Flavors/Menthol

MENTHOL AND FLAVORED TOBACCO UPDATE

Communities in California—including San Francisco, Oakland, Contra Costa County, Los Gatos, and San Leandro—as well as communities around the U.S. are taking action to prohibit the sale of flavored tobacco products, including menthol cigarettes, in order to help address the tobacco industry’s continual targeting of flavored tobacco to youth and communities of color.

The tobacco and e-cigarette industries, and local retailers, are out in force to loudly oppose these community-driven ordinances, and they are pulling out all the stops to defeat flavored tobacco regulations.

Learn more about the tobacco industry’s targeting of menthol cigarettes to the African American community by checking out the compelling graphic developed by the African American Tobacco Control Leadership Council.

The introduction of the Bay Area ordinances is the result of many years of hard work, education, and community outreach by the African American Tobacco Control Leadership Council and the efforts of local tobacco control partners, including the robust county-wide tobacco control coalitions, who continue to build support for these landmark public health improvements.

See below for more on opponents.

 

San Francisco, California

San Francisco flavored tobacco ordinance headed to the ballot
Advocates are preparing to defend San Francisco’s flavored tobacco ordinance on the ballot in 2018. RJ Reynolds—maker of bestselling Newport menthol cigarettes—spent more than $700,000 on the "Let's Be Real San Francisco" campaign that gathered enough signatures to qualify the repeal effort for the ballot. On September 5th, the Board of Supervisors voted unanimously to support the law they adopted in July, and now voters will charged with upholding their city’s important new public health protection.

San Francisco Mayor Ed Lee signed the city's landmark flavored tobacco ordinance into law on July 7, and the ink was hardly dry on when hired hands began collecting signatures to overturn it. The "Let's Be Real San Francisco" aren't the "real" grassroots of the city—the campaign is funded by RJ Reynolds Tobacco Company and signature gatherers are paid $5 per signature in an effort to prevent this life-saving law from going into effect and setting the standard for other communities to follow. Learn more here.

On June 27, the San Francisco Board of Supervisors unanimously approved the final reading of an ordinance to prohibit the sale of all flavored tobacco products, including menthol cigarettes. On June 20, the Board of Supervisors unanimously approved the first reading and previously on June 14, the Board of Supervisor’s Public Safety & Neighborhood Services Committee approved the proposed ordinance by a vote of 3-0, and the committee voted after hearing three hours of robust public comment. The ordinance is scheduled to go into effect on April 1, 2018.

 

Contra Costa County, California

 

Contra Costa County ordinance adopted on July 18
On July 18, the Contra Costa County Board of Supervisors unanimously adopted two ordinances that prohibit the sale of menthol cigarettes and other flavored tobacco products within 1000 feet of schools, parks, playgrounds, and libraries, prohibit new tobacco retailers from locating within those same youth-sensitive locations; establish a minimum pack size of 10 for little cigars and cigarillos, and require pharmacies be tobacco-free.

This final vote followed a first reading of the ordinances on June 13. After several hours of public comment, the Board proposed an alternative to prohibiting the sale of menthol and other flavored tobacco community wide. Instead, the Supervisors requested that the ordinance prohibit the sale of these products within either 500 feet or 1000 feet of schools. ANR was on hand to provide testimony about reducing access to flavored products to protect youth and communities of color from ongoing tobacco industry targeting and not letting opposition scare tactics influence public health policy. See ANR’s action alert for details.

 

Oakland, California

 

Oakland unanimously passes first reading of ordinance
On September 19, the Oakland City Council will have a 2nd reading on an ordinance to prohibit the sale of flavored tobacco products, including menthol cigarettes, throughout the city except at adult-only retailers that make more than 60% of sales from tobacco products. Learn more here. It's not surprising that RJ Reynolds Tobacco is funding the "Let's Be Real" opposition campaign in San Francisco, and now it appears they're doing the same in Oakland. Read about it here.

On July 18, the Oakland City Council unanimously adopted the first reading of the ordinance. Nearly 100 individuals signed up to provide public comment on the issue, including many youth, community members, and public health advocates who spoke powerfully about the need for taking action. Opponents were out in force as well, but after 2 hours of public comment and discussion, the Council voted 7-0 in approval.

