According to the Act, a product is defined as a flavored product if it is a product that has a distinguishable taste or aroma different from that of tobacco. Interestingly, the bill also includes a rebuttable deeming provision that states that if a company publicly states that one of its products imparts a taste or smell other than tobacco, including through the use of words or images on product labels , the product will be considered flavored and prohibited from sale.

As with most flavored tobacco bans, SB 920 would not make it a premium consumer to buy, possess, or consume these products; however, the bill would make it illegal to provide one of these products to others.

There are no waivers of any kind.

While several states have proposed flavor bans in early 2023, California and Massachusetts are the only states to ban the sale of flavored tobacco products, although both bans have exemptions for the sale of certain flavored cigars.

In Massachusetts, an exemption allows specialty cigar lounges to continue selling flavored cigars, while California allows continued sales of flavored cigars priced at $12 wholesale.

Companies have taken different approaches to the ban, but their effects are being felt.

For example, Drew Estate announced that it would no longer sell three collections — Ambrosia, Isla del Sol and Tabak Especial — to California retailers.

That said, the company is still selling its popular ACID line. Drew Estate told retailers it believes the rest of its product portfolio will not be banned in California because they do not have a distinct taste or aroma that could be considered a signature flavor.

Meanwhile, some cigarette companies are responding to the California law by replacing menthol cigarettes with new ones that are said to contain a synthetic cooling agent that can have similar effects to menthol.

Earlier this year, the head of the FDA's Center for Tobacco Products said the agency hopes to announce a nationwide ban on flavored cigars and menthol cigarettes in the fall of 2023.

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