Menthol Ban: When Industry Circumvents Regulations

The tobacco industry has developed a strategy to circumvent the ban on the sale of menthol cigarettes and rolling tobacco products, in force in the European Union since May 20, 2020. This is shown by a study published in the journal Tobacco Control, which analyzes the response of manufacturers following the ban, focusing on the Danish example.

Despite the ban, one in five young smokers continues to consume menthol cigarettes, compared to 29% before the measure came into force. The persistence of this consumption can partly be attributed to the strategies of the tobacco industry, which was very quick to exploit regulatory loopholes the day after the ban.[1].

Menthol Flavoring Accessories

Many types of tobacco flavouring accessories were introduced very quickly on the Danish market following the ban. These accessories, which are inserted into cigarette packets, into the packet of rolling tobacco, or directly into the filter, allow the products to be given a menthol or sweet flavour. As the study highlights, 3.4% of smokers aged 25 to 29 now use these new products. Similarly, rolling tobacco consumption has increased among adult smokers, from 13% to 17% before and after the ban. In France, the market was also abundantly supplied by these new flavoring accessories. Denmark recently adopted a provision banning the sale of tobacco equipment that could alter the taste of products. Thus, from April 2022, these flavoring accessories will be banned from sale.

The appearance of hollow filters in Denmark

Hollow filters are a type of cigarette with a hollow filter at its end. These filters allow, in particular, the insertion of a flavoring accessory. The authors of the study show that these new products only exist for brands presented as alternatives to menthol. In addition, these hollow filters make the deposit left by the passage of cigarette smoke less visible. More generally, the work on the filter is part of a marketing logic aimed at distinguishing products from each other, by giving them a premium dimension. All of these cigarettes containing these filters were produced in Denmark by British American Tobacco (BAT).

Brand descriptors to allude to menthol

Following the menthol ban, a range of Japan Tobacco International’s (JTI) Camel brand sought to maintain brand descriptors that clearly referred to menthol. On the one hand, the product featured the brand descriptor “Activate”, reinforced by an illustration on the pack packaging that clearly referred to the clip-on menthol products. Furthermore, the yellow filter was replaced by a white filter surrounded by blue circles, reflecting the classic design of cigarettes containing a menthol capsule. JTI also launched another range of cigarettes with a menthol flavour inserted into the pack. This pack, which was a clear violation of the EU directive, was quickly withdrawn from the Danish market. However, according to the authors of the study, the simple brand descriptor “Activate”, as well as the illustrations that referred to the old menthol products, can be considered a breach of the regulation. British American Tobacco deployed a similar strategy, launching a brand of cigarettes containing the descriptor "Ultramarine", and presented as a "new product with a modern design [...] which gives a refreshing effect and a feeling of freshness".

The use of menthol at residual levels

The EU directive does not ban menthol as an ingredient, but bans it as a “characterising flavour”. Thus, in August 2020, JTI was accused of exploiting a regulatory loophole in the directive, by continuing to sell products containing residual levels of menthol. For the manufacturer, these products do not impart a characterising flavour to the tobacco and therefore do not constitute a violation of the regulations. In France, but also in the United Kingdom, this regulatory loophole was also exploited by JTI, notably with the marketing of “Camel Fresh”.

A strategy for transferring consumption to other tobacco and nicotine products

Before the ban on the sale of menthol cigarettes, several brands of menthol cigarillos were launched on the Danish market. These new products, although presented as cigarillos, had a format very similar to that of a classic cigarette, both in size and thickness. The introduction of these new products, modelled on cigarettes, may have been attractive to consumers: between 2019 and 2020, sales of cigars and cigarillos increased by 7%. Similarly, manufacturers and retailers also promoted alternatives such as menthol pipe tobacco, menthol e-cigarettes, or menthol heated tobacco.

Strengthen regulations for a total ban on menthol

From a public health perspective, the researchers call for a ban on menthol as an ingredient, and not just as a characterizing flavor. Indeed, even at residual levels, menthol makes tobacco smoke milder, and thus facilitates the initiation of smoking among young people. The study also highlights the need to ban any type of additive that could mask the irritating nature of tobacco smoke, and to generalize the ban on flavors to all tobacco products to avoid consumption transfers. Furthermore, the researchers argue that the generalization of plain packaging could support the ban on menthol, by preventing manufacturers from using distinctive characteristics, colors and brand descriptors that could directly or indirectly refer to menthol. Finally, the authors of the study mention that it is imperative that the revision of the European Tobacco Products Directive clearly indicates that Member States can go beyond the provisions provided for.

FT

[1] Brink A, Glahn AS, Kjaer NT, Tobacco companies' exploitation of loopholes in the EU ban on menthol cigarettes: a case study from Denmark, Tobacco Control Published Online First: 21 March 2022. doi: 10.1136/tobaccocontrol-2021-057213