Previously, the City Council was scheduled to consider an ordinance on June 6 to prohibit the sale of flavored tobacco products, including menthol cigarettes, but the Council pulled the item from the agenda. ANR, the African American Tobacco Control Leadership Council, and many other advocates still attended the Council meeting to express support for the proposed ordinance. Everyone implored the council to quickly reschedule a hearing on this important public health issue. It's anticipated that the Council will come back to address this ordinance in the summer.

Oakland Council member Annie Campbell Washington introduced the ordinance in May. The proposal may include an exception to allow the sale of flavored tobacco products in adult-only tobacco retailers that do not allow minors and make 65% or more of sales from tobacco. See ANR’s Oakland action alert for details.

Advocates heard that Al Sharpton had been planning to attend the June 6 meeting to oppose the ordinance. His organization receives funding from Reynolds American, Inc—the owner of Reynolds Tobacco Company which makes Newports, the best-selling menthol cigarettes—to promote the claim that prohibiting menthol cigarettes results in the criminalizing of young Black men. See ANR's article on Al Sharpton. Health groups, advocates, and community partners are working to educate the Bay Area about the tobacco industry’s intentional targeting of menthol and other flavored products to youth and African Americans, among other vulnerable communities.

 

Opponents Out in Force

 

At recent Bay Area hearings, opponents to the local proposals included tobacco retailers; vape shop owners; trade associations representing tobacco, e-cigarettes, and grocers; Consumer Advocates for Smoke-free Alternatives Association, National Association of Tobacco Outlets; Cigar Association of America; R Street Institute, and National Association of Black Law Enforcement.

[Flyer from Contra Costa hearing]

Three common arguments are being made by opponents:

1) Several speakers made the unfounded claim that e-cigarettes are a harm reduction product and thus should be excluded from regulation. They argue that flavors are critical to helping former tobacco smokers to stay off the bad tasting tobacco cigarettes. While some individuals may have used e-cigarettes to quit smoking, research shows that many people continue using both e-cigarettes and tobacco, and that people who use e-cigarettes are less likely to quit smoking than people who do not use the products.


2) Some speakers used a common opposition message generally used to oppose tobacco taxes: that regulating tobacco products has unintended consequences, including the creation of an underground “black market” for illegal tobacco sales, and increasing police harassment and arrests, especially in communities of color. These speakers played on legitimate concerns of antagonistic interactions between police and communities of color, but what they did not say is that there is no evidence that these laws lead to illegal sales. Also, these speakers willfully ignored the fact that the proposed ordinances do not prohibit the possession of flavored tobacco,so police will have no reason to stop people in the streets for smoking or possessing flavored products.


3) Another argument made by small tobacco retailers was that the ordinance would cause economic devastation. There is no evidence that this would be the case. While no one wants to harm small business owners, we cannot put profits ahead of health. San Francisco Supervisor Sandra Lee-Fewer gave an eloquent reply to this concern, saying that cities and counties should do a better job of supporting small retailers to become Healthy Retailers by helping them transition to selling less harmful products in order to make up for any lost revenue and to benefit their customers.

Opposition groups that are fighting proposed ordinances include:

  • The Smoke Free Alternatives Trade Association (SFATA), an e-cigarette industry group, is sending action alerts encouraging people to contact their elected officials to oppose the inclusion of flavored e-cigarette products in the proposed ordinances.
  • The Law Enforcement Action Partnership is airing radio ads on several Bay Area stations, including R&B station KBLX, saying that laws prohibiting menthol cigarettes have unintended consequences.
  • A full-page ad opposing San Francisco’s ordinance was run in the Bay Area Reporter, a prominent LGBTQ publication, stating that e-cigarettes are harm reduction products and should not be included in the law. The ad was placed by the e-cigarette advocacy group Consumer Advocates for Smoke-free Alternatives Association (CASAA) along with libertarian think tank R Street Institute and Log Cabin Republicans.
  • NATO, the National Association of Tobacco Outlets, is making claims that prohibiting the sale of flavored tobacco products with dramatically decrease business for these already fragile, small business retailers.

