In 2023 RJR Tobacco sued California AG Rob Bonta trying to block his decision that RJR’s “non-menthol” cigarettes (example1, example2) were included in California’s prohibition on the sale of flavored tobacco products.
RJR argued that these products were not “flavored” because the cooling sensation they delivered was provided with the chemical WS-3, which did not have a taste. (Scientists recognize that “flavor’ is generated through the interaction of three senses: taste, aroma, thermal coenesthetic sensation.)
Even though the formal definition of “flavor” in the original California flavor ban did not explicitly include “cooling,” AG Bonta determined that these products were illegal in California because of the products’ labeling, packaging, and promotional materials. The California flavor ban law establishes a rebuttable presumption that a tobacco product is flavored where its manufacturer “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.”
RJR then sued saying that the AG made an error in categorizing its “non-menthol” cigarettes as “flavored” because WS-3 did not have a taste or aroma.
In September, 2024, California Governor Gavin Newsom signed two new laws, California AB 3218 and SB 1230, that eliminated any argument as to whether sale of these ”non-menthol” products are prohibited by the law. The new laws, which took effect January 1, 2025, were guided by the experience of the Attorney General’s office in dealing with how the tobacco companies were trying to skirt the law.
AB 3218 helps ensure full compliance of the flavored tobacco ban by:
- Establishing a publicly available list of all unflavored tobacco products that are permitted to be sold in the state. It is illegal to sell tobacco products that are not on this list. Significantly, the burden is placed on the companies to demonstrate that the products are unflavored and thus can make it to the list of products that may be sold in California, rather than on the AG to prove that the products are flavored and thus illegal.
- Authorizing the Attorney General to seek civil penalties against sellers for selling products not appearing on the Unflavored List.
- Rendering products not appearing on the Unflavored List subject to seizure, aiding in enforcement efforts by state or local law enforcement agencies.
SB 1230 clarifies who can enforce the law and establishes penalties for violations.
In December 2024, the AG issued two bulletins, one detailing characteristics of prohibited products, and another detailing penalties for violations. These materials will further strengthen enforcement and provide excellent models for other jurisdictions.
In particular, the definition of “characterizing flavor” was expanded to explicitly include cooling sensations. Now, California law states: “Characterizing flavor” means a taste or odor, distinguishable by an ordinary consumer either prior to or during the consumption of a tobacco product, other than the taste or odor of tobacco, including, but not limited to, tastes or odors relating to any fruit, vanilla, chocolate, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice, or a cooling sensation distinguishable by an ordinary consumer during the consumption of a tobacco product [emphasis added].”
Perhaps as a result, RJR dropped its lawsuit on December 30, 2024.
RJR reported that the law was working even as it fought against the law in court
In its suit, RJR reports (on pages 24 and 25):
- On April 25, 2023, the Attorney General’s Tobacco Control Unit sent “Notices of Determination” letters formally notifying RJRT that Camel Crisp, Newport EXP Non-Menthol Mix; Newport EXP Non-Menthol Max and Newport Non-Menthol Green, which use WS-3, were considered “flavored” and illegal to sell in California (paragraph 81).
- Within days of the publication of the Notices of Determination, the City of Ukiah directed sent a retailer the Notices of Determination and directed that retailer remove the WS-3 Products [non-menthol cigarettes] or the agent would return with a citation for the retailer.
- Costco—one of RJRT’s largest California customers, accounting for approximately 18% of RJRT’s California sales of the new products—decided to pull all of the WS-3 Products from its sales floors. Costco pulled the “non-menthol” cigarettes from the floor, and shrink wrapped together and with a label Do Not Sell.” Costco has sought to return these items to RJRT at RJRT’s expense.
- On May 9, 2023, 7-Eleven instructed company-owned stores to remove all existing stock and to stop selling the WS-3 Products. One of 7-Eleven’s product directors sent an email to the franchisees titled “California Flavor Ban Update” in which he expressly cited the WS-3 Notices of Determination and informed the franchisees that the Attorney General had issued a warning letter to RJRT stating that the WS-3 Products “violated the state’s new law prohibiting the sales of flavored tobacco products.”
- On May 20, 2023, Sam’s Club removed all existing stock and stopped selling the WS-3 Products.
- On May 12, 2023, Walmart informed RJRT that it was reversing its decision to stock and sell the WS-3 Products based on the WS-3 Notices of Determination as well.
- In early May 2023, one of 7-Eleven’s product directors sent an email to the company-owned stores, as well as franchisees, titled “California Flavor Ban Update” that stated that “[s]tores in cities or counties that have issued warnings have already been notified with recommendations to remove the impacted product from the shelves.” It went on to recommend that “[i]f your store is visited by an enforcement agency or is notified about selling restricted products, remove from the shelves immediately.” And, addressing franchisees, the email noted that “[i]t is each Franchisee’s responsibility to ensure that their store complies with all applicable laws, including laws concerning the sale of tobacco products.”
- On May 4, 2023, an RJRT representative contacted a Walmart representative to explain RJRT’s position that the WS-3 Notices of Determination were issued in error and that the WS-3 Products were lawful in California. On May 12, 2023, the Walmart representative responded, stating: “Just wanted to give you a heads up that after the meeting with our compliance and legal teams we are not going to be including these Menthol alternative items in our [modular] for California.
- On May 17, 2023, an RJRT representative contacted a Sam’s Club representative, explaining RJRT’s position that the WS-3 Notices of Determination were issued in error and that the WS-3 Products were lawful in California. On May 20, 2023, the Sam’s Club representative responded, stating “The products are being put on pull and hold and blocked from being able to sell them.”
In addition, in a footnote on page 12 RJR reported, Camel Crush Non-Menthol Oasis comprising Camel Crush Non-Menthol Oasis Blue Box, Camel Crush Non-Menthol Oasis Green Box, and Camel Crush Non-Menthol Oasis Silver Box were no longer being marketed.
All this progress occurred before the improved legislation was enacted and took effect.
Stanton Glantz blog 