On August 28, California’s governor signed into law Senate Bill No. 793, which generally prohibits California tobacco retailers from selling “flavored tobacco products” and “tobacco product flavor enhancers.” While PCA staff continue to evaluate the impacts of the legislation on members’ operations, we include below some initial takeaways.
- What qualifies as a “flavored tobacco product?” In summary, a “flavored tobacco product” is a tobacco product that contains a constituent (other than tobacco, water, or reconstituted tobacco sheet) that imparts a distinguishable taste or aroma (other than that of tobacco).
- What qualifies as a “tobacco product flavor enhancer?” A “tobacco product flavor enhancer” is a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor (i.e., a distinguishable taste or aroma, other than that of tobacco) when added to a tobacco product.
- Do any exceptions apply? Yes, the new law does not apply to California tobacco retailers’ sales of:
- “Premium Cigars” (defined as any cigar that is handmade, that is not mass produced by use of mechanization, that has a wrapper that is made entirely from whole tobacco leaf, that has a wholesale price of no less than $12, that does not have a filter, tip, or nontobacco mouthpiece, and that is capped by hand);
- “Loose Leaf Tobacco” (defined as cut or shredded pipe tobacco, but excluding any products that would otherwise meet the definition of roll-your-own tobacco); and
- “Flavored Shisha Tobacco Products” (defined to include products intended for smoking in a hookah, including those with constituents that impart a distinguishable taste or aroma other than that of tobacco), provided the hookah tobacco retailer, among other things, does not permit entry to anyone under 21.
The new law also includes a separate exception for sales of “Premium Cigars” in cigar lounges for on-site consumption
- Does this mean that a cigar must meet the definition of “Premium Cigar” for California tobacco retailers to carry it? No, California tobacco retailers may continue to sell cigars that do not qualify as “flavored tobacco products” and may continue to carry “Premium Cigars” even if they do contain a constituent (other than tobacco, water, or reconstituted tobacco sheet) that imparts a distinguishable taste or aroma other than that of tobacco. Importantly, cigars that do not contain any non-tobacco constituents that impart flavor cannot qualify as “flavored tobacco products.”
- Does the fact that a cigar contains flavoring ingredients make it a “flavored tobacco product?” No, the definition of “Characterizing Flavor” makes clear that “[a] tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or the provision of ingredient information.” Instead, the status of the product depends on whether any flavoring ingredients cause the product to have a distinguishable taste or aroma other than that of tobacco.
- Does this mean that California tobacco retailers cannot continue to carry flavored pipe tobacco? No, the exception described above applies to even those “Loose Leaf Tobacco” products that contain an additive that imparts a distinguishable taste or aroma other than that of tobacco.
- When does the new law take effect? Currently, the new law is scheduled to take effect on January 1, 2021.
- How does the new law penalize violations? The new law makes each violation by a California tobacco retailer punishable by a fine of $250.
- How will California regulators determine whether a product violates the restrictions? The new law creates a “rebuttable presumption” that a product qualifies as a “flavored tobacco product” if the manufacturer communicates to consumers or the public that a product has or produces a characterizing flavor (i.e., a distinguishable taste or aroma, other than that of tobacco), including via the use of text, color, or images on the packaging or labeling. However, a retailer can rebut this presumption by demonstrating that the product does not in fact contain a constituent (other than tobacco, water, or reconstituted tobacco sheet) that causes the product to impart a distinguishable taste or aroma other than that of tobacco or that an applicable exception applies.
For Further Questions please email Joshua Habursky PCA Head of Government Affairs or by phone at 814-881-1618