Previous Updates

 

Press conferences
ANR attended press conferences hosted by the sponsors of the San Francisco and Oakland ordinances to officially introduce these landmark pieces of legislation. The press conferences were very well attended by local elected officials, tobacco control advocates, public health and community organizations, and community members who support taking action on this important issue. Speakers at Oakland’s event on Tuesday May 9 included ANR Board member Dr. Valerie Yerger, African American Tobacco Control Leadership Council Co-Chairs Carol McGruder and Phil Gardiner, representatives of the Oakland chapter of the NAACP and Clinica de la Raza, and Oakland City Council President and bill co-sponsor Larry Reid who spoke movingly about the impact of his tobacco addition which has resulted in four heart surgeries. The press conference ended with the deeply powerful and personal spoken-word performances by two eloquent teens who are 1st and 2nd place winners of a spoken word contest about the impact of tobacco on their families and community.

Later that day, the Oakland Life Enrichment Committee voted 4-0 to recommend the ordinance to the full City Council on June 6. Numerous people came to the meeting to speak in support of the proposal, including numerous teens and young adults.

In addition to supporters, there was a sizable presence of opponents to the ordinance which was anticipated. While some speakers objected to restricting sales of flavored tobacco, there was a larger number of speakers who opposed including flavored electronic smoking devices and flavored e-liquid in the law. Supporters did a good job of responding to objections that were made, and going forward advocates need to proactively continue to counter those points.

People speaking against Oakland's proposed ordinance on June 6 included:

Tim McKinney
Mr. McKinney said that we should not prohibit flavored tobacco sales because we now have a Tobacco 21 law and that fact means that research on youth smoking is now irrelevant. He went on to say social sources, not retailers are the source of youth access to tobacco; prohibition does not work; family retailers will lose $83,000 annually in net income; and it contributes to criminalizing black males.

Sanjiv Patel, American Petroleum & Convenience Store Association
Mr. Patel argued that it’s not the government’s job to control what people buy, that there’s no point in controlling tobacco sales, and that the real solution is to charge youth with possession of tobacco products.

Steve Greenhut, R Street Institute
Mr. Greenhut said that R Street’s focus is on harm reduction, which is why they oppose the inclusion of e-cigarettes in the ordinance. He also said e-cigarettes are “popular cessation products,” and cited a Public Health England study saying that e-cigarettes are 95% safer than cigarettes.

Vape shop owners who said “flavors are integral to success” and “e-cigarettes are life-saving products.”

After public comment from about 30 people, the committee discussed and spoke favorably about the ordinance, and voted 4-0 to move it to the full City Council.

 

Background

 

Flavored tobacco is disproportionately marketed to children and young adults, African Americans, the LGBTQ community, and other vulnerable populations. Historically, the tobacco industry’s attempts to maintain a positive image among African Americans have included such efforts as supporting cultural events and making contributions to minority higher education institutions, elected officials, civic and community organizations, and scholarship programs. At the same time, the tobacco industry has had a long and well-documented history of profiling and targeting African-Americans with predatory advertising, menthol products, discounted pricing, and other tactics to increase their profit at the expense of individual lives.

Tobacco companies were required by the FDA to remove all flavors from tobacco cigarettes except for menthol, which is not only one of the most popular flavors, but it’s also the flavor that makes smoking less harsh and makes it easier for the user to become hooked.

 

Related Research
D'Silva; J.; Cohn, A.M.; Johnson, A.L.; Villanti, A.C., "Differences in subjective experiences to first use of menthol and non-menthol cigarettes in a national sample of young adult cigarette smokers," Nicotine and Tobacco Research [Epub ahead of print], August 17, 2017.
Schauer, G.L.; Peters, E.N.; Rosenberry, Z.; Kim, H., "Trends in and characteristics of marijuana and menthol cigarette use among current cigarette smokers, 2005-2014," Nicotine and Tobacco Research [Epub ahead of print], January 6, 2017.