Background

It was previously known as Bund für Lebensmittelrecht und Lebensmittelkunde (BLL), the German Federation for Food Law and Food Sciences.⁴

As of 2023, members include around 70 associations, 250 companies, and 150 corporate and individual members.⁵

LMVD describes itself as “opinion-forming platform, service provider and consultant” for its members.² It undertakes lobbying activities in both Germany and the European Union (EU).⁶³

Links to the tobacco industry

Tobacco industry members

LMVD is financed exclusively from its membership fees, however no figures are disclosed.⁷

Members include:

• Philip Morris GmbH, a subsidiary of Philip Morris International (PMI).⁸⁹
• The Association of the German Smoking Tobacco Industry (VdR). This association represents the interests of manufacturers and EU distributors of tobacco, as well as importers of cigars and cigarillos based in Germany.¹⁰ Patrick Engels, Chairman of VdR, sits on LMVD’s board of trustees.¹¹

Although not listed as a member on LMVD’s website, as of February 2023, the Federal Association of the Tobacco Industry and Novel Products (BVTE) listed its membership of LMVD in the German lobbying register in September 2022.¹² BVTE states that it “represents and promotes the interests of the entire value chain across all smoking and vaping products as well as tobacco and nicotine products for oral use”.¹³ BVTE’s members include British American Tobacco, Imperial Brands, Japan Tobacco International, and Swedish Match (now owned by PMI).¹⁴

Activities

LMVD has regularly criticised and lobbied against the introduction of new tobacco control policies.

Against bans on tobacco advertising

In October 2000, LMVD released a statement expressing its support of a recent ruling in the European Court of Justice that blocked a directive to ban tobacco advertising and sponsorship,¹⁵ stating “[LMVD] is again strictly against such advertising bans… A total ban on advertising legitimate products on the market is contrary to European legal systems… advertising bans cannot reduce the proportion of smokers in the population at all. Consumer information and education is a more appropriate way to enable consumers to make informed purchasing decisions”[translation].¹⁵

Lobbied against revisions to the EU Tobacco Products Directive

The Tobacco Products Directive (TPD) regulates the manufacture, presentation and sale of tobacco products in the EU. In 2014, the EU completed the first revision of the TPD (2014/40/EU), which became applicable in the EU Member States in May 2016. Regulations included a ban on the use of characterising flavours, an increase in size of graphic health warnings, and a ban on tobacco advertising.

LMVD lobbied against the revision of the TPD on several occasions.

In December 2012, LMVD publicly opposed the proposed revisions to packaging regulations,¹⁶ stating that:

“These are requirements that are not compatible with either the fundamental rights of consumers or those of companies. Almost standardized packaging, 75 percent of which contains warnings and leaves little space for brand names and product information, ignores consumers’ right to information and freedom of choice”[translation].¹⁷

In February 2013, LMVD submitted a statement to the Government arguing against the draft directive. The statement noted that PMI would also be providing comments:¹⁸¹⁹

“…we thank you for the opportunity to comment on the above draft. For the rest, we refer to the statements of the trade associations and the company Philip Morris who will contact you directly with their comments”.[translation]

PMI is known to have spent millions of euros on an elaborate lobbying campaign against revisions to the TPD, involving more than 160 lobbyists.

In the statement, LMVD argued against the ban on characterising flavours, and stated that introducing plain packaging and increasing the size of graphic health warnings violated EU law.

LMVD also stated that the draft directive could affect a large number of small and medium enterprises, subjecting them to “administrative and financial hurdles that are disproportionate to adequate regulation for the purpose of comprehensive health protection”[translation].¹⁹

LMVD released another statement in July 2013 claiming that “With the proposed general ban on additives, the EU Commission is demonizing the use of flavourings without any scientific basis”.²⁰

It argued that scientific test criteria must be developed before the regulation of characterising flavours in tobacco products, and that its tobacco industry members would like to be involved in this process.²⁰

The World Health Organization Framework Convention on Tobacco Control (WHO FCTC) highlights the need to protect public health policies from the tobacco industry.

In November 2015, LMVD made a further submission to the government that was heavily critical of the changes, this time also citing concerns about the introduction of an advertising ban:²¹

“A total ban on information and advertising for lawful products contradicts our economic system and the basic law”[translation].

• For an overview of the EU TPD Revision process and the tobacco industry’s response, see: EU Tobacco Products Directive Revision

Opposed tobacco advertising ban in Germany

In 2016, LMVD criticised a draft law that proposed a ban on all outdoor advertising of tobacco products and e-cigarettes, a regulation which was not included in the 2014 TPD revision.  In a press release LMVD stated “[LMVD] considers total bans on the advertising of legal products to adults to be a deep cut in society’s concept of freedom”.²²

In 2019, it also took part in government discussions regarding the possible extension of tobacco advertising bans.²³

Lobbying on heated tobacco

In March 2022, LMVD opposed an amendment to the TPD which proposed the withdrawal of certain regulatory exemptions for heated tobacco products.²⁴

LMVD claimed that including the same health warnings on HTP packaging that appear on other tobacco products would constitute misinformation to the customer. It also argued that the EU commission did not have the authority to create new product categories or change existing definitions.²⁵²⁶

Tobacco Tactics Resources:

• EU Tobacco Products Directive Revision
• Third Party Techniques

References

The post Lebensmittelverband Deutschland (Food Federation Germany) appeared first on TobaccoTactics.

• The EU menthol ban came into force in May 2020. Tobacco companies exploited weaknesses in the ban: the focus on characterising flavours rather than flavour ingredients; product exemptions; and a long phase-in period.
• Prior to the ban menthol use was highest in England and Poland. Menthol had an estimated 20% of the UK cigarette market, in which Imperial Brands and JTI dominate.
• Unlike other EU countries, menthol’s share of the market grew in Poland and the UK after the ban was announced in 2016.
• Tobacco companies, led by JTI and Imperial, were able to exploit the challenges of determining ‘characterising’ flavour, and the omission of cigarillos and accessories from the ban. There are early indications that this has prolonged menthol use post-ban.
• Menthol ban websites promoted newer products, mainly heated tobacco and e-cigarettes.
• In its submissions to the EU, the tobacco industry is minimising the harm caused by flavoured additives by focusing on toxicity rather than addiction.

Regulation of flavours that make smoking more palatable is recommended by the WHO Framework Convention of Tobacco Control (FCTC).²⁷²⁸ This page details regulation and interference in the EU in the pre and post the 2020 menthol ban.

For information on the global menthol market, and regulation and interference in other countries see Flavoured and Menthol Tobacco.

Background

Regulation and Interference on Flavour in the EU and UK

An EU-wide ban on the sale of flavoured cigarettes was introduced in May 2016, including menthol, under the 2014 revised European Tobacco Products Directive (TPD), with a May 2016 deadline for EU countries to transpose the TPD into national law.²⁹ While retailers were allowed a year to sell existing stocks of other flavours, the phase-out period for menthol was extended for a further three years, and came into force across the EU in May 2020.³⁰

Weaknesses of the EU menthol ban which could be exploited by industry included:³¹³²³³

• not banning menthol as an ingredient
• exemption for most products (as the ban was only applicable to cigarettes – factory made and roll your own) and accessories
• and a four year phase-in period.

