The  2009 Family Smoking and Tobacco Prevention Act banned the sale of cigarettes with “characterizing” flavors other than menthol or tobacco. Section 907(a)(1)(A) of the Act states:

"…a cigarette or any of its component parts (including the tobacco, filter, or paper) shall not contain, as a constituent (including a smoke constituent) or additive, an 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."

However, other flavored tobacco products have remained on the market and become much more prevalent in the years since. These products include flavored smokeless tobacco, little cigars and cigarillos, large cigars, e-cigarettes, hookah, and dissolvables, in addition to menthol cigarettes, and are sold in an array of flavors that range from fruit flavors to candy or confectionery flavors, to alcoholic beverage to herbs and spices.
For descriptions, photos, and the harmful effects of each of these flavored products, see the The Dirty Truth's marketing materials from the Delaware Division of Public Health’s Tobacco Prevention and Control Program. FlavoredTobacco

Availability and POS Marketing

Flavored tobacco products are widely available. According to national store observation data collected in 2014,
  • 85.6% of stores sell flavored cigarillos
  • 67.3% of stores sell flavored smokeless products
  • Almost half of stores sell flavored e-cigarettes or large cigars
However,  flavored tobacco products are not marketed uniformly across the United States. A 2015 systematic review found that marketing for menthol products was more prevalent in low-income and African American neighborhoods, and marketing for little cigar/cigarillos (which are often flavored) is more prevalent in neighborhoods with more African-American residents.

Prevalence Among Youth & Adults

Flavored tobacco products that come in sweet, fruity, or candy-like flavors appeal to kids, and the data shows that young people are using them.

p0930-flavored-tobacco

The CDC’s 2015 Morbidity and Mortality Weekly Report shows that 70% of tobacco users in middle or high school reported using a flavored product within the past 30 days. E-cigarettes, cigars, and hookah were the most common products used. Specifically,
  • 63.3% used a flavored e-cigarette
  • 60.6% used flavored hookah tobacco
  • 63.5% used a flavored cigar
Another study found that among middle and high school students who smoke cigarettes or little cigars, over 40% reported using flavored products.
Racial and ethnic minority youth may also be more likely to use flavored tobacco. In a 2014 study of NYC teenagers, 43% of Hispanic youth and 30% of Black youth had tried a flavored tobacco product compared to 18% of Whites youth and 9% of Asian youth.
The appeal of flavored products continues into young adulthood. A survey of young adults ages 18-34 showed that younger adults ages 18-24 are also more likely to use flavored products than older adults. However, the same study of young adults found that black individuals were 2.73 more likely to use flavored tobacco than white individuals.

Menthol Use

Menthol is also preferred by young people, as it helps mask the harshness and taste of tobacco smoke. Of youth and young adult smokers, over half smoke menthol.
Menthol cigarettes are smoked by 74.6% of black smokers compared to 21% of white smokers. In fact, after controlling for other demographic factors and smoking behaviors, one study found that black smokers were more than 10 times more likely to smoke menthol than white smokers. That same study found that individuals with lower levels of education, individuals with lower levels of income (<$10,000),  and women were also more likely to smoke menthol cigarettes.
The disparities in these rates follow decades of targeted menthol marketing in low-income African American communities by the tobacco industry. Still today, higher amounts of POS marketing and lower prices for menthol products can be found in predominantly African American and low-income neighborhoods. Read more about disparities in point of sale marketing. While disparities in menthol cigarette use remain, menthol use has also increased among white, Asian, and Hispanic smokers since 2010.

Role of Flavors in Youth Initiation

Evidence suggests that flavors also play a role in youth initiation of tobacco use.
A national survey found that the majority of youth ages 12-17 reported that the first tobacco product they tried was flavored (88.7% of ever hookah users, 81% of ever e-cigarette users, 65.4% of ever cigar users, and 50.1% of ever cigarette smokers). Youth also reported product flavoring as a top reason for using tobacco within the past 30 days (81.5% of e-cigarettes users, 78.9% of hookah users, 73.8% of cigar users, 69.3% of smokeless tobacco users, and 67.2% of Snus users). Focus groups of young adults smokers have also revealed that the visual, smell, and taste cues from the packaging of little cigars and cigarillos (LCCs) influence their decision to start smoking them or to switch from cigarettes to flavored LCCs.
Menthol in particular is linked to higher rates of tobacco use initiation. The cooling sensation helps mask the harshness of the smoke and tobacco taste, and can also cause users to inhale more deeply and become more dependent on nicotine as they inhale more of it. Current teen smokers in NYC were 10 times as likely to have tried menthol cigarettes compared to non-current smokers.Even after controlling for menthol cigarette use, teens who had tried a flavored tobacco product were nearly 3 times more likely to be current smokers than those who had not. Flavors may also contribute to initiation by making a product seem less harmful to adolescents.
Initiation with flavored tobacco products, especially menthol, is especially concerning because young people who initiate smoking with menthol cigarettes are 80% more likely to become regular smokers and 25% more likely to become dependent on nicotine than young people who initiate smoking with non-menthol cigarettes.

