FDA Issues Advisory on Flavored Cigarette Ban

WASHINGTON, DC -- In a media briefing conference call held this morning by FDA officials and through advisory documents posted on the FDA website (www.fda.gov), the FDA has issued additional information on the ban of flavored cigarettes. These advisory documents released by the FDA accompany this bulletin, and you are strongly encouraged to read these documents. Below is a summary of key points in the FDA advisory which is effective today:

1. Cigarettes containing an artificial or natural flavor (excluding tobacco or menthol) that is a characterizing flavor are banned as of today. The banned characterizing flavors include an herb or spice, strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee.

2. Loose tobacco and roll-your-own tobacco intended to be used in cigarettes can continue to be sold provided that the tobacco does not contain a characterizing flavor that is banned under the new FDA law.

3. Cigarette rolling papers and cigarette filters for use in roll-your-own cigarettes that contain a characterizing flavor are banned.  Only those cigarette rolling papers and cigarette filters that do not contain a characterizing flavor are legal to sell.

4. The advisory published by the FDA today continues to take an ambiguous position regarding whether flavored little cigars are banned. Today, the FDA essentially repeats the sentence that it included in its letter issued September 14th and states in the advisory that "The ban applies to all tobacco products with certain characterizing flavors that meet the definition of a ‘cigarette’ in section 900(3) of the FDCA [Food, Drug and Cosmetic Act] even if they are not labeled as “cigarettes” or are labeled as cigars or as some other product." During the conference call, a reporter from the New York Times asked if the flavored cigarette ban includes a ban on flavored little cigars. Dr. Lawrence Deyton of the FDA responded that the issue of a ban on other flavored tobacco products will be studied by the FDA in the near future. The lack of a definitive "yes" or "no" in the FDA advisory on whether flavored little cigars are banned plus the statement by Dr. Deyton about the need to study the issue further can lead a reasonable person to conclude that flavored little cigars are not banned at this time.

 5. Pipe tobacco, that according to the FDA is bona fide pipe tobacco, is not banned.

In the advisory, the FDA also clarified that before confiscating banned tobacco products, assessing fines or bringing criminal prosecutions, the agency’s general practice is "to issue Warning Letters to firms to notify them that they or their products are in violation of the law and to give them the opportunity to come into compliance." At the same time, the advisory states that the FDA may take enforcement action without a warning letter “to protect the public health."

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Source: National Association of Tobacco Outlets (NATO).