U.S. Sales Restrictions on Flavored Tobacco Products

SALES RESTRICTIONS June 2019

U.S. SALES RESTRICTIONS ON FLAVORED TOBACCO PRODUCTS

This chart provides select examples1 of U.S. cities and counties that restrict the sale of flavored tobacco products. The chart captures variations among these flavor restrictions by noting when (1) flavors are prohibited generally or only within certain “buffer” zones, (2) menthol is prohibited, (3) flavors are restricted in e-cigarettes,2 and (4) exemptions are provided for certain retailers. This chart also provides links to each jurisdiction’s laws and summarizes relevant legal challenges. Beneath this chart is a supplemental list showing these select flavored tobacco restrictions organized by type rather than by state.

A state or local government considering whether to adapt any language from the following policies should take care to ensure that the language is appropriate, practical, and legal for its jurisdiction. Please note that the Public Health Law Center does not endorse or recommend any of the following policies. We have included these examples to illustrate how various jurisdictions regulate the sale of flavored tobacco products and related electronic nicotine delivery devices.

This chart is not comprehensive. Feel free to contact the Public Health Law Center for more information about flavored tobacco restrictions where you live.

www.publichealthlawcenter.org June 2019

Jurisdiction / California / Berkeley3

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes — within buffer zone Yes Yes No No “Effective January 1, 2017, “‘Characterizing flavor’ “‘Tobacco product’ means: no person shall sell, give means a distinguishable 1. any substance containing, away, barter, exchange, or taste or aroma, other than made of, or derived from to- otherwise deal in flavored the taste or aroma of tobacco, bacco or nicotine including tobacco products within that is imparted either prior but not limited to cigarettes, six hundred (600) feet of to or during consumption of cigars, cigarillos, pipe tobacco, any school … ” a tobacco product, including snuff, chewing tobacco, dipping Berkeley, Cal. Code § but not limited to tastes or tobacco, bidis, and shisha; 2. any 9.80.035(D) (2019) (em- aromas of menthol … ” e-liquid; 3. any electronic nico- phasis added).4 Berkeley, Cal. Code § tine delivery system; and 4. any 9.80.020(A) (2019) (em- tobacco paraphernalia.” phasis added). Berkeley, Cal. Code § “‘Flavored tobacco prod- 9.80.020(K) (2019). uct’ means any tobacco product containing, made of, or derived from tobacco or nicotine that contains a constituent that imparts a characterizing flavor.” Berkeley, Cal. Code § 9.80.020(F) (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 2 June 2019

Jurisdiction / California / Beverly Hills

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes No No “It shall be unlawful for “Flavored tobacco product: “Tobacco product [i]ncludes … any tobacco retailer or Any tobacco product that any product containing, made, or any of the tobacco retail- imparts a characterizing derived from tobacco or nico- er’s agents or employees flavor.” tine that is intended for human to sell or offer for sale any “Characterizing flavor means consumption, including … any flavored tobacco product.” a taste or aroma, other than electronic cigarette … [and] any Beverly Hills, Calif., the taste or aroma of tobac- component, part, or accessory Code § 4-2-2109(H) co, imparted either prior to intended or reasonably expect- (2019). or during consumption of ed to be used with a tobacco a tobacco product or any product, whether or not sold byproduct produced by the separately.” tobacco product, including, Beverly Hills, Calif., Code § but not limited to, tastes or 4-2-2102 (2019) (emphasis aromas relating to menthol, added). mint, wintergreen … ” Beverly Hills, Calif., Code § 4-2-2102 (2019) (emphasis added).

Jurisdiction / California / Contra Costa County

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes — within buffer zone Yes Yes No No. Note that “It is a violation of this “It is a violation of this divi- “‘Tobacco product’ means … (1) this ordinance division for any tobacco sion for any tobacco retailer [a]ny product containing, made only applies to un- retailer to sell or offer for to sell or offer for sale any from, or derived from tobacco or incorporated parts sale any flavored tobacco flavored tobacco product or nicotine that is intended for of the county.

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 3 June 2019

Jurisdiction / California / Contra Costa County (continued)

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

product or menthol ciga- menthol cigarettes within human consumption, wheth- rettes within 1,000 feet 1,000 feet of any parcel oc- er smoked, heated, chewed, of any parcel occupied by cupied by a public or private absorbed, dissolved, inhaled, a public or private school, school, playground, park, or snorted, sniffed, or ingested by playground, park, or library.” any other means … (2) [a]ny library.” Contra Costa County, Cal., electronic smoking device … ” Contra Costa County, Code § 445-6.006 (2019) Contra Costa County, Cal., Cal., Code § 445-6.006 (emphasis added). Code § 445-2.006(t) (2019) (2019) (emphasis added). “‘Flavored tobacco product’ (emphasis added). means any tobacco product, other than cigarettes as defined by federal law, that contains a constituent that imparts a characterizing flavor.” Contra Costa County, Cal., Code § 445-2.006(g) (2019). “‘Menthol cigarettes’ means cigarettes as defined by federal law, that have a characterizing flavor of menthol, mint or wintergreen … ” Contra Costa County, Cal., Code § 445-2.006(j) (2019).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 4 June 2019

Jurisdiction / California / El Cerrito

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes (note: menthol cigarettes Yes (note that conventional No No “No tobacco retailer, are not prohibited because cigarettes not included5) “No tobacco retailer, nor any of nor any of the retailer’s the ordinance excludes “‘Flavored tobacco product’ the retailer’s agents or employ- agents or employees, cigarettes) means any tobacco product ees, shall sell or offer for sale, shall sell or offer for sale, “‘Characterizing flavor’ (other than cigarettes as de- or possess with intent to sell or possess with intent to means a distinguishable taste fined by the U.S. Food and Drug or offer for sale, any imitation sell or offer for sale, any or aroma, other than the taste Administration) that contains a tobacco products or flavored imitation tobacco prod- or aroma of tobacco, impart- constituent that imparts a char- tobacco product.” ucts or flavored tobacco ed by a tobacco product or acterizing flavor. This includes El Cerrito, Cal., Code § product.” any byproduct produced by … electronic smoking devices 6.100.160 (2019). El Cerrito, Cal., Code § the tobacco product, includ- containing nicotine.” “‘Tobacco retailer’ or ‘retailer’ 6.100.160 (2019). ing … menthol, mint, winter- El Cerrito, Cal., Code § means any person that sells green, herb, or spice.” 6.100.020 (2019) (emphasis tobacco, tobacco products, elec- El Cerrito, Cal., Code § added). tronic smoking devices, smoking 6.100.020 (2019) (emphasis paraphernalia.… This definition added). is without regard to the quantity of tobacco, tobacco products or smoking paraphernalia sold, offers for sale, exchanged, or offered for exchange.” El Cerrito, Cal., Code § 6.100.020 (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 5 June 2019