Local, State, and Federal Policies

Federal

When the 2009 Family Smoking Prevention and Tobacco Control Act banned flavored cigarettes,  it also instituted a tax on small cigars. To circumvent this tax, the tobacco industry subsequently slightly increased the weight of their cigars to be able to classify them as “large cigars” under Tobacco Control Act. However, these cigars are nearly identical to cigarettes, yet still allowed to be flavored. While cigarette sales have been declining, cigars have been on the rise in the US since 2000, driven in part by the proliferation of flavored LCCs. The FDA’s 2016 “Deeming” regulations brought all tobacco products under FDA regulatory authority – including e-cigarettes, all cigars, hookah, dissolvables, and any novel or future tobacco products. While the FDA has not issued further regulations on flavors for these newly deemed products, the agency has announced their intention to introduce a follow-up rule that will prohibit the use “characterizing flavors” in cigars.
However, “characterizing flavor” for any future cigar regulations has yet to be defined. The tobacco industry has a history of using colors on packaging to signify differences between products. When the 2009 Tobacco Control Act prohibited the use of modified risk health descriptors such as “light,” “mild,’ or low tar in cigarettes, Marlboro circumvented the rule by changing the names of their “Marlboro Light” cigarettes to “Marlboro Gold,” while “Marlboro Ultra Lights” became “Marlboro Silver” and “Marlboro Mild” was renamed “Marlboro Blue” Many LCCs on the market sold alongside other flavors are labeled simple with a color (i.e. ‘Green” “Blue” “Black” “Silver” as seen in the photo at right). Researchers tracked cigar sales between 2008 and 2014 by flavor categories and found that flavored cigars accounted for over half of cigar sales. However, the number of fruit flavors is declining, while “other” flavors (e.g. “Jazz,” “Golden,” and “Royale”) are on the rise, which the authors suggest may be part of a tobacco industry attempt to avoid characterizing flavor descriptors in the case of a ban on flavored cigars.

State

FL_Flavor_ResolutionsMaine, which banned flavored cigars in 2009, is the only state to institute any type of flavor restrictions. However, over 200 localities across the state of Florida have passed voluntary resolutions discouraging the sale and marketing of candy flavored tobacco. The youth group Students Working Against Tobacco (SWAT) has played a large role in advocating for these flavored tobacco resolutions and in raising awareness of the problems the products pose in their communities. For more information, see their Flavored Tobacco Activity Guide
Other states have run media campaigns raising awareness about the dangers of flavored tobacco products , particularly for youth. For example:
    • Campaign in Maryland – The Cigar Trap - an education and awareness campaign around the issues associated with the merchandising and promotion of cigars. In 2010, 14.1% of Maryland high school students under 18 reported smoking cigarettes in the last 30 days, and 13.9% reported smoking cigars. This represented more than an 11% increase in cigar use since 2000. The Cigar Trap highlights this shift in usage and the associated dangers. The campaign includes facts sheets to define the issue, solutions that can be pursued, and media resources associated with the campaign.  Media resources can also be accessed through the CDC’s Media Campaign Resource Center.
    • Tobacco Free CA’s “Kids and the Tobacco Predator

Local

A number of localities have passed outright bans on the sale of flavored tobacco products (some with exemptions), bans on sales of flavored products within a certain distance of schools, or restricted sales of flavored tobacco products to adult-only facilities. These localities include (click each localities to access text of their ordinances): Only Chicago and Berkeley's laws include menthol so far. For more examples of local flavored tobacco restrictions, see the Tobacco Control Legal Consortium's US Sales Restrictions on Flavored Tobacco Products.

Tobacco industry history of marketing to youth

The tobacco industry has a long history of marketing their products to youth.  Tobacco industry documents archived through the UCSF Industry Documents Digital Library show that tobacco companies strategically used sweet, fruity, candy-like flavors to market their products to youth: marketing-to-youth-8-638 marketing-to-youth-6-638 Both direct and indirect marketing to youth were prohibited under the 1998 Master Settlement Agreement. However, it’s clear that this type of targeted marketing still occurs. For more recent quotes from the industry, evidence, and consequences of tobacco companies using flavors to target youth, review the following:Capture Not only are tobacco products sold in candy flavors, many are also packaged similarly to popular candies. Some tobacco products even contain the same chemical ingredients as candy. A study published in the New England Journal of Medicine showed that the same chemicals used in  “cherry,” “grape,” “apple,” “peach,” and “berry” Jolly Rancher candies, Life Savers, Zotz candy, and Kool-Aid drink mix were also used in similarly flavored tobacco products. It’s literally candy-flavored tobacco!
Levels and Patterns of Chemicals in Various Brands of Grape-Flavored Candies, Kool-Aid Drink Mix, and Tobacco Products. From Brown et al. (2014). Candy Flavorings in Tobacco. New England Journal of Medicine, 370(23):2250-2. DOI: 10.1056/NEJMc1403015

