Despite years of vigorous opposition from the tobacco companies, in 2022 California’s law prohibiting the sale of flavored tobacco products went into effect. RJR Reynolds (maker of the leading menthol band, Newport), immediately responded by starting to market “non-menthol” cigarettes with virtually the same packaging as the menthol version in California, claiming that these products didn’t taste or smell like menthol. These cigarettes used other cooling agents to achieve menthol’s cooling effect. While the California Attorney General told RJR that these cigarettes were still “flavored” under California law, and so illegal to sell, RJR argued that “cooling” is not a flavor.
Guided by the experience of the Attorney General’s office, on January 1, 2025, two new laws, AB 3218 and SB 1230, eliminated any argument as to whether sale of these ”non-menthol” products are prohibited by the law. By clarifying the definition of “characterizing flavor” to include products that impart a cooling sensation similar to mint and menthol, as well as other flavors distinguishable by an ordinary consumer, the law makes it more difficult for manufacturers to evade the law.
AB 3218 implements this standard by requiring the AG to establish and maintain an “Unflavored Tobacco List” (UTL). Only products on that list will be legal for sale in California, eliminating arguments with retailers and wholesalers about what is legal to sell.
AB 3218 and the implementing regulations help close the gaps in federal regulation that have left many flavored e-cigarettes, nicotine pouches, and other flavored tobacco products on the market. The new law and regulations provide that only unflavored tobacco products that lack characterizing flavors can be included on the UTL, and only products on the UTL can be legally sold in California, making it easier for retailers to comply with the law and for state and local authorities to enforce the law.
A company wishing to sell its tobacco product in California must state whether the product has obtained FDA marketing authorization and, upon request of the AG, must provide additional information regarding the packaging and marketing. This is because in determining whether a product has a characterizing flavor, the AG is not limited to the smell or odor, but “shall [i.e., must] presume” that a product has a characterizing flavor if the company, employees, or agents have made “a statement or claim directed to consumers or to the public” that the product has a characterizing flavor, and this includes, but is not limited to, “any text, color, or images on the product’s labeling or packaging, that explicitly or implicitly communicates” that the product has a characterizing flavor.
On August 6, 2025, California Attorney General Rob Bonta announced the proposed regulations to implement the Unflavored Tobacco List and solicited public comments.
We plan to submit a public comment supporting the UTL and making some suggestions for clarifying several issues (discussed below). I am circulating our current thinking now, before we have finalized our comment, because there is a very short deadline to submit comments. The AG is issuing the UTL as an emergency regulation to avoid delay, the deadline for public comments may be as soon as August 18.
Please submit your own public comment by the deadline.
Comments must be sent simultaneously to both the California Department of Justice and the California Office of Administrative Law at the following addresses:
Department of Justice
Taylor Ann Whittemore
1515 Clay Street, P.O. Box 70550
Oakland, CA 94612
Office of Administrative Law
300 Capitol Mall, Suite 1250
Sacramento, CA 95814
More information including the text of the proposed regulations is in the Notice of UTL Regulations:
- Finding of Emergency
- Text of Proposed Regulations
- Economic and Fiscal Impact Statement (STD 399)
- STD 399 Attachment
Our current draft comment (subject to change):
We enthusiastically support the creation and implementation of the UTL because it will greatly simplify compliance with and enforcement of California’s expansive flavor ban. We offer a few suggestions on how to tighten up the regulations to further these goals.
- Modify the definition of “applicant” to explicitly include vape shops that make their own flavors, and essentially become “manufacturers.”
- Require UTL applicants to provide proof of the actual nicotine strength, since often labels do not accurately reflect the nicotine content.
- Follow the example of San Francisco Health Code sections 19R and 19S and prohibit any product that has not obtained FDA authorization to be on the UTL.
- Make information submitted by applicants publicly available to ensure transparency and the ability of scientists and researchers to confirm the unflavored determination.
- Require all applicants to submit examples of packaging as a condition of placement on the UTL.
- Prohibit flavoring agents to be added to packaging to diffuse into the (not yet flavored) tobacco product to impart a flavor to the user. (This has been done as a way to deliver menthol without putting it in the cigarette during manufacture of the stick.)
- Send notices that products are removed from UTL to all licensed tobacco product retailers.
- Provide a starting point and/or range for penalties assess for violations.
Lauren Lempert helped prepare the first draft of this comment.
Stanton Glantz blog 