§ 28-03 Flavored Product List.
RCNY § 28-03
(a)The Department will develop and maintain a non-exhaustive Flavored Products List, including Flavored Tobacco Products, Flavored Electronic Cigarettes and Flavored E-liquids, to facilitate compliance with and enforcement of § 17-715 of the Act. The Flavored Products List will be maintained on the Department's website.
(b)The Flavored Products List will include: (1) Products that the Department has determined to be Flavored Products based on their taste or aroma.
(2)Products the Department presumes to be Flavored Products based on their Labeling, Packaging, or Marketing. The Department will presume that a Product is a Flavored Product if the Manufacturer or any of the Manufacturer's agents or employees has made a statement or claim directed to consumers or to the public that the Product has or produces a Characterizing Flavor, including, but not limited to, text, color, and/or images on the product's Labeling, Packaging, or Marketing that are used to explicitly or implicitly communicate that the Product has a Characterizing Flavor. The Department will presume that a Product is flavored if its Labeling, Packaging, or Marketing include descriptive terms such as "spicy" and "sweet" that imply or evoke Characterizing Flavors. The Department will not presume that a Product is a Flavored Product if the only descriptors that appear on its Labeling, Packaging, or Marketing are "strong," "mild," or "plain," where those descriptors appear to be referring to the taste of tobacco.
(c)For products that have been found by an administrative law judge to be Flavored Products, following an administrative hearing, the Department will update the Flavored Products List to include such products.
(d)A manufacturer may object to the inclusion of its product on the Flavored Product List. An objection must be submitted in writing, and must include all information and evidence a manufacturer deems relevant to a determination of whether the tobacco product has or imparts a characterizing flavor.
(1)Such submission must include: (i) a description of the testing protocol used to determine whether the tobacco product has a characterizing flavor within the meaning of the Act; (ii) the identity of the entity that tested the product to determine if it has or produces a characterizing flavor; and (iii) any findings of fact developed by the testing entity.
(3)Within ninety (90) days of receipt of a manufacturer's complete submission pursuant to this subdivision, the Department shall either grant or deny the manufacturer's objection making findings of fact in support of its determination, or notify the manufacturer that additional time is needed to make such determination. If the Department denies the objection, the product(s) shall remain on the Flavored Product List. (Amended City Record 11/18/2021, eff. 12/18/2021)
