After getting crushed at the ballot box and rebuffed by the Supreme Court, RJ Renolds is still trying to slither around California’s prohibition on the sale of flavored tobacco products. In addition to introducing Camel “ice” cigarettes, it is now promoting “Non-menthol Kool” only in California (screenshot of their website above).
The packaging and promotion of this “Non-menthol Kool” looks remarkably similar to the “Menthol Kool RJR” has been selling in California and around the rest of the country:
This is exactly the same trick the industry tried in Canada after Ontario banned menthol cigarettes (study1, study2) as well as following menthol bans in the UK and EU (Denmark). In addition, previously secret internal tobacco industry documents show that Reynolds (together with the other tobacco companies) know that the color of the pack communicates a characterizing flavor independent of the physical tobacco and additives in the cigarette. Green means menthol.
Regardless of whether or not the “California” versions of these Kool cigarettes include menthol, they are still illegal to sell in California.
Here’s what the law says:
104559.5. (a) For purposes of this section, the following definitions apply:
(a)(1) “Characterizing flavor” means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a characterizing flavor.
(9) “Packaging” means a pack, box, carton, or container of any kind, or, if no other container, any wrapping, including cellophane, in which a tobacco product is sold or offered for sale to a consumer.
(b) (1) A tobacco retailer, or any of the tobacco retailer’s agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer.
(b)(2) There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.
The California Department of Public Health has useful information for tobacco retailers on how to implement the law.
California AG Rob Bonta needs to remind Reynolds and, more important, tobacco distributors and retailers that selling these cigarettes is illegal. Indeed, the law was written with these kinds of tricks (and “ice” cigarettes) in mind.
Thanks to Rob Jackler for bringing this to my attention. He has distributed a useful Power Point with examples of the ads for both the ice and menthol brands and more examples from mailers, e-mails, social media posts, and the camel.com website.