Menthol market share in Europe

Prior to the 2020 ban, Euromonitor analysis estimated the whole European menthol market to be worth around EU€9.7 billion (US$11 billion, nearly UK£8.5 billion).³⁴  The relative shares of menthol flavoured cigarettes versus those with capsules (menthol and other flavours) varied; while the market share for capsules exceeded the share for menthol flavoured tobacco in half of EU countries, in others the capsule share was very low or non-existent.³⁵ Menthol and capsule market share has tended to be higher for European countries outside the EU.³⁵

The International Tobacco Control (ITC) survey in 2016 (n=10,000 adult smokers, in 8 European countries) found that the countries with the highest menthol use were England (over 12% of smokers) and Poland (10%); the lowest levels were observed in Germany and Spain (Figure 1).³⁶

Figure 1: Prevalence of flavour of cigarettes smoked (usual brand of choice) in 2016 (%).(Source: EUREST-PLUS ITC Europe Surveys)³⁶

The ITC figures are supported by 2018 Euromonitor data, which show that the combined market share of menthol and capsules was generally higher in northern European countries, with the highest in Poland, at over 25%, followed by the UK, at over 20% .³⁷

The UK market

The UK was part of the EU until 31 January 2020.  The 2016 TPD, which included the menthol and flavours ban, was transposed into UK law and remains in place in the UK.  Any future amendments to UK legislation will be made by the UK government.

The UK cigarette market, is dominated by two tobacco companies, Imperial Tobacco (Imperial Brands) and Japan Tobacco International (JTI).³⁸ According to Euromonitor, in 2019, Imperial had a 44% share of the total cigarette market and JTI 37%, by retail volume. Although it is also based in the UK, British American Tobacco (BAT)’s share was much smaller, at just over 9%. Philip Morris International (PMI) had under 8%, mainly due to its Marlboro brand.³⁹

Prior to the ban, menthol cigarettes formed an estimated 21% of the UK market.³⁵ 2018 figures from the Office for National Statistics (ONS) indicate that there were 7.2 million smokers in the UK; based on the 2016 ITC survey data (detailed above) that would equate to nearly 900,000 smokers who usually smoke menthol cigarettes. According to market research survey based data, the figure was much higher in 2019, nearly 1.6 million in Great Britain,⁴⁰

Six billion menthol cigarettes were sold in the UK in 2018.⁴¹ According to the ITC survey, 17.5% of UK smokers said that they intended to quit after the ban (an average of 16% of smokers in the EU said the same).³⁶ As this could reduce annual sales by around 1 billion sticks (3% of the total UK cigarette market), tobacco companies had a clear interest in circumventing the ban and maintaining market share, particularly Imperial and Japan Tobacco International (JTI) (having over 80% of the total cigarette market between them).

See below for a description of the range of tactics used by tobacco companies to exploit loopholes in the legislation and circumvent the EU menthol ban.

• For information on the global market for menthol cigarettes see Flavoured and Menthol Tobacco.

Tobacco Companies Activities to Circumvent and Undermine the Menthol Ban

Lobbying and delay: four year phase-out for menthol

After protests against the TPD from the tobacco industry, and an (ultimately unsuccessful) legal challenge by Poland at the European Court of Justice, supported by Romania, implementation of the ban on menthol cigarettes was postponed to 2020.⁴²⁴³ This was agreed as a four-year transitional “phase-out” period for all flavoured products with more than a 3% market share in the EU, such as menthol.⁴⁴ (There was a similar ‘sell-through period’, a period when soon to be non-compliant stock can be sold off, when plain, or standardised, packaging was introduced into the UK in 2016, although only for one year).⁴⁵  Romania asked for the ban to be repealed shortly after the TPD was agreed, using evidence from PMI as justification.  JTI officials in Romania were making the same arguments at the time.⁴⁶

The relevant wording of the EU TPD menthol ban is as follows:

“Member States shall prohibit the placing on the market of… cigarettes and roll your own tobacco… products with a characterising flavour… including… menthol [or those] containing flavourings in any of their components such as filters, papers, packages, capsules or any technical features allowing modification of the smell or taste of the tobacco products concerned…  However, products with characterising flavour with a higher sales volume should be phased out over an extended time period to allow consumers adequate time to switch to other products… In the case of tobacco products with a characterising flavour whose Union-wide sales volumes represent 3 % or more in a particular product category, the provisions of this Article shall apply from 20 May 2020… The Member States and the Commission may charge proportionate fees to manufacturers and importers of tobacco products for assessing [compliance].” ²⁹

Some member states, such as Germany and Finland, have gone beyond these requirements and prohibit menthol as an additive.³³ Hungary has also announced it has plans to ban cigarettes that contain any amount of menthol.⁴⁷

In early May 2020, tobacco companies were reported to be lobbying for further postponement of the ban in the EU.⁴⁸⁴⁹ Tobacco industry front group Forest EU were also reported to be lobbying against the ban.⁴⁹ In January 2019 it had described the ban as “unwarranted attack on consumer choice that will do little to deter children from smoking”.⁵⁰ These attempts were not successful. Romania delayed implementing the ban for six weeks in 2020, without informing the EU.⁴⁶

Promotion of menthol products through the derogation period

Menthol/capsule cigarettes’ market share began to decline after the EU TPD legislation was announced in EU countries, whereas there was some growth in in countries in the WHO Europe Region which were not EU members. Two exceptions were the UK and Poland, two markets with high proportions of menthol sales.  In these countries there was marked growth in the market share of menthol/capsule cigarettes despite the incoming ban (figure 2).

Figure 2: Tobacco companies increased their sales of menthol in the run up to flavour bans in the UK and Poland (source: TCRG, June 2021)

During this period the tobacco industry promoted new menthol products to UK retailers through the retail trade press. It appears that the tobacco industry was prolonging sales in the ‘phase out’ period in these countries rather than using the period for a phase out of flavours, thus calling into question the necessity of a long derogation (delay to implementation).⁵¹⁵²⁵³

Tobacco company buy-back schemes to maximise pre-ban sales

Despite being given four extra years by the EUTPD to get ready for the menthol ban, UK retailer group the Association of Convenience Stores stated, in advice to its members, that there was “no sell-through period”.⁵⁴⁵² Tobacco companies stated that they had, or were planning, ‘buy-back’ schemes, to encourage retailers to sell menthol cigarettes right up to the ban.⁵²  However, tobacco companies were slow to inform UK retailers of their plans.

PMI’s UK affiliate Philip Morris Ltd (PML) supplied details of its scheme via a dedicated website, where it promoted PMI’s heated tobacco product (HTP) IQOS as an alternative product, and which required retailer registration (see below).⁵⁵⁵⁶ Further details were provided as late as the end of April 2020.⁵²⁵⁶⁵⁷ BAT said in November 2019 that it would swap small amounts of menthol stock after the ban came into force. However, when approached by trade publication Better Retailing in April, less than a month before the ban, BAT refused to give further details.⁵⁷

Imperial Tobacco also gave no indication whether or how it would take back excess menthol products, other than that it would “be dealt with on an individual basis”.⁵⁷ It was reported that some retailers had advised others to remove from their product lists those products supplied by companies which would not disclose their plans. Otherwise, they risked being left holding stock which they would not be able to legally sell after 20 May.⁵⁷

In August 2021, fourteen months after the ban, some retailers were still waiting for the buyback and complaining of a lack of response from attempts to contact tobacco companies. ⁵⁸⁵⁹

Tobacco companies issued warnings of the risks of the ban leading to illicit trade. JTI, which said it would be buying back excess menthol stock, warned retailers that there was a risk of illicit trade in menthol cigarettes, claiming that “counterfeit menthol products [had been] seized in the UK already”.⁵⁷⁶⁰ However, Better Retailing stated that this was contrary to information from other tobacco companies earlier in the year.⁶⁰ JTI’s anti illicit trade operations manager said that retailers should warn their customers not to buy fake products, using common tobacco industry arguments around product quality and safety.⁶⁰

For more information see Illicit Tobacco Trade.

