The New York City Council has recently proposed a measure that would prohibit so-called “characterizing flavors” in e-cigarettes. The move would subject vapor products to the existing ban on “characterizing flavors” in all tobacco products, which only allows flavored tobacco products to be sold in tobacco bars that derive a certain percentage of their revenue from tobacco sales.
The “characterizing flavor” ban does not prohibit the flavors of tobacco, menthol, mint or wintergreen. Products with those flavors could continue to be sold anywhere. However, chocolate, vanilla, herb, dessert or fruit flavors would be prohibited in most venues.
The definition of a prohibited “characterizing flavor” is not entirely clear. It is defined as a “distinguishable taste or aroma . . . imparted either prior to or during consumption of a tobacco product.” Public statements by a manufacturer regarding a product’s flavoring are considered presumptive evidence that the product has a characterizing flavor. The New York City Department of Health and Mental Hygiene was required to issue regulations implementing the characterizing flavor ban, and it did so in 2010. Those regulations further delineate the presumptive evidence to establish a characterizing flavor – where the “label, labeling, or packaging of such product includes a public statement or claim that such product has or produces a taste or aroma relating to . . . any . . . flavor other than menthol, mint, wintergreen or tobacco.”
The vagueness lies in the regulations’ more subjective standard – an evaluation “by a panel of trained sensory testers consistent with ASTM [American Society for Testing and Materials] standards.” However, it does not appear that the “sensory panels” have been implemented. So presumably many vapor companies and retailers could be left to guess whether certain products are covered.
Interestingly, the proposed measure applies to any “electronic device that delivers vapor for inhalation.” So the law would apply, not just to vapor products containing nicotine, but to any product that allows the user to inhale vapor, even if those products do not have nicotine.