In November 2022, Californians reaffirmed their strong support for S.B. 793, which restricts most flavored tobacco products from being sold in the state. Even before this referendum passed, however, R.J. Reynolds was already taking steps that flaunted the law, such as advertising new Camel and Newport cigarettes that provided a “tropical oasis” or a cooling sensation when smoked, yet claiming they were unflavored or “non-menthol.” The company then started selling these products in California after the passage of S.B. 793.

In response, California Attorney General Rob Bonta sent R.J. Reynolds four Notices of Determination on April 25, 2023. These notices informed the company that several of its new Camel and Newport cigarettes were being sold in violation of S.B. 793. The notices explained the attorney general’s determination that these products are “presumptively flavored” under S.B. 793. The law creates “a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer … has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.”

Among other findings, the notices detailed the attorney general’s conclusions that the labeling and packaging that R.J. Reynolds chose for several of its new products used “brand names, text, and colors traditionally associated with menthol-flavored tobacco products,” and that R.J. Reynolds “purposefully target[ed] users of menthol-flavored tobacco products” with promotions for its new products “as substitutes or replacements for such menthol-flavored tobacco products.” The attorney general found that R.J. Reynolds’s new “crush” line of cigarettes used packaging and labeling from flavored products it previously sold to convey that its new products with similar packaging were also flavored. The notice also argued that if a product was not flavored with anything other than tobacco, there would be no need to “crush” whatever capsule crush cigarettes have in the filter. The notices described the intention to post them on the California Department of Justice’s public website to deter retailers from selling these products.

R.J. Reynolds filed a complaint in the Fresno County Superior Court on May 11, seeking an order to enjoin the attorney general and district attorneys from using the notices in any enforcement action, to prevent the notices from being publicly posted, and to have the notices rescinded as erroneous. R.J. Reynolds contends that several of its new, “non-menthol” cigarettes are not flavored because the cooling sensation they impart is caused by “WS-3,” a chemical that the company alleges triggers thermoreceptors, but is tasteless and odorless in the quantities it uses in its cigarettes. Regarding its crush line of products that use capsules, R.J. Reynolds insists that the capsule releases a proprietary liquid that “brightens, smooths, and mellows the tobacco flavor but does not impart a distinguishable taste or aroma other than tobacco.” The company also alleges that the attorney general “selectively and arbitrarily targeted” R.J. Reynolds, because many companies are selling flavored tobacco products in the state but have not yet received notices.

While those are the industry’s arguments, public health advocates may benefit from understanding rebuttals to such arguments as they pursue comprehensive flavor bans in Californian communities. First, WS-3 adds a flavor other than tobacco to R.J. Reynolds’s cigarettes. In fact, many companies use WS-3 to flavor their products and advertise the cooling sensation it imparts as part of the flavor. Several manufacturers of e-liquids for use in e-cigarettes, for example, use WS-3 and other synthetic cooling chemicals to make e-liquids that they label as “cool”- or “ice”-flavored. In addition, even if WS-3 triggers thermoreceptors, that can shape the overall flavor of a product, just as the coolness of eucalyptus or heat of spicy peppers shapes their flavor. This comports with commonsense understandings of what flavor is, as well as more precise definitions of it. The Flavor and Extract Manufacturers Association, of which R.J. Reynolds is a member, defines flavor to include “any physical traits we perceive in our mouths, such as ‘heat’ (for example, cinnamon) or ‘cold’ (for example, spearmint).”

Second, R.J. Reynolds’s capsule line of cigarettes also imparts a non-tobacco flavor. Numerous informal, online consumer reviews of these cigarettes, as well as more controlled smell tests by public health officials, indicate a widespread impression that these products are indeed flavored. R.J. Reynolds seems to find it irrelevant that people perceive its new cigarettes to be flavored, and claims they are flavored only if chemical analysis or the company’s tobacconists affirm them to be flavored. By insisting on this unduly narrow definition of flavor, R.J. Reynolds seeks to turn regulations of flavored tobacco products into an issue of regulating product standards, which the Family Smoking Prevention and Tobacco Control Act preempts states and localities from establishing. Courts have upheld that flavor restrictions are legal as long as they are sales restrictions rather than product standards. This is why the Public Health Law Center recommends that jurisdictions rely on ordinary consumer experience when assessing whether tobacco products are flavored. The Center reaffirmed the need to center ordinary consumer experience, when we recently introduced our new definition of flavored tobacco products.

Finally, perhaps most implausible is R.J. Reynolds’s claim that the attorney general acted arbitrarily because some violators of S.B. 793 have not yet received similar notices. In making this claim, the company emphasized the availability and popularity of disposable flavored e-cigarettes. However, nothing in that law or otherwise requires the attorney general to take enforcement actions against all violators simultaneously, nor would that be possible. Even if R.J. Reynolds were the first company to receive a Notice of Determination, the attorney general can still issue notices to other violators as well.

The next step in the legal process is for the attorney general to file a response to R.J. Reynolds’s complaint and for the judge to consider and rule on the injunction requests. The timeline for final resolution of this case is uncertain, as some cases can take years to finalize. For more information and updates as this case progresses, check out R.J. Reynolds v. Bonta (2023) in our litigation tracker.

Luke Haqq, Staff Attorney
June 15, 2023