Product innovation & promotion of newer products

While the ban applied to cigarettes and roll your own tobacco, other tobacco products were exempt. Menthol accessories were only included in the ban if they were sold within the packaging of cigarettes or roll your own tobacco.⁵¹⁵⁴

Tobacco companies used product innovation as a way to circumvent the menthol ban and maintain a market for their menthol products, claiming that they were doing so to meet the needs of consumers.³⁴⁶¹⁶²

Tobacco companies used several tactics, including launching product alternatives, in order to circumvent the ban:

• new menthol accessories
• new brands of cigarettes containing some menthol, exploiting the term ‘characterising flavour’
• new cigarette-like cigarillos, other tobacco products (pipe or shisha tobacco)
• menthol and flavour launches for newer products (heated tobacco products, e-cigarettes and nicotine pouches) promoted through ‘menthol ban’ websites

CNTC identified Germany, France, Belgium, Spain and the UK as offering the largest variety of these alternatives in the EU.³⁷ Methods varied by company: Imperial and JTI developed new products; PMI used it as an opportunity to promote its own alternatives. All created ‘menthol ban’ websites or web pages (see below).

New menthol accessories

Tobacco accessories sold separately are not covered by the current TPD regulations, although they can still impart a menthol flavour. The tobacco industry has launched various new accessories since the TPD implementation in 2016, many relating to filters.⁵¹⁶³ Imperial launched menthol roll your own (RYO) filter tips in mid-2017.⁶⁴ In January 2019, it launched a filter tip with a capsule, called “Polar Blast”.⁶⁵

It originally appeared that new filter tips might be an attempt to encourage menthol cigarette smokers to switch to RYO rather than quit. However, IMB introduced a product which enabled it to circumvent the EU ban on pre-inserted flavour capsules in factory made cigarettes. In January 2019, Imperial launched the L&B Blue Bright Air Filter with a recess in the filter and a firm filter structure.⁶⁶ Although the launch announcement did not mention it, this filter structure allows a menthol filter tip – designed for RYO – to be inserted.⁶⁷

Independent company Republic Technologies, which specialises in RYO accessories, also introduced a new menthol filter tip under its Swan brand.⁶⁸ (Republic Technologies bought Swedish Match UK in 2008, but does not sell tobacco).⁶⁹ These have been advertised with Imperial’s L&B Blue Bright Air Filter cigarettes.⁶⁷

Packets of flavour capsules are now being advertised to buy separately to be poked into the cigarette filter before combustion in websites targeted at Poland.⁷⁰

Figure 3: Imperial’s Rizla menthol “infusion” cards (source: conveniencestore.co.uk)⁷¹

Strips of cardboard, known as flavour cards, add flavour to cigarettes when they are added to a pack.  A Finnish firm ‘Frizc’ sells menthol, lime, liquorice and raspberry flavoured cards in Estonia.⁷²  The company website states that the packs (which appeared on the market in May 2020) can be used to flavour tea, coffee and oatflakes but do not mention tobacco. However, they are sized exactly for a cigarette pack and retailers can recommend them to smokers.⁷²

In January 2020, the launch of Imperial’s “Flavour Infusion cards” in two flavours: “menthol chill” and “fresh mint” was announced (Figure 3).⁷³ These cards impart a menthol flavour into factory made cigarettes or RYO tobacco if inserted into product packs.⁷⁴  Imperial stated it was selling 900,000 packs of flavour cards a week by mid-2021.⁷⁵

The point of sale display ban exempts tobacco accessories (including branding) in England and Wales but in Scotland accessories must be hidden like other tobacco products.⁷⁶ Imperial have made use of the exemption in England and Wales to recommend that flavour infusion cards are promoted in point of sale displays.⁷⁴⁷⁷ Imperial reported selling 900,000 a week in July 2021.⁷⁸ Swan, an accessories manufacturer had also launched flavour cards by mid-2021.⁷⁸ In July 2021, the UK tobacco accessories market was reported to be worth UK£314 million.⁷⁸

Menthol and other flavour sprays, stones and drops have been developed for soaking filters or cards, and are on sale in the EU,³⁷⁷⁹ and the UK ⁸⁰⁸¹

Exploiting the term ‘characterising flavours’

The TPD regulations state that:²⁹

“characterising flavour” means a smell or taste other than one of tobacco which—
(a) is clearly noticeable before or during consumption of the product; and
(b) results from an additive or a combination of additives, including, but not limited to, fruit, spice, herbs, alcohol, candy, menthol or vanilla”

In November 2020, The Bureau of Investigative Journalism, working with the Organised Crime and Corruption Reporting Project (OCCRP) reported uncertainty and confusion in multiple European countries as to the level of menthol flavouring present in cigarettes that could be considered to be characterising.⁴⁷⁸² They presented evidence that the term ‘characterising’ was used after lobbying from the tobacco industry.⁴⁷ Public health NGO Comité National Contre le Tabagisme (CNTC) accuses tobacco companies of exploiting the ambiguity around the definition of the term ‘characterising’.³⁷

Determining whether a product has a characterising flavour is difficult. The EU took nearly five years to put a methodology in place; a combination of sensory panels and chemical analyses.³³⁸² Slow development of testing, and a lack of firm action, has left a regulatory vacuum for the tobacco industry to exploit. JTI launched products which, when challenged, it claimed did not have a characterising flavour.⁸² The company later changed direction, saying it was able to sell these products because there was no way at the time to test for a characterising flavour.⁸² Other tobacco companies and health campaigners have claimed that these new products do have flavours that would be characterising.⁸³ The Direction Générale de la Santé (DGS, the French ministry of health) was reported to be investigating over 300 products suspected of containing prohibited flavours.³⁷ Sweden referred 21 JTI cigarette varieties to the European Commission to test for characterising flavour in June 2020.  In late 2021, the Office for Health Improvement and Disparities (the successor to Public Health England) was reported to be testing products from several manufacturers.⁸²

UK

In the UK products began to be released at an early stage. In late March 2020, JTI promoted new ‘dual’ cigarette products with new blends, filters and two sections of 10 cigarettes, to appeal to menthol smokers looking for new products.⁸⁴⁸⁵ However it was unclear what these new ‘blends’ entailed.

JTI also developed a range of “Green” and “Blue” product variations under the same brand names as their menthol cigarettes.⁸⁶ The Sun newspaper reported that these products tasted and smelled like menthol, without containing the substance.⁸⁶ Scottish Local Retailer published a dedicated  publication for UK retailers in conjunction in conjunction with JTI, called “Making A Mint”, which detailed alternative products including cigarettes made with “distinctive blends” of tobacco but did not mention helping smokers quit; it did recommend selling cigarettes at low prices.(Figure 4 )⁸⁷ These new cigarettes were promoted under the logo “menthol reimagined”, alongside  JTI’s newer nicotine and tobacco products (so called “Next Generation Products”).⁸⁷ (Imperial Tobacco promoted its e-cigarette blu in this publication.⁸⁷ See below for more on tobacco companies promoting newer products as menthol alternatives). JTI also ran an online training course for retailers, which featured their new cigarettes as direct replacements for existing menthol brands.⁸⁶

Figure 4: Page from retail publication showing JTI’s alternative cigarettes post-ban.(Source: Scottish Local Retailer/Japan Tobacco International, Making a Mint 2020, PDF supplied by Action on Smoking and Health)

A week before the May ban, Imperial Tobacco announced the launch of new “smooth” variants of their non-menthol brands, called “Bright” and “Green Filter”. The company said this was to “help retailers cater for their menthol and crushball customers when the ban comes into effect, by offering them new innovations from their brands of choice”.⁸⁸ Imperial also said its research showed that 82% of menthol and crushball smokers would continue to smoke their usual cigarette brand despite reduced levels of menthol, and 70% percent were “expected to switch to a smooth or full flavour variant”.⁸⁸

Better Retailing reported that, according to information from UK wholesalers, tobacco companies had between them created 29 new product lines to replace menthol products due to be banned, which was confusing for customers.⁸⁹ While colour and branding can be used to promote products to retailers, cigarettes can only be sold in plain packs, and so the only noticeable difference for the customer with these new products would be a slight change of brand variant name.

