Restrictions on colours and flavours of vaping products

About flavour and colouring use

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

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

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

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.

Packaging and label requirements

The names and quantities of vaping substance ingredients are required to be listed on container labels. Our expectation is that these lists will include common ingredient names rather than a full chemical breakdown of the substance. 

For a typical e-liquid (vaping substance), this will generally mean the label shows:

• glycerol or vegetable glycerine
• propylene glycol
• nicotine or a nicotine salt
• a list of the flavours used in the product (as well as the quantity of each).

A label must be securely attached to the product pack or carton but does not otherwise prescribe the form of a label. Labelling requirements can therefore be met using any form of securely attached label, such as stickers or hanging tags. Some information such as use or disposal instructions can also be provided on packaging or on an insert rather than having to be on labels.

Additives and appearance

There are also requirements relating to additives and appearance. A product can state its flavour in text, but there are prohibitions on the product looking like a food or a cosmetic product. This means, for example, that a vaping substance label can say it is strawberry flavour, but the product cannot have a feature that looks like a strawberry.

Our expectation is that there are no substantial changes to the labelling of PG:VG ratios – so if it was previously sold as 50:50 then that’s how it should be labelled now. The ratio on the notification should then reflect what’s on the label. For the lists of ingredients, the amounts listed should reflect the actual composition of the product so, for example, PG:VG could be shown as 50:50 on the label but the ingredient list could be more like PG 12ml, VG 15ml.

Warning messages on packages

A warning message is required on the front and back surface of a package. Where the package is a cylindrical container with no obvious front or back, the container may have only one label, and the warning message would only then need to be displayed once on what would be considered the front surface. 

The message must be displayed in the centre of the surface, and our interpretation is that it will be centred left-to-right (horizontally) when the container is orientated so the message can be read. We do not expect the message to also be centred vertically on the container – it can be in any vertical position provided it is clearly visible.

When calculating the reserved area for a cylindrical package, it should be at least 32% of either:

• one half of the container’s cylindrical surface area, or
• the surface area of the container’s label(s),

whichever is greater.

For a cylindrical package that is elliptical in cross-section rather than round, we would expect any label(s) to be centred horizontally on the long side of the ellipse so they can be more easily read.

Requirement 1(e) of the Product Safety Requirements for vaping substances in Schedule 5 of the Smokefree Environments and Regulated Product Regulations 2021 states that container labels must include manufacturer’s name and contact details. It is acceptable for those labels to include the name and contact details for the NZ importer rather than the name and contact details for an overseas manufacturer.

The Regulations use the term ‘insert’ to refer to leaflets included with products. Some information can be provided on inserts rather than on containers or packages (but some cannot). We also include hanging tags under the definition of an ‘insert’.

Vaping products can be sold with or without boxes. If a product has a box, then the bottle is a container and the box is a package. If there is no box then the bottle is both a container and a package.

Recycling information is permitted on the labelling, packaging or insert.

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.

References

¹https://www.taimacn.com/product/products-2-56.html

²https://shop.perfumersapprentice.com/p-6825-koolada-10-pg.aspx