[co-author: Kevin Andres Rodriguez]
The landscape of tobacco product and cannabis flavor bans or restrictions varies significantly across the country. In both industries, some states restrict all or some flavors in all types of products, while other states restrict all or some flavors in some, but not all, products. Below, we provide a high-level overview of the flavor ban and restriction landscape in both industries. As we will discuss, there is a wide disparity between cannabis and tobacco product flavor bans or restrictions and, where they exist, there appears to be more flexibility among cannabis flavor restrictions than for tobacco product flavor bans or restrictions.
Overview: Tobacco Product & Cannabis Flavor Bans or Restrictions
Federal law prohibits the manufacture of cigarettes that contain artificial or natural flavors, except tobacco and (for the moment) menthol, as a constituent or additive, but there is no federal flavor ban for other tobacco products. Possession and sale of cannabis (excluding industrial hemp) remains illegal under federal law, although many states have legalized the sale, possession, and consumption of cannabis products for recreational or medical uses.
In a minority of states, broad tobacco product flavor bans or restrictions apply to all tobacco or nicotine products, and their components, parts, or accessories. In other states, t bans or restrictions only apply to specific tobacco products, like wrapping papers or electronic nicotine delivery systems. We also see a similarly varied landscape in the cannabis industry, where flavor bans or restrictions apply either to all cannabis products or to just a segment of cannabis products, like cannabis oils or vapor products.
Below is a chart summarizing flavor bans/restrictions in a few states.
Our Thoughts
State tobacco product flavor bans or restrictions are typically tied to “characterizing flavors” – typically defined as tastes or smells (e.g., California, D.C., Illinois, Utah). State cannabis flavor restrictions tend to be much less precise and less focused on whether a particular taste or smell is imparted – such as restricting any flavor that a seller “knows or should know appeals to children” (e.g., D.C., Washington, Utah). Typically, such restrictions imposed on tobacco products are less patently vague. While all these types of restrictions can be ambiguous, the more amorphous ones found in state legal cannabis regimes like D.C., Washington, and Utah can also provide flexibility to introduce flavored cannabis that do not otherwise appeal to minors and allow flavors to remain on the market that provide more choice to adult users and marketplace competition. Despite the wide variation in how cannabis and tobacco products are regulated across the states, in general states with legal cannabis regimes appear to provide sellers more freedom to introduce flavored cannabis product formats.
Regardless of the causes behind this variety in approach, these regulations introduce complexity for manufacturers and sellers, as well as interesting public health questions. For example, in addition to harming legitimate businesses, flavor bans may discourage cannabis and tobacco product consumers from switching to less harmful consumption alternatives (e.g., switching from smoking cannabis or tobacco to cannabis edibles or nicotine pouches) or may result in unintended consequences, such as black markets, a massive influx of illegal products, and re-criminalization of the category. The variety in approach of some states to restricting flavors across these categories, and the evolving approach of certain anti-category advocates seeking to restrict or abolish these categories, means manufacturers and sellers cannot assume predictability in the future of their product portfolios and must be prepared to engage with the public, legislators and regulators regarding the appropriate place for flavored products in the marketplace.