Jurisdiction / California / Hayward

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes — within buffer zone Yes (note: menthol cigarettes Yes (note that conventional Yes No “With the exception of are not prohibited because cigarettes not included) Exception for “Tobacco Retail- Tobacco Retailers whose the ordinance excludes “‘Tobacco product’ includes, ers whose business included business included the sale cigarettes) but is not limited to cigarettes, the sale of flavored tobacco of flavored tobacco prod- “‘Characterizing Flavor’ cigars, little cigars, chewing to- products prior to the effective ucts prior to the effective means a distinguishable bacco, pipe tobacco, snuff, snus, date of [the flavored tobacco date of this Article, it taste or aroma, other than or electronic smoking devices regulation].” shall be a violation of the taste or aroma of tobac- (with or without nicotine).” Hayward, Cal. Code § 10- these regulations for any co, imparted by a tobacco Hayward, Cal. Code § 10- 1.2783(c) (2019). Tobacco Retailer or any product or any byproduct 1.2782(t) (2019) (emphasis of the Tobacco Retailer’s produced by the tobacco added). agents or employees to product, including, but not “‘Flavored Tobacco Product’ sell or offer for sale, or limited to, tastes or aromas means any tobacco product to possess with intent to relating to … menthol … ” (other than cigarettes as defined sell or offer for sale, any Hayward, Cal. Code § 10- by federal law) that contains a flavored tobacco product 1.2782(b) (2019) (emphasis constituent that imparts a char- within a 500 foot radius added). acterizing flavor.” of any private or public “‘Flavored Tobacco Product’ Hayward, Cal. Code § 10- kindergarten, elementary, means any tobacco product 1.2782(f) (2019) (emphasis middle, junior high, or (other than cigarettes as added). high school. The burden defined by federal law) that of proof to establish that contains a constituent that sales of flavored tobacco imparts a characterizing products preceded the flavor.” effective date of these Hayward, Cal. Code § 10- regulations shall be on 1.2782(f) (2019). the Tobacco Retailer.”

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 6 June 2019

Jurisdiction / California / Hayward (continued)

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Hayward, Cal. Code § 10- 1.2783(c) (2019) (emphasis added).

Jurisdiction / California / Los Gatos

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes Yes “[N]o retailer shall sell a “[N]o retailer shall sell a to- “[N]o retailer shall sell a tobacco [Flavor prohibition] shall not tobacco product contain- bacco product containing, as product containing, as a constit- apply to any retailer that meets ing, as a constituent or a constituent or additive, an uent or additive, an artificial or all of the following criteria: (1) additive, an artificial or artificial or natural flavor or natural flavor or aroma (other Primarily sells tobacco prod- natural flavor or aroma aroma (other than tobacco)” than tobacco)” ucts; (2) Generates more than (other than tobacco) or Los Gatos, Cal., Code § Los Gatos, Cal., Code § sixty (60) percent of its gross an herb or spice, including 18.60.020(c)(8) (2019) 18.60.020(c)(8) (2019) (em- revenues annually from the sale strawberry, grape, orange, (emphasis added). phasis added). of tobacco products; (3) Does clove, cinnamon, pine- “Tobacco product means … : (1) not permit any person under apple, vanilla, coconut, Any product subject to Subchap- twenty-one (21) years of age to licorice, cocoa, chocolate, ter IX [21 U.S.C. § 387 et seq. be present or enter the premis- cherry, or coffee, that is (‘Subchapter IX’) of the Federal es at any time, unless accompa- a characterizing flavor Food, Drug, and Cosmetic Act … nied by the person’s parent or or aroma of the tobacco Products subject to Subchapter legal guardian … ; (4) Does not product, smoke or vapor IX include … electronic nicotine sell alcoholic beverages or food produced by the tobacco delivery systems (such as; but for consumption on the premis- product … rebuttable pre- not limited to, electronic ciga- es; and (5) Posts a sign outside sumption that the prod- rettes, electronic cigars, the retail location that clearly, uct is prohibited … if: sufficiently, and conspicuously

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 7 June 2019

Jurisdiction / California / Los Gatos (continued)

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

(1) The product’s man- electronic hookahs, vape pens, informs the public that persons ufacturer or any other personal vaporizers, and elec- under twenty-one (21) years of person associated with tronic pipes).… Products subject age are prohibited from enter- the manufacture or sale of to Subchapter IX also include ing the premises. tobacco products makes components or parts of tobacco Los Gatos, Cal., Code § or disseminates public products, such as, but not limit- 18.60.020(c)(8)(c) (2019) statements or claims ed to, liquids that are for use in (emphasis added). to the effect that the an electronic nicotine delivery product has or produces system and that contain tobacco a characterizing flavor or or nicotine or are derived from aroma, other than tobac- tobacco or nicotine (‘e-liquids’), co; or (2) The product’s vials that contain e- liquids, and label, labeling, or packag- atomizers.” ing includes a statement Los Gatos, Cal., Code § or claim including any 18.60.020(b) (2019) (emphasis text and/or images used added). to communicate information that the product has or produces a characterizing flavor or aroma other than tobacco.” Los Gatos, Cal., Code § 18.60.020(c)(8) (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 8 June 2019

Jurisdiction / California / Manhattan Beach

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes No Yes Yes No “No retailer shall sell a “No retailer shall sell a “‘Tobacco product’ means any “The prohibition [on flavored tobacco product, or any tobacco product, or any product containing tobacco tobacco sales] shall not apply product used in an elec- product used in an electronic leaf, including but not limited to to a retailer that permits only tronic smoking device, smoking device, containing, cigarettes … ” patrons twenty-one (21) years containing, as a constitu- as a constituent or additive, Manhattan Beach, Cal., Code § of age or older, or active duty ent or additive, an arti- an artificial or natural flavor 4.118.020 (2019). military personnel who are eigh- ficial or natural flavor or or an herb or spice (with the “No retailer shall sell a tobacco teen (18) years of age or older, an herb or spice (with the exception of mint, menthol, product, or any product used in to enter the location where the exception of mint, men- spearmint or wintergreen) an electronic smoking device, tobacco product is sold.” thol, spearmint or win- … that is a characterizing containing, as a constituent or Manhattan Beach, Cal., Code tergreen), including but flavor of the tobacco product additive, an artificial or natural § 4.118.030(H) (2019) (empha- not limited to strawberry, or smoke produced by the flavor or an herb or spice … that sis added). grape, orange, clove, tobacco product.” is a characterizing flavor of the cinnamon, pineapple, Manhattan Beach, Cal., tobacco product or smoke pro- vanilla, coconut, licorice, Code § 4.118.030(H) (2019) duced by the tobacco product.” cocoa, chocolate, cherry, (emphasis added). Manhattan Beach, Cal., Code § or coffee, that is a char- 4.118.030(H) (2019) (emphasis acterizing flavor of the added). tobacco product or smoke produced by the tobacco product.” Manhattan Beach, Cal., Code § 4.118.030(H) (2019).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 9 June 2019

