In August, the California Department of Justice (DOJ) finalized regulations to implement California’s unflavored tobacco list (UTL) law, which the state enacted in 2024. The new regulations include detailed filing requirements for manufacturers and importers to have their tobacco products legally sold in California.
The deadline for applicants to be considered for the initial publication of the UTL is October 9, 2025.
What Is the UTL?
The UTL is a forthcoming list of unflavored tobacco products allowed to be sold in California. The DOJ will publish the UTL on or before December 31, 2025. After this publication, distributors, wholesalers, and delivery sellers will be prohibited from selling “any tobacco product not appearing on the UTL or any tobacco product flavor enhancer to any retailer, wholesaler, or other person for sale in California.” Cal. Health & Safety Code § 104559.1(o)(1).
Additionally, any product not listed on the UTL “shall be deemed a flavored tobacco product” under California’s general flavor ban statute. This means that tobacco retailers will similarly be prohibited from selling any unlisted products. See Cal. Health & Safety Code § 104559.5(b)(1).
What Products are Covered?
The UTL requirements generally apply to “tobacco products,” which are defined as follows:
(i) A product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff.
(ii) An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including an electronic cigarette, cigar, pipe, or hookah.
(iii) Any component, part, or accessory of a tobacco product, whether or not sold separately.
Cal. Health & Safety Code § 104559.5(a)(17).
However, regarding items (ii) and (iii), the UTL regulations indicate that listing is not required “for any electronic device that is not sold with nicotine or liquid intended to be vaporized and inhaled from the device, or for any separately sold accessory, component, or part … unless that accessory, component, or part contains nicotine or liquid intended to be vaporized and inhaled from the accessory, component, or part.” Cal. Code Regs. tit. 11, § 945(d).
Further, the definition of “tobacco product” for purposes of the UTL “excludes looseleaf tobacco, premium cigars, and shisha tobacco products,” as those terms are defined for purposes of California’s general flavor ban statute, Cal. Health & Safety Code § 104559.5. See Cal. Health & Safety Code § 104559.1(s)(3).
How Do I List My Products?
Manufacturers and importers of tobacco products must apply through the UTL portal by October 9, 2025, to be considered for inclusion on the initial publication of the list. See Cal. Code Regs. tit. 11, § 947(f). Within the UTL application, each brand style must be separately submitted for consideration through either a “product form” or a “variant form.”
Product forms must contain detailed descriptions of each brand style, including, among other things, trademark ownership details, physical characteristics, and any determinations made by other government agencies regarding the flavor of the brand style. A product form must also note whether the brand style has received premarket authorization from the U.S. Food and Drug Administration (FDA), along with explanations and supporting documentation related to the product’s FDA premarket review status. See Cal. Code Regs. tit. 11, § 945. A sample of each brand style submitted through a product form must be sent to DOJ for review. See Cal. Code Regs. tit. 11, § 947(b)(5).
Variant forms are abbreviated filings for products similar to those for which the applicant has already completed a product form. A “variant” is “a Brand Style that is identical to that Predicate Brand Style in all respects, with the exception of the universal product code, manufacturing stock keeping unit number, packaging or labeling (including multipacks), inclusion (or non-inclusion) of an electronic device (as part of a multipack), or Product count per package. ‘Variant’ does not include any Brand Style with a packaging difference that imparts flavor.” Cal. Code Regs. tit. 11, § 942(r). A “predicate brand style” is “a Brand Style for which an Applicant has previously completed a product form.” Cal. Code Regs. tit. 11, § 942(m).
A variant form may be filed only for of the following types of variants:
- Variants with packaging designed for a market outside of California, including exports;
- Variants with different packaging or different Product count per package, unless the packaging itself imparts flavor;
- Variants with promotional packaging or discount Brand Styles;
- Language on packaging different from Predicate Brand Style, e.g. French or Spanish;
- Variants with a different universal product code or stock keeping unit;
- Multipacks; and,
- Multipacks with electronic devices.
Cal. Code Regs. tit. 11, § 946(c). Notably, applicants are not required to submit samples of brand styles submitted through variant forms. See Cal. Code Regs. tit. 11, § 947(b)(5).
Application and Renewal Fees
The initial application fee is $300.00 per brand style submitted through a product form and $150.00 per brand style submitted through a variant form. To maintain their products’ listing, applicants must annually pay a fee of $150.00 per brand style alongside a renewal application. See Cal. Code Regs. tit. 11, §§ 951 (regarding renewal applications), 954 (regarding fees).
Why It Matters
The UTL statute, as implemented by the recent regulations, imposes a new hurdle for manufacturers and importers seeking to sell their products in California. Although the law seeks to restrict the sale of flavored products, the regulatory compliance burden falls primarily on companies selling unflavored products because they must ensure their products are listed to be legally sold in California.
Our team regularly advises on compliance with novel state regulatory frameworks like the California UTL regime. If you have questions about the UTL requirements as they relate to your business, our team is happy to assist.