Ireland

The Irish Times reported that JTI were selling a “green” version of their Silk Cut cigarette brand. JTI argued that this product complied with the ban, even though the company admitted that it used menthol flavouring in its manufacture.⁹⁰ According to the newspaper, JTI stated that they: “conduct robust internal testing processes to determine that the use of flavourings in our products does not produce a clearly noticeable smell or taste other than one of tobacco.”⁹⁰ BAT accused JTI of using the same tactic in France, with new versions of its Camel and Winston brands, to which JTI issued a similar denial.⁹¹

The Irish Times also reported that PML was advertising a new cigarette in the retail press. Called “Marlboro Bright“, it was described by PMI as a “the Marlboro menthol blend – without methylation”.⁹⁰⁹² PMI later said that this advertisement was a “mistake” and it should have used the phrase “without menthol” rather than “methylation”.⁹² The company insisted that it had “delisted all menthol cigarettes in the UK and Ireland – all of our cigarettes remaining on the market, including our latest variant Marlboro Bright, do not have any menthol in them and are in full compliance with the law”.⁹³

BAT also developed new variations under its Pall Mall, Vogue and Rothmans brands which included new blends and changes to filters “providing meaningful differentiation for adult smokers who previously preferred menthol.”⁹⁴⁹⁵⁹⁶ A representative of BAT (P.J.Carroll) in Ireland said that it was “not launching any cigarette brands or accessories with menthol-type properties”.⁹⁰

These attempts to adapt products were criticised by the Irish government with a spokesperson stating that the Health Minister believed the issue “should be dealt with at EU level”.⁹⁰

Similar tactics from BAT, PMI and JTI have been noted in the following EU member states: France, Germany, Belgium, Spain, Denmark and Ireland ³⁷, Austria, Czech Republic, Estonia, Hungary,  Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden ⁸³

In 2020, JTI’s brands in France,³⁷ and Ireland ⁹⁷ had high sales, suggesting this has been a successful strategy for the tobacco industry.

New ‘cig-alike’ cigarillos

The only part of standardised packs legislation applicable to cigars and cigarillos was a larger health warning; legislation on branding, minimum pack size, and flavourings does not apply. Tobacco companies developed new product variations and promoted these products in the retail press.⁵¹ From 2020, JTI and/or Landwyck cigarette-like cigarillos were launched in France, Germany, Belgium, Spain, Denmark, Ireland, Romania, Netherlands, Poland and the UK.³⁷

Figure 5: JTI’s Sterling Dual menthol cigarillo (Source: talkingretail.com)⁹⁸

Japan Tobacco International 

Stirling Dual Capsules are cigarette-like cigarillos with mentholated tobacco launched in the UK by JTI in early 2020 (figure 5).⁹⁸ The product contains  a capsule filter which releases a peppermint flavour on crushing.⁹⁹ Stirling is one of JTI’s most popular cigarette brands, which already included capsule options.  The cigarillos were legally allowed to be sold in 10 packs making them  approximately half the price of the cheapest cigarette packs on the UK market. Marketing to retailers framed them as an option to circumvent the menthol ban.⁴⁵⁶¹ Action on Smoking and Health (ASH) described this as a “cynical” move on the part of JTI, saying that its new cigarillo was essentially “a cigarette wrapped in tobacco leaf”.⁶² JTI, quoted in retail magazine The Scottish Grocer, said that it was “committed to providing retailers with as much choice as possible by launching innovative new products that respond to current trends”.¹⁰⁰

These cigarillos won retail industry awards and were described as having “a strong performance” and JTI released a 20 stick version in early 2021.⁹⁹ In the second half of 2020, over 45% of cigar sales recorded by the Retail Data Partnership were Sterling Dual Capsule cigarillos.⁸²

Scandinavian Tobacco Group

The Scandinavian Tobacco Group, a cigar specialist, launched Signature Dual in February 2020.⁶⁸¹⁰¹ This is a menthol capsule cigarillo, similar to JTI’s Sterling Dual Capsule.

Imperial Brands

In August 2020, Imperial Brands (previously Imperial Tobacco) added a 10-pack of menthol crushball cigarillos to its JPS Players range, with a price comparable to JTI’s product. Imperial’s UK market manager said that this product would: “help bridge the gap left by the ban”.¹⁰²¹⁰³

Impact of new cigarillo variants

According to Euromonitor data, the UK cigarillo market was in decline until the TPD came into force in 2016, but it is now growing. Euromonitor forecasts sales of cigarillos will carry on rising, whereas cigar sales will remain in long term decline.¹⁰⁴¹⁰⁵

Promoted newer products through menthol ban websites

Tobacco companies used harm reduction as a strategy to achieve their business objectives. In advance of the menthol ban in the UK, they promoted their newer nicotine and tobacco products (heated tobacco products, e-cigarettes and nicotine pouches).

As the UK does not allow open promotion and display of tobacco products, tobacco companies created websites and pages specifically to provide information about the ban to retailers and consumers, in addition to articles in the retail press.^5556105106 Although they are apparently set up to provide information, these websites also help companies to capitalise on the upcoming ban by promoting their newer products.⁸⁵ These include heated tobacco products (HTPs) such as PMI’s IQOS and its HEETS tobacco sticks, to which the ban did not  apply.⁶⁸⁵⁷

• For details, see: Promotion of Newer Products Around The UK Menthol Ban

What Next for Menthol in Europe?

Despite industry efforts to boost menthol sales, the upcoming ban appeared to be having an impact on UK smokers’ buying habits, as sales of menthol cigarettes fell in the months before it came into effect. For details see Flavoured and Menthol Tobacco – Do Bans Work.

UK: arguments for retrenchment

Since the EU 2016 TPD came into force, the UK has left the EU (known as Brexit).  Twitter activity and some media reports suggested Brexit could be an opportunity to repeal the menthol ban. ¹⁰⁷¹⁰⁸ It is not clear whether the tobacco industry intends to lobby to roll back this legislation after the transition period. However, traditionally the UK has gone beyond EU requirements regarding tobacco control, so repealing would require a change in political consensus.¹⁰⁹ In July 2020, the Secretary of State for Health and Social Care confirmed that “As the ban is part of United Kingdom legislation, it will remain in place when the UK exits the transition period with the European Union”.¹¹⁰

The UK did not replicate the 2023 EU ban on flavoured heated tobacco products (see below).

Finland: going beyond the TPD

Finland aims to end the use of tobacco and other nicotine products by 2030.  Policy makers have interpreted the 2016 TPD flavour ban as also applying to e-cigarette liquids.¹¹¹ There have been court cases in Finland as shops have been selling flavourings labelled for food use, but which have not been tested for possible toxicity when heated and inhaled.  These flavourings are labelled for use with e-cigarettes (vaping) in other countries.  Finnish researchers have called for the EU to reconsider regulation, product notification and prohibition of e-cigarette flavours.¹¹¹

Revision of the 2014 TPD

The TPD is under revision, in both the EU and the UK, as scheduled in the legislation. Tobacco industry activity implies that current regulation should be tightened to:¹¹²

• remove the loopholes around characterising flavour by banning menthol as an ingredient;
• extend the ban to all tobacco products, especially cigarillos and other products that are mimicking or replacing cigarettes; and
• consider whether to broaden regulations to include heated tobacco sticks, e-liquids and other new products

As essentially a cigarette wrapped in brown leaf rather than white paper, cigarillos are likely to be very attractive to the tobacco industry; not only are they currently exempt from EU and UK standardised packs legislation, but they are also subject to lower taxes.⁵¹⁴⁵ It has also been recommended that the ban is extended to waterpipe where flavours are a key attraction and young people, and some European populations have a particularly high level of use.¹¹³