Jurisdiction / California / Oakland

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes Yes No “It shall be a violation “’Characterizing Flavor’ “’Tobacco Product,’ as used in “This section does not apply of this Chapter for any means a distinguishable this Chapter means … b) Any to the sale or offer for sale of tobacco retailer or any taste or aroma, other than Electronic Smoking Device.” Flavored Tobacco Products by of the tobacco retailer’s the taste or aroma of tobac- Oakland, Cal., Code 5.91 a ‘Tobacco Store.’” “Tobacco agents or employees to co, imparted by a Tobacco (2019). Store” is a retail business that sell or offer for sale, or Product or any byproduct primarily sells tobacco prod- to possess with intent to produced by the Tobacco ucts; generates more than 60 sell or offer for sale, any Product, including, but lim- percent of its gross revenues flavored tobacco product. ited to, taste or aromas re- annually from the sale of A tobacco product is pre- lating to any fruit, chocolate, tobacco products and tobacco sumed to be a flavored to- vanilla, honey, candy, cocoa, paraphernalia; does not permit bacco product if a Tobac- dessert, alcoholic beverage, any person under 18 years of co Retailer, Manufacturer, menthol, mint, wintergreen, age to be present or enter the or any employee or agent herb, or spice; provided, premises at any time, unless of a Tobacco Retailer or however that a tobacco accompanied by the person’s Manufacturer has: a) product shall not be deter- parent or legal guardian; and Made a public statement mined to have a Character- does not sell alcoholic beverag- or claim that the tobacco izing Flavor solely because es or food for consumption on product has or produces of the use of additives or the premises. a characterizing flavor, flavorings or the provision of Oakland, Cal., Code 5.91 including, but not limited ingredient information.” (2019). to, text and/or images on Oakland, Cal., Code 5.91 the products’ labeling or (2019). packaging that are used to explicitly or implicitly communicate information about the flavor, taste

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 10 June 2019

Jurisdiction / California / Oakland (continued)

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

or aroma of a tobacco product; b) Taken actions directed to consumers that would be reasonably expected to result in consumers believing that the tobacco product imparts a characterizing flavor.” Oakland, Cal., Code 5.91 (2019).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 11 June 2019

Jurisdiction / California / Palo Alto

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes Yes No “No retailer shall sell a “No retailer shall sell a to- “‘Tobacco products’ include “Retailers that primarily sell tobacco product contain- bacco product containing, as electronic nicotine delivery tobacco products; generate ing, as a constituent or a constituent or additive, an systems (such as, but not limited more than 60 percent of their additive, an artificial or artificial or natural flavor or to, electronic cigarettes, elec- gross revenues annually from natural flavor or aroma aroma (other than tobacco) tronic cigars, electronic hookahs, the sale of tobacco products; (other than tobacco) or or an herb or spice … that is a vape pens, personal vaporizers, do not permit any person under an herb or spice, including characterizing flavor or aro- and electronic pipes), as well as 21 years of age to be present strawberry, grape, orange, ma of the tobacco product, components or parts of tobac- or enter the premises at any clove, cinnamon, pine- smoke or vapor produced by co products, including liquids time, unless accompanies by apple, vanilla, coconut, the tobacco product.” that are for use in an electronic the person’s parent or legal licorice, cocoa, chocolate, Palo Alto, Cal., Code 4.64 nicotine delivery system and guardian; do not sell alcoholic cherry, or coffee, that is (2019). that contain or are derived from beverages or food for consump- a characterizing flavor tobacco or nicotine.” tion on the premises; and post or aroma of the tobacco Palo Alto, Cal., Code 4.64 a sign outside the retail location product, smoke or vapor (2019). that clearly, sufficiently, and produced by the tobacco conspicuously inform the public product.” that persons under 21 years of Palo Alto, Cal., Code age are prohibited from enter- 4.64 (2019). ing the premises.” Palo Alto, Cal., Code 4.64 (2019).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 12 June 2019

Jurisdiction / California / Sacramento Effective October 1, 2019.

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes No No “It is a violation of a “Flavored tobacco product “Tobacco product means … [an] license for a licensee or means any tobacco product electronic device that delivers his or her agents or em- that imparts a characterizing nicotine or other vaporized liq- ployees to sell or offer for flavor.” uids to the person inhaling from sale any flavored tobacco “Characterizing flavor means the device, including, but not product … ” a taste or aroma, other than limited to, an electronic ciga- Sacramento, Calif., Ordi- the taste or aroma of tobac- rette … [and] [a]ny component, nance 2019-0012 (April co, imparted either prior to part, or accessory … whether or 16, 2019) (codified at or during consumption of not sold separately.” Sacramento, Calif., Code a tobacco product or any Sacramento, Calif., Ordinance § 5.138.100(A)). byproduct produced by the 2019-0012 (April 16, 2019) tobacco product, including, (codified at Sacramento, Calif., but not limited to, tastes or Code § 5.138.030) (emphasis aromas relating to menthol, added). mint, wintergreen … ” Sacramento, Calif., Ordi- nance 2019-0012 (April 16, 2019) (codified at Sacramento, Calif., Code § 5.138.030) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 13 June 2019

Jurisdiction / California / San Francisco

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes No No “The sale or distribution “‘Characterizing Flavor’ “‘Tobacco Product’ has the by an Establishment of means a Distinguishable meaning set forth in Health Code any Flavored Tobacco taste or aroma or both, other Section 19H.2.” Product is prohibited.” than the taste or aroma of S.F., Cal., Health Code § 19Q.2 S.F., Cal., Health Code § tobacco … Characterizing (2019). 19Q.3 (2019). Flavors include, but are not “‘Tobacco Product’ means (1) limited to, tastes or aromas any product containing, made, relating to any fruit, choco- or derived from tobacco or nico- late, vanilla, honey, candy, tine that is intended for human cocoa, dessert, alcoholic consumption … ; (2) any device beverage, menthol, mint, or component, part, or accessory wintergreen, herb, or spice.” that delivers nicotine alone or S.F., Cal., Health Code § combined with other substances 19Q.2 (2019) (emphasis to the person using the device added). including but not limited to electronic cigarettes, cigars, or pipes … ” S.F., Cal., Health Code § 19Q.2 (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 14 June 2019

