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In recent years, tobacco manufacturers have found it profitable to market flavored cigars, cigarettes, smokeless tobacco and related products that are particularly attractive to youth. Products such as “Kool’s Smooth Fusions” and “Dean's Full Flavor Lil' Cigars” appeal to youth with advertisements and packaging that exhibit colorful and trendy designs. Examples of marketed new flavors include cherry, blueberry, peach, chocolate, lime, mint, toffee, vanilla, rum, margarita and pineapple. While more research is needed to determine exactly how flavored products affect youth, preliminary studies demonstrate their appeal to beginning smokers. One study estimates that 20% of youth smokers (between ages 17 to 19) in the U.S. reported using flavored tobacco products within the last 30 days, compared to 6% of adult smokers.
In response to this public health concern, the United States recently banned the sale, distribution and manufacture of cigarettes that contain flavors other than tobacco or menthol. Under the Family Smoking Prevention and Tobacco Control Act, the Food and Drug Administration’s ban on “flavored cigarettes” took effect September 22, 2009. The U.S. ban applies to all products that meet the definition of a cigarette in section 900(3) of the Act, even if they are not labeled as “cigarettes” or are labeled as cigars or some other product. This includes cigarettes or any of their component parts that contain “an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke.”
Flavored tobacco products, beyond traditional cigarettes, are popular with youth worldwide. “Bidis” (small, flavored cigarettes from India) and “kreteks” (clove-flavored cigarettes from Indonesia) are attractive to children, and are mistakenly perceived to be healthier and less addictive than regular cigarettes. In reality, these alternative tobacco products often contain more nicotine and tar than traditional cigarettes. Also, the use of waterpipes (or hookahs) has increased with youth and college students in the United States, Brazil, and many European countries. As flavorings have improved, the demand for bidis, krekets, and waterpipes continues to grow.
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The Master Settlement Agreement (“MSA”) of 1998 enabled states to recover for medical costs attributed to the tobacco industry’s misconduct and to place restrictions on the marketing, sale and distribution of tobacco products. Section III (a) of the Master Settlement Agreement prohibits the marketing of tobacco products to youth. In 2006, an action was brought against R.J. Reynolds for the marketing of its Camel, Kool and Salem flavored cigarettes in violation of the MSA. Although a settlement was reached, previous litigation establishes that a violation of the MSA occurs not only when the manufacturer “desires” to target youth, but also when the manufacturer “knows to a substantial certainty” that youth are responding to advertising or a specific products. Ignoring evidence or purposefully avoiding market analysis of products that are attractive to youth is not a valid defense.
Another way to restrict flavored tobacco marketing is through increased federal regulation, such as the recent ban under the FDA law, and state regulation. States also have broad authority to pass laws to protect public health. In 2007, Maine became the first state to pass a law banning flavored cigarettes and cigars. Many other states are considering similar legislation, including New York and New Jersey. In the past, the prospect of federal preemption by the Federal Cigarette Labeling and Advertising Act (FCLAA) often chilled state efforts to regulate tobacco advertising or marketing. The FCLAA Title 15 § 1334(b) provides that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising and promotion of any cigarettes the packages of which are labeled in conformity with this chapter.” The new federal legislation regulating tobacco, however, limits federal preemption against state regulation of cigarette advertising by allowing states to restrict the location, color, size, number and placement of cigarette advertisements. (It leaves unchanged local and state government power to regulate smokeless tobacco or other tobacco products.)
- The Scientific Basis of Tobacco Product Regulation, Report of a WHO Study Group on Product Regulation. (January 1, 2007). Tobacco Control. WHO Tobacco Control Papers. Paper WHOTSR2007. A summary of the conclusions and recommendations of a WHO study group after reviewing four reports concerning: the contents and design features of tobacco products in relation to customer appeal, candy-flavored tobacco products and regulatory recommendations, biomarkers of tobacco exposure and smoke-induced heath effects and maximum limits for toxic constituents in cigarette smoke.
- Harvard School of Public Health, “New Cigarette Brands with Flavors That Appeal to Youth: Tobacco Marketing Strategies,” Health Affairs, Vol. 24, No. 6 (Nov/Dec. 2005). Study of internal industry research regarding the use of flavored cigarettes and novel flavor technologies to attract the youth market.
- M. Jane Lewis & Olivia Wackowski, Dealing With an Innovative Industry: A Look at Flavored Cigarettes Promoted by Mainstream Brands, Am J Public Health 96(2) 244–51 (2006). Description of flavored tobacco products and marketing techniques and assessment of potential implications of flavored tobacco products, including impact on youth.
