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63 About this deal
Cigarette flavours, excluding menthol, were banned US-wide in 2009 as part of the Tobacco Control Act. At this time menthol represented nearly one third (27%) of the cigarette market. 7 8 By 2018, 36% of cigarettes sold in the US were menthol, and less than 1% of the US population lived in areas where menthol cigarettes were banned. 8 9
Taken altogether, these activities to minimise the impact of the characterising flavours ban to smokers prove once again that maintaining the status quo and protecting profits remain the key motives of the tobacco industry. The tobacco industry claimed that stopping convenience stores selling menthol cigarettes as planned in Minnesota (by restricting their sale to adult only tobacco and stores selling alcohol) would lead to catastrophic financial and job losses. However independent research suggested losses would be six times smaller: tobacco does not drive use of convenience stores as much as the tobacco industry claims. 15 a b Food and Drug Administration, Tobacco Product Standard for Characterizing Flavors in Cigars, May 2022 Centers for Disease Control and Prevention, Office on Smoking and Health Summary of Scientific Evidence: Flavored Tobacco Products, Including Menthol February (United States, 2021) Menthol in cigarettes is well known to increase the appeal and attractiveness of smoking, which can facilitate initiation, sustain regular use and deter quitting. 1–3 Through its unique sensory properties, including activating the ‘cooling’ receptors in the brain, menthol can mask the harshness of tobacco smoke on the throat and mouth, thereby making tobacco products more palatable, and inhalation easier. 4 Menthol cigarettes have also contributed to widening health disparities, as they are used disproportionately by adolescents, women, racial/ethnic minority groups and other populations who have been selectively targeted by tobacco industry marketing. 1 5
Industry Opposition to Menthol Bans in the US
Unlike other EU countries, menthol’s share of the market grew in Poland and the UK after the ban was announced in 2016. One year after the Canadian ban in 2017, 24% of menthol smokers in Ontario had quit smoking. In England, 17.5% of menthol smokers said they would quit following the flavourings ban in May 2020. a b M.Banks, Member states urged to do more to enforce new tobacco legislation, eureporter, 1 April 2021, accessed August 2021 To be efficient, bans on flavoured tobacco products should prohibit menthol and other ingredients with flavour properties, as ingredients. Consequently, authorities are not placed in a position to prove whether a flavour is characterising. Banning menthol as an ingredient will also end tobacco companies’ use of menthol for its pharmacological effects. Internal tobacco industry documents reveal that even subliminal levels of menthol may decrease the harshness of tobacco smoking by making the smoke more ‘smooth’ 22 and that these properties appeal to novice smokers. 23 Other ingredients that have the potential to mask the irritating effect of tobacco smoke, such as ingredients that produce a cooling effect, should also be banned. Moreover, legislation should encompass all tobacco products to avoid the substitution of one product with another. To be comprehensive, the legislation should also prohibit flavoured tobacco accessories and filter modifications which may enable tobacco companies to circumvent the flavour ban. These recommendations should be considered in the revision of the EU TPD. The revised TPD should at least make it clear that member states may go beyond the directive provisions to protect public health.
The Irish Times reported that JTI were selling a “green” version of their Silk Cut cigarette brand. JTI argued that this product complied with the ban, even though the company admitted that it used menthol flavouring in its manufacture. 64 According to the newspaper, JTI stated that they: “conduct robust internal testing processes to determine that the use of flavourings in our products does not produce a clearly noticeable smell or taste other than one of tobacco.” 64 BAT accused JTI of using the same tactic in France, with new versions of its Camel and Winston brands, to which JTI issued a similar denial. 65 Newport is one of the best-known brands of menthol cigarettes and maintained its top spot, with 6% growth among menthol styles. Marlboro gained 18.1% from 2014 to 2019 and remains second in market share among menthol styles. Figure 2: Tobacco companies increased their sales of menthol in the run up to flavour bans in the UK and Poland (source: TCRG, June 2021) Determined not to lose any customers in response to the menthol ban, PMI, British American Tobacco and Japan Tobacco International have all promoted heated tobacco and other products, for which menthol is still permitted. The US continues to be an important market for tobacco companies’ menthol brands. In its 2018 Annual Report, BAT said that after it acquired US tobacco company RJ Reynolds in 2017:
Acknowledgments
It is more likely than not that the availability of menthol cigarettes increases the likelihood of experimentation and regular smoking beyond the anticipated prevalence if such flavoured cigarettes were not available. P. McGreevy, California bans flavored tobacco sales in response to a surge in teen use, Los Angeles Times, 28 August 2020, accessed September 2020 Sign up here to get The Results Are In with Dr. Sanjay Gupta every Tuesday from the CNN Health team.
The rules would come into effect one year after the final publication of the regulations (not yet provided). 3 4 This time period is similar to the EU ban which the tobacco industry exploited whereas the Canadian ban was implemented within six months. 5 Tobacco Control Legal Consortium et al, Citizen Petition to U.S. Food and Drug Administration, Prohibiting Menthol as a Characterizing Flavor in Cigarettes, 12 April 2013, accessed May 2022. Available from www.publichealthlawcenter.org
The anaesthetic effects of menthol in cigarettes enable smokers to inhale cigarette smoke more deeply into the lungs, thereby increasing exposure to the harmful substances in tobacco smoke. Paradoxically, the cool, numbing properties of menthol may contribute to the common, but inaccurate, perception of menthol cigarettes as less harmful than non-menthol cigarettes. This facilitates uptake of smoking and makes it harder to quit. The TPD is under revision, in both the EU and the UK, as scheduled in the legislation. Tobacco industry activity implies that current regulation should be tightened to: 86 c. List of missing or damaged items with relevant details (e.g., item names, quantities, descriptions) cigarettes. 400 cigarillos (cigars weighing maximum 3 grams each) 200 cigars. Why is EU banning menthol cigarettes? And because the flavor masks the taste of tobacco, it makes cigarettes more attractive to new smokers, especially children who are more likely to get hooked for life.
N. Powell, Commission to face European court over tobacco law overreach, Eureporter, 11 October 2023, accessed October 2023
TobaccoTactics Resources
In 2020, JTI’s brands in France, 11 and Ireland 71 had high sales, suggesting this has been a successful strategy for the tobacco industry. New ‘cig-alike’ cigarillos c) a technical feature allowing the consumer to modify the smell, taste, or smoke intensity of the product. The FDA stated that the ban would apply to products being manufactured, distributed or sold in the US. 2 3 It emphasised that enforcement would be at the company level (manufacturers, distributors, wholesalers, importers and retailers) rather than at individual (smoker) level. 2 3 It would not restrict flavoured products intended for export. The FDA suggested that replacing existing local bans with a nationwide ban would reduce opportunities for illicit trade. 3 Action on Smoking and Health US, ASH & AATCLC File Lawsuit Against FDA, ASH press release, 17 June 2020, accessed July 2020
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