Troutman Pepper: The Varied Landscape of Tobacco and Cannabis Flavor Bans or Restrictions

The landscape of tobacco product and cannabis flavor bans or restrictions varies significantly across the country. In both industries, some states restrict all or some flavors in all types of products, while other states restrict all or some flavors in some, but not all, products. Below, we provide a high-level overview of the flavor ban and restriction landscape in both industries. As we will discuss, there is a wide disparity between cannabis and tobacco product flavor bans or restrictions and, where they exist, there appears to be more flexibility among cannabis flavor restrictions than for tobacco product flavor bans or restrictions.

Overview: Tobacco Product & Cannabis Flavor Bans or Restrictions

Federal law prohibits the manufacture of cigarettes that contain artificial or natural flavors, except tobacco and (for the moment) menthol, as a constituent or additive, but there is no federal flavor ban for other tobacco products. Possession and sale of cannabis (excluding industrial hemp) remains illegal under federal law, although many states have legalized the sale, possession, and consumption of cannabis products for recreational or medical uses.

In a minority of states, broad tobacco product flavor bans or restrictions apply to all tobacco or nicotine products, and their components, parts, or accessories. In other states, t bans or restrictions only apply to specific tobacco products, like wrapping papers or electronic nicotine delivery systems. We also see a similarly varied landscape in the cannabis industry, where flavor bans or restrictions apply either to all cannabis products or to just a segment of cannabis products, like cannabis oils or vapor products.

Below is a chart summarizing flavor bans/restrictions in a few states.

State Tobacco Cannabis
California Retailers, agents, and employees shall not “sell, offer for to sell, or possess with the intent to sell . . . flavored tobacco product[s] (i.e., tobacco products with characterizing flavors) or tobacco product flavor enhancers.” Cal. Health & Safety Code § 104559.5(b)(1). Characterizing flavors “include, but are not limited to, tastes or aromas relating to any fruit, vanilla, chocolate, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice.” § 104559.5(a)(1) Regulations restrict the terpenes that may be added to any inhaled cannabis products such as “artificial, synthetic, and natural flavorings or terpenes that do not contribute to the natural flavor or aroma of cannabis.” Cal. Code of Regulations §4-19-17303.1 (DCC). Prohibited flavors include, but are not limited to, “menthol, mint, mango, strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, coffee, popcorn, & bubblegum.”
Connecticut None. There is a prohibition on “certain manufacturing methods, or inclusion of additives to cannabis products, including, but not limited to, (A) added flavoring, terpenes or other additives unless approved by the department, or (B) any form of nicotine or other additive containing nicotine” Conn. Gen. Stat. § 21a-421j(b)(8). Additionally, any cannabis product that appeals to children is prohibited. § 21a-421j(b)(9).
D.C. No person shall “sell, offer for sale, receive for sale, distribute, purchase, or facilitate the sale of…[a] flavored tobacco product…” D.C. Code § 7-1721.08(a). A “flavored tobacco product” means any tobacco product or synthetic nicotine product that imparts a “characterizing flavor.” This ban includes any flavor other than tobacco, including “menthol”. Any marijuana or any product containing marijuana is prohibited from appealing to minors by virtue of their shape, design, or flavor. D.C. Code Mun. Regs. tit. 22-C § 5608.1 & 3. Some flavors such as chocolate, are permissible so long as they comply with § 5608.6 (containing certain packaging, labeling and serving size restrictions).
Illinois It is unlawful for anyone to knowingly sell any tobacco, bidi cigarettes, cigarette paper, or wrapping paper held out to have any “characterizing flavor, other than tobacco or menthol, including, without limitation, alcoholic or liquor flavor, or both, chocolate, fruit flavoring, vanilla, peanut butter, jelly, or any combination of those flavors or similar child attractive scent or flavor.” 720 Ill. Comp. Stat. Ann. 685/4(b-5). None.
Washington None. Unless the Washington State Liquor and Cannabis Board determines a characterizing flavor may pose a risk to public health or youth access, “cannabis processors may incorporate in cannabis vapor products a characterizing flavor if the characterizing flavor is derived from botanical terpenes naturally occurring in the cannabis plant, regardless of source, and if the characterizing flavor mimics the terpene profile found in a cannabis plant.” Wash. Rev. Code Ann. § 69.50.327(1).
Utah Tobacco retailers are prohibited from giving, distributing, selling, offering for sale, or furnishing a “flavored electronic cigarette product to any person.” Utah Code Ann. § 76-10-113(1). “Flavored” cigarette products include those that have “a taste or smell that is distinguishable by an ordinary consumer” which includes any products that have “a taste or smell of any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice.” Mint & menthol are permissible. § 76-10-101. A cannabis processing facility or product may not . . . “include a candy-like flavor or another flavor” that is known to appeal to children. Utah Code Ann. § 4-41a-603. However, a concentrated oil with a department-approved flavor is permissible.

Our Thoughts

State tobacco product flavor bans or restrictions are typically tied to “characterizing flavors” – typically defined as tastes or smells (e.g., California, D.C., Illinois, Utah). State cannabis flavor restrictions tend to be much less precise and less focused on whether a particular taste or smell is imparted – such as restricting any flavor that a seller “knows or should know appeals to children” (e.g., D.C., Washington, Utah). Typically, such restrictions imposed on tobacco products are less patently vague. While all these types of restrictions can be ambiguous, the more amorphous ones found in state legal cannabis regimes like D.C., Washington, and Utah can also provide flexibility to introduce flavored cannabis that do not otherwise appeal to minors and allow flavors to remain on the market that provide more choice to adult users and marketplace competition. Despite the wide variation in how cannabis and tobacco products are regulated across the states, in general states with legal cannabis regimes appear to provide sellers more freedom to introduce flavored cannabis product formats.

Regardless of the causes behind this variety in approach, these regulations introduce complexity for manufacturers and sellers, as well as interesting public health questions. For example, in addition to harming legitimate businesses, flavor bans may discourage cannabis and tobacco product consumers from switching to less harmful consumption alternatives (e.g., switching from smoking cannabis or tobacco to cannabis edibles or nicotine pouches) or may result in unintended consequences, such as black markets, a massive influx of illegal products, and re-criminalization of the category. The variety in approach of some states to restricting flavors across these categories, and the evolving approach of certain anti-category advocates seeking to restrict or abolish these categories, means manufacturers and sellers cannot assume predictability in the future of their product portfolios and must be prepared to engage with the public, legislators and regulators regarding the appropriate place for flavored products in the marketplace.

Our Cannabis Practice provides advice on issues related to applicable federal and state law. Marijuana remains an illegal controlled substance under federal law.

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Agustin Rodriguez 

Agustin is sought after by clients for his strategic counsel on their most challenging competitive and regulatory compliance issues, including tobacco Master Settlement Agreement issues, federal and state enforcement investigations, licensing and excise tax issues, developing compliance programs, and evaluating advertising and marketing…

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Nick Ramos 

Nick draws on years of military leadership, project management, and legal experience to help clients solve difficult business problems from a legal perspective. His practical advice enables clients to navigate regulatory compliance and licensing issues, complex investigations, and high stakes enforcement actions that…

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The Varied Landscape of Tobacco and Cannabis Flavor Bans or Restrictions

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Author Bios

Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Elvin Rodríguez Fabilena


Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild