Flavored Tobacco Products

There are plenty of flavored tobacco products on the market that are exempt under both the NJ state law and the FDA Act. These products, unfortunately, are just as highly addictive, but they are not considered "cigarettes". Exempt under both the NJ Law and FDA Act are these other products such as small cigars, cigarellos, chewing tobacco, snus (chewing tobacco contained in a pouch) and dissolvables, which are appealing to children as they look like mints or candy. Unfortunately, children have been poisoned by these products. Click here for a news article from msnbc.com.

NJ Law: On December 1, 2008, New Jersey became the first state to implement a ban on the sale or distribution of flavored cigarettes under NJSA 2A:170-51.5 et seq. (menthol and clove are exempt). Read the text of the law.

FDA Act: Almost a year later, on September 22, 2009, The Family Smoking Prevention and Tobacco Control Act ("FDA Act" a.k.a. FDA regulations HR 1256) took effect. This federal law bans certain characterizing flavors in cigarettes (menthol only is exempt):

"a cigarette... shall not contain, as a constituent (including a smoke constituent) or additive, artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke."

The new FDA law put no restrictions on flavored smokeless tobacco products or cigars. It only prohibits flavored cigarettes (other than tobacco and menthol flavors). However, the FDA act gives the FDA the authority to establish a new science-based rule to prohibit flavored smokeless (or flavored cigars, etc.) to protect the public health. Read the September 14, 2009 FDA letter to the tobacco industry. Please note that only menthol, not clove, is exempt in the federal law. Read the FDA Act's implementation timeline. Read an Executive Summary of the Act.

New In October 2013, The Centers for Disease Control and Prevention (CDC) reported that more than two out of every five middle and high school students who smoke use flavored little cigars or flavored cigarettes. Their study was published in the Journal of Adolescent Health. Since the sale of flavored cigarettes (except Menthol) were banned with the passage of the 2009 Family Smoking Prevention and Control Act, tobacco companies now sell little cigars in kid-friendly fruit and candy flavors. The only difference between the two products is little cigars are wrapped in leaf tobacco or another tobacco product, and cigarettes are wrapped in paper or some other non-tobacco substance.

Read the CDC press release about the study, which used data from the 2011 National Youth Tobacco Survey to measure how many American youth are using flavored little cigars and flavored cigarettes. Read the October 23 and 24 news articles from CNN and The Boston Globe respectively about the CDC study.

Cigar use more than tripled from 2000 to 2011, and is more common among teens than older people. Cigars are flavored and are not taxed as high as cigarettes, making them cheaper and more appealing to kids. Read a Star Ledger Editorial which supports closing these loopholes as smart solutions to discourage kids from taking up smoking.

Read the April 3, 2013 press release from Legacy entitled "Flavored Tobacco Continues to Play a Role in Tobacco Use Among Young Adults," which encourages the FDA to extend the ban on flavors to other tobacco products.

In November 2011, a court ruling upheld the legality of a November 2009 law passed by New York City Council banning the sale of flavored smokeless tobacco products, except menthol, wintergreen and mint. The first law in the U.S. to ban these products, advocates argued a flavored tobacco ban was necessary to protect children. Providence, Rhode Island soon passed a similar law. Both cities were sued unsuccessfully by the tobacco companies. Read the judges ruling from the New York case in GASP's news alert. Read more about both cases from the Change Lab Solutions website.

In November 2011, Maryland health officials released a Fact Sheet confirming that youth in the state are switching to cigars and flavored cigars, even as cigarette smoking has declined. As the attached "Cigars, Cigarillos and Little Cigars Fact Sheet" from the American Legacy Foundation shows, this trend extends nationwide and represents a major threat to recent gains in tobacco control. Since these items are not taxed as cigarettes, they appeal to youth since they are less expensive, and they come in sweet flavors that include chocolate, mango, strawberry and peach, among others. Read more stories: an op-ed from the Huffington Post, a news story from the Baltimore Sun, and this statement issued by Campaign for Tobacco-Free Kids. Not surprisingly, a 2012 convenience store industry survey found that more than 50% of retailers surveyed expect to increase sales of flavored cigars and moist tobacco this year.

An advisory panel to the Food and Drug Administration that has been studying whether the government ought to ban menthol cigarettes said on March 18, 2011 that the "removal of menthol cigarettes from the marketplace would benefit the public health." The panel said menthol cigarettes are more enticing than regular cigarettes to teenaged and black smokers, and menthol cigarette smokers have a harder time quitting. Read an article from the Washington Post which talks about the panel's recommendations. Read more about the study in our news alert about the menthol findings.

Other Federal laws which may help curtail the access of these products to children:

On March 31, 2010, President Obama signed the Prevent All Cigarette Trafficking Act (PACT) into law, which regulates the tobacco product sales via mail and internet. PACT takes effect in 90 days from the signing, on June 29, 2010. The purpose of PACT is to help curb the sale of tobacco to children. PACT also helps to collect taxes on tobacco products sold through the mail and internet, requires tax stamps be affixed before delivery of the products to the customer, bans the delivery of these products through the U.S. Postal Service, requires age verification when the products are purchased and delivered, and increases penalties and improves enforcement. Read a press release and fact sheet on PACT, from Campaign for Tobacco-Free Kids.

Also, On March 19, 2010, to help implement the FDA Act, the FDA issued federal Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, ("FDA Regulations", cited 21 CFR Part 1140), effective June 22, 2010. These FDA Regulations contain a broad set of federal requirements designed to significantly curb access to and the appeal of cigarettes and smokeless tobacco products to children and adolescents in the United States. The FDA Regulations restrict the sale, distribution, and promotion of these products, to make them less accessible and less attractive to kids. Learn more about these Regulations at the FDA's press release and Frequently Asked Questions on implementing the regulations.

Users of moist snuff or 'snus' who have suffered a heart attack can increase mortality if they give up the habit, according to a August 2011 Swedish study.


If you observe that flavored cigarettes are being sold or given out in NJ after November 30, 2008, please contact your local health department and ask the inspector to investigate. Fines are $250 for first violation, $500 or more for the second violation, and $1,000 for the third and each subsequent violation, in a summary proceeding before the municipal court having jurisdiction. There are some municipalities also which have passed ordinances to ban the sale of candy cigarettes.

If you are a local health officer or inspector, please read NJ Health Commissioner Heather Howard's letter to the local health officers. Click here for the state's implementation guidelines. Note that little cigars, small cigars, cigarillos, large cigars, pipe tobacco or smokeless tobacco are exempted.

The packaging of flavored cigarettes clearly shows flavors (e.g. mochamint or margarita). The key to the law is that the flavors need to impart a distinguishable flavor, taste or aroma, or that the cigarettes are marketed/advertised as flavored. Some samples are:

Last update: 10/30/13