The 2009 Family Smoking and Tobacco Prevention Act banned the sale of cigarettes with “characterizing” flavors other than menthol or tobacco.

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.

The ban on flavored cigarettes was associated with a 17% reduction in the probability of middle and high school youth becoming smokers and a 58% reduction in cigarettes smoked by youth who smoke. However, the ban was also associated with an increase 45% increase in use of menthol cigarettes, a 34% increase in use of cigars, and a 55% increase in use of pipes, indicating that youth may be substituting menthol cigarettes and other flavored tobacco products in place of flavored cigarettes.  Overall, the probability of youth using any form of tobacco dropped by 6% following the ban on flavored cigarettes, showing the impact that restrictions on flavored tobacco products can have. However, the increases in use of other products that are commonly flavored is concerning and points towards the potential impact that more comprehensive restrictions on menthol cigarettes and all flavored other tobacco product could have on youth tobacco use.[1]

On November 15, 2018 the FDA announced that they intend to issue a product standard that would ban all flavored cigars and that they intend to issue a Notice of Proposed Rulemaking to ban menthol in cigarettes, cigars, and any other combustible tobacco product.  On March 13, 2019, the FDA issued a draft compliance policy for flavored e-cigarettes and flavored cigars. However, then FDA Commissioner Scott Gottlieb left his post the following month. In response to youth e-cigarette epidemic, on September 11, 2019, the Trump administration announced a future ban on the sale of flavored e-cigarettes, but final guidance from the FDA, issued January 2, 2020, only prohibits the sale of flavored cartridge-based (closed system) e-cigarette products other than menthol or tobacco flavor. No further federal action has been taken on flavored cigars or menthol cigarettes. Read below on why these steps are important, why further action is needed for both broad public health benefit and health equity, and what steps local and state governments have taken to implement similar and/or broader changes in their communities.

The Data: What are Flavors & How Common are They?

The 2009 Family Smoking and Tobacco Prevention Act describes flavors as:

“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.”

According to national store observation data collected in 2014,

  • 84.6% of stores sell flavored little cigars and cigarillos
  • 67.3% of stores sell flavored smokeless products
  • Almost half of stores sell flavored e-cigarettes or large cigars [2]

FlavoredTobacco

However, flavored tobacco products are not marketed and sold 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.[3] Stores in neighborhoods with the highest concentration of African-American residents had more than two times greater odds of displaying a price promotion and selling flavored cigars.[4]  

Sales of flavored cigars increased by nearly 50% since 2008 and now make up over half of the cigar market. Low cost 2 or 3-packs increased from less than 1% of cigar sales in 2008 to 40% in 2015.[5] 

Menthol flavored cigarettes are considered an exception in the 2009 Family Smoking and Tobacco Prevention Act after the tobacco industry put up a fight to keep them on the market.[6] While many local-level policies restricting the sale of flavored tobacco products have similarly made exceptions for menthol, that trend is beginning to change. Cities like San Francisco, Chicago, Berkeley, and Marion, MA are fighting back against menthol cigarettes through new ordinances. Learn more about menthol in particular here. Learn more about local-level polices below.

E-cigarette Flavors

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. Currently, there are an enormous amount of flavors and a wide variety of e-cigarette products and brands on the market. In 2014 there were a total of 7,765 flavors and 466 brands, and the market has only grown since then.[7] 

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. In addition, 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, there have been multiple delays and changes to the deadline for this pre-market review process, ultimately resulting in a court order mandating that all applications for all tobacco products must be submitted to the FDA by May 12, 2020, after which the FDA has a year to review them. Learn more here. 

