The tobacco industry has long used menthol and other flavors to prey on structurally disenfranchised populations, including the African American community, the LGBTQ+ community, and youth, with a goal of addicting a new generation of commercial tobacco users. It should come as no surprise, then, that while jurisdictions around the nation enact commercial tobacco flavor policies that include menthol, the tobacco industry has developed new products specifically designed to evade these essential public health policies.
The newest iteration of these products include “sensation” cigarettes that impart the “cooling” sensation of menthol supposedly without menthol. These products have been marketed in California in response to the state-wide flavor restriction policy, SB 793. Although these products are designed to exploit a perceived loophole in current flavor restriction policies, they are almost certainly covered by existing laws. Still, in an effort to stay ahead of the industry, the Public Health Law Center has developed a new definition of “flavored tobacco products” that is aimed at resolving any lingering doubts that these predatory products would be covered by a flavored tobacco policy.
The Center’s Current Definition
The Center’s current sample language, which is similar to language contained in the policies of communities throughout California, defines “FLAVORED TOBACCO PRODUCT” as:
any tobacco product that imparts a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption of, a tobacco product, including, but not limited to, any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, molasses, or any candy, dessert, alcoholic beverage, herb, or spice.
We also suggest that jurisdictions pass flavor-presumption language, like the following:
A public statement or claim made or disseminated by the manufacturer of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such tobacco product, that such tobacco product has a taste or smell other than tobacco shall constitute presumptive evidence that the tobacco product is a flavored tobacco product.
These new “sensation” products are presumptively covered by existing flavor policies, because of how they are marketed. For example, R.J. Reynolds released a “New non-menthol Newport,” advertising it as “non-menthol for menthol smokers” that contains a “new fresh taste” but the “same satisfaction.” R.J. Reynolds has gone so far as to send out fliers saying that “the menthol ban is here but we’ve got you covered, California,” essentially confirming that its non-menthol Newports are nothing but a thinly veiled workaround to avoid California’s flavor restriction. Those and other marketing efforts all but explicitly say that these new products have a menthol flavor even if they do not contain menthol. Thus, in any jurisdiction using flavor-presumption language, the burden is on the tobacco industry to prove that these new products are not, in fact, flavored tobacco products.
Of course, the tobacco industry might argue that current flavor definitions relate to how products “taste,” rather than how they “feel.” As such, the tobacco industry might argue that these new sensation products aren’t flavored because they “taste” like tobacco even while they “feel” like menthol cigarettes. Those arguments run headlong into the practical application of our Center’s model flavored tobacco product definition and related enforcement provisions. The current definition of “flavored tobacco product” is based, in part, on whether an “ordinary consumer” would think that the product tastes like regular tobacco or whether it has a “taste or smell relating to . . . menthol.” Any ordinary consumer can tell that these menthol-alternative products do not taste like tobacco alone, because they are designed to have a menthol flavor. This is evident in everything but the products’ names. For jurisdictions that use our existing model language, anything other than the taste or smell of tobacco should be considered a flavored tobacco product.
In addition, the industry’s assertion that these products are not flavored runs counter to the scientific understanding of what constitutes flavor. Indeed, any attempt to argue that a “cooling” sensation is not a part of a product’s flavor would be disingenuous. Tobacco industry documents demonstrate that the industry was specifically seeking to manipulate the emerging science of sensation and taste as a way to increase the enjoyment of smoking. Science confirms that how something “feels” is an important and inherent component of how it tastes. “For example, cooling mints . . . and hot peppers are  defined by” how they feel, and those sensations “are essential to their flavor identities.” For this reason, the Flavor and Extract Manufacturers Association of the United States (FEMA)—which includes Altria, Philip Morris, and R.J. Reynolds as member companies—defines “Flavor” as “the entire range of sensations that we perceive when we eat a food or drink a beverage. Flavor encompasses a substance’s taste, smell, and any physical traits we perceive in our mouths, such as ‘heat’ (for example, cinnamon) or ‘cold’ (for example, spearmint)” (emphasis added).
The Center’s New Definition
Even though these latest products are very likely captured under the Center’s current flavor definition and provisions, we have developed a new definition that refines the language to make this explicit. Our new definition accounts for the physical traits and sensations associated with a particular flavor, leaving no doubt that menthol-alternative products are captured:
“FLAVORED TOBACCO PRODUCT” means any tobacco product that imparts:
- a taste or odor distinguishable by an ordinary consumer, other than the taste or odor of tobacco, either prior to or during the consumption of such tobacco product, including but not limited to tastes or odors relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, mint, wintergreen, menthol, herb, or spice; or
- a cooling or numbing sensation distinguishable by an ordinary consumer during the consumption of such tobacco product.
PRESUMPTIVE FLAVORED TOBACCO PRODUCT. Any communication by or on behalf of the manufacturer or retailer of a tobacco product that such tobacco product imparts a taste or odor other than the taste or odor of tobacco, or that imparts a cooling or numbing sensation, constitutes presumptive evidence that the tobacco product is a flavored tobacco product.
This includes but is not limited to public statements that a product has a minty or cooling effect, such as describing the product as “chill,” “ice,” “fresh,” “arctic,” or “frost.”
Menthol and menthol-like products are designed to addict targeted communities. The Public Health Law Center stands ready to help states and local jurisdictions as they work to keep these harmful products, regardless of how they are named, out of stores.
 Barry Green & Danielle Nachtigal, Somatosensory Factors in Taste Perception: Effects of Active Tasting and Solution Temperature, 107 Physiology & Behavior 488-95 (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3513519/.
Posted April 7, 2023