Jurisdiction / California / San Leandro

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes (note: menthol cigarettes Yes No No “No tobacco retailer, nor are not prohibited because “‘Flavored tobacco product’ means “No tobacco retailer, nor any of any of the retailer’s agents the ordinance excludes any tobacco product … This the retailer’s agents or employ- or employees, shall sell or cigarettes) includes … electronic cigarettes or ees, shall sell or offer for sale, offer for sale, or possess “No tobacco retailer, nor any electronic smoking devices.” or possess with intent to sell with intent to sell or offer of the retailer’s agents or em- San Leandro, Cal., Code § or offer for sale, any flavored for sale, any flavored ployees, shall sell or offer for 4.36.100 (2019) (emphasis tobacco product.” tobacco product.” sale, or possess with intent added). San Leandro, Cal., Code § San Leandro, Cal., Code to sell or offer for sale, any 4.36.150(l) (2019) (emphasis § 4.36.150(l) (2019) (em- flavored tobacco product.” added). phasis added). San Leandro, Cal., Code § “‘Tobacco retailer’ means any 4.36.150(l) (2019) (empha- person who sells, offers for sis added). sale, or does or offers to ex- “‘Flavored tobacco product’ change for any form of consid- means any tobacco product eration, electronic cigarettes, (other than cigarettes as electronic cigarette products, defined by the U.S. Food and electronic cigarette parapher- Drug Administration).” nalia, tobacco products or San Leandro, Cal., Code § tobacco paraphernalia.… This 4.36.100 (2019) (emphasis definition is without regard to added). the quantity … sold, offered for sale, exchanged, or offered for exchange.” San Leandro, Cal., Code § 4.36.100 (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 15 June 2019

Jurisdiction / California / Santa Clara County

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes Yes No. Note that “Flavored tobacco products. “Flavored tobacco products.… “Tobacco product[s] … include, “Paragraph (1) of this subsec- this ordinance (1) Except as permitted Except as permitted in para- but are not limited to, cigarettes, tion (i) shall not apply to any only applies to in paragraph (3) of this graph (3) of this subsection cigarette tobacco, roll-you- retailer that meets all of the unincorporated subsection (i), no retail- (i), no retailer shall sell a to- own tobacco, … and electronic following criteria: (i) Primarily parts of the coun- er shall sell a tobacco bacco product containing, as nicotine delivery systems (such sells tobacco products; (ii) Gen- ty. However, one product containing, as a a constituent or additive, an as, but not limited to, electronic erates more than 60 percent of town in Santa constituent or additive, artificial or natural flavor or cigarettes, electronic cigars, its gross revenue annually from Clara County an artificial or natural aroma (other than tobacco) electronic hookahs, vape pens, the sale of tobacco products; — Los Gatos — flavor or aroma (oth- or an herb or spice … that is a personal vaporizers, and elec- (iii) Does not permit any person passed an almost er than tobacco) or an characterizing flavor or aro- tronic pipes).” under 21 … to be present or identical flavored herb or spice, including ma of the tobacco product, Santa Clara County, Cal., Code enter the premises … unless tobacco restric- strawberry, grape … that smoke or vapor produced by § A18-368(e) (2019) (emphasis accompanied by … parent or tion in May 2017. is a characterizing flavor the tobacco product.” added). legal guardian … ; (iv) Does not or aroma of the tobacco Santa Clara County, Cal., sell alcoholic beverages or food product, smoke or vapor Code § A18-369(i) (2019) for consumption on the premis- produced by the tobacco (emphasis added). es; and (v) Posts a sign … that … product. (2) A tobacco informs the public that persons product shall be subject under 21 … are prohibited from to a rebuttable presump- entering … ” tion that the product is Santa Clara County, Cal., prohibited by paragraph Code § A18-369(i)(3) (2019) (1) … if: (i) the product’s (emphasis added). manufacturer [or an as- “Retailer means any person who sociated person] . . makes sells, exchanges, or offers to sell or disseminates public or exchange tobacco products statements or claims … for any form of consideration.”

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 16 June 2019

Jurisdiction / California / Santa Clara County (continued)

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

that the product has or Santa Clara County, Cal., produces a characterizing Code § A18-368(f) (2019) (em- flavor or aroma, other phasis added). than tobacco; or (ii) [t]he product’s label, labeling, or packaging includes a statement or claim … that the product has or produces a characterizing flavor or aroma, other than tobacco.” Santa Clara County, Cal., Code § A18-369(i) (2019).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 17 June 2019

Jurisdiction / California / Yolo County

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes No No. Note that this “[I]t shall be a violation “‘Flavored Tobacco Product’ “‘Tobacco Product’ means: “[I]t shall be a violation of this ordinance only of this Chapter for any means any Tobacco Product (1) any substance containing Chapter for any licensee or applies to unin- licensee or any of the that contains a constituent tobacco leaf, including but not any of the licensee’s agents or corporated parts licensee’s agents or em- that imparts a characterizing limited to cigarettes … (3) any employees to sell, offer for sale, of the county. ployees to sell, offer for flavor to the tobacco product electronic device that delivers or exchange for any form of sale, or exchange for any or smoke produced by the nicotine or other substances consideration: form of consideration: tobacco product, either by to the person inhaling from the (1) Any Flavored Tobacco (1) Any Flavored Tobacco the addition of artificial or device, including but not limited Product.” Product.” natural flavors or an herb or to an electronic cigarette, cigar, Yolo County, Cal., Code § Yolo County, Cal., Code space, including menthol … ” pipe, or hookah.” 6-15.10(e) (2019) (emphasis § 6-15.10(e) (2019). Yolo County, Cal., Code § Yolo County, Cal., Code § added). 6-15.02(f) (2019) (emphasis 6-15.02(m) (2019) (emphasis added). added).

Jurisdiction / Illinois / Chicago

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes — within buffer zone Yes Yes Yes Yes “No person shall sell, give “‘Flavored tobacco product’ “Tobacco product means any “No person shall sell, give away, Gas station asso- away, barter, exchange, or means any tobacco product electronic cigarette as defined barter, exchange, or otherwise ciation and Quick otherwise deal in flavored that contains a constituent herein or component or part deal in flavored tobacco prod- Pick Food Mart tobacco products, sam- that imparts a characterizing thereof … ” ucts, samples of such products, challenged law, ples of such products, flavor … ‘[C]haracterizing Chicago, Ill., Code § 4-64-100 or accessories for such prod- arguing it was or accessories for such flavor’ means a distinguish- (2019) (emphasis added). ucts at any location that has a preempted by the products at any location able taste or aroma, other “Electronic cigarette means any property line within 500 feet of Family Smoking within 500 feet of the than the taste or aroma of electronically actuated device the property line of any public, Prevention Tobacco

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 18 June 2019

Jurisdiction / Illinois / Chicago (continued)