In response to what FDA Commissioner Gottlieb termed an e-cigarette use “epidemic” among youth, driven in part by the youth-appealing flavors of e-cigarettes, in November 2018, the FDA announced restrictions on the sale of flavored e-cigarettes. The new policy framework would restrict all electronic nicotine delivery system products, including e-liquids, cartridge-based systems and cigalikes, sold in flavors except tobacco, mint and menthol, to age-restricted (18+) locations only. The restriction does not apply to most vape shops or other adult-only retail stores. On March 13, 2019, the FDA issued a draft compliance policy for flavored e-cigarettes and flavored cigars. However, FDA Commissioner Scott Gottlieb left his post the following month. In response to youth e-cigarette epidemic, on September 11, 2019, the Trump administration announced a future ban on the sale of flavored e-cigarettes, but final guidance from the FDA, issued January 2, 2020, only prohibits the sale of flavored cartridge-based (closed system) e-cigarette products other than menthol or tobacco flavor. 

For more information, review our evidence summary on E-Cigarettes at the Point of Sale.

Prevalence of use

Youth and Young Adults

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.[8] 

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.[9] 

Read more about the tobacco industry’s products targeted towards African-Americans on our page on Disparities in Point-of-Sale Advertising and Retailer Density

The CDC’s 2015 Morbidity and Mortality Weekly Report shows that 70% of  middle or high school students who use tobacco 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[10]

Another study found that among middle and high school students who smoke cigarettes or little cigars, over 40% reported using flavored products.[11] 

As e-cigarettes become more prevalent, another study found that 84% of people who use e-cigarettes but have never smoked combustible cigarettes prefer their e-cigarettes flavored.[12] Additionally, young adults may not be sufficiently aware of the contents of their e-juice or their patterns of use. In a California study, half of pod users stated they did not know what the nicotine concentration was in their e-juice cartridges, if they vaped varying brands, or how long it took them to finish a cartridge.[32] 

More recent data from the 2020 National Youth Tobacco Survey (NYTS) continues to evidence this trend. In 2020, more than 80% of youth reported using flavored varieties of e-cigarettes, with the most commonly used flavors being fruit, mint, candy, and menthol. In previous years of data collection and analysis for the NYTS, menthol was not assessed independently; this year’s data, which looks at menthol independent of mint flavoring, shows that nearly half of youth and young adults who use e-cigarettes have used a menthol flavored prefilled pod or cartridge and one quarter have used a menthol flavored disposable vaping product.

Prohibiting the sale of flavored tobacco products can help reduce youth tobacco use.  Following New York City’s 2009 ban on the sale of flavored non-cigarette tobacco products, teens had a 37% lower odds of every trying a flavored tobacco product and 28% lower odds of using any tobacco product.[35] An evaluation of Providence, Rhode Island’s 2012  tobacco policies that restricted the sale of flavored tobacco products (except menthol) to tobacco bars and restricted price discounting and multi-pack offers for tobacco products found them to be effective, with a reduction in high school students’ use of any tobacco products from 22.2% to 12.1% and current use of e-cigarettes from 13.3% to 6.6% following two years of rigorous enforcement of the policy. [34]

Menthol Use

Despite menthol being excluded from the 2009 flavor ban, menthol is also preferred by young people, as it helps mask the harshness and taste of tobacco smoke. Of youth and young adults who smoke, over half smoke menthol.[13]  

Menthol cigarettes are smoked by 74.6% of black people who smoke compared to 21% of white people who smoke. In fact, after controlling for other demographic factors and smoking behaviors, one study found that black people who smoke were more than 10 times more likely to smoke menthol than white people who smoke. 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. [14]  

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.[15] While disparities in menthol cigarette use remain, menthol use has also increased among white, Asian, and Hispanic people who smoke since 2010.[16] 

Learn more about menthol tobacco products here. Read more about disparities in point of sale marketing here.

Initiation

Evidence suggests that flavors 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 youth who ever smoked hookah, 81% of youth who ever used an e-cigarette, 65.4% of youth who ever smoked a cigar, and 50.1% of youth who ever smoked a cigarette).[17] Youth also reported product flavoring as a top reason for using tobacco within the past 30 days (81.5% of youth who use e-cigarettes, 78.9% of youth who use hookah, 73.8% of youth who smoke cigars, 69.3% of youth who use smokeless tobacco, and 67.2% of youth who use snus).[17]

In addition, longitudinal data has shown that youth and young adults whose first use of tobacco was with a flavored product were more likely to subsequently use tobacco products.[36]

