As flavours and colours may make products more attractive to children and young people, there are some restrictions on these for notifiable products:
- the use of colourings in notifiable products is completely prohibited in New Zealand
- retailers are not generally allowed to sell vaping or smokeless tobacco products that contain a clearly noticeable smell or taste (‘a flavour’) that is not tobacco, menthol, or mint
- however, an approved specialist vape retailer is permitted to sell any flavour of vaping substance from their approved vaping premises or approved internet site.
- see below for information about the new restrictions introduced on the flavour descriptions on products and their packaging.
- Example 1
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If an e-liquid called ‘mango mint’ clearly tastes or smells of both mango and mint then it cannot be sold by a general vape retailer as it contains a prohibited flavour (i.e. mango, which is a fruit flavour).
- Example 2
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If the only clearly noticeable taste or smell from that same e-liquid was mint then, despite its name, its sale would be permitted (although the use of the name ‘mango mint’ will be prohibited when the new restrictions on flavour descriptions come into force (see below), and it could also be prohibited under the Fair Trading Act if it makes a false representation about the flavour of the e-liquid).
- Example 3
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If a heated tobacco product has clearly noticeable tastes or smells of both mint and tobacco, its sale would be permitted as both those flavours are permitted.
Restrictions on flavour descriptions
The 2023 amendment to vaping regulations introduced new restrictions on the flavour descriptions vaping products may have. The variant name on a vaping product must only describe the actual flavour of the vaping product using 1 or 2 flavour names listed in Schedule 4A of the Regulations. The flavours are also listed in the table below.
There is a ‘sell-through’ period allowing you to sell or return the stock you may still have that does not meet the new requirements.
From 21 October 2023, manufacturers and importers of notifiable products must only notify products that comply with the new flavour descriptions.
From 21 March 2024, manufacturers, importers, retailers, and distributors must only sell products that use permitted flavour descriptions.
- Flavour list
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Tobacco Pepper Grape Strawberry Menthol Spice Guava Tropical Mint Cappuccino Kiwifruit Watermelon Peppermint Coffee Lemon Caramel Spearmint Espresso Lime Chocolate Almond Latte Lychee Cream Hazelnut Tea Mango Custard Nut Apple Orange Honey Oat Banana Passionfruit Sour Peanut Berry Peach Sweet Pecan Blackberry Pear Vanilla Cinnamon Blueberry Pineapple Unflavoured Clove Cherry Plum Licorice Citrus Pomegranate Nutmeg Coconut Raspberry
Non-menthol synthetic cooling agents
Regulation 69A of the Smokefree Environments and Regulated Products Regulations 2021 (the Regulations) places restrictions on variant names that can be used on vaping products and their packaging.
From 21 October 2023, when a vaping product is notified, its variant name must describe the actual flavour of the vaping product using only 1 or 2 flavour names listed in Schedule 4A of the Regulations.
From 21 March 2024, the variant name of all vaping products sold in NZ must comply with the new requirements – this allows six months for existing stock with non-compliant variant names to be sold-through.
Common descriptors for synthetic cooling agents such as ‘ice’, ‘polar blast’ and ‘winter’ are not considered actual flavour names and are therefore not included in Schedule 4A.
The exclusion aligns with marketing material from manufacturers and vaping substance suppliers, who promote synthetic coolants such as WS-23 or Koolada as ‘flavourless’, or ‘odourless and tasteless’.1 2
The Smokefree Environments and Regulated Products Act 1990 (the Act) classes a ‘flavour’ as a clearly noticeable smell or taste resulting from an additive, which means cooling agents that are essentially odourless and tasteless are not a flavour for the purposes of the Act.
Synthetic cooling agents can still be used in a vaping product providing the notifier assesses the risks of using them and confirms that the product doesn’t pose an unacceptable risk to people’s safety.
As cooling agents are non-flavour additives, clause 5 of Schedule 5 of the Regulations requires the notifier to carry out a toxicological risk assessment before they determine that products containing them are safe.
This has been a requirement since the Regulations came into force between August 2021 and February 2022.
Safety data sheets for ingredients in vaping products are readily available from product manufacturers and vaping substance suppliers, which include toxicological information which could support a toxicological risk assessment.
If synthetic cooling agents are added to a product, the product’s packaging can include text or images to depict its ‘cooling’ effect, as long as the packaging complies with all relevant legislation, such as regulation 70 of the Regulations.
1https://www.taimacn.com/product/WS-23-Cooling-Agent.html
2https://shop.perfumersapprentice.com/p-6825-koolada-10-pg.aspx