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Here Are the Deceptive Ways Cigarette Companies Are Getting Around California’s Flavored Tobacco Ban

2:04 PM PST on January 5, 2023

    Flavored tobacco is banned statewide in California but big tobacco is already coming up with clever ways to circumvent the new law and continue to appeal to their loyal menthol cigarette smokers.

    In recent months, The R.J. Reynolds Company—the second largest tobacco conglomerate in the country—rolled out at least three new alternatives to menthol cigarettes under their Newport and Camel brands.

    From a design and marketing standpoint, these new non-menthol cigarettes look almost indistinguishable from the menthol versions that California residents voted to ban last year.

    But underneath the green packaging and deceptive marketing, in most cases, are a pack of 20 cigarettes that taste more like regular cigs rather than the mint flavor associated with menthol.

    One exception is Camel’s new line of “non-menthol” Camel Crush cigarettes. They come in black, green, and blue box almost identical to their menthol version. And the cigarettes inside feature a tiny blue “capsule” in the filter. When “crushed,” the capsule releases an oily, sweet-smelling substance into the filter that’s similar to menthol. Each puff gives you a slightly sweet drag that gives off candy notes.

    The new “oasis” Camel Crush cigarettes were launched in response to California’s flavored tobacco ban. “We’ve got you,” one of R.J. Reynolds’ ads for the new cigarettes reads. “The California menthol ban passed…we know it’s tough. We crafted two new non-menthol styles for you to choose from.”

    In a 2020 application submitted to the U.S Food and Drug Administration (FDA) about a month after the California Legislature voted to ban flavored tobacco, R.J Reynolds sought an exemption for a new line of “non-menthol” Camel Crush cigarettes. The only modifications made to the cigarettes were: taking out the menthol capsule and replacing it with an “alternative menthol capsule.” 

    The following year, the FDA sided with R.J. Reynolds and concluded that the modifications made to their non-menthol capsule were so “minor” the new product shouldn’t have to go through an additional review. The FDA agreed that the new additive “is not expected to have any significant effects on product chemistry or a change in characterizing flavor.”

    When asked, Los Angeles Police Department spokesperson Captain Kelly Muniz said in a statement that the department has been “proactively educating licensed tobacco retailers within the City of Los Angeles” by conducting “site inspections” and passing out “informational literature and contact phone numbers.”

    Under California’s new flavored tobacco law, most tobacco products sold in the state at retail locations and vending machines can no longer have a “characterizing flavor” (premium cigars and hookah are exempt). That means the tobacco in a cigarette can’t taste or smell like coffee, honey, alcohol, spearmint, fruit, candy or any other “distinguishable flavor or smell.” The FDA is also considering a similar proposal to ban menthol as a “characterizing flavor” federally.

    But some activists feel that California’s law and the FDA proposal doesn’t go far enough since neither prohibits menthol and all its analogs as an ingredient. And tobacco companies are notorious for finding loopholes.

    According to the Center For Disease Control (CDC), “Almost all the cigarettes sold in the United States contain some natural or lab-created menthol. However, there is usually more menthol in cigarettes marketed specifically as ‘menthol’ compared to other cigarettes.” So even though new “non-menthol” Newports being sold in California don’t taste like menthol, they almost certainly still contain the chemical.

    Menthol is an important ingredient in many ‘non-menthol’ cigarettes,” a group of professors at the University of California San Francisco and other universities explained in a public comment submitted to the FDA. The menthol is added, “to increase addictiveness.”

    “Under the [FDA] rule as proposed, tobacco companies could evade the intent of the rule and continue to add menthol to cigarettes as an ingredient, additive, or constituent to maximize their addictiveness if they simply stopped calling them ‘menthol cigarettes,’” the group of professors wrote.

    Brian King, Director of the Food and Drug Administration’s Center for Tobacco Products, agrees that “policies based on ‘characterizing flavor’ might not cover [ingredients] added by the manufacturer that provides a cooling sensory experience (similar to menthol) that can increase appeal, but are not the characterizing flavor.”

    ‘What’s The Point?’

    Locally, some retailers have cleared their shelves of flavored tobacco entirely, which accounts for the majority of their tobacco inventory in many cases. Other stores are replacing their menthol cigs with the new Camel and Newport “non-menthol” cigarettes. And some shops risk potential fines and continue to sell flavored tobacco products indefinitely or until they run out of inventory.

    A store clerk at a smoke shop in Filipinotown said earlier this week they don’t think the ban will impact their business if manufacturers can find loopholes to continue offering products that appeal to menthol smokers and flavored blunt enthusiasts. For now, you can still see (real) menthol Newports and flavored Swishers behind their register but they don’t plan to restock those products after their inventory runs out.

    An employee working at a liquor store on Broadway in Lincoln Heights was under the impression that retailers have a “grace-period” to clear out their inventory until the end of the month.

    A woman working at another tobacco retailer in Lincoln Heights was in the process of clearing their shelves of menthol cigs on Tuesday and declined to sell an L.A. TACO reporter a pack. 

    As of the new year, shops that violate California’s new flavored tobacco ban could face fines of up to $250 per violation but it’s unclear exactly how the new law will be enforced locally.

    When asked, Los Angeles Police Department spokesperson Captain Kelly Muniz said in a statement that the department has been “proactively educating licensed tobacco retailers within the City of Los Angeles” by conducting “site inspections” and passing out “informational literature and contact phone numbers.” Muniz added that the “Los Angeles City Attorney's Tobacco Unit is in the process of planning education and enforcement strategies for 2023.” According to Muniz, retailers had until the end of December to clear their shelves of flavored tobacco products.

    The owner of a family-run liquor store in Filipinotown says they’re not going to bother with the new non-menthol cigs. Instead, they plan to find a new revenue stream to make up for the 10 percent or so they’re losing on tobacco. “If they don’t taste like menthol, then what’s the point,” they wondered.

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