What They Are: Flavor cards, and similar flavored additives like gels, drops, and capsules, are products designed to impart flavors to otherwise unflavored cigarettes. Flavor cards are inserted into cigarette packs to infuse the cigarettes with the card’s taste and aroma. These cards are often available from third-party manufacturers and are also produced by major industry players. Brands such as Itsa have gained popularity abroad, even in regions that have restricted flavored cigarettes such as Canada, which banned menthol cigarettes in 2017.
Why They Matter: While some U.S. jurisdictions have implemented comprehensive flavored tobacco restrictions, many have not. Even among those with robust regulations, there are risks that products like flavor cards could evade prohibitions. Flavor cards typically lack nicotine or tobacco, and unless a law or legal interpretation identifies them as accessories or components of tobacco products, they may remain available on store shelves, undermining flavor restrictions. For example, the bans on menthol flavors in Canada and the European Union have encountered mixed success due to the industry’s promotion of products like flavor cards as substitutes for flavoring in cigarettes.
The Legality of Flavor Cards and Other Flavoring Products in the United States: According to federal law, a “tobacco product” encompasses non-drug items containing tobacco or non-tobacco nicotine, and includes “any component, part, or accessory of a tobacco product except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product.” Flavor cards and other flavoring products typically lack nicotine or tobacco, and there are no federal regulations that speak to them specifically. However, a good argument can be made that flavor cards are component or accessory parts to tobacco products, as they are intended to alter or affect the “tobacco product’s performance, composition, constituents, or characteristics” by adding flavoring. This would suggest that flavor cards would need to go through the U.S. Food and Drug Administration’s Premarket Tobacco Product Application process to be authorized for sale in the United States. Nevertheless, federal enforcement is already lacking when it comes to keeping unauthorized tobacco products off shelves, and some products claim to have FDA-approved or generally-recognized-as-safe ingredients.
Most states have not banned the sale of flavored tobacco products. However, California’s enactment of SB 793 illustrates the significance of including flavoring accessories within the scope of tobacco products, while also revealing the complexities of their definition. This state law prohibits the sale of most flavored tobacco products, with exceptions for loose leaf tobacco, shisha, and premium cigars. Importantly, it also restricts the sale of a “tobacco product flavor enhancer,” defined as a product “designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.” This explicit language includes products marketed as flavor cards for cigarettes or other tobacco products, and the California Attorney General’s Office issued a determination on October 13, 2023, that OCB Flavor Cards are tobacco product flavor enhancers under state law (and so prohibited from retail sale).
The Legal Status of Non-Tobacco Product Flavor Cards: As societal attitudes toward cannabis and hemp products evolve, there is a concern that certain flavored items, unrelated to tobacco, may continue to be accessible and used with tobacco. For example, in California the precise definition of a “tobacco product flavor enhancer” highlights products designed to impart a distinctive flavor when added to a tobacco product” (emphasis added). Flavoring products like cards or drops that are marketed for use with cannabis products – and that consumers might use for their tobacco products – would not clearly meet the definition for a tobacco product flavor enhancer. This places the responsibility on tobacco control professionals and local authorities in California to ascertain whether a specific flavoring product qualifies as a “tobacco product flavor enhancer,” which can be a challenging task, particularly when these same products may be entirely legal for use with non-tobacco products.
Conclusion: Flavor cards epitomize the industry’s determination to seize any opportunity to maintain the appeal of their products. To achieve the objectives of commercial tobacco control, comprehensive tobacco control laws are essential. The most effective approach involves adopting an “Endgame” strategy aimed at ultimately eliminating the sale of all commercial tobacco products. This strategy can be transformative in safeguarding public health and realizing the goals of commercial tobacco control.
Neil Sircar, Staff Attorney
October 30, 2023