A long-awaited federal ban on menthol cigarettes and cigars remains in limbo, after the White House delayed finalizing a proposed rule until at least this month.
In states like California and Massachusetts where such restrictions already exist, tobacco companies are launching new menthol-like products to try to sidestep regulations.
These new "non-menthol" tobacco products mimic traditional menthols; they contain a different chemical additive with a similar cooling effect, and often come branded and packaged, much like their menthol predecessors.
Robert Jackler, a Stanford doctor and tobacco marketing expert, calls them, "non-menthol – wink, wink – menthol," meaning that the confusing similarities between menthol and their new substitutes are intentional.
He says it's the tobacco industry's attempt to hang on to the existing menthol market in the face of bans, which makes up 40% of smokers.
"The packaging is identical," Jackler says, as are the catchphrases used to market them: "Crisp, fresh – all the kinds of things that are buzzwords for menthol advertising," he says. He reads one slogan off a Kool non-menthol pack of cigarettes: "Same intensity, same vibe, minus the menthol."
All of that messaging, anti-smoking activists say, is a way to get around any ban on menthol cigarettes by signaling to consumers that they taste very similar.
A menthol ban would have particular impact on Black communities, which tobacco companies heavily target with marketing of menthol products, contributing to a higher rate of cancer deaths.
"The objective of the tobacco industry is the exact opposite of our public health objective: We want fewer people to die from smoking, they want more people to smoke," says Chris Bostic, policy director for Action on Smoking and Health.
One big question is whether these products will be able to get around explicit bans around flavored tobacco and menthol. So far, it's not clear they will. California's attorney general Rob Bonta last year warned tobacco companies the new non-menthol flavors violate the state's ban.
Reynolds, which makes both menthol and non-menthol of popular brands like Newport and Camel, subsequently sued the California attorney general, arguing the new additives are not flavors.
In an emailed statement to NPR, the company said "Reynolds believes these products meet and comply with all applicable regulatory requirements. We market these products to clearly indicate that they are non-menthol."
But Bostic argues the cooling properties of the new additives — known as WS-3 — have the same powerful numbing effect as menthol, and to most consumers taste similarly minty.
Either way, the legal dispute over the fate of non-menthol tobacco products in California, he says, will have major implications for how effective any federal ban might be.
It's also still not clear the extent to which current menthol smokers will adopt these new substitutes. That's also still unclear, because there is no sales data yet. Reviews posted on social media are mixed; some complain of the taste, while others say they have the same sweet properties of menthol.
Bostic says evidence so far shows menthol bans do reduce smoking. He says the number of smokers declined 8.1% in Massachusetts since that state's ban took effect in 2020. "It isn't simply that everybody started going somewhere else to get their menthol cigarettes. It did induce people to quit."
A ban on menthol is necessary to remedy decades of health inequities caused by the heavy marketing of menthol in Black communities, says Phillip Gardiner, co-chair of the African American Tobacco Control Leadership Council. He notes in the 1950s, only 5% of Black smokers used menthol tobacco, but that grew to over 80% today, in large part because of the racially targeted advertising.
Gardiner says after many years of fighting a ban on menthol, tobacco companies won't give that market up easily. He anticipates non-menthol tobacco products will become a much bigger factor, if the federal government bans menthol.
"If the rule were to go into effect, that's going to become nationwide. This fight is a long way from over."
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