the New Jersey definition of “characterizing flavor” — and any FDA interpretation mimicking that definition — would present a special challenge for cigars, and particularly traditional hand-rolled cigars, that often combine a variety of flavors that are potentially discernible by the consumer. Under the New Jersey definition, would a cigar that includes trace hints of vanilla or rum be the subject of such a ban, if enacted into law? Hopefully not, but the definition is not clear on this point, perhaps to the point of being unconstitutionally vague.
Even more problematic are scenarios where FDA asserts jurisdiction over cigars and attempts to ban characterizing flavors. Will FDA adopt a broad interpretation of “characterizing flavors” that includes vaguely discernible flavors but that do not predominate the tobacco or its smoke? The potential consequences for the cigar industry obviously are significant and wide-ranging.
For questions and/or comments, please contact Bryan Haynes, at 804.697.1420 or by email.