Sun, it is not technically correct that Njoy would be required to take this action. I agree that Njoy is taking this action to try to better its position, but it is not actually required by law, even if the ecig is deemed to be a "tobacco product".
For the statutory ban on characterizing flavors is actually limited to "cigarettes", as specifically defined in law, and loose tobacco intended to be used in cigarettes; it does not extend to all "tobacco proucts".
Here is what the FDA says about this in its guidance document about the characterizing flavors ban:
2. What products are covered?
Several key definitions in the law define which products are covered.
The ban applies to all tobacco products that meet the definition of a cigarette in section 900(3) of the FDCA even if they are not labeled as cigarettes or are labeled as cigars or as some other product.
Specifically, section 900(3) defines cigarettes as:
(3) CIGARETTE.The term cigarette
(A) means a product that
(i) is a tobacco product; and
(ii) meets the definition of the term cigarette in section 3(1) of the Federal Cigarette Labeling and Advertising Act; and
(B) includes tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette or as roll-your-own tobacco.
(4) CIGARETTE TOBACCO.The term cigarette tobacco means any product that consists of loose tobacco that is intended for use by consumers in a cigarette. Unless otherwise stated, the requirements applicable to cigarettes under this chapter shall also apply to cigarette tobacco.
This definition refers to a provision of the Federal Cigarette Labeling and Advertising Act which defines the term cigarette as:
(1) The term cigarette means
(A) any roll of tobacco wrapped in paper or in any substance not containing tobacco, and
(B) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in subparagraph (A).
General Questions and Answers on the Ban of Cigarettes that Contain Certain Characterizing Flavors
The FDA goes on to say, for example, that the flavor ban does not apply to pipe tobacco.
Ecigs, although their liquid
might be ruled a "tobacco product" due to being derived from tobacco, do not meet the definition of "cigarettes" as seen above, so they would not automatically fall under the characterizing flavor ban (at least as currently written).