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

property line of any pub- tobacco, imparted either which in operation causes the private, or parochial second- Control Act (FSPT- lic, private, or parochial prior to or during consump- user to exhale any smoke, vapor, ary school located in the City CA). Indeps. Gas & secondary school located tion of a tobacco product, or other substance other than of Chicago. This subsection Serv. Stations Asso- in the City of Chicago.” including, but not limited to, those produced by unenhanced does not apply to retail tobac- ciations, Inc. v. City Chicago, Ill., Code § tastes or aromas of menthol, human exhalation … ” co stores. For purposes of this of Chicago, 112 F. 4-64-515(b) (2019) (em- mint, wintergreen, choco- Chicago, Ill., Code § 7-32-010 subsection, ‘retail tobacco store’ Supp. 3d 749, 751 phasis added). late, vanilla, honey, cocoa, (2019). has the meaning ascribed to the (N.D. Ill. 2015). But any candy, any dessert, any term in Section 7-32-010.” the FSPTCA deals alcoholic beverage, any fruit, Chicago, Ill., Code § 4-64- with how tobacco any herb, and any spice … ” 151(b) (2019) (emphasis products are man- Chicago, Ill., Code § 4-64- added). ufactured, and the 100 (2019) (emphasis “‘Retail tobacco store’ means law only deals with added). a retail establishment that the final product derives more than 80% of its and whether it has gross revenue from the sale of a flavor. Id. at 754. loose tobacco, cigarettes, ciga- The Court found rillos, cigars, pipes, other smok- Smokeless Tobacco ing devices and accessories, persuasive: “Even hookahs and related products, if the ordinance and/or electronic cigarettes and has “some effect related products, and in which on manufactur- the sale of other products is ers’ production merely incidental. ‘Retail to- decisions,” it is bacco store’ does not include a not a command to tobacco department or section implement partic- of a larger commercial estab- ular manufacturing lishment or any establishment standards and, ac- with any type of liquor, food, or cordingly, is exempt from the FSPTCA’s

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 19 June 2019

Jurisdiction / Illinois / Chicago (continued)

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

restaurant license.” preemption clause.” Chicago, Ill., Code § 7-32-010 Indeps. Gas & Serv. (2019). Stations Associa- tions, Inc. v. City of Chicago, 112 F. Supp. 3d 749, 754 (N.D. Ill. 2015) (quoting U.S. Smokeless To- bacco Mfg. Co. LLC v. City of N.Y., 708 F.3d 428, 434 (2d Cir. 2013)). In the same case, the law also survived vagueness and vested rights challenges. Id. at 756, 757-58. Although elementary and middle schools were orig- inally part of this restriction, the buffer zone near those sites was lifted in 2016 due to the fi- nancial concerns of business owners.

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 20 June 2019

Jurisdiction / Massachusetts / Boston

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes No Yes Yes No “No retailer, retail estab- “Characterizing Flavor — A “Nicotine delivery products “No retailer, retail establish- lishment, or other individ- distinguishable taste or aro- include … e-cigarettes … ” ment, or other individual or enti- ual or entity shall sell or ma, other than the taste or Boston Public Health Com- ty shall sell or distribute or cause distribute or cause to be aroma of tobacco, menthol, mission, Youth Access Regula- to be sold or distributed or offer sold or distributed or offer mint or wintergreen … ” tion § II(14) (2019) (emphasis for sale any flavored tobacco for sale any flavored tobac- Boston Public Health added). product to a consumer. This pro- co product to a consumer. Commission, Youth Access “Tobacco Product – A cigarette, vision shall not apply to a retail This provision shall not Regulation § II(4) (2019) cigar, chewing tobacco, pipe to- tobacco store or smoking bar as apply to a retail tobacco (emphasis added). bacco, bidi, snuff, other tobacco defined by this regulation.” store or smoking bar as “Flavored Tobacco Product or nicotine delivery product in Boston Public Health Commis- defined by this regulation.” — Any tobacco product or any form.” sion, Youth Access Regulation Boston Public Health any component part thereof Id. § II(20) (emphasis added). § III(E)(1) (2019) (emphasis Commission, Youth Ac- added). that contains a constituent “Flavored Tobacco Product – Any cess Regulation § III(E) that imparts a characteriz- (1) (2019). tobacco product or any compo- ing flavor.” nent part thereof that contains Boston Public Health a constituent that imparts a Commission, Youth Access characterizing flavor.” Regulation § II(13) (2019) Id. § II(13) (emphasis added). (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 21 June 2019

Jurisdiction / Massachusetts / Cambridge

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes Yes No “No retailer, or other indi- “Characterizing Flavor. A dis- “Nicotine Delivery Product. Any “No retailer, or other individual vidual or entity shall sell or tinguishable taste or aroma, manufactured article or prod- or entity shall sell or distribute distribute or cause to be other than the taste or aroma uct made wholly or in part of or cause to be sold or distribut- sold or distributed or offer of tobacco, menthol, mint or a tobacco substitute or other- ed or offer for sale any flavored for sale any flavored to- wintergreen, imparted either wise containing nicotine that is tobacco to a consumer. This bacco to a consumer. This prior to or during consump- expected or intended for human provision shall not apply to a provision shall not apply to tion of a tobacco product … ” consumption … Nicotine delivery retail tobacco store.” a retail tobacco store.” Cambridge, Mass., Code § products include, but are not Cambridge, Mass., Code § Cambridge, Mass., Code 8.28.020 (2019) (emphasis limited to, e-cigarettes.” 8.28.030(K) (2019) (emphasis § 8.28.030(K) (2019) added). Cambridge, Mass., Code § added). (emphasis added). 8.28.020 (2019) (emphasis added). “Tobacco Product. Cigarettes, cigars, chewing tobacco, pipe tobacco, nicotine delivery product, snuff or tobacco in any of its forms.” Id. (emphasis added). “Flavored Tobacco Product. Any tobacco product or component part thereof that contains a constituent that imparts a characterizing flavor.” Id. (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 22 June 2019

Jurisdiction / Massachusetts / Needham Effective July 1, 2019.

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes Yes No “No person shall sell or “Flavored tobacco product: “Tobacco Product: Any product “No person shall sell or distrib- distribute or cause to be Any tobacco product or containing, made, or derived ute or cause to be sold or dis- sold or distributed any fla- component part thereof that from tobacco or nicotine that is tributed any flavored tobacco vored tobacco product … ” contains a constituent that intended for human consump- product, except in smoking bars Needham, Mass., Health has or produces a character- tion … including, but not limited and adult-only retail tobacco Reg. Art. 1(G) (2019). izing flavor.” to: electronic cigarettes … [and] stores.” “Characterizing flavor: A dis- any component or part of a Needham, Mass., Health Reg. tinguishable taste or aroma, tobacco product … ” Art. 1(G) (2019). other than the taste or aro- Needham, Mass., Health Reg. ma of tobacco … including, Art. 1(C) (2019) (emphasis but not limited to, tastes or added). aromas relating to … any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen … ” Needham, Mass., Health Reg. Art. 1(C) (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 23 June 2019

Jurisdiction / Massachusetts / Somerville

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes Yes No “No person shall sell or “Flavored tobacco product: “Tobacco product: Any product “No person shall sell or distrib- distribute or cause to be Any tobacco product or containing, made, or derived ute or cause to be sold or dis- sold or distributed any fla- component part thereof that from tobacco or nicotine that is tributed any flavored tobacco vored tobacco product … ” contains a constituent that intended for human consump- product, except in smoking bars Somerville, Mass., Health has or produces a character- tion … including, but not limited and retail tobacco stores.” Reg. Part G (2019). izing flavor.” to: electronic cigarettes … [and] Somerville, Mass., Health “Characterizing flavor: any component or part of a Reg. Part G (2019) (emphasis A distinguishable taste or tobacco product … ” added). aroma, other than the taste Somerville, Mass., Health Reg. or aroma of tobacco, im- Part C (2019) (emphasis added). parted or detectable either prior to or during consumption of a tobacco product … including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, menthol, mint, wintergreen … ” Somerville, Mass., Health Reg. Part C (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 24 June 2019

