TC Online First, published on April 11, 2017 as 10.1136/tobaccocontrol-2016-053552 Tob Control: first published as 10.1136/tobaccocontrol-2016-053552 on 11 April 2017. Downloaded from Research paper Flavour chemicals in a sample of non-cigarette tobacco products without explicit flavour names sold in New York City in 2015 Shannon M Farley,1 Kevin RJ Schroth,1 Victoria Grimshaw,1 Wentai Luo,2,3 Julia L DeGagne,3 Peyton A Tierney,3 Kilsun Kim,2 James F Pankow2,3 ► Additional material is ABSTRACT or natural flavor…. that is a characterizing flavor of published online only. To view Background Youth who experiment with tobacco often the tobacco product or tobacco smoke’. Note that please visit the journal online (http:// dx. doi. org/ 10. 1136/ start with flavoured products. In New York City (NYC), lo- low levels of flavour additives that do not yield a tobaccocontrol- 2016- 053552) cal law restricts sales of all tobacco products with ‘char- ‘characterising flavour’ are neither banned nor more acterising flavours’ except for ‘tobacco, menthol, mint explicitly defined. The FSPTCA does authorise the 1NYC Department of Health and wintergreen’. Enforcement is based on packaging: Food and Drug Administration (FDA) to mandate and Mental Hygiene, Bureau of explicit use of a flavour name (eg, ‘strawberry’) or image disclosures to the FDA on constituents, ingredients Chronic Disease Prevention and Tobacco Control, Long Island depicting a flavour (eg, a fruit) is presumptive evidence and additives, which could be used to require disclo- City, New York, USA that a product is flavoured and therefore prohibited. sures of flavourings for all regulated tobacco prod- 2Department of Chemistry, However, a tobacco product may contain significant ucts. Currently, the content of those disclosures is Portland State University, levels of added flavour chemicals even when the label not released to the public or local jurisdictions that Portland, Oregon, USA 3Department of Civil and does not explicitly use a flavour name. regulate tobacco products. In a recent editorial in this Environmental Engineering, Methods Sixteen tobacco products were purchased journal on flavoured tobacco products in the USA, Portland State University, within NYC in 2015 that did not have explicit flavour Stanton et al5 conclude that ‘further data across disci- Portland, Oregon, USA names, along with three with flavour names. These were plines with rigorous methods are needed to inform analysed for 92 known flavour chemicals plus triacetin by policy decisions regarding the regulation of flavours Correspondence to gas chromatography/mass spectrometry. James F Pankow, Institute in tobacco products that can reduce initiation of for Global Tobacco Control, Results 14 of the 16 products had total determined tobacco products, promote cessation of tobacco prod- Department of Health, Behavior flavour chemical levels that were higher (>0.3 mg/g) ucts among users and ultimately reduce exposure to and Society, Johns Hopkins than in previously studied flavour-labelled products and harmful products to protect population health’. Bloomberg School of Public of a chemical profile indicating added flavour chemicals. In October 2009, to extend the protection Health, 2213 McElderry St, Conclusions The results suggest that the tobacco Fourth Floor Baltimore, MD conferred by the FSPTCA, New York City (NYC) 21205, USA; pankowj@ pdx. edu industry has responded to sales restrictions by renaming restricted retail sales of tobacco products other flavoured products to avoid explicitly identifying them than cigarettes (ie, ‘OTP’) having ‘characterising Received 24 November 2016 as flavoured. While chemical analysis is the most precise flavours’ other than ‘tobacco, menthol, mint or http://tobaccocontrol.bmj.com/ Revised 6 February 2017 means of identifying flavours in tobacco products, federal 6 7 Accepted 15 February 2017 wintergreen’ as summarised in Box 1. Electronic tobacco laws pre-empt localities from basing regulations cigarette products are not addressed by this law. on that approach, limiting enforcement options. If the ‘Tobacco bars’, a narrow class of food service estab- Food and Drug Administration would mandate that all lishments that have been required to register annu- tobacco products must indicate when flavourings are ally with NYC since 2002 (and currently numbering present above a specific level, local jurisdictions could eight), are not subject to the flavoured tobacco enforce their sales restrictions. A level of 0.1 mg/g for regulation. Consistent with the FSPTCA, the NYC total added flavour chemicals is suggested here as a ordinance defined ‘flavored’ as ‘contains a constit- relevant reference value for regulating added flavour uent that imparts a characterizing flavor’.7 