Studies have also shown that flavoring impacts peoples’ perceptions of the level of harm. Harmful flavored tobacco products like cigars, smokeless tobacco, and e-cigarettes attract  both people who have never smoked as well as those that currently do with their colorful packaging, taste less harsh, and are perceived as less harmful to health than unflavored products.[19] One study showed that children and adolescents have a more of a preference towards sweet flavors than adults, making sweet flavored products a key tool in smoking initiation for youth.[20] Sweet and menthol flavors also increase the appeal of e-cigarette use for youth. The perception of harm reduction can make youth more likely to try e-cigarettes over combustible tobacco products and alcohol in general, but youth also perceive sweet, fruit, or candy flavors as less harmful than tobacco flavored e-cigarettes.[21, 33]

Focus groups of young adults who smoke have 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.[18] 

Point of Sale Marketing

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-8-638marketing-to-youth-6-638Both 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![22]

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.[23] 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.[24] 

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 people who smoke menthol would quit
    • 47% of African Americans who smoke menthol would quit
    • preventing over 17,000 fewer premature deaths by 2020
    • preventing nearly 2.3 million people from initiating smoking by 2020 [21]

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. [25]

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. In August 2017 the FDA announced their intention to issue another advance notice of proposed rule-making (ANPRM) to seek public comment on the role that flavors in tobacco products—including menthol—play in attracting youth, as well as the role they may play in helping some people who smoke switch to potentially less harmful forms of nicotine delivery. The agency officially issued the ANPRM on the regulation of flavored tobacco products on March 20th, 2018, and in November 2018, announced their next steps on flavored tobacco products, including their intention to: issue a product standard that would ban flavors in all cigars; issue a notice of proposed rulemaking that would ban menthol cigarettes, cigars, and any other combustible products; and restrict the sale of flavored e-cigarettes (other than tobacco, mint, or menthol flavor) to age-restricted retail locations. On March 13, 2019, the FDA issued a draft compliance policy for flavored e-cigarettes and flavored cigars. However, then FDA Commissioner Scott Gottlieb left his post the following month. In response to youth e-cigarette epidemic, on September 11, 2019, the Trump administration announced a future ban on the sale of flavored e-cigarettes, but final guidance from the FDA, issued January 2, 2020, only prohibits the sale of flavored cartridge-based (closed system) e-cigarette products other than menthol or tobacco flavor. No further federal action has been taken on flavored cigars or menthol cigarettes. However, states and localities aren’t waiting for federal action. As of March 31, 2020, 293 local jurisdictions, 13 states, and 5 Indian Tribes had some type of restriction on the sale of flavored tobacco products in place – see the full list from in this report from the Truth Initiative.

The tobacco industry also 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”. [26] 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. [27] However, the number of fruit flavors is declining, while “other” flavors sometimes called “concept” or “ambiguous” 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.[28] These products have been described by people who use them as flavored. [29]  In addition, an analysis of 16 tobacco products purchased in NYC in 2015 that did not have explicit flavor names (but were labeled with descriptors such as “blue” or “royale”) found that 14 out of the 16 had flavor chemical levels higher than products labeled with a flavor (such as “peach” or “grape”).[29]The researchers concluded that the tobacco industry has renamed flavored products to avoid identifying them as such. They also suggest that the FDA could require that all tobacco products indicate when flavorings are present above a set level, which local jurisdictions could then use to enforce sales restrictions on flavored tobacco products. This may be an important step to take, as an evaluation of Providence, RI’s restriction on the sale of flavored non-cigarette tobacco products showed that while sales of cigars with explicit flavor names decreased by 93% between 2012 and 2016 within the city, sales of cigars labeled with concept flavors rose by 74%.[30]

State

In November 2019, Massachusetts became the first state to prohibit the sale of all flavored tobacco products, including menthol cigarettes and flavored e-cigarettes. The only exception to the law is that flavored tobacco products can still be sold at licensed smoking bars such as cigar bars and hookah lounges, though consumption must occur on-site. Extending the ban to menthol cigarettes is particularly monumental as these products have generally been exempt from past restrictions and are disproportionately smoked by youth and minority populations, in part due to targeted industry marketing of menthol to these specific populations. The law went into effect in June 2020.

