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New York hands Big Tobacco a major win by banning all flavored vapes

Effective today, May 18, 2020, any retailer in New York state caught selling any type of flavored vaping product will be subject to a $100 penalty per product.  The ban is part of the state’s Fiscal Year 2021 Enacted Budget which also prohibits the sales of all tobacco products in pharmacies.  The ban on flavored vapes, however, is all-encompassing – affecting pharmacies, convenience stores, gas stations, e-commerce sites, and of course small business vape shops.

When it comes to the types of vapor products, virtually anything that has the “taste or aroma” of something other than tobacco is now exempt, including closed-system pod style and disposable products and the separately bottled flavored e-liquids sold to users of open-tank systems and vape mods.  The only flavored e-cigarettes and vapes exempt from the new state law are those that have already received PMTA market authorization from the U.S. Food and Drug Administration.

New York budget bill S. 7506 contains the following, very broad language.

“For the purposes of this section ‘flavored’ shall mean any vapor product intended or reasonably expected to be used with or for the consumption of nicotine, with a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of such product or a component part thereof, including but not limited to tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, mint, wintergreen, menthol, herb or spice, or any concept flavor that imparts a taste or aroma that is distinguishable from tobacco flavor but may not relate to any particular known flavor. A vapor product intended or reasonably expected to be used with or for the consumption of nicotine, shall be presumed to be flavored if a product's retailer, manufacturer, or a manufacturer's agent or employee has made a statement or claim directed to consumers or the public, whether expressed or implied, that such product or device has a distinguishable taste or aroma other than the taste or aroma of tobacco.”

A statewide ban on flavored vapes has been a longstanding pet project of Governor Andrew Cuomo.  During the EVALI outbreak of last summer – a lung disorder now attributed to contraband CBD products illegally enhanced with Vitamin E acetate - Gov. Cuomo politicized the event as his reason for signing an executive order banning all flavored vapes.  But by early October, the New York appellate court had quickly issued a temporarily restraining order halting the ban in its tracks, at least temporarily.

Related Article: In surprise decision, judge blocks New York vaping ban…for now

(Images courtesy of Shutterstock)

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