Introduction
Menthol, a type of alcohol (molecular formula C10H20O), can be obtained from mint
plants or manufactured.1 2 In addition to flavouring, it has local anaesthetic properties
that can conceal the negative sensations of smoking, due to desensitising receptors.1
3 Menthol cigarettes increase overall smoke intake, but mask early respiratory disease
symptoms, reducing the chance of quitting.4–6 Smoking menthol cigarettes also may
raise nicotine intake, promoting nicotine dependence and the establishment of smoking
in youth.4 5 7–9 Thus, banning menthol should reduce smoking prevalence.4 Furthermore,
menthol cigarettes are likely to contribute to health inequalities as sociodemographic
groups more likely to be of low income (low education, women, African–Americans and
young people) are more likely to smoke menthol.10–13
A process for flavouring tobacco with menthol was first patented in the USA in the
1920s,14 but mass distribution and marketing started in the 1960s when a version with
a filter was developed.8 15 A more recent innovation for adding flavour is by the
addition of a capsule, or ‘crushball’, a small plastic capsule in the filter activated
by crushing16 (figure 1). These first appeared on the market in Japan in 2007 and
are popular among young people due to the flavour and interactivity.16 17 In the UK
the only cigarettes available with capsules are menthol-flavoured.18
Figure 1
Menthol capsule located inside a filter.
The EU menthol ban
A ban on the sale of cigarettes with a characterising flavour, including menthol,
was part of the revised European Tobacco Products Directive (EUTPD) (2014), which
has been written into UK law and came into force in May 2016.19 To allow manufacturers
and retailers a transitional period to prepare for the ban, implementation of the
ban on flavours was delayed until May 2020, for flavours representing at least 3%
of a product category European Union (EU)-wide, such as menthol.19 20
The legislation applies to cigarettes and roll-your-own (RYO) tobacco, with cigars,
cigarillos and pipe tobacco exempt. Menthol accessories, which are not sold within
the same packaging as tobacco or cigarettes, are also excluded.21 22 Unlike the EU,
Canada has now banned menthol as an ingredient23; elsewhere, cigarettes not labelled
as menthol can contain menthol at subliminal levels to reduce the negative sensations
of smoking.24–26
Leaked Philip Morris International (PMI) documents reveal that it opposes flavour
bans,27 and our monitoring of industry activity indicates that tobacco companies have
been exploiting loopholes in the menthol ban and related legislation in the UK, particularly
in the months leading up to the ban. The purpose of the paper is, therefore, to expose
these gaps and loopholes that other jurisdictions may need to close when developing
similar legislation.
Tobacco industry use of the delay to menthol ban implementation
Data on market share of menthol and capsule cigarettes show that menthol/capsule median
market share across EU countries (excluding UK) declined from 2015, the year after
the TPD was announced (figure 2). In the UK, however, market share increased, via
growth in capsule cigarettes, from 14% in 2014 to 21% in 2018, approximately twice
and four times the EU median, respectively. Growth was steeper in the UK than in other
European countries without the ban (figure 2). Therefore, it does not appear that
the UK tobacco industry has been using the grace period to prepare for the menthol
ban, but has instead used it to prolong and increase menthol sales.28 29
Figure 2
Market share of menthol and capsule cigarettes, WHO Europe region.
Sixteen per cent of menthol smokers say they intend to quit after the menthol ban
is implemented.30 With sales of six billion menthol cigarette sticks in 2018, this
could reduce tobacco industry sales by around one billion sticks (3% of the total
cigarette market) in the UK,31 so it is not surprising tobacco companies have looked
to circumvent the ban.
The derogation delayed implementation until the COVID-19 pandemic. A trade journal
reported industry representatives taking advantage of retail closures to request a
further deferment32 despite cigarette sales, and thus old stock turnover, spiking
rather than declining.33
Product innovation to circumvent and undermine regulation
As tobacco accessories sold separately are excluded from the legislation, companies
have been introducing various menthol-flavoured accessories. Imperial launched menthol34
and capsule35 RYO filter tips in mid-2017 and January 2019, respectively. Independent
RYO and make your own accessories specialist, the Republic Group,36 also introduced
a new menthol filter via its Swan brand.37 These products could encourage menthol
cigarette smokers to switch to RYO rather than quit. Imperial also announced the launch
of ‘menthol chill’ and ‘fresh mint’ ‘Flavour Infusion Cards’ in January 2020, designed
to provide a menthol flavour if inserted into factory-made cigarettes or packs of
RYO tobacco.38 39
Unlike tobacco products, in England and Wales accessories such as these can be displayed
at point of sale (including branding), whereas in Scotland they also need to be hidden
from view.40 41 Imperial Tobacco has recommended that retailers use point-of-sale
displays to promote the flavour infusion cards.38
About 5 months before the ban, Japan Tobacco International (JTI) launched 10-pack
cigarillos with menthol capsules. These closely resemble cigarettes and are placed
under its Sterling cigarette brand, and have been promoted to retailers as a way to
circumvent the menthol ban.42 The Scandinavian Tobacco Group, a specialist producer
of cigars, is also launching a cigarillo with a capsule in the filter called Signature
Dual.37 39 Euromonitor data suggest a growth in sales of cigarillos since the EUTPD
and associated UK legislation43 were enacted in 2016, reversing a downward trend,
unlike the cigar market which continues to fall (figure 3).
Figure 3
Expected UK growth in cigarillos and cigars.
PMI, which has only a small market share in the UK, is exploiting the opportunity
to promote IQOS as an alternative to menthol cigarettes, as its tobacco HEETs sticks
are not covered by the ban.37 39
Given that the UK does not allow promotion44 or display41 of tobacco products, the
tobacco industry has widely promoted these new and diverse products to retailers via
the retail press.21 35 37 38 45 They have also created dedicated websites for retailers
and smokers.39 46–49 Although ostensibly set up to provide information, these websites
in effect promote next-generation products (NGPs). One encourages retailers to calculate
their potential losses from reduced cigarette sales while reassuring them that other
menthol products are available.48 Another presents three boxes with options to smokers—quit,
heat and vape—and devotes more space and words to NGP options than quitting.47
Conclusions
The tobacco industry has introduced diverse new products to the UK that can get around
the ban: menthol accessories sold separately from cigarette packs, and RYO pouches
and cigarillos with a capsule. It has also used the ban to promote more profitable50
heated tobacco products, which unlike quitting are not risk-free.51–54 Despite claims
of a commitment to reducing harm, this provides yet further evidence that the tobacco
industry will circumvent and undermine measures with genuine potential to reduce harm.
Cigarillos are likely to be particularly attractive to the tobacco industry because
they are exempt from EU and UK standardised pack legislation (with the exception of
large pictorial warnings), are subject to lower taxes, and their definition is such
that they can be sold looking similar to conventional cigarettes except for a brown
leaf rather than white stick covering.42 Thus, the tobacco industry may use cigarillos
to reintroduce cigarette branding and cheap products which had been removed by standardised
packaging.21 55
The EU/UK menthol ban was associated with preceding falls in menthol sales in the
EU, but in the UK sales grew up to implementation. This suggests not only that a long
implementation period was not needed but that it was misused: menthol sales, which
may be particularly harmful,4 were driven up in the UK. The yearlong standardised
packaging implementation period in the UK was similