By now everyone in the c-store business knows that California has banned flavored tobacco products. There was plenty of advance notice because the ban was delayed for two years until voter approval upheld the law. Meanwhile, menthol cigarette makers had time to adjust to the new rules.
Newport Non-Menthol, Camel Crush Oasis (non-Menthol) and Non-Menthol Kool arrived on California c-store shelves promptly on Jan. 1. Even though the packs were still the same green and blue, menthol smokers weren’t fooled. The new non-menthol SKUs carried a decent-sized “NON-MENTHOL” label on the front. Not to worry, California’s tobacco enforcers were on it.
Since I live in California and like to keep up on these things, I figured I should stop by my local c-store and buy a pack of each. Along with zero characterizing flavor of menthol, the tobacco taste was what you’d expect if the packs were red or gold. I also bought a packet of menthol-impregnated flavor cards. The helpful clerk showed me how to slip one of the cards into the flip-top box, let it sit for 24 hours and viola, menthol smokes. Nice try, but not like the real thing.
I reached out to a friend for current Nielsen Report data on cigarette brand tobacco sales. Four months into 2023, the sales velocity in California of the non-menthol SKUs formerly known as menthol is around 10% of what it was a year ago on a per-store basis. I wasn’t surprised.
Appearance Can Be Deceiving. Taste? Not So Much.
The problem for California’s attorney general is that the non-menthol cigarettes are packaged in the same colors and brand names as before the ban. The graphics are similar to the now-removed menthol packs. The California attorney general’s apparent conclusion is that a non-menthol cigarette packed in green and blue with the same brand name looks like a menthol, even if it doesn’t taste like one. If it looks like a duck …
California has instructed the makers of Newport, Camel and Kool that they are “presumptively flavored” with menthol, even though they really aren’t. Under the same thinking, if a Corvette looks fast while it’s parked, then it “presumptively” deserves a speeding ticket. If it’s painted yellow is it “presumptively” a school bus? See you in court.
California’s stated position is that if a cigarette pack looks like it might have menthol flavor, then it is therefore “presumptively” a menthol product. The instructional state of California, being what it is, finds it impossible to let menthol smokers find out the hard way that they didn’t get menthols for their seven bucks. If it quacks like a duck…
Sacramento, We Have a Problem
First off, a quick read of California’s Proposition 31 showed they hadn’t budgeted enough for staffing and enforcement of the bans at retail. This led to ad-hoc rulemaking that presumed products were illegal based on what they looked like rather than what they tasted like. Let’s “presume” that none of the California Tobacco Unit staff are smokers, which might have saved everyone a lot of time.
California’s “Notice of Determination” to the makers of Newport, Camel and Kool cigarettes, upon careful reading, confirms that they have no authority over what a cigarette company markets, only what retailers and distributors stock and sell. “Rebuttable presumption” is a made-up phrase.
There’s an existing spectrum of tobaccos tastes, some bold, some smooth. In fact, all cigarettes are flavored with nutmeg, licorice, mint, sugars and other casings that soften harshness. Collectively they define “tobacco” taste. None of the products in question crossed the line into menthol territory. Since they weren’t characterized by menthol flavor, the determination letters end with no warning or punitive action.
Applied Learning Beyond California
For marketers of nicotine and smoking products, California is a 12,000 c-store mega-test lab for figuring out what the real world wants. Menthol tobacco cigarettes and flavored cigars were pulled off the shelf, leaving more than a million empty pack facings up for grabs. Removal, replacement, intrusion and new sales; all in less than 10 days.
In his rebuttable presumptions about flavored appearance, the California attorney general actually outlined some helpful guidelines for labeling, branding and product presentation of new products. Producers and distributors should look at this, keeping in mind that there are 49 more state-level tobacco departments cribbing off California.
First, carefully stated advance notification can be a good idea. Previews of websites and sales material statements reduce regulatory anxiety. Invitations to try a new product as part of a public relations launch can avoid letters like the ones to R.J. Reynolds and ITG Brands.
Rules Are a Moving Target
Nicotine-free menthol and flavored smoking are coming. How taste is described will be important. Positioning it as a replacement for tobacco or as an alternative to quitting should be avoided. Clearly marked zero-tobacco, and evident age-specific compliance may place them be beyond tobacco control.
It will be a smaller market without nicotine, but it can become a comfortable number. California is a nice place to figure out what that number will be and how to get there. Hemp could make a nice base for menthol when the Food and Drug Administration figures it out. Cloves are already on the shelf with non-tobacco, nicotine-free flavors. All ships rise with the tide.
New menthol cannabidiol (CBD) and vape products are outside of tobacco regulation if their systems prevent inclusion of nicotine. California retailers are carving out space for non-tobacco, nicotine-free menthol smokes that can presumptively be “determined” to be nicotine-free non-addictive products, even if they’re smoked like cigarettes. What we learned a decade ago from the vape boom was that rulemaking will need to catch up.
John Geoghegan has spent the last 30 years in the tobacco business, including vice president strategic planning at General Cigar Co., U.S. manager for DjEEP Lighters, head of marketing for Kretek International Inc. and manager of LaMirada Cigar Co. He began his career 57 years ago at Procter & Gamble. Geoghegan is a graduate of the University of Cincinnati. He lives in Laguna Niguel, Calif.