In addition to suing California on a last ditch attempt to block California’s ban on sale of flavored tobacco products that was overwhelmingly endorsed by the voters, RJ Reynolds (BAT’s US subsidiary) has sent mailers to smokers promoting new “non-menthol” cigarettes that taste like menthol (pictures above).
Desmond Jenson from the Public Health Law Center described why California should see through this transparent trick:
The [day after voters confirmed the ban], RJ Reynolds announced a “new” product. It’s a capsule cigarette under the Camel Crush brand, except it’s being advertised as non-menthol. However, it’s also claiming to be “crisp” and also a “tropical oasis” so, seems like there’s a characterizing flavor in there somewhere. If so, it’s still a violation of California law and a bunch of other state and local laws all over the country.
You may also be wondering how RJR can be introducing a new cigarette. Well, the FDA already authorized it: I’m not entirely able to describe how I feel about this. Somewhere between disappointed and furious. Essentially, the FDA has authorized what is likely a synthetic cooling agent, similar enough to menthol that RJR thinks it will be a replacement for its menthol varieties. The FDA has concluded, as a matter of law, that “alternative menthol” is close enough to menthol that RJR doesn’t even need to file a full [substantial equivalence] report, just an exemption request.
Now, I’m sure this sort of flew below the radar when the order came out in January 2021 but [FDA Center for Tobacco Products] needs to look at this order again and rethink this decision immediately. If the FDA wants to be a leader, this is the kind of mistake you need to fix when it’s pointed out.
As for California, if this capsule is so similar to menthol that FDA says it’s basically identical, you can’t possibly argue that it’s not a characterizing flavor if menthol is also a characterizing flavor. California is aware of what’s going on here and I have no doubt they’ll fight this. They should win but I think what RJR is hoping is that getting into a fight about ingredients bolsters the argument that this is actually a product standard and not a sales restriction. It’s still not and here’s hoping the Supreme Court agrees.
While RJR’s application to FDA should block any claims that sale of these products would be legal in California, it also raises yet another serious question about whether FDA is basing its product authorization decisions on the best available current science because these cooling agents are toxic.
RJR’s attempt to get around the California law with these products also provides more evidence why FDA should not simply prohibit menthol as a characterizing flavor, but as an ingredient. FDA also need to extend the proposed menthol ban to menthol and menthol analogues to close the door to tricks like this and post-market products to add menthol to cigarettes (see “Menthol Additions Following Removal from the Market” [pages 368-377 from Advertising Created & Continues to Drive the Menthol Tobacco Market: Methods Used by the Industry to Target Youth, Women, & Black Americans).
The bottom lines:
- The California Attorney General should immediately notify Reynolds that continue to see these products is illegal under California law.
- FDA should rescind authorization for these products and see that menthol and menthol analogues be prohibited in its pending menthol product standards.