Extending the ban to accessories could be more difficult given their variety, but there are already a bans on  their display at point of sale in Denmark and Scotland.¹¹⁴¹¹⁵ Some accessories such as cigarette filters, where the tobacco industry has made false health claims, could themselves be banned completely.⁶³

Tobacco industry strategies during revision development

Reinskje Talhoot from the National Institute for Public Health and the Environment, (Rijksinstituut voor Volksgezondheid en Milieu, RIVM) in the Netherlands stated that the tobacco industry has been focussing on the toxicity of tobacco additives like menthol. There is little evidence of toxicity and this helps draws attention away from studies that show that menthol encourages young smokers to continue smoking.³²

From May 2020, manufacturers were required to disclose additives in tobacco products and additional information about the harmful and addictive effects of 15 priority additives including menthol.  The EU Commission asked an independent group of experts, called WP9 and led by RIVM, to assess the research reports.³² WP9 concluded that there was strong independent evidence that low amounts of menthol (which would be insufficient to make a characterising flavour) still facilitates smoke inhalation making smoking easier for novice (new) smokers.³² WP9 noted that tobacco industry reports did not come to the same conclusion because they left out some independent studies. There were also limitations in the research methods and statistical analyses.³² WP9 therefore concluded that the industry reports were unreliable and should not be used to guide EU member states’ policies. WP9 instead advises that menthol in cigarettes should be banned completely.³²

EU ban on flavoured heated tobacco products

Heated tobacco products (HTPs) were exempted from the flavour ban. However, the Commission published a report in June 2022 which found that the sales of HTPs had increased by more than 10% (by volume) in 10 member countries, and were making up over 3% of total tobacco product sales.¹¹⁶

This was classified as a “substantial change of circumstances” enabling the Commission to propose a ban on flavoured HTPs, as part of Europe’s Beating Cancer Plan.^{117118 119} The Commissioner for Health and Food Safety, Stella Kyriakides, said:

“With nine out of ten lung cancers caused by tobacco, we want to make smoking as unattractive as possible to protect the health of our citizens and save lives. Stronger actions to reduce tobacco consumption, stricter enforcement and keeping pace with new developments to address the endless flow of new products entering the market – particularly important to protect younger people – is key for this. Prevention will always be better than cure.”¹¹⁷

After a period of scrutiny, a Delegated Directive was published in November 2022 and entered into force the same month, which banned HTPs with a characterising flavour in any of their components (referring to components closes a potential loophole for flavoured accessories).¹²⁰¹²¹ EU member countries were required to adopt national laws by 23 July 2023, and enact the ban 3 months later, by 23 October.¹¹⁸ Germany was the first country to pass the ban into law,¹²²

Extended transition period in Italy

The directive included a 3 month transitional period.¹²⁰ Market analysts Tobacco Intelligence reported that Italy allowed an extended transition period to sell existing stocks of flavoured products: ¹²¹

“…manufacturers can supply these to tax warehouses until 31st December 2023, tax warehouses can provide them to retailers until 1st March 2024, and retailers can sell existing stocks.”¹²¹

Tobacco industry response

Legal challenges

In January 2023, BAT was granted permission to challenge the ban in the Irish high court (as the Republic of Ireland is part of the EU).¹²³¹²⁴ BAT stated that the ban would undermine its investment in “products with a reduced-risk profile” and have implications for public health policy.¹²³ In March, Philip Morris Group was given permission to join the legal challenge. Philip Morris did not market HTPs in Ireland at the time, but said it intended to do so.¹²⁵  In October 2023, media reported that the case had been referred to the European Court of Justice, with the tobacco companies accusing the EU of regulatory ‘overreach’.^126127128

Promoted purchases in countries where flavoured HTP sticks continued to be legal

On its website PMI stated that Northern Ireland was affected by the ban, but not the rest of the UK.¹²⁹ It noted that as the ban was on sales, not use,  “[a]dult users may still be able to buy heated tobacco products with a characterising flavour abroad and use them in the EU.”¹³⁰

Tobacco industry journal Tobacco Journal International also highlighted the potential for cross-border purchasing of flavoured products from neighbouring countries without a ban in place.¹³¹

Launched new nicotine sticks

In the months before the ban came into force, PMI and BAT launched flavoured sticks for using in HTP devices that do not contain tobacco. Instead, the sticks contain nicotine infused leaves (including rooibos tea) apparently developed in order to circumvent the HTP flavour ban.¹³²¹³³

For details see:

• Newer Nicotine and Tobacco Products: Philip Morris International
• Newer Nicotine and Tobacco Products: British American Tobacco.

TobaccoTactics Resources

• Flavoured and Menthol Tobacco
• Promotion of Newer Products Around The UK Menthol Ban
• EU Tobacco Products Directive Revision
• Flavoured and Menthol Tobacco in LMICs
• Product Innovation
• Newer Nicotine and Tobacco Products

Relevant Links

• STOP statement on the delayed US menthol ban and NGO-instigated legal action
• Menthol tobacco companies are exploiting loopholes in the  UK’s characterising flavours ban, S. Dance & K. Evans-Reeve, Tobacco Control blog, May 2021

TCRG Research

• Effects of and challenges to bans on menthol and other flavors in tobacco products, K. Przewoźniak, C. Kyriakos, R. Hiscock et al,  Tobacco Prevention & Cessation, 2021; 7 (November): 68, doi: 10.18332/tpc/143072
• Tobacco industry tactics to circumvent and undermine the menthol cigarette ban in the UK, R. Hiscock, K. Silver, M. Zatonski, A. Gilmore, Tobacco Control, 18 May 2020, doi:10.1136/tobaccocontrol-2020-055769
• Cigarette-like cigarillo introduced to bypass taxation, standardised packaging, minimum pack sizes, and menthol ban in the UK, J. Branston J, R. Hiscock, K. Silver, D. Arnott, A. Gilmore, Tobacco Control, Online First, 26 August 2020, doi: 10.1136/tobaccocontrol-2020-055700
• A prospective longitudinal study of tobacco company adaptation to standardised packaging in the UK: identifying circumventions and closing loopholes, K. Evans-Reeves, R. Hiscock, K. Lauber K, J. Branston, A. Gilmore, BMJ Open, 2019;9:e028506, doi:10.1136/bmjopen-2018-028506
• Standardised packaging, Minimum Excise Tax, and RYO focussed tax rise implications for UK tobacco pricing, R. Hiscock, N. Augustin, J. Branston, A. Gilmore, PloS one, February 2020, doi:10.1371/journal.pone.0228069

For a comprehensive list of all TCRG publications, including research that evaluates the impact of public health policy, go to the Bath TCRG’s list of publications.

References

The post Menthol Cigarettes: Industry Interference in the EU and UK appeared first on TobaccoTactics.

• Menthol cigarettes make up 10% of the global cigarette market.
• Using flavouring agents as additives is thought to establish and sustain tobacco use, particularly among young people.
• Cigarettes with flavour capsules in the filter create novelty and interactivity and are more popular among young people. Sales of capsule cigarettes are high in some countries, including South Korea and Chile.
• The tobacco industry is able to use its vast resources to extensively develop, market and promote flavoured products.
• Regulation of flavour is recommended by the WHO.
• Flavour bans have been found to reduce cigarette sales and smoking, and so are subject to industry interference. Tobacco companies advocate for bans on ‘characterizing flavours’ (rather than bans on additives) and can exploit them.
• There is little evidence that menthol bans lead to an increase in the illicit tobacco trade.

Menthol cigarettes are key products in tobacco company portfolios, representing an estimated 10% of the global cigarette market according to the World Health Organization (WHO).²⁷ Using flavouring agents as additives is thought to promote and sustain tobacco use, and therefore WHO recommends banning menthol and other flavours in cigarettes.²⁸

Note that this page focuses on cigarettes. There are many other kinds of flavoured tobacco products, including waterpipe, smokeless tobacco, including snus.

