How Retailers Can Prepare for E-Liquid Flavor Ban

A NACS Q&A seeks to address retailer concerns about compliance and unsold stock.

January 17, 2020

ALEXANDRIA, Va.—The deadline to remove all e-cigarette flavors, except menthol and tobacco, from store shelves is less than a month away, and retailers understandably have questions about how to handle unsold stock in the interim. NACS has prepared a Q&A to address some of these concerns.

The U.S. Food and Drug Administration (FDA) January 7 published its final guidance banning flavored cartridge- and pod-based e-cigarettes, except for tobacco and menthol flavors. The guidance permits the sale of e-liquid flavors used in open vaping systems and in disposable, single-use vape products. The agency on January 15 published its guidance on enforcement priorities for electronic nicotine delivery systems (ENDS).

Q: When does the ban go into effect?

A:  Stores must remove pod- and cartridge-based e-cigarettes, except for tobacco and menthol flavors, from their shelves by Thursday, February 6, 2020. Retailers can continue to sell e-liquid flavors used in open vaping systems and flavored disposable, single-use vape products.

Q: What happens if retailers still have the banned flavored cartridge-based and pod-based e-cigarette products on the premises—but not available for sale—as of February 6?

A: The guidance does not address this question directly. It only states that sale of the products in question to consumers will be prohibited as of February 6. It does not prohibit the possession of those products in stores.  But, retailers should take precautions to ensure that products are removed from stores as soon as possible to prevent any inadvertent sales.

Q: What should retailers do with the unsold stock?

A: Retailers should follow their own operational best practices for storing, handling and disposing of unsold stock that has been adulterated/recalled/banned or otherwise not permitted for sale. In general, products should not be in view of customers and should be packaged, sealed and secured within an area of the store or warehouse that the public cannot access until the products can be returned to the manufacturer.

Q: How should retailers inform customers of the change?

A: Store signage can help alert customers to the flavor ban. NACS has prepared a simple black and white sign for downloading and printing. Download the sign here. The text reads:

PLEASE NOTE On January 7, the U.S. Food & Drug Administration published guidance banning the sale of certain flavored cartridge-based and pod-based e-cigarettes. Effective February 6, 2020, we are no longer allowed to sell flavored cartridge-based e-cigarette products with the exception of tobacco and menthol flavors.

Q: How does the FDA intend to enforce the ban?

A: The FDA said it “will make enforcement decisions on a case-by-case basis, recognizing that it is unable, as a practical matter, to take enforcement action against every illegally marketed tobacco product, and that it needs to make the best use of Agency resources.”

Q: How will the FDA prioritize enforcement?

A: For electronic nicotine delivery systems (ENDS) products marketed without FDA authorization (and retailers who sell them), the agency said it intends to prioritize enforcement against:

• Any flavored, pod-based or cartridge-based ENDS product (other than a tobacco- or menthol-flavored ENDS product);

• All other ENDS products for which the manufacturer has failed to take (or is failing to take) adequate measures to prevent minors’ access; and

• Any ENDS product that is targeted to minors or whose marketing is likely to promote use of ENDS by minors.

The FDA said it “intends to prioritize enforcement of any ENDS product that is offered for sale after May 12, 2020, and for which the manufacturer has not submitted a premarket application (or after a negative action by FDA on a timely submitted application).”

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