R.J. Reynolds challenges Attorney General Rob Bonta’s determination that four of its new products violate California’s flavor ban, S.B. 793.
Why It Matters for Public Health
The tobacco industry, led by R.J. Reynolds, has brought numerous lawsuits to challenge efforts to enact flavored tobacco product sales restrictions. In California, voters have already spoken, choosing to ban the sale of flavored tobacco products in the state with the passage of S.B. 793 in November of 2022. One reason that S.B. 793 promotes public health is that flavorings like menthol mask the harshness of tobacco. This can make it more enticing to start smoking, can make it easier to smoke more, and can make it more difficult to quit. Replacing menthol flavoring with a cooling sensation that R.J. Reynolds alleges is not a flavor is to subvert public health goals that S.B. 793 seeks to achieve.
Even before voters passed S.B. 793, R.J. Reynolds was already distributing advertisements of new products that it insisted would not be not banned, despite these products offering experiences like a “tropical oasis” or a cooling sensation when smoked. Once R.J. Reynolds released these products, online consumer reviews as well as smell tests by public health officials revealed a widespread impression that these new products are in fact flavored, contrary to the company’s assertion that they are not.
On April 25, 2023, Attorney General Bonta issued R.J. Reynolds Notices of Determination for four of its new products—Newport Non-Menthol Green, Newport EXP, Camel Crisp Non-Menthol Green, and Camel Crush Non-Menthol Oasis—finding these products to be “presumptively flavored” and therefore prohibited by California’s flavor ban. R.J. Reynolds, the American Petroleum and Convenience Store Association, JGB Properties, and Fresno Elite Carwash filed a complaint against the attorney general and Fresno County District Attorney Lisa Smittcamp on May 11. The complaint does not challenge S.B. 793 itself but rather the specific determination that R.J. Reynolds’s new products are presumptively flavored.
Among other arguments, the plaintiffs claim that these determinations were erroneous because the cooling sensation imparted by R.J. Reynolds’s new, “non-menthol” products is not a flavor. The company contends that this sensation is not a flavor because the chemical used to produce it, “WS-3,” is tasteless and odorless in the quantities that R.J. Reynolds uses in its cigarettes. In addition, the company insists that WS-3 cannot be a flavor because it imparts the cooling sensation by activating thermoreceptors rather than taste or smell receptors.
The attorney general issued Notices of Determination to R.J. Reynolds on April 25, 2023. The plaintiffs filed their complaint in the Fresno County Superior Court on May 11.
Litigation Status (OPEN)
The plaintiffs filed their complaint on May 11, 2023, and the case is ongoing.