Flavours are also used in newer nicotine and tobacco products, such as e-cigarettes (also known as electronic nicotine delivery systems, or ENDS), heated tobacco products (HTPs) and nicotine pouches.

Figure 1: Retail publication sponsored by JTI (Source: Scottish Local Retailer/Japan Tobacco International, “Making a Mint”, 2020, PDF supplied by Action on Smoking and Health)

Background

Cigarettes are produced and sold with a variety of flavours, including menthol, fruit, spice, herb, alcohol, sweet and floral.¹³⁴¹³⁵ Menthol, a type of alcohol that can be obtained from mint plants or manufactured, is the most widely used cigarette flavour.^136137138 Besides adding a flavour, menthol desensitises receptors that lead to irritant sensations from nicotine, making the experience of smoking less harsh.¹³⁶¹³⁹ In the United States non-menthol cigarette consumption declined by 33%  from 2009-2018 but menthol cigarette consumption only declined by 8%.¹⁴⁰

Smoking menthol may help establish smoking among young people,^{138141142143144145} and reduce the likelihood of quitting.^141142146 Banning menthol should discourage sustained tobacco use.¹⁴¹¹⁴⁷

Menthol cigarettes could contribute to health inequalities: in the USA they have been found to be disproportionately smoked by those with lower incomes,^139148149 those with a lower level of education,¹³⁹ women,¹⁵⁰ African Americans,¹⁵¹¹⁵² the LGBTQ+ community,¹⁵³¹⁵⁴ and young people.¹⁵⁵

Menthol cigarettes are more commonly used by less-established or ‘novice’ smokers, and those who are experimenting with smoking.¹⁴⁹¹⁵⁵ Research shows that the tobacco industry has manipulated the menthol content of cigarettes to promote smoking initiation and sustain tobacco use.¹⁵⁶¹⁵⁷ Menthol was found to be key to industry strategy in Singapore, to both recruit and retain young smokers.¹⁵⁸

Mass distribution and marketing of menthol did not start until the 1960s although a US patent for menthol flavouring was granted in the 1920s.^137138159 In 2007 a new innovation for adding flavour appeared on the Japanese market which has since become common elsewhere, often marketed as a ‘crushball’, in which flavour is added via crushing a small plastic capsule in the filter.¹⁶⁰¹⁶¹ Tobacco companies have been developing flavour capsules since the 1960s and multiple innovations have been patented, but not yet marketed.¹⁶² Cigarettes with flavour capsules are popular with young people due to the interactivity, and the novelty of smoking a cigarette with two flavours.^160161163 Flavour capsule use is high in Chile, Mexico and South Korea.¹⁶⁴ In some countries use is high among women.¹⁶⁴ Some markets, such as the UK, only had menthol flavoured capsule cigarettes available, and not other flavours.¹⁶⁵

Menthol can be present in tobacco products not labelled as menthol.¹⁶⁶¹⁶⁷ The tobacco industry has stated that this might occur as a by-product of processing, but that it is also added deliberately to improve the flavour.¹³⁹¹⁶⁸

Regulation and Industry Interference

Regulation of flavours that make smoking more palatable is recommended by the WHO Framework Convention of Tobacco Control (FCTC).²⁷²⁸ According to a review conducted by researchers at Johns Hopkins University, as of 2021, about 40 countries have active or pending policies on flavour.¹⁶⁹ These policies differ according to whether the following are banned:

• all tobacco products
• products with flavour additives
• products with a noticeable or ‘characterising’ flavour
• flavour descriptors and images on packaging

Tobacco industry documents show that the industry favours characterising flavour bans.¹⁷⁰

Turkey was the first country to successfully introduce a ban on flavoured cigarettes, including menthol, in 2015, to be fully implemented in 2020.¹⁷¹¹⁷²

Also in 2015, Ethiopia banned menthol flavouring for all forms of tobacco to prevent appeal to children and adolescents, a pre-emptive move as Ethiopia had no significant existing use of menthol.²⁷¹⁷³ The ban was comprehensive, covering manufacture, import, distribution, and  sale. It bans aroma as well as taste, effectively banning additions to packaging.¹⁷⁴

While most flavour policies mention reducing youth use, only some restrict flavour descriptors on tobacco packaging.¹⁶⁹

For up-to-date information on regulation of tobacco products around the world see the Tobacco Control Laws website, produced by the Campaign For Tobacco Free Kids (CTFK).

For countries that are parties to the FCTC, progress towards implementation of relevant articles (9 and 10) is detailed in the FCTC implementation database.

Brazil

In 2012, in order to prohibit the addition of substances that enhance the attractiveness of tobacco products through flavour and taste, Brazil became the first country in the world to pass a law banning menthol tobacco products. However it was unable to enact the law due to industry interference and a lengthy court battle.¹⁷⁵¹⁷⁶

A review of academic, government and commercial documents found the tobacco industry used a range of strategies to interfere with the legislation, including instigating demonstrations by tobacco farming front groups, media articles, litigation, lobbying, and industry-commissioned studies questioning the rationales for legislation.¹⁷⁵ Arguments used by the tobacco industry included that: a ban would threaten employment, increase illicit trade, or prevent successful growing of burley tobacco; there is a lack of evidence that a ban would reduce smoking; and that a ban would be illegal.¹⁷⁵

Philip Morris Brasil (PMB) had challenged the ban through its membership of The National Industry Confederation (Confederação Nacional da Indústria, CNI), arguing that the ban was unconstitutional.¹⁷⁷¹⁷⁸ According to PMI’s 2018 annual report, “The tobacco union requested a stay of the enforcement of the ingredient ban while the appeal is pending”.¹⁷⁸

The Brazilian government finally won the court case in February 2018, although the ban was not fully enacted due to ongoing interference.^169176175179 Researchers noted that these strategies had also been used elsewhere, and that the legislation was delayed for many years despite a lack of evidence to support industry arguments.¹⁷⁵

Chile

The Ministry of Health in Chile, a country with high use of menthol cigarettes, particularly among women, tried to introduce a menthol ban under an existing law in 2013.²⁷¹⁸⁰ After lobbying from the tobacco industry, the ban was rejected. The industry argued that menthol products were no different to other tobacco products, and that there was a lack of evidence of increased addiction or harm.²⁷¹⁸¹ A new bill was introduced in 2015, supported by data showing very high use of menthol-flavoured cigarettes by young people (66% for smokers under 18).

In response to the new bill, British American Tobacco (BAT) threatened to withdraw its operations from Chile.¹⁸²¹⁸³ Despite passing the law in the Senate, as of February 2020 the law had yet to be implemented.¹⁸⁴ Although the bill stalled, BAT went ahead with the closure of some of its factories. According to the Campaign for Tobacco Free Kids, this “can be interpreted as a decision to consolidate based on cost efficiency and not on local tobacco-control laws”.¹⁸³ BAT continues to manufacture and market menthol cigarettes in Chile, with sales of capsule cigarettes increasing (see below).

Canada

Menthol cigarettes were initially exempted from a flavour ban in Canada in 2010. Evidence showed that menthol cigarettes were used by nearly a third of high school aged smokers.¹⁸⁵ The tobacco industry lobbied against extending the ban to non-cigarette products (cigarillos and smokeless tobacco).¹⁸⁶ After implementation tobacco companies developed new variations on existing products, including small menthol cigars, to get around the ban.^27169187

A series of menthol bans were implemented in Canadian provinces, starting with Nova Scotia in May 2015, and by October 2017 menthol cigarettes had been banned across Canada.^27188189190 First Nations reserves were included, removing a potential legal route for purchasing menthol after the ban, although products may still be available.¹⁸⁸¹⁹¹

Canadian legislation bans menthol’s use as an ingredient because menthol’s presence at subliminal levels reduces the negative sensations of smoking.^192193194

United States

In 2019, 18.5 million people in the US were current smokers of menthol cigarettes.¹⁹⁵ On 28 April 2022 the US Food and Drug Administration (FDA) announced proposed standards for banning menthol as a characterising flavour in cigarettes and cigars.¹⁹¹¹⁹⁶ In 2009 the US had previously banned characterising flavours in cigarettes (see below) except menthol.