- Connolly, GN, Sweet and Spicy Flavors: New Brands for Minorities and Youth, Tobacco Control 13:211-12 (2004). Discussion of the tobacco industry’s attempt to use sweet and spicy flavors to increase tobacco sales to minorities and youth.
- Flavored Cigarette Settlement between 38 attorneys general and R.J. Reynolds to ban the marketing and sale of candy, fruit and alcohol flavored cigarettes. “Effective Date” October 11, 2006.
- Attorneys General of Maryland, New York and Illinois landmark Settlement of Kool Mixx Tobacco Lawsuits. October 6, 2004. The Kool Mixx campaign targeted African American youth by focusing on hip-hop music and culture in its promotion of Mocha Taboo, Caribbean Chill, Mintrigue, and Midnight Berry mentholated cigarettes. The Master Settlement Agreement, reached between 46 states and the largest tobacco companies, prohibited direct or indirect tobacco product marketing to youth.
- People ex rel. Lockyer v. R.J. Reynolds Co., 116 Cal.App. 4th 1253 (2004). The California Court of Appeals found that R.J. Reynolds violated section III of the Master Settlement Agreement by targeting youth. Evidence showed that R.J. Reynolds knew to a “substantial certainty” that youth were exposed to tobacco advertisements at nearly the same level as targeted groups. Despite access to alternative advertising methods, R.J Reynolds took no action to reduce youth exposure.
- Lorillard Tobacco v. Reilly, 533 U.S. 525 (2001). Manufacturers and retailers of tobacco products filed suit, alleging that, under the Supremacy Clause, Massachusetts regulations on outdoor and point-of-sale cigarette advertising were preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA). The FCLAA provides that “No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” 15 U.S.C. § 1334(b). The regulations enacted by the Massachusetts Attorney General were found to be broader in scope than restrictions imposed by the FCLAA and were struck down.
- Family Smoking Prevention and Control Act (ban on flavored cigarettes took effect Sept. 22, 2009)
- Canadian law, “Cracking Down on Tobacco Marketing Aimed at Youth Act” (Canada’s law prohibiting the manufacture, sale or importation of most flavored cigarettes and small cigars took effect Oct. 9, 2009)
- Maine Law on Flavored Cigarettes and Flavored Cigars
- Maryland Models Kool Cigarettes, Hip-Hop Advertising Campaign, Kool-Mix Settlement, Landmark Settlement, R.J Reynolds Settlement
- Commonwealth of Massachusetts, An Act Relative to Flavored Cigarettes in the Commonwealth, House, No. 2149 (2007)
- State of New York, An Act to Amend the Public Health Law, in Relation to Prohibiting the Sale of Flavored Cigarettes, S00248 (2009)
- State of Texas, An Act Relating to Prohibiting the Sale or Distribution of Certain Cigarettes, H.B. 2935, 79th Regular Session (2005)
- State of New Jersey, An Act concerning tobacco products and supplementing Title 2A of the New Jersey Statutes. S. 613, 213th legislature (2008)
- Tobacco-Free Kids, “Big Tobacco’s Guinea Pigs: How an Unregulated Industry Experiments on America’s Kids and Consumers” (Feb. 2008). Discussion of the tobacco industry’s ability to take advantage of the lack of government regulations when designing manipulative products that recruit youth and sustain addiction. Provides examples of trends in product design including flavored tobacco products that are appealing to youth.
- ALA Tobacco Policy Trend Alert, From Joe Camel to Kauai Kolada – The Marketing of Candy-Flavored Cigarettes (May 2006). Report on the history of flavored tobacco, its effects on youth tobacco use and federal and state policy solutions.
- ALA Tobacco Policy Trend Alert Addendum, Alcohol Flavored Cigarettes-Continuing the Flavored Trend (May 2006). Discussion of alcohol flavored tobacco products and related “gambling” marketing campaigns.
- Campaign for Tobacco-Free Kids, Special Report, “Big Tobacco Still Targeting Kids” (2005). Summary of the tobacco industry’s use of flavored tobacco to entice kids, including examples of advertisements and flavors.
- CDC Factsheet, “Bidis and Kreteks” (Feb. 2007). Overview of bidis and kreteks, tobacco products that appeal to youth because of their flavor and design. Bidis are small, flavored, filterless cigarettes originally from India. Kreteks, often known as clove cigarettes, contain a mixture of tobacco cloves and other additives, rolled in a tendu or temburni leaf and tied with a colorful string.
- American Lung Association, “The Dangers of Bidis” (2007). Overview of the risks associated with bidis, which are gaining in popularity among America’s teenagers.