On May 11, RJ Reynolds Tobacco Company, along with two convenience stores and the American Petroleum and Convenience Store Association, sued the California attorney general and district attorney for Fresno County in their official capacities, seeking declaratory relief that these California officials misinterpreted and misapplied California’s ban on flavored tobacco products and incorrectly concluded that RJ Reynolds’ new products violate this ban.
Background
In 2022, California voters passed a ballot measure to maintain the legislature’s 2020 flavor ban, restricting the retail distribution and sale of flavored tobacco products. See Cal. Health & Safety 104559.5(f). California’s ban includes a broad range of flavored tobacco products, including menthol cigarettes. Specifically, the ban prohibits retailers from selling tobacco products with constituents that impart a “characterizing flavor,” which in general “means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco.” The statute creates a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer (or its agents) makes a statement to consumers that the tobacco product has or produces a characterizing flavor, including explicit or implicit suggestions through the text, color, images, or all on the product’s labeling or packaging. We recently discussed California’s flavor ban and other flavor bans across the country in this Regulatory Oversight podcast.
On April 25, the California AG sent notices of determination to RJ Reynolds and another tobacco manufacturer, warning that the products were “presumptively FLAVORED” under California’s flavor ban. The appendices to the letters assert that several new products marketed by RJ Reynolds have similar brand names, text, patterns, and colors as the company’s prior menthol cigarettes. The letters also allege the new products’ ads, among other things, promote the new products as replacements for menthol products and as having taste(s) or aroma(s) apart from tobacco. For example, the AG took aim at RJ Reynolds’ Camel Crush Oasis product line, which advertises to customers: “Heads Up: Menthol won’t be around for much longer in California, but we crafted two new non-menthol styles with a taste and smoking experience you’ll love.” Another ad for a Camel Crisp product reads: “Camel Crisp Offers Smooth Tobacco Flavor and a Crisp Smoking Experience from the Very First Draw. The Result – A Taste that Satisfies the Senses.” The letters asserted that new products offered by RJ Reynolds triggered the flavor ban’s rebuttable presumption that the tobacco products are prohibited flavored tobacco products based on the products’ labeling, packaging, and promotional materials.
Although the letter provided the tobacco companies until June 23 to respond, RJ Reynolds instead responded by seeking declaratory relief with the court, citing in part the California AG’s decision to post its notices on the Department of Justice’s public website, which RJ Reynolds called “a clear effort to discourage retailers from carrying the products.” The lawsuit asserts that RJ Reynolds prominently discloses to consumers that its products are nonmenthol. RJ Reynolds states that some of the new products do contain chemicals that impart a cooling sensation, but without any associated taste or aroma. Others contain a crushable capsule — that does not contain menthol — inside the filter, and when crushed, the capsule releases a liquid that “brightens, smooths, and mellows the tobacco flavor but does not impart a distinguishable taste or aroma other than tobacco.”
In addition, the complaint argues that the California AG erred by not evaluating the new products’ actual tastes or aromas. Contrary to California’s assertions, the complaint asserted that the flavor ban’s rebuttable presumption only governs the burden of production and proof in judicial proceedings and does not bear on the substantive application of the characterizing flavor ban. Thus, the AG “may not invoke the presumption … as a basis for enforcing the ban against the new products without a good-faith determination — absent here — that the products actually impart a characterizing flavor.” Second, even if the presumption applies, R.J. Reynolds argues that the new products do not actually impart a characterizing flavor because the products do not impart a distinguishable taste or aroma other than that of tobacco.
Why It Matters
This suit is significant in three key respects. First, it tests the limits of California’s flavored tobacco ban and will shape the tobacco market in California moving forward. In particular, it will help delineate whether and when states and localities can enforce already vague concepts like “flavor” beyond their traditional meaning and what kind of evidence an enforcer must marshal to prove a violation.
Second, RJ Reynolds’ decision to proactively sue the California AG instead of reactively waiting for the California AG to take action demonstrates a clear desire to mitigate expected regulatory scrutiny — and control the pace of associated litigation.
Third, FDA is expected to finalize a rule later this year banning menthol cigarettes — the last remaining characterizing flavor in cigarettes aside from tobacco flavor (the 2009 Tobacco Control Act banned characterizing flavors in cigarettes other than tobacco or menthol). RJ Reynolds’ approach to the California flavored tobacco ban may foreshadow certain manufacturers’ future efforts to produce products that appeal to menthol smokers if menthol cigarettes are banned nationwide.