Characterising Flavour

Factors relevant for determining whether a product has a characterising flavour as stated by the FDA include, but are not limited to, presence and amount of flavour ingredients or additives, multisensory experience, implicit or explicit flavour representations (including descriptors) on the packaging.  Industry has commented that characterising flavour requires a clear and scientifically based definition for compliance.¹⁹⁵

However, there is also evidence that tobacco companies have have undermined ‘characterising flavour’ bans implemented in other countries, notably the EU and UK.

The rules were to come into effect one year after the final publication of the regulations (not yet provided).¹⁹⁵¹⁹⁷  The ban would also cover tribal lands.¹⁹¹

As the tobacco companies make ‘massive profits’ from menthol, legal challenges and protests from the tobacco industry and third party allies are likely.¹⁹⁸¹⁹⁹ 30% of British American Tobacco’s operating profit is reported to come from the sale of menthol cigarettes in the US alone.²⁰⁰

• For more information see Flavoured and Menthol Tobacco in the US

Moldova

Moldova, a non-EU country in the lower middle-income category with a high smoking rate, was due to ban menthol cigarettes in May 2020 at the same time as the EU.¹⁷¹²⁰¹ In 2019, PMI increased its lobbying efforts in Moldova, to try to gain influence over tobacco control policy in the country. For more information see Swiss Diplomats Lobbying for PMI.

European Union and UK

An EU-wide ban on the sale of flavoured cigarettes was introduced in May 2016, including menthol, under the 2014 revised European Tobacco Products Directive (TPD).²⁹ After protests against the TPD from the tobacco industry, implementation of the ban on menthol cigarettes was postponed to 2020.²⁰²²⁰³

Many of the brands assessed by the EU Commission advisory panel on characterising flavour have been found to have a chemical profile suggestive of having a characterising flavour, and noticeable odours.²⁰⁴

• For details of the EU regulation, and the range of tactics used by tobacco companies to exploit loopholes in the legislation (figure 1) and circumvent the menthol ban, and a 2023 ban on flavoured HTPs, see Menthol Cigarettes: Industry Interference in the EU and UK

Do Bans Work?

Evidence from the US

The US flavour cigarette ban (with the exception of menthol) came into effect in September 2009. Survey data for the period up to 2017 suggested the ban reduced cigarette smoking long term among young adults (27%) and youth smokers (43%) but not older adults. Immediately post ban significant numbers of young adult and youth smokers of other flavours switched to menthol and non-flavoured cigarettes.²⁰⁵ However, by 2015 cigar sales had also increased, particularly flavoured cigars. Internet vendors, especially those based outside the US were found to be selling flavoured products in 2011, two years after the flavour ban.²⁰⁶

The 2009 ban only applied to cigarettes. In 2014, 61% of middle and high school smokers had recently used flavoured hookah and 64% had used flavoured cigars.²⁰⁷

In June 2017, the city of San Francisco, USA, banned the sale of all flavoured tobacco products including menthol. Retailers were given training, and shops were inspected. By December 2019, the comprehensive ban had reduced sales of flavoured products by 96%. Total tobacco sales declined significantly further than in neighbouring cities without bans.²⁰⁸

Evidence from Canada

The country wide Canadian ban was in place in October 2017, but several states implemented bans beforehand from 2015 onwards. In Ontario, a menthol cigarette ban was enacted in January 2017. Having a ban in place was associated with a reduction in menthol and total cigarette sales.²⁰⁶

Across Canada, state menthol bans significantly increased quit success among menthol smokers compared with non-menthol smokers.²⁰⁹  The ban also prevented relapse among smokers who had quit pre-ban. ²¹⁰ In 2015, even though some states had already passed legislation, 15% of 15 to 19 year olds reported smoking menthol cigarettes.²¹¹ Between 2018 and August 2020, 2-3% of  16-19 year olds were estimated to be smoking menthol or capsule cigarettes.²¹² Most menthol smokers switched to non-menthol cigarettes, and menthol accessories (which could provide a menthol flavour) remained on sale in Canada.²¹⁰

In 2009, Canada had banned on all non-menthol flavour additives small cigars as well as cigarette. Despite an increase in non-flavoured cigars, there was a net reduction in cigar sales by 2015.²⁰⁶

Evidence from the EU and UK

The European Union flavour ban (with the exception of menthol) came into force in May 2017. Survey data from eight EU countries suggested that between 2016 and 2018 only 11% of smokers of the banned flavours continued to smoke them, 62% moved to unflavoured cigarettes and 5% moved to menthol cigarettes. Only 9% quit completely.²¹³

The EU menthol ban came into force on 20 May 2020. An International Tobacco Control (ITC) study in 2020-2021 surveyed the same sample of adult smokers in the Netherlands before and after the EU menthol ban.²¹⁴ This study found that menthol use significantly decreased from 8% to 4% post-ban. Compared to non-menthol smokers, menthol smokers had higher quit attempt rates (67% vs 50%). 40% of those who smoked menthol pre-ban switched to non-menthol cigarettes while just over a third continued to smoke menthol cigarettes after the ban.²¹⁴ Over 40% of menthol smokers  reported using flavour accessories post-ban, including filters, flavour cards, marker pens, and drops, which were not banned.²¹⁵ 4% of all smokers used these accessories post-ban.²¹⁵

The menthol ban was adopted into UK legislation before the UK left the EU. Results from evaluations have been mixed.  A study using the ITC Youth Tobacco and Vaping Survey found that in England, the percentage of youth smokers (age 16-19) whose usual cigarette brand was menthol declined from 12% in Feb 2020 to 3% in August 2020. This fall was not replicated in countries which did not have a menthol ban enacted during the study period. However, reported menthol smoking in the previous 30 days was still high post-ban at over 40%.²¹²  Between July 2020 and June 2021, Smoking Toolkit Study data suggested 16% smokers in England reported smoking menthol cigarettes; women and younger smokers were more likely to report menthol smoking. There appeared to be a decline in reported menthol smoking in mid-2021.²¹⁶ Some remaining reports of menthol smoking could be at least partly because menthol accessories and cigarillos were still available.²¹⁷

The tobacco industry attempted to boost menthol sales after the ban was announced.²¹⁸ Between September 2019 and February 2020, before the ban, sales of menthol cigarettes fell by 57% in UK convenience stores (as reported by the Retail Data Partnership). However, under 2% of stores had stopped selling them.²¹⁹ The analysts did not identify any significant rise in sales of RYO tobacco, cigarillos or e-cigarettes. Therefore, it was unclear whether customers were switching to products bought elsewhere (e.g. online), or were in fact quitting.²¹⁹

• For more on product innovation see Menthol Cigarettes: Industry Interference in the EU and UK

Flavour Bans and Illicit Tobacco

Where neighbouring countries do not implement a ban, it has been suggested that there is a risk that smuggling will increase.³⁴ Tobacco companies have used this argument when lobbying against regulation, including the TPD.

