California AG determines that “non-menthol” cigs are flavored and so illegal to sell in California

On April 25, 2023, the California Attorney General’s office wrote RJ Reynolds and ITG brands notifying them that several of their brands currently being sold in California are flavored and violate the California prohibition on the sale of flavored tobacco products:

• Newport Non-menthol Green
• Newport EXP Non-menthol Mix and Max
• Camel Crush Oasis Silver, Blue and Green
• Camel Crisp
• Kool Non-menthol and Kool Non-Menthol Blue

This is because the California law established a rebuttable presumption that a tobacco product is flavored where its manufacturer makes statements or claims to consumers in its packaging, labeling, and advertising that are used to explicitly or implicitly communicate (including by using text, color, and/or images) that the product is flavored.

All 5 letters include provisions similar to these from the Newport Non-Menthol Green letter:

• Labeling and packaging for Newport Non-Menthol Green uses brand names, text, and colors traditionally associated with menthol-flavored tobacco products.
• Promotional materials for Newport Non-Menthol Green use common selling message(s) with menthol-flavored tobacco products in the Newport brand line.
• Promotional materials for Newport Non-Menthol Green purposefully target users of menthol-flavored tobacco products and promote the Reviewed Products as substitutes or replacements for such menthol-flavored tobacco products.

In addition, the letters regarding Newport EXP Non-menthol, Camel Crush, and Kool include

• Promotional materials for the Reviewed Products suggest sensory taste(s) or aroma(s)
  apart from taste(s) or aroma(s) of a solely tobacco flavored product. [Example above]
  

For Camel Crisp, the letter also includes:

• Promotional materials for Camel Crisp distinguish between the taste or aroma of tobacco and other sensory taste(s) or aroma(s) in the “smoking experience” of the product, implying the inclusion of a non-tobacco taste or aroma.

And, for Camel Crush, the letter also includes:

• The Reviewed Products include a non-tobacco “capsule” in each cigarette. Labeling and packaging for the Reviewed Products attribute differentiated sensory taste effects before and after the capsule is activated. The capsules are likewise distinguished in the labeling and packaging from product to product in the Camel Crush brand line, implying differential effects from one product to another based on the capsule (and not merely from the blend or processing of tobacco).

The letters conclude

The California flavor ban law restricts the retail distribution and sale of flavored tobacco products to California consumers. Under the California flavor ban law, retailers and their agents are subject to fines for the possession and sale of such flavored tobacco products. See Cal. Health & Saf. § 104559.5(f). Other state statutes and local ordinances may impose additional penalties on retailers or other vendors as well. Id. at § 104559.5(g); see also Cal. Bus. & Prof. § 17200. To encourage uniform application of the California flavor ban law, this Notice of Determination will be posted on the California Department of Justice’s public website.

You are encouraged to provide a copy to your California distributor and retailer customers as well.

The Attorney General closes by inviting the companies to submit evidence that these products are should properly be characterized as “unflavored” and leaves the possibility open that the Attorney General’s determinations could be revised. Given that tobacco companies rarely give up without a fight (and a lawsuit), I expect this discussion to go on for a long time.

RJR and ITG Brand’s introduction of these products in California was likely a trial balloon to gauge the response the industry could expect if it markets similar “non-menthol” cigarettes if and when the FDA’s national product standard eliminating menthol cigarettes is finalized. The AG’s formal determination that these “non-menthol” products have a characterizing flavor (which the companies claim is not menthol) should facilitate FDA action now to remove these products from the market nationally based on the prohibition of non-menthol flavored cigarettes in the Family Smoking Prevention and Tobacco Control Act.

Most important, the AG’s formal determination that these products have a characterizing flavor and so violate California law and the letters’ public release represent strongly informs and supports California’s local enforcement efforts to end the sale of these illegal products.