Last week, the New Jersey State Assembly Health and Senior Services Committee (“Committee”) reported favorably on a proposed e-cig law that would prohibit the promotion, sale and distribution of vaping products with “characterizing flavors.” This is a significant development for e-cig marketers, as it may signal similar action to come in other jurisdictions across the country.

What do e-cig marketers need to know?

Proposed E-Cig Law

In May 2016, New Jersey State Assemblymen Herb Conaway, Jr. and Daniel R. Benson introduced legislation that would prohibit the sale, offering for sale and distribution of any electronic smoking device or related component (including e-liquid) that has a “characterizing flavor.” The proposed e-cig law’s sponsors claim that flavored e-liquids “pose[] a significant threat to the health of the general public.”

Notably, the bill expressly prohibits giveaways/free samples, coupons and rebate offers. E-cig marketers in violation of the proposed law would be liable for civil penalties ranging from $250 to $1,000.

On February 27, 2017, the Committee referred the proposed legislation to the Assembly Appropriations Committee. The bill has not yet been reported to the floor for full Assembly consideration.

What Is a “Characterizing Flavor”?

The original bill proposed adding e-cigarettes, e-liquids and other vaping devices to a preexisting New Jersey State law prohibiting the promotion, sale and distribution of cigarettes that have a “characterizing flavor” other than tobacco, clove or menthol. As initially written, tobacco-, clove- and menthol-flavored e-liquids would have been expressly exempted from the ban.

However, last week’s substitute bill proposes a new, standalone e-cig law that would redefine “characterizing flavor” broadly as any distinguishable flavor, taste or aroma. The revised bill removes all flavor exceptions and lists “fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb [and] spice” as examples of flavors that would be prohibited.

E-Cig Marketers: Stay Tuned

As the above-referenced case illustrates, lawmakers across the country are rolling out new legislation targeting e-cig marketers. In this rapidly developing regulatory landscape, e-cigarette and e-liquid manufacturers, retailers and related marketing affiliates are at risk of regulatory action and other adverse legal consequences. As such, businesses and individuals operating in the e-cigarette space should be sure to speak with an experienced marketing attorney before commencing any e-cig promotion or marketing campaign.