However, the risk associated with the movement of illicit tobacco is often exaggerated by the tobacco industry. An evaluation of the 2015 menthol ban in the Canadian Province of Nova Scotia found no change in seizures of menthol or nonmenthol cigarettes after 3 years.²⁰⁶ In Romania there was no increase in tobacco confiscations after the EU ban.²²⁰ Both before and after the ban, about 2% purchases in the Netherlands were illicit.²¹⁵ Despite English smokers continuing to smoke menthol cigarettes after the menthol ban, there was no reported rise in purchasing of cigarettes from illicit sources.²¹⁶

The Global Market for Menthol Cigarettes

Euromonitor International produces data on cigarette market share by volume of capsule cigarettes (i.e. of any flavour, including menthol) and menthol flavoured cigarettes (i.e. without capsules) for up to 78 countries. Note that Euromonitor receives project funding from Philip Morris International.²²¹

From 2010 to 2020, capsule cigarettes experienced significant market growth, with an average increase of 0.7 percentage points per year.²²²   Growth occurred across all WHO regions, with the exception of Europe. Here there was an increase until 2019, then a decrease of 0.6 percentage points to 2020, likely due to the EU characterising flavour ban. Capsule cigarette market growth was most substantial for upper-middle income countries (with an average market share of 1.0% to 11.4) and the WHO region of the Americas (1.5% to 16.2%).²²² The five countries with the highest average annual growth rates of capsule cigarettes  were: India (154%), Uzbekistan (122%), Uruguay (115%), Russia (84%), and Ukraine (84%). Four of these are middle-income countries.²²² By 2019, capsule cigarettes made up a larger proportion of the global cigarette market than menthol flavoured cigarettes.  The overall market share of menthol cigarettes decreased by an average of 0.2 percentage points per year.²²²

According to Euromonitor, in 2020, capsules accounted for 3.3% of the market worldwide (by volume) and menthol flavoured cigarettes 2.4%. ³⁵ However, regional distribution varies. Four of the five countries with the highest capsule market shares in 2020 were in Latin American: Chile (48%), Peru (35%), Guatemala (33%), Mexico (27%), and South Korea (25%).²²²

The market share of menthol flavoured cigarettes remained high in many countries, the highest being in the WHO Western Pacific region (15% in 2020) and Africa region (13%). The five countries with the largest menthol market shares in 2020 were: Singapore (47%), Dominican Republic (33%), Cameroon (30%), USA (29%) and Japan (28%).²²² In contrast, in Europe the average market share for menthol flavoured cigarettes was only 1.5% across the region.

Both types of flavoured cigarette are equally popular in Nigeria and have over 40% of the tobacco market. Only two of the countries included in Euromonitor’s dataset, North Macedonia and Canada, had no measurable market for either.³⁵

• For more information on the market and industry tactics in low and middle-income countries, see Flavoured and Menthol Tobacco in LMICs

Company Market Shares

Tobacco companies do not share their sales figures for menthol tobacco products, so market share needs to be calculated from different data sources.

• For details of tobacco company shares in the UK see Menthol Cigarettes: Industry Interference in the EU and UK

TobaccoTactics Resources

• Menthol Cigarettes: Industry Interference in the EU and UK
• Promotion of Newer Products Around The UK Menthol Ban
• Flavoured and Menthol Tobacco in LMICs
• Flavoured and Menthol Tobacco in the US
• Smokeless Tobacco
• Waterpipe

Relevant Links

Flavors (Including Menthol) in Tobacco Products, STOP resource (May 2022)

Case studies for regulatory approaches to tobacco products: menthol in tobacco products, World Health Organization advisory note (2018)

Partial guidelines for implementation of articles 9 and 10 of the WHO Framework Convention on Tobacco Control: regulation of the contents of tobacco products and of tobacco product disclosures, World Health Organization, WHO website (2012)

A global map of menthol bans is available on Tobacco Atlas: Product Sales

Public Health Law Center: Menthol and Other Flavoured Products, PHLC website (United States)

US Food and Drug Administration, Tobacco Product Standard for Menthol in Cigarettes (5 April 2022)

Centers for Disease Control and Prevention, Office on Smoking and Health Summary of Scientific Evidence: Flavored Tobacco Products, Including Menthol (United States, February 2021)

TCRG Research

• Flavour capsule cigarette use and perceptions: a systematic review, C.N. Kyriakos, M.Z. Zatoński, F.T. Filippidis, Tobacco Control, Published Online First: 04 October 2021, doi: 10.1136/tobaccocontrol-2021-056837
• Tobacco industry tactics to circumvent and undermine the menthol cigarette ban in the UK, R. Hiscock, K. Silver, M. Zatonski, A. Gilmore, Tobacco Control, 18 May 2020, doi:10.1136/tobaccocontrol-2020-055769
• A growing menace: menthol and flavoured tobacco products in LMIC, M. Zatonski, K. Silver, S. Plummer, R. Hiscock, Tobacco Induced Diseases, 2022;20(April):39, doi:10.18332/tid/146366
  STOP research summary (May 2022)

For a comprehensive list of all TCRG publications, including research that evaluates the impact of public health policy, go to the Bath TCRG’s list of publications. 

References

The post Flavoured and Menthol Tobacco appeared first on TobaccoTactics.

Lobbying on the Revision of the Tobacco Products Directive

Van Breemen has played a key role in rallying wider industry support to help the tobacco industry undermine the revision of the EU Tobacco Products Directive (TPD). In December 2011 and January 2012, van Breemen organised two meetings hosted by VNO-NCW and Businesseurope that brought together European Industry Confederations and the tobacco industry to discuss the impact of the TPD .²²⁵²²⁶ At the meetings it was agreed that three aspects of the TPD could potentially impact on other sectors (in particular the food and alcohol industries), notably:

1. Plain packaging

2. Regulation of ingredients (in particular the “overly broad” WHO definition of “attractiveness” was challenged);

3. Access in the retail sector (i.e. Point Of Sale displays and internet sales).

The group agreed to a common “horizontal approach” to lobby at national and EU level, raising issues with relevant officials as a whole-of-industry matter without any associations with the tobacco industry. Businesseurope committed to be active on these issues and emphasised that illicit trade should be a focus when taking action against plain packaging.

Revolving Door

Before working for NVO NCW, van Breemen spent most of his career in the Dutch civil service. For four years from 1977 he worked as an advisor for the Dutch Ministry of Economic. He then moved to the Dutch Ministry of Health where he was Head of Product Safety Department from 1981 to 1991. ²²³

TobaccoTactics Resources

• EU Tobacco Products Directive Revision
• Revolving Doors

References

The post Hubert van Breemen appeared first on TobaccoTactics.

The European Council is the third pillar of EU decision making along with the Commission and Parliament. It constitutes the Heads of State or Government of the Member States, together with its President and the President of the Commission. It set up a Working Group to examine the EU Tobacco Products Directive Revision.

On 9 April 2013, Richard Ross a lobbyist from Imperial Tobacco wrote to the Department of Health, expressing concern about the UK’s negotiating position at the European Council Working Group on the 26 March 2013, having read an insider’s report on the matter. ²²⁷ This indicated that the UK government had spoken in favour of standardised or plain packaging.

On the 11 April, the Department reassured Ross that the UK Government had not spoken in favour of plain packaging. ²²⁸

On 16 April, Ross again expressed the company’s concern “about the UK negotiation positions taken at the Council Working Group” on the 8 April, adding that “we have not spoken with officials of the European Commission on this”. ²²⁹

Seeing that these negotiations are meant to be confidential and subject to “professional secrecy”, it raises the issue as to how Imperial knew what was going on. This point was not lost on the Department of Health, who later wrote to Imperial that they “disappointed that you have not felt about to confirm the source of the information.” ²³⁰

A Department of Health official also told Imperial that the “unattributed reports that you have received about the proceedings of the Council discussions” on the TPD “are not accurate”. ²³¹

A Violation of Article 5.3?

These emails are important as they suggest that the tobacco industry was receiving confidential information from inside the European Council, presumably with the information coming from a government source. This kind of information exchange suggests that the industry has sway and influence over some governments which would be in contravention to the UN Framework Convention on Tobacco Control Article 5.3. ²³²

TobaccoTactics Resources

• EU Tobacco Products Directive Revision

References

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