Jurisdiction / Minnesota / Arden Hills

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes No No “No person shall sell or “Flavored Product: Any “Licensed Products: The term that offer for sale any flavored licensed product that con- collectively refers to any tobacco, products.” tains a taste or smell, other tobacco-related device, electron- Arden Hills, Minn., Code than the taste or smell of to- ic delivery device, or nicotine or § 350.06(2) (2019). bacco, that is distinguishable lobelia delivery product.” by an ordinary consumer “Electronic Delivery Device: Any either prior to or during the product containing or delivering consumption of the product, nicotine, lobelia, or any other including, but not limited to, substance intended for human any taste or smell relating to consumption through the inhala- chocolate, cocoa, menthol, tion of aerosol or vapor from the mint, wintergreen … ” product … includes … e-ciga- Arden Hills, Minn., Code § rettes… [and] any component 350.02 (2019) (emphasis part of a product, whether or not added). marketed or sold separately.” Arden Hills, Minn., Code § 350.02 (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 25 June 2019

Jurisdiction / Minnesota / Duluth

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes Yes No “No person shall sell, “Flavored tobacco product “For purposes of this Chapter, “No person shall sell, offer for offer for sale or otherwise means any tobacco or the terms ’tobacco’ and ‘tobacco sale or otherwise distribute any distribute any flavored tobacco related device that related devices’ shall … include flavored tobacco products. This tobacco products.” contains a taste or smell, electronic cigarettes defined as restriction does not apply to Duluth, Minn., Code § other than the taste or smell any electronic-smoking device retail establishments that: 11-11(a) (2019). of tobacco … including, but that can be used to deliver (1) Prohibit persons under the not limited to, any taste or nicotine or any other substances age of 18 from entering at all smell relating to menthol, to the person inhaling from the times; and mint, wintergreen … ” device. The term shall include Duluth, Minn., Code § such devices whether they are (2) Derive at least ninety per- 11-11(c) (2019) (emphasis manufactured as electronic ciga- cent of their revenues from the added). rettes, electronic cigars, elec- sale of tobacco, tobacco-related tronic pipes or any other product devices.” name … ” Duluth, Minn., Code § 11-11(a) Duluth, Minn., Code § 11-1(a) (2019) (emphasis added). (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 26 June 2019

Jurisdiction / Minnesota / Lilydale

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes No No “No person shall sell or “Flavored Product: Any li- “Licensed Product: The term that offer for sale any flavored censed product that contains collectively refers to any tobacco, product in any retail es- a taste or smell, other than tobacco-related device, electron- tablishment … ” the taste or smell of tobacco, ic delivery device, or nicotine or Lilydale, Minn., Code § that is distinguishable by an lobelia delivery product.” 504.06(B) (2019). ordinary consumer either pri- “Electronic Delivery Devices: Any or to or during the consump- product containing or delivering tion of the product, including, nicotine, lobelia, or any other but not limited to, any taste substance intended for human or smell relating to menthol, consumption through the inhala- mint, wintergreen … ” tion of aerosol or vapor from the Lilydale, Minn., Code § product … includes … e-ciga- 504.02 (2019) (emphasis rettes… [and] any component added). part of a product, whether or not marketed or sold separately.” Lilydale, Minn., Code § 504.02 (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 27 June 2019

Jurisdiction / Minnesota / Mendota Heights

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes No No “No person shall sell or “Flavored Product: Any tobac- “Flavored Product: Any tobacco, offer for sale any flavored co, tobacco product, tobacco tobacco product, tobacco related product in any retail es- related device, electronic de- device, electronic delivery tablishment … ” livery device, and nicotine or device, and nicotine or lobelia Mendota Heights, Minn., lobelia delivery device that delivery device … ” Code § 3-2-6(B) (2019). contains a taste or smell, “Electronic Delivery Devices: Any other than the taste or smell product containing or delivering of tobacco, that is distin- nicotine, lobelia, or any other guishable by an ordinary substance intended for human consumer either prior to or consumption through the inhala- during the consumption of tion of aerosol or vapor from the the product, including, but product … includes … e-ciga- not limited to, any taste or rettes… [and] any component smell relating to menthol, part of a product, whether or not mint, wintergreen … ” marketed or sold separately.” Mendota Heights, Minn., Mendota Heights, Minn., Code § Code § 3-2-2 (2019) (em- 3-2-2 (2019) (emphasis added). phasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 28 June 2019

Jurisdiction / Minnesota / Minneapolis

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes Yes No “No person shall sell, “Flavored tobacco product “Tobacco products means tobacco, “No person shall sell, offer for offer for sale, give away, means any tobacco product tobacco related devices, electron- sale, give away, barter, ex- barter, exchange, or that contains a taste or aro- ic delivery devices, or nicotine or change, or otherwise deal in otherwise deal in flavored ma, other than the taste or lobelia delivery products as those flavored tobacco products or tobacco products or sam- aroma of tobacco … includ- terms are defined in this section.” samples of such products. This ples of such products.” ing, but not limited to, tastes Minneapolis, Minn., Code § subsection does not apply to Minneapolis, Minn., Code or aromas of menthol, mint, 281.15 (2019) (emphasis added). tobacco products shops or to a § 281.45(f) (2019). wintergreen … ” “Electronic delivery device licensed tobacco dealer [un- Minneapolis, Minn., Code includes, but is not limited to … der certain conditions]. This § 281.15 (2019) (emphasis e-cigarettes … ” subsection does not apply to added). Id. (emphasis added). licensed off sale liquor stores with regard to menthol, mint or “Tobacco means cigarettes and wintergreen flavored tobacco any product containing, made, or products provided that such an derived from tobacco that is in- establishment does not permit tended for human consumption … ” any persons under the age of Id. twenty-one (21) to be present within the establishment unaccompanied by a parent or guardian.” Minneapolis, Minn., Code § 281.45(f) (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 29 June 2019

