“Non-menthol” is a characterizing flavor, so illegal to sell in California

California law (SB793, upheld against an RJ Reynolds’ referendum) prohibits the sale of flavored tobacco products. In response, RJ Reynolds and ITG Brands introduced “non-menthol” cigarettes to try and evade the law. While most discussion has concentrated on the fact that these products are marketed just like menthol brands (which, by itself, is enough to conclude that they violate California law), a careful analysis of the physiology of taste and flavor shows that “non-menthol” is, itself, a characterizing flavor, and so illegal to sell in California.

The new report Scientific Basis for Concluding the Newly Introduced California “Non-Menthol” Cigarettes Have a Characterizing Flavor details, based on the physiology of flavor and taste, why the new “non-menthol” cigarettes deliver a characterizing flavor.

Many erroneously believe that taste relates only to the sensation induced by a flavor chemical on the tongue (gustatory sense) and nose (olfactory sense). In fact, a third sensory system is an integral contributor to flavor sensory perception: the somatosensory system. This dense array of nerves conveys “mouth feel” information regarding temperature, texture, pungency, astringency, and irritation to the brain which integrate with gustatory and olfactory input to form the perception of flavor.  Temperature perception is modulated via two specific receptors TRPM8 (cold) and TRPV1 (hot).

From 1981 RJR report.

This is something that the tobacco industry has understood for a long time, and used to design cigarettes. For example, a 1981 RJ Reynolds report, “The Trigeminal Effect [another name for the somatosensory system] as It Relates to Sensory Attributes of Tobacco Products” cited then-recent academic research which that necessitated “a complete revision of the concept of taste chemistry.” Regarding the somatosensory impact, which the author described as the “feel” of tobacco, the RJR report (see chart) concluded: “It is my contention that a very positive effect upon the trigeminal system is responsible for a large part of the widespread acceptance of tobacco products.” The report cited research which deemphasized the importance of gustatory and olfactory senses and suggested that the trigeminal sensation is a primary driver of the “wide usage” of tobacco products. 

The Flavor and Extract Manufacturers Association (FEMA), which represents flavor manufacturers, flavor users, flavor ingredient suppliers, and others, also recognizes the importance of the somatosensory system. FEMA defines flavor as: “Flavor is the entire range of sensations that we perceive when we eat a food or drink a beverage. Flavor encompasses a substance’s taste, smell, and any physical traits we perceive in our mouths, such as “heat” (for example, cinnamon) or “cold” (for example, spearmint).”

California law (SB793) defines a characterizing flavor as: “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.”

The newly introduced Camel, Newport, and Kool cigarettes induce a strongly perceived cooling sensation caused by the addition of synthetic cooling agents.   Because there is broad consensus among sensory scientists, the tobacco industry, and flavor industry professional organizations that the chemesthetic sense is an integral component of flavor perception, these “non-menthol” cigarettes have a characterizing flavor as defined in SB 793 and, so, are illegal to sell in California. 

Clarifying the characterizing flavor applicability to cooling agents is much more than merely a California issue.  The tobacco industry likely views its California launch of “Non-Menthol” cigarettes as a test case for a national roll out should the FDA, as expected, issues a product standard to prohibit menthol cigarettes nationally.

In fact, the Family Smoking Prevention and Tobacco Control Act already prohibits the sale of all cigarettes with characterizing flavors other than menthol. Because “non-menthol” is a characterizing flavor, these cigarettes are also currently illegal under federal law. The FDA needs to pull them off the market now, regardless of what it does on the menthol cigarette product standard.

Note: While best known among tobacco control professionals for his important work on tobacco marketing, Robert Jackler is a head and neck surgeon and neurologist, so he knows the biology.

Published by Stanton Glantz

Stanton Glantz is a retired Professor of Medicine who served on the University of California San Francisco faculty for 45 years. He conducts research on tobacco and cannabis control and cardiovascular disease/

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