As highlighted by our “5 POS Trends to Watch“ feature, non-cigarette tobacco products (also known as other tobacco products or OTP), is a growing category and one to closely watch. Recently, developments in flavored tobacco regulation have been peppering the news across the globe.
Below is a quick wrap up on recent flavored-tobacco news:
Courts Uphold NYC Ordinance Banning Flavored Tobacco Products
In 2009, Mayor Bloomberg signed an ordinance banning the sale of all tobacco products containing additives that impart a distinct flavor including: fruit, vanilla, chocolate, honey, candy, cocoa, dessert, alcoholic beverage, herb or spice. However, the law did not apply to mint or menthol flavors nor were tobacco bars subject to the new ordinance. To contest the ban, US Smokeless Tobacco Manufacturing and US Smokeless Tobacco Brands filed a federal lawsuit claiming that the policy was preempted by the Family Smoking Prevention and Tobacco Control Act of 2009. The subsidiaries of Altria argued that the NYC flavor ban overstepped the tobacco regulatory powers afforded to states through the Family Smoking Prevention and Tobacco Control Act of 2009 by attempting to restrict the ingredients that tobacco manufacturers use in their products. According to the Act, the federal government reserves the right to determine the safety of ingredients thus, if Altria’s claims were found to be true, it would be unlawful for NYC to assume authority in matters that fall within federal jurisdiction.
The 2nd Circuit ruled in favor of the New York City flavored tobacco product ban confirming that the Family Smoking Prevention and Tobacco Control Act of 2009 “expressly preserves localities’ traditional power to adopt any ‘measure relating to or prohibiting the sale’ of tobacco products.” As such, NYC has the right to restrict the sale of tobacco products that have packaging and/or marketing that highlight the product’s flavor characteristics.
Judge Gerald Lynch, one of the three judges presiding over the case, further explains, “The city does not care what goes into the tobacco or how the flavor is produced, but only whether final tobacco products are ultimately characterized by – or marketed as having – a flavor. No matter the level of generality used to define ‘flavored tobacco products,’ the ordinance is not easily read to direct manufacturers as to which ingredients they may or may not include in their products.”
Read more details about this court ruling here.
Alberta, Canada Considers a Flavored Tobacco Bill
The biennial Youth Smoking Survey, funded by Health Canada, collects data on national Canadian youth smoking prevalence, smoking behaviors and perceptions. The 2010-2011 Youth Smoking Survey revealed that Alberta student smoking rates were higher than the national average. Furthermore, responses to smoking behavior survey questions uncovered that 64% of Alberta adolescent smokers use some sort of flavored tobacco product- 6 percentage points higher than the national average. Popular products among underage Alberta smokers included flavored cigarillos and cigars. Again, use for each of these products were higher among Albertan youth when compared to the national average: 35% vs. 29% for cigarillos and 30% vs. 19% for cigars respectively.
In response to study findings, Dave Rodney, Alberta’s associate minister of wellness indicated that a comprehensive bill is being developed to address the prevalence of flavored tobacco product use in the province. The bill is slated to be introduced during the Fall legislative session.
Read more about this story here.
European Union Seeks to Update the Tobacco Products Directive
European lawmakers convene to revise the statutes of the Tobacco Products Directive, a piece of legislation, passed over a decade ago, designed to regulate the manufacture, sale and presentation of tobacco in the European Union. Since its passage, the landscape of tobacco merchandising and tobacco product mix have significantly evolved, resulting in regulatory loopholes. The aim of the updates to the legislation is to decrease the number of deaths caused by smoking as well as to decrease youth smoking initiation rates. Suggested additions to the law include graphic health warnings, guidelines on how to regulate other tobacco products such as e-cigarettes and bans on marketing additives pertaining to vitamins, caffeine and flavors. The ban on snus, a smokeless moist powder tobacco product, would remain. However, its sale would be permitted in Sweden due to cultural ties to use of the product.
Tonio Borg, the Health and Consumer Policy Commissioner, hopes that the modifications to the directive will lower the number of smokers in the EU by 2%.
Stay tuned during the upcoming coming months to see what compromises may be made in order to update this law.
Learn more about the Tobacco Products Directive here.
Last updated October 11, 2023