Jurisdiction / Minnesota / Shoreview

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes No Yes Yes No “No person shall sell, of- “Flavored Product. Any tobac- “Flavored Product. Any tobacco “No person shall sell, offer for fer for sale, or otherwise co product, tobacco-related product, tobacco-related device, sale, or otherwise distribute any distribute any flavored device, electronic delivery electronic delivery device, or nico- flavored products. This restric- products.” device, or nicotine or lobelia tine or lobelia delivery product … ” tion does not apply to retail Shoreview, Minn., Code § delivery product that con- Shoreview, Minn., Code § establishments that: 706.065 (2019). tains a taste or smell, other 706.020(C) (2019) (emphasis (1) Prohibit minors from enter- than the taste or smell of added). ing at all times; and tobacco, menthol, mint, or “Tobacco or Tobacco Products. (2) Derive at least ninety (90) wintergreen, that is distin- Tobacco or tobacco products guishable by an ordinary percent of their revenues from includes cigarettes … ” the sale of tobacco, tobac- consumer either prior to or Id. during the consumption of co-related devices, electronic the tobacco product, elec- delivery devices, or nicotine or tronic delivery device, or lobelia delivery products.” nicotine or lobelia delivery Shoreview, Minn., Code § device including, but not 706.065 (2019) (emphasis limited to, any taste or smell added). relating to chocolate, cocoa, vanilla, honey, fruit, or any candy, dessert, alcoholic beverage, herb, or spice.” Shoreview, Minn., Code § 706.020(C) (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 30 June 2019

Jurisdiction / Minnesota / Saint Paul

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes Yes Yes Yes No “No person shall sell, of- “Flavored product means any “Electronic delivery device means “Retail stores that derive at least fer for sale, or otherwise tobacco product, tobac- any product containing or deliv- ninety (90) percent of their distribute any flavored co-related device, electronic ering nicotine, lobelia, or any oth- revenue from the sale of tobacco products.” delivery device, or nicotine er substance intended for human products, tobacco-related devic- St. Paul, Minn., Code § or lobelia delivery product consumption that can be used es, electronic delivery devices, 324.07(f) (2019). that contains a taste or by a person to simulate smoking or nicotine or lobelia delivery smell, other than the taste or in the delivery of nicotine or any products and where the retailer smell of tobacco that is dis- other substance through inha- ensures that no person under tinguishable by an ordinary lation of vapor from the product.” eighteen (18) years of age is per- consumer either prior to or St. Paul, Minn., Code § 324.03(2) mitted to enter, at any time are during [use] … including, (2019) (emphasis added). permitted to sell and offer for but not limited to, any taste “Tobacco or tobacco product means sale flavored tobacco products.” or smell relating to menthol, any product containing, made, or St. Paul, Minn., Code § mint, wintergreen … ” derived from tobacco … including, 324.07(h)(3) (2019) (emphasis St. Paul, Minn., Code § but not limited to cigarettes … ” added). 324.03(3) (2019) (emphasis St. Paul, Minn., Code § 324.03(7) “Establishments holding an off- added). (2019). sale intoxicating liquor license “Flavored product means any to- … who also hold a license for bacco product, tobacco-related de- tobacco sales … shall be per- vice, electronic delivery device, or mitted to sell and offer for sale nicotine or lobelia delivery product flavored tobacco products only that contains a taste or smell, other in the following flavors: men- than the taste or smell of tobacco, thol, mint, and wintergreen.” menthol, mint, or wintergreen … ” St. Paul, Minn., Code § St. Paul, Minn., Code § 324.03(3) 324.07(h)(4) (2019) (emphasis (2019) (emphasis added). added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 31 June 2019

Jurisdiction / New York / New York

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes No No (note that conventional ciga- Yes Yes “It shall be unlawful for “‘Characterizing flavor’ rettes not included) “It shall be unlawful for any per- Manufacturers and any person to sell or offer means a distinguishable “‘Tobacco product’ means any son to sell or offer for sale, or to distributors alleged for sale, or to possess taste or aroma, other than product which contains tobac- possess with intent to sell or of- that the Family with intent to sell or offer the taste or aroma of tobacco that is intended for human fer for sale, any flavored tobacco Smoking Prevention for sale, any flavored co, menthol, mint or winter- consumption, including any product except in a tobacco bar.” Tobacco Control Act tobacco product except in green, imparted either prior component, part, or accessory of N.Y.C., N.Y., Admin. Code § 17- (FSPTCA) preempt- a tobacco bar.” to or during consumption of such product. Tobacco product 715(a) (2019) (emphasis added). ed NYC’s flavor N.Y.C., N.Y., Admin. Code a tobacco product or compo- shall include, but not be limited “Only the following entities may restrictions. U.S. § 17-715(a) (2019). nent part thereof … ” to, any cigar, little cigar, chewing sell or offer for sale flavored Smokeless Tobacco N.Y.C., N.Y., Admin. Code § tobacco, pipe tobacco, roll-your- tobacco products: Mfg. Co. LLC v. City 17-713(b) (2019) (emphasis own tobacco, snus, bidi, snuff, of N.Y., 708 F.3d 428, added). tobacco-containing shisha, or (1) Tobacco bars; and 430 (2d Cir. 2013). “‘Flavored tobacco prod- dissolvable tobacco product. To- (2) Tobacco wholesalers, but The court held that uct’ means any tobacco bacco product shall not include only where the sale or offer of it didn’t. Id. at 436 product or any component cigarettes … ” sale is made to a tobacco bar or (“[W]e conclude part thereof that contains a N.Y.C., N.Y., Admin. Code § 17- to an entity located outside the that Administrative constituent that imparts a 713(j) (2019) (emphasis added). City of New York.” Code § 17–715 is a characterizing flavor.” N.Y.C., N.Y., R. § 28-02(a) regulation of sale N.Y.C., N.Y., Admin. Code § (2019) (emphasis added). and not a veiled 17-713(e) (2019). attempt to regulate the manufacture of “Tobacco products that im- tobacco products.”) part a distinguishable taste This is because the or aroma of menthol, mint, FSPTCA deals with wintergreen or tobacco, and product manufac- do not also impart a charac- turing standards — terizing flavor, arenot subject the flavor restric- to the restriction on sale set tions only focus

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 32 June 2019

Jurisdiction / New York / New York (continued)

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

forth in § 17-715 of the Admin- on whether the istrative Code or these rules.” final product has N.Y.C., N.Y., R. § 28-02(b) flavoring (not (2019) (emphasis added). how the flavor got there). Id. at 434.

