RJR uses California as test market for skirting upcoming national menthol cigarette ban

Sales of cigarettes that mimic menthol are soaring in California after the state outlawed most flavored tobacco — a sign that the industry is undermining the new law and raising doubts about the Biden administration’s plans to ban menthol cigarettes later this year.

R.J. Reynolds launched its “California compliant” cigarettes, which contain an artificial, flavorless cooling chemical, when the state’s ban went into effect in December. By March, sales of the new cigarettes were on pace to replace nearly half of menthol sales compared with last year, according to an expert who tracks cigarette sale trends.

The success of the new cigarettes in California comes ahead of an expected federal Food and Drug Administration menthol cigarette ban this year. State and federal officials have long viewed eliminating these cigarettes as key to lowering smoking rates because their cooling effects make inhaling smoke more palatable. But if authorities aren’t prepared to police new tobacco varieties that emerge in response to the ban, it’s far from certain that government flavor prohibitions will prompt smokers to quit.

Menthol cigarettes make up nearly 40 percent of cigarette sales and are particularly popular in minority communities. About 90 percent of Black smokers report using menthol products.

RJR, whose Newport brand is one of the most popular menthol cigarettes on the market, has been packaging its new cigarettes in blue and green boxes — similar to its menthol predecessors — and aggressively marketing them to menthol smokers.

“It's definitely a test case,” for tobacco companies to figure out how to offset lost sales as the government moves to outlaw menthol cigarettes, said Alex Liber, an assistant professor in the department of oncology at Georgetown University’s School of Medicine who studies tobacco sale trends.

Though RJR’s new cigarettes haven’t entirely replaced the state’s quashed menthol market yet, sales are “rapidly rising,” Liber said.

Luis Pinto, an RJR spokesperson, said the company’s new products don’t violate California state law because they don’t have a distinguishable taste or aroma other than tobacco. He added that the FDA cleared these products for market, and declined to elaborate.

RJR sold 2.8 million packs of Camel-branded menthol cigarettes and 2 million packs of Newport-branded menthol cigarettes in California in March 2022, according to Liber’s data. This year, Camel sold 1.4 million “California compliant” packs, and Newport sold about 800,000 “California compliant” packs.

“The rate of increase month-on-month was huge, effectively starting from zero in December when the [state] ban came into place,” Liber said. “This figure will grow in … April and May of this year.”

Both the California Department of Public Health and the California Department of Justice say they’re aware of the new products, but public health doesn’t have the power to enforce the ban and the state attorney general wouldn’t comment on a potential investigation.

Abigail Capobianco, an FDA spokesperson, declined to comment on RJR’s new cigarettes. But she said that at the federal level, the final rule banning menthol cigarettes will be comprehensive. “The final rule will take into consideration all of the public comments, including comments on compliance and enforcement of the rule, such as how [the tobacco industry] may attempt to evade the requirements of the rule,” she said. The ban is expected in August of this year.

What’s flavored tobacco?

California law defines a flavored tobacco product as any product that has 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.”

There is no federal definition of flavor in tobacco products, but in the proposed language for a national menthol cigarette ban, the FDA defines flavor as “the multisensory experience ( i.e., taste, aroma and cooling or burning sensations in the mouth and throat) of a flavor during use of a tobacco product.”

“On the proposed federal menthol ban, we strongly believe there are more effective ways to deliver tobacco harm reduction than banning products,” Pinto added.

Legal experts said the only way these new cigarettes could be sold in California is if they don’t raise new public health issues. They point to the FDA’s substantial equivalence marketing authorization — a pathway for tobacco companies to bring a new product to market that has either the same traits as existing products or is a similar product with minor changes.

“The FDA is the entity that should enforce this problem,” said Desmond Jenson, the deputy director of the commercial tobacco control program at the Public Health Law Center. “But it is also the unfortunate truth that the FDA created this problem by authorizing these products.”

Menthol is a naturally occurring chemical in some plants with a minty flavor. It provides a cooling sensation on the body surfaces it touches, which makes it easier for the user to inhale the burning tobacco. They aren’t inherently more harmful than traditional tobacco cigarettes, but they do make it easier to start smoking and they make it harder to quit, according to the CDC.

Sairam Jabba, a senior research scientist focusing on tobacco regulatory science at Duke University, said that the reason RJR’s new products don’t seem to violate California’s flavor ban is because the state’s flavor definition is vague. “It gives a lot of room for these tobacco companies to go around and add chemicals like the synthetic cooling agents that don’t have a specific aroma or taste, but have the same pharmacological effects as menthol,” he said.

‘California compliant’

RJR says some of its new products, like the Camel Crisp, contain a lab-made chemical called ethyl menthane carboxamide, or WS3. That chemical has less of the minty odor than menthol, but it gives the body the same cooling, soothing effect as conventional menthol cigarettes.

Other new “California-compliant” cigarette products don’t list WS3 as an ingredient, but RJR’s spokesperson declined further comment, explaining that the company considers many of its ingredients to be proprietary and is only required to list them under a cover-all description of “natural and artificial flavors.”

In some ways, the vague language of flavored cigarette product definitions is intentional, some experts said. “The last thing that a regulator would want to do … is come up with a definition that inadvertently excluded something that should have been included,” said Mitch Zeller, the former head of the FDA’s Center for Tobacco Products.

“People were completely blindsided by it, and they’re trying to figure out what to do,” said Phillip Gardiner, co-chair of the African American Tobacco Control Leadership Council, a group that advocates to remove flavored tobacco products.

The state of play in California doesn’t bode well for the forthcoming federal ban of menthol cigarettes, either, when the responsibility of enforcement will shift to the FDA.

More than a few federal lawmakers said the FDA’s track record for clearing the market of illegal tobacco products has been dismal. Last month, Senate Majority Whip Dick Durbin (D-Ill.) wrote to the head of FDA and the Department of Justice to ask why the agencies have failed to remove hundreds of vapes without marketing authorization from store shelves. And in March, Rep. James Comer (R-Ky.), chair of the House Committee on Oversight and Accountability, said the committee is probing the FDA’s Center for Tobacco Products in part over its failure to clear the market of unauthorized tobacco products. The FDA said it would address Durbin privately, and did not comment on the CTP investigation. The DOJ did not respond to an inquiry about Durbin’s request.

It’ll be challenging to enforce a flavored cigarette ban “as there is a population of people, who want mentholated products,” said Dave Dobbins, a former chief operating officer of the Truth Initiative, an advocacy group that focuses on reducing youth smoking, who now consults for the tobacco company Altria.