Tobacco giant R.J. Reynolds says the lines of cigarettes they released to abide by state menthol bans are legal. And, it is using Fresno County Superior Court to prove it.
Last year, California became the second state in the U.S. to ban menthol cigarettes after Massachusetts did so in 2020. The U.S. Food & Drug Administration plans to release nationwide laws later this year.
Tobacco companies say they created a cigarette additive that mimics menthol while still abiding by state law. Attorney General Rob Bonta disagreed and ordered the product taken off store shelves.
In May, North Carolina-based R.J. Reynolds, a coalition of retailers, and northwest Fresno convenience store Fresno Elite Car Wash Inc. partnered together to file suit against Bonta saying he made the decision unilaterally.
R.J. Reynolds makes some of the most iconic cigarette brands, including Camel and perhaps the most popular menthol cigarette — Newport.
Cigarette sales have been on the decline, dropping $13 billion from 2020 to 2021, according to the Federal Trade Commission. Before most bans took place, menthols made up as much as 37% of cigarette sales, according to the Federal Trade Commission.
With such a large market share at stake, this suit may be just another in the line to keep menthol tobacco on store shelves.
Anti-Tobacco Groups Says Menthol Marketed to Children, Black Americans
On Nov. 8, 2022, California voters sided with legislators who previously passed a law banning flavored e-cigarettes and menthol cigarettes.
The claim was that tobacco companies marketed the fruity and minty menthol flavors toward children, especially electronic cigarettes. Others said cigarette companies targeted Black Americans with menthols.
In 2020, Gov. Gavin Newsom signed SB 793, banning flavored tobacco. California voters reaffirmed the law, with 63.4% of voters approving Proposition 31.
Opponents of the law said underage sales were already banned. Bans on flavored tobacco merely punish adult smokers and users of snus tobacco products.
Proponents said it would reduce youth smoking rates.
The Food & Drug Administration has been working on a ban of menthol flavoring in cigarettes and cigars since 2022. They expect to publish rules regarding menthol cigarettes later this year.
The Camel Crush brand still adorns store shelves of some smoke shops. One company called O Snaps sells an insertable pill that can be popped that more closely tastes like menthol, according to one store owner.
While smokers still buy the Camel Crush cigarettes, many customers told the store owner they’re not the same as menthols.
R.J. Reynolds Tells Californians: ‘We’ve Got You Covered’
R.J. Reynolds responded to the ban with mailers and marketing materials telling California smokers, “We’ve got you covered.”
They created the Newport EXP and Camel Crush brands specifically to create a menthol-like flavor but called them “non-menthol.”
Shelf displays at convenience stores told smokers the Newport EXP and Camel Crisp brands recreated the minty-menthol flavor without affecting the tobacco.
Smokers could pop pods inside filters that released a “cooling” additive similar to menthols while leaving the tobacco unchanged, according to court documents.
But after Politico published a story about the marketing campaign, Bonta penned a letter to R.J. Reynolds telling them and retailers to pull the products from store shelves.
Bonta made the decision to include the cigarettes in the ban without any testing, according to court documents.
Tobacco Companies Claim Cigarettes Wrapped Up in E-Cigarette Fight
Youth cigarette use is at an all-time low, attorneys for R.J. Reynolds claim. The Centers for Disease Control says that one-in-every-seven high school students has used an electronic cigarette whereas only two-in-every-100 high students said they smoked a cigarette.
But in the fight against vape products, cigarettes got wrapped up, according to court documents.
“Instead of going after those products, however, the Attorney General is targeting a major cigarette manufacturer whose products are in full compliance with the law. That is arbitrary,” the lawsuit stated.
AG, County Counsel Say No Ground for Lawsuit
The Fresno County Counsel’s Office is taking up the case on behalf of Fresno County District Attorney Lisa Smittcamp. County administrative officers say they do not comment on pending litigation.
In response to the lawsuits, the Attorney General’s office filed a demurrer saying neither R.J. Reynolds nor convenience store associations suffered any real loss in having to remove the cigarettes and marketing. Bonta’s office called on judges to dismiss the case.
“This Court should dismiss this Complaint because it is a classic Strategic Lawsuit Against Public Policy (SLAPP) case intended to discourage the Attorney General from exercising his First Amendment rights to further the State’s tobacco flavor ban,” the demurrer stated.
A statement from R.J. Reynolds called on the Attorney General to focus on combatting the flood of “illegal, unregulated, disposable vapes.”
“RJRT stands by its new products and believes that they comply with California state law and therefore can continue to be sold,” a statement read. “Before introducing the products for sale, RJRT followed all applicable pre-market regulatory requirements.”