Are Cigars with “Characterizing Flavors” Next on the Public Health Crusade’s Hit List?

Flavored Cigars

Lately the New Jersey legislature released a bill that would prohibit “characterizing flavors” (except tobacco, clove or menthol) in cigars. The legislature’s ban on characterizing flavors presently regards only cigarettes.

The New Jersey regulation identifies a “characterizing flavor” as where the tobacco product or its smoke “provides an identifiable flavor other than tobacco, clove or menthol before or during usage, including any fruit, chocolate, vanilla, honey, candy, cocoa, desert, alcoholic beverage, herb, or spice flavoring.” Characterizing flavors further involve, but are not limited to, conditions where the tobacco product is advertised or sold as having such flavors.

However, the Tobacco Control Act, which provides FDA regulatory power over tobacco products, prohibits characterizing flavors only in cigarettes, and the Tobacco Control Act does not interpret the term “characterizing flavor.” FDA regulations relating to food labeling and flavorings could present some indication how FDA may determine the term, defining it by reference to whether the “labeling or advertising of a food makes any direct or indirect representation with regard to principally recognizable flavor(s).” This definition certainly is not the same as the definition in the New Jersey statute. The definition in the statute describes the labeling of the product and where the product imparts a “distinguishable” flavor.

The legislative history of the Tobacco Control Act obviously indicates that the cigarette characterizing ban does not restrict the use of flavored components in cigarettes, as long as those components are not the characterizing flavor. For example, a cigarette can include licorice as a component, but licorice is not used as an additive to give the cigarette smoke a characterizing flavor of licorice.

Nevertheless, the New Jersey explanation of “characterizing flavor” would provide a special challenge for cigars, especially regular hand-rolled cigars that often blend a variety of flavors that are noticeable by the smoker. According to the New Jersey definition, would a cigar that contains trace hints of vanilla or rum be the subject of such a ban, if put into law? Preferably not, but the definition is not clear on this point, perhaps to the point of being unconstitutionally vague.

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