Menthol Marketing to African-Americans

The tobacco industry also been marketing their menthol products to African Americans through targeted campaigns since the 1970s, concentrating advertising and promotions in predominately African-American neighborhoods and with campaigns that exploit cultural hallmarks and stereotypes. Read more about the “Menthol Wars” and urban African-American neighborhoods as “focus communities.” 
Still today, studies show that more point of sale menthol marketing is found in areas with higher numbers of African-American residents. For more information, review the following:
This marketing works. CDC MMWR data shows that 60% of African American youth prefer Newport, a brand of menthol cigarettes, compared to 22% of white youth. However, according to a 2011 report by the FDA’s Tobacco Products Scientific Advisory Committee (TPSAC), removing menthol cigarettes from the marketplace would benefit public health. They estimate that the effects of such a ban would include:
    • 39% of menthol smokers would quit
    • 47% of African American menthol smokers would quit
    • preventing over 17,000 fewer premature deaths by 2020
    • preventing nearly 2.3 million people from initiating smoking by 2020

E-Cigarette Flavors

While the FDA has announced their intention to prohibit the use of characterizing flavors in cigars, no such announcement has been made for e-cigarettes. 
E-cigarettes entered the US market in 2007 and had been largely unregulated until May 2016, when the FDA issued their final deeming rules, which brought regulation of e-cigarettes under FDA authority. According to the deeming rules, any product not on the market prior to February 7, 2007 (which includes most e-cigarettes and other electronic smoking products) must go through one of three different review process with the FDA in order to remain on the market. However, companies have until August 8, 2017 to file for review and then may remain on the market for up to 12 months after that while the FDA’s decision in pending. Learn more here.
Currently, there are an enormous amount of flavors and a wide variety of e-cigarette products and brands on the market. A study in  2014 found a total of 7,765 flavors and 466 brands, and the market has only grown since then.
While the research base on e-cigarettes is still emerging, a number of studies have found that the flavoring used in e-cigarettes and e-liquids have been linked to serious health issues, including toxic effects on lung cells, including “popcorn lung,” as well as inflammation effects and negative effects on the immune system. While the the flavorings used often have been deemed “generally recognized as safe” by the FDA, this status refers to safe for consumption, rather than for inhalation, which can have different effects on the body. As part of the deeming regulations, manufactures must disclose a list of their product ingredients starting in February 8, 2017. For more information, review our evidence summary on E-Cigarettes at the Point of Sale

Policy Options

States and localities across the country have implemented regulations that restrict the sale of flavored tobacco products in a number of ways. These include:

1) Restricting the sale of certain flavor types:

  • Providence, Rhode Island has banned the sale of tobacco products in any flavor except for menthol, mint, and wintergreen flavors. Learn more about how the city developed and successfully implemented this ordinance in a case study from the Center for Public Health Systems Science.
  • Many localities in Massachusetts have prohibited the sale of flavored tobacco products except for mint, menthol, and tobacco-flavors, but have included "concept" flavors (e.g. "red," "jazz," "pirate's cave," etc.) based on their taste or aroma of flavors other than those exempted. See their full list of prohibited flavors.

2) Restrict by place sold:

  • New York City has restricted the sale of flavored tobacco products (with the exception of mint or menthol flavors) to tobacco bars only.
  • Minneapolis and Saint Paul, Minnesota have restricted the sale of flavored tobacco (except menthol) to adult-only stores
  • Over 84 municipalities in Massachusetts have flavor restrictions in place limiting the sale of flavored tobacco products other than cigarettes to adult-only stores

3) Restrict by flavored product type:

  • Maine has specifically banned flavored cigars
  • Santa Clara County, CA has banned the sale of flavored tobacco products (except for menthol) and any flavor in e-cigarettes.

4) Restrict the sale of flavored tobacco within a certain distance of schools:

  • Berkeley, California has also prohibited the sale of flavored tobacco products including menthol within 600 ft from schools

5) Indirect restrictions:

  • Minimum price laws or minimum pack size requirements for LCCs can also limit access to flavored tobacco products. While these laws do not specifically pertain to flavored products, they disproportionately affect flavored products like LCCs.
    • In 2011, Boston implemented a cigar packaging and pricing regulation that required single cigars to cost more than $2.50, a package of two cigars to cost more than $5.00, and a package of three cigars to cost more than $7.50. Otherwise, the regulation stipulated that cigars must be sold in packages of at least four. As a result, research showed that both sales and retail availability of single grape-flavored Dutch Masters cigars (which are popular with youth) decreased. Between 2011 and 2014, the percentage of Boston retailers selling grape Dutch Masters single cigars decreased by 34.5%. Additionally, the number of neighborhoods with 3 or more retailers selling these cigars per 100 youth residents decreased from 12 stores to 3, reducing neighborhood-level disparities in retail availability.

Resources

From the Tobacco Control Legal Consortium:

From Campaign for Tobacco Free Kids:

Model Ordinances:

Media Campaigns: