Flavored E-Cig Regulations May Be Coming Soon for New York City

953900_18128026In addition to monitoring the progress of the Food and Drug Administration’s (“FDA”) federal e-cig regulations, we have also kept our eyes focused on state-specific e-cig regulations.  As we previously noted, under Mayor Michael Bloomberg’s direction, New York City has contemplated heavily regulating flavored e-cigs throughout the City.  We have recently learned that the New York City Health Committee could vote on a restrictive e-cig ordinance as soon as Wednesday, October 30th.

New York State Proposed E-Cig Regulations

In a previous post, we detailed a new bill that was introduced in New York State, proposing to amend the tax definition of “tobacco products” to include all new and novel products “containing tobacco or nicotine that [are] intended or expected to be consumed.”  Despite the fact that e-cigs are not explicitly identified within the bill, a strict reading of the expansive definition of “tobacco products” arguably includes e-cigs, which contain nicotine and are intended to be consumed.

New York City Proposed E-Cig Ordinance

While the foregoing bill is still pending before the New York State Legislature, the City of New York is considering a ban on flavored e-cigs within City limits.  In a proposed update to a New York City Department of Health Ordinance, the definition of “tobacco products” will explicitly include e-cigs and related accessories.  The inclusion of e-cigs within the definition of “tobacco products” will necessarily result in e-cigs being restricted from being displayed in retail stores throughout the City of New York.

The proposed ordinance goes even further though and places an outright ban on the sale of e-cigs that come in flavors other than menthol, mint and wintergreen, unless sold in a “tobacco bar,” of which there are a very limited number.  As previously noted, the ordinance may come up for a vote before the New York City Health Committee as early today.

Lawmakers and Attorneys General Request E-Cig Regulations

We have already written about the letters sent to the FDA by U.S. Senators and state attorneys general urging the agency to regulate the rapidly growing e-cig industry.  With little progress resulting from those letters, the attorneys general issued another letter to the FDA earlier this month, requesting that, at the very least, regulations be introduced to “ensure that companies do not continue to sell or advertise to our nation’s youth.”  The FDA’s regulations were slated for industry review and comment by the end of this month, but it appears that the federal government shutdown has delayed the scheduled release date.

The development of federal and state electronic cigarette regulations should be of interest to anyone involved in the e-cigarette industry and those interested in product marketing in general. If you are interested in learning more about this topic or pursuing a venture in this area, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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