Jurisdiction / Rhode Island / Central Falls6

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes No Yes (note that conventional Yes No “No licensee, or employee “Characterizing flavor means cigarettes not included) “This subsection (e) shall not ap- or agent of such licensee, a distinguishable taste or “Tobacco product means: … (2) ply to a smoking bar as defined shall sell any flavored aroma, other than the taste any electronic device that deliv- in Section 23-20.10-2(15) of the tobacco product to a or aroma of tobacco, men- ers nicotine or other substances Rhode Island General Laws[.]” consumer.” thol, mint, or wintergreen … ” to the person inhaling from the Central Falls, R.I., Code § Central Falls, R.I., Code Central Falls, R.I., Code § device, including, but not limited 12-421(e) (2019) (emphasis § 12-421(e) (2019) (em- 12-417 (2019) (emphasis to, an electronic cigarette, cigar, added). phasis added). added). pipe, or hookah.” Central Falls, R.I., Code § 12- 417 (2019) (emphasis added). “Flavored tobacco product means any tobacco product, other than a cigarette, that contains a constituent that imparts a characterizing flavor.” Central Falls, R.I., Code § 12- 417 (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 33 June 2019

Jurisdiction / Rhode Island / Providence

Flavor prohibited? Menthol prohibited? E-cigs included? Exemption for certain retailers? Case law

Yes No Yes (note that conventional Yes Yes “It shall be unlawful for “Characterizing flavor means cigarettes not included) “It shall be unlawful for any In regards to any person to sell or a distinguishable taste or “Tobacco product means any person to sell or offer for sale flavoring, the or- offer for sale any flavored aroma, other than the taste product containing tobacco any flavored tobacco product to dinance survived tobacco product to a or aroma of tobacco, men- or nicotine, including, but not a consumer, except in a smok- First Amendment consumer, except in a thol, mint or wintergreen, limited to, cigars, pipe tobacco, ing bar.” and preemption smoking bar.” imparted either prior to or snuff, chewing tobacco, dipping Providence, R.I., Code § 14-309 challenges. Providence, R.I., Code § during consumption of a tobacco, bidis, snus, dissolvable (2019) (emphasis added). See Nat’l Ass’n of 14-309 (2019). tobacco product … ” tobacco products, and electronic Tobacco Outlets, Providence, R.I., Code § cigarette cartridges; provided, Inc. v. City of 14-308 (2019) (emphasis however, that such term shall Providence, No. CA added). not include: (1) Cigarettes, in- 12-96-ML, 2012 “Flavored tobacco product cluding those cigarettes subject WL 6128707, at means any tobacco prod- to the special rule for cigarettes *13 (D.R.I. 2012), uct or any component part relating to characterizing flavors aff’d. Nat’l Ass’n of thereof that contains a of the Federal Family Smoking Tobacco Outlets, constituent that imparts a and Tobacco Prevention Act … ” Inc. v. City of Provi- characterizing flavor.” Providence, R.I., Code § 14-308 dence, R.I., 731 F.3d Providence, R.I., Code § (2019) (emphasis added). 71 (1st Cir. 2013). 14-308 (2019) (emphasis added).

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 34 June 2019

Addendum: Flavored Tobacco Restrictions by Type

This categorized list organizes the cities and counties mentioned in the chart above by restriction type rather than by state. Please note that this list is not intended to be comprehensive and that other types of flavored tobacco policies exist outside of those mentioned here.

Comprehensive (jurisdiction-wide ban, menthol prohibited, e-cigarettes included, no retailer exemption)

{{ Arden Hills, MN {{ Oakland, CA

{{ Beverly Hills, CA {{ Palo Alto, CA (exempts tobacco flavor)

{{ El Cerrito, CA (conventional cigarettes excluded) {{ Sacramento, CA

{{ Lilydale, MN {{ San Francisco, CA

{{ Mendota Heights, MN {{ Yolo County, CA (only in unincorporated parts of the county)

Comprehensive with retailer exemption (jurisdiction-wide ban, menthol prohibited, e-cigarettes included, certain retailers exempt)

{{ Duluth, MN {{ Santa Clara County, CA (applies only to unincorporated parts of the county, but see also Los Gatos, CA, noted in {{ Minneapolis, MN the Santa Clara County chart)

{{ Needham, MA {{ Somerville, MA

{{ Saint Paul, MN

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 35 June 2019

Buffer zone restriction (flavor sales prohibited around buffer zone, menthol prohibited, e-cigarettes included)

{{ Berkeley, CA (no exemption for retailers) {{ Contra Costa County, CA (only in unincorporated parts of the county, no exemption for retailers) {{ Chicago, IL (exemption for certain retailers)

{{ Hayward, CA (conventional cigarettes excluded, exemption for certain retailers)

Flavor restriction excluding menthol, with retailer exemption (jurisdiction-wide ban, menthol allowed, e-cigarettes included, exemption for retailers)

{{ Boston, MA {{ Manhattan Beach, CA

{{ Cambridge, MA {{ Providence, RI (conventional cigarettes excluded)

{{ Central Falls, RI (conventional cigarettes excluded) {{ Shoreview, MN

Other

{{ New York City (city-wide ban, menthol allowed, e-cigarettes and conventional cigarettes not included, certain retailers exempt)

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 36 June 2019

This publication was prepared by the Public Health Law Center at Mitchell Hamline School of Law, Saint Paul, Minnesota. The Center provides information and technical assistance on law and policy issues related to public health. The Center does not provide legal advices and does not enter into attorney-client relationship. This document should not be considered legal advice. The Public Health Law Center thanks research assistants Arielle Sloan and Marcus Jardine and policy analyst Tracy Sides for their work on this publication. This publication was supported in part by Cooperative Agreement Number 5 NU58DP006263-02-00, funded by the Centers for Disease Control and Prevention. Its contents are solely the responsibility of the authors and do not necessarily represent the official views of the Centers for Disease Control and Prevention or the Department of Health and Human Services.

Endnotes

1 Due to the large number of jurisdictions in which flavored tobacco products are prohibited, this chart does not include every city or county with flavored tobacco restrictions, even in the states listed. For example, South Miami, Florida, has an interesting flavored tobacco sales law outside of a licensing section, South Miami, Fla., Code § 12-16 (2019), and almost 100 municipalities in Massachu- setts also have sales restrictions on flavored cigarettes. See Local Policies Restricting Flavored “Other Tobacco Products” (Otp) To Adult-Only Retailers, Municipal Tobacco Control Technical Assistance Program, Mass. Municipal Assoc., http://mhoa.com/ wp-content/uploads/2018/12/muni-list-Flavored-OTP-Restriction.pdf (last updated December 11, 2018). These jurisdictions have policies that may differ from those listed in this chart. For more information about jurisdictions in your state in which flavored tobacco sales are restricted, feel free to contact the Public Health Law Center.

2 For purposes of this table, the term “e-cigs” refers to any electronic nicotine delivery device.

3 Not all jurisdictions with flavored tobacco ordinances in highlighted states are covered here. For example, Novato, California, also has a limited flavored tobacco ordinance. Novato, Cal., Code § 7-8.3(h) (2019). It should also be noted that some cities and counties may be in the process of adopting flavored tobacco sales restrictions. For more information about upcoming ordinances in your area, please contact the Public Health Law Center.

4 The years listed in citations in this document reference when the online codes in hyperlinks were last updated, not when the laws were first passed.

5 Flavored (conventional) cigarettes are prohibited under federal law. For more information, visit Menthol and Other Flavors in Tobacco Prod- ucts, Food & Drug Admin. (2018), https://www.fda.gov/tobaccoproducts/labeling/productsingredientscomponents/ucm2019416.htm.

6 Tobacco-Free Rhode Island maintains a list of tobacco restrictions in the state. For more information, visit http://tobaccofree-ri.org/ local-ordinances.htm.

www.publichealthlawcenter.org U.S. Sales Restrictions on Flavored Tobacco Products 37