In August 2020, California passed a law prohibiting the sale of most flavored tobacco products, making it the second state to prohibit the sale of menthol cigarettes and the fourth to prohibit the sale of flavored e-cigarettes. The only products exempt from the policy are loose leaf tobacco, “premium” cigars, and hookah tobacco. The law will take effect in January 2021.

Other state policies have been limited to specific products. Maine banned flavored cigars in 2009, and more recently, a number of states have banned or restricted the sale of flavored e-cigarettes:

  • New Jersey, and Rhode Island have both banned the sale of all flavored e-cigarettes.
  • New York has banned the sale of all flavored e-cigarettes except those that are approved through the FDA’s premarket review process.
  • Maryland has banned the sale of all flavored cartridge-based and disposable e-cigarettes (except menthol flavor)
  • Utah has restricted the sale of flavored e-cigarettes, other than mint and menthol, to tobacco speciality businesses.

Some 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 growing 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 (“buffer zones”), or restricted sales of flavored tobacco products to adult-only facilities. Some of these localities include:

For more examples of local flavored tobacco restrictions, see the Public Health Law Center’s US Sales Restrictions on Flavored Tobacco Products.

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) Comprehensive Restrictions

These are jurisdiction-wide with no exemptions for any products, places, or flavor types:

  • In November 2016, Yolo County, CA became the first locality to prohibits the sale of any flavored tobacco products, including menthol, in any tobacco retailer in the unincorporated areas of the county. 
  • San Francisco, CA passed an ordinance effective April 2018 that prohibits the sale of flavored tobacco products, including menthol, without exception. While the tobacco industry funded a campaign against the measure that resulted in a referendum, voters in the city later upheld the policy 68% to 32%. Learn more about this policy.
  • Richmond, CA and several other localities in California, as well as Jersey City, NH; Yonkers, NY; and Saint Louis Park, MN have also implemented this type of restriction as of March 2020.
  • Oakland, CA passed a measure in May 2020 that updated their previous ordinance, making it comprehensive instead of restricting the sale of all flavored tobacco products, including menthol, to adult-only tobacco specialty stores.

3) 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.
  • Boston and many other municipalities in Massachusetts (prior to the state-wide ban on the sale of all flavors) restricted the sale of flavored tobacco to adult-only stores. Several cities in Minnesota have taken this approach as well, including Minneapolis, St. Paul which both originally exempted menthol, but later updated their ordinances to include menthol in the sales restriction. 
  • Santa Clara County, CA restricts the sale of all flavored tobacco products, including menthol, to retailers that are only accessible to those 21 years of age or older, which is the minimum legal sales age for tobacco in the state of California.
  • Boulder, CO and Philadelphia, PA have also taken this approach. 

2) 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. St. Louis Park, MN has also taken this approach.
  • Many localities in Massachusetts have prohibited the sale of flavored tobacco products except for mint, menthol, and tobacco-flavors and 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. However, some Massachusetts localities are now amending their ordinances to also include menthol flavored tobacco products as well, including menthol cigarettes. 

3) Restrict by flavored product type:

  • Maine has specifically banned the sale of flavored cigars.
  • New Jersey and Rhode Island have banned the sale of flavored e-cigarettes.

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

  • Berkeley, CA has also prohibited the sale of flavored tobacco products including menthol within 600 ft from schools
  • Contra Costa County, CA has prohibited the sale of flavored tobacco products, including menthol, within 1000 ft of schools, playgrounds, parks, and libraries in all unincorporated areas of the county.

6) 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. [31]

Resources

From the Public Health Law Center:

From Campaign for Tobacco Free Kids:

From Truth Initiative:

From the Center for Tobacco Policy and Advertising: 

Model Ordinances:

Media Campaigns:

CounterTobacco.org is a project of Counter Tools. Counter Tools (logo)