The chemicals in tobacco products. ordinance further states that a ‘public statement or on October 1, 2021 by guest. Protected copyright. claim made or disseminated by the manufacturer of a tobacco product…that such tobacco product INTRODUCTION has or produces a characterizing flavor shall consti- It is widely recognised that flavoured tobacco prod- tute presumptive evidence that the tobacco product ucts appeal to youth and that youth who experiment is a flavored tobacco product'. As a result of this with tobacco often start with flavoured products.1 provision, tobacco product packaging labelled with Tobacco control professionals have therefore iden- the name of a flavour, or a picture connoting that tified restrictions on flavoured tobacco products as a flavour—such as ‘strawberry', or a picture of a policy goal that has potential to reduce youth tobacco strawberry, constitutes presumptive evidence that use.2 Given the importance of reducing the number sale of the product is illegal in NYC. Several other of children who start to smoke and become addicted local jurisdictions have enacted laws restricting the To cite: Farley SM, to dangerous tobacco products, in September 2009, sale of flavoured OTP; these include Providence, Schroth KRJ, Grimshaw V, Congress prohibited flavoured cigarette production, Rhode Island; Minneapolis, Minnesota; Chicago, et al. Tob Control Published Online First: [please except for menthol, as part of the Family Smoking Illinois; Boston, Massachusetts, and various smaller include Day Month Prevention and Tobacco Control Act (FSPTCA).3 4 Massachusetts towns. Most of these localities, like Year]. doi:10.1136/ Notably, the federal law says a cigarette ‘shall not NYC, rely on product names as the primary means tobaccocontrol-2016-053552 contain, as a constituent…or additive, an artificial of identifying flavoured products. Farley SM, et al. Tob Control 2017;0:1–6. doi:10.1136/tobaccocontrol-2016-053552 1 Copyright Article author (or their employer) 2017. Produced by BMJ Publishing Group Ltd under licence. Tob Control: first published as 10.1136/tobaccocontrol-2016-053552 on 11 April 2017. Downloaded from Research paper that prohibits flavoured cigarettes, saying a cigar ‘shall not carry Box 1 a characterizing flavor’, as well as requiring cigar manufac- turers to disclose product constituents/additives information to New York City ordinance approved 14 October 2009:6 ‘A local the FDA. However, Viola et al8 nevertheless caution that: ‘An law to amend the New York City charter and the administrative appropriate definition for ‘characterising flavours’ that takes into code of the city of New York, in relation to the regulation of account product ingredients may be necessary to fully capture tobacco products: Int 0433–2006’. (Upheld in Federal Court: US cigar products that are distinctly flavoured’. Smokeless Tobacco Manufacturing Company LLC et al v. City Of Here we describe the results of a study in which 19 tobacco New York, Docket No. 11–5167-cv. Decided 26 February 2013 in products purchased in NYC were subjected to chemical anal- the United States Court of Appeals, Second Circuit). yses to determine the extent to which common non-cigarette Definitions in the ordinance tobacco products not labelled as containing flavours contain ‘Flavored tobacco product’ means any tobacco product or any flavour chemicals. The levels found are compared both within component part thereof that contains a constituent that imparts the group, and relative to levels previously measured by Brown a characterizing flavor. et al12 for tobacco products carrying explicit flavour names. ‘Characterizing flavor’ means a distinguishable taste or aroma, other than the taste or aroma of tobacco, menthol, mint or wintergreen, imparted either prior to or during consumption METHODS of a tobacco product or component part thereof, including, but A convenience sample of 16 non-cigarette tobacco products not limited to, tastes or aromas relating to any fruit, chocolate, without explicit flavour names were purchased within NYC in vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb February and March 2015 (table 1 a, b). Three additional prod- or spice, provided; however, that no tobacco product shall be ucts with flavour names were purchased: (1) Skoal ‘Citrus’ moist determined to have a characterizing flavor solely because of snuff; (2) Black and Mild ‘Cream’ ‘pipe-tobacco cigars’ and (3) the use of additives or flavorings or the provision of ingredient Camel ‘Frost’ Snus. The law explicitly applies to tobacco prod- information. ucts with ‘tastes or aromas relating to any fruit [or] … dessert’.7 Banned in the ordinance Because ‘citrus’ is associated with fruits, and cream is associated §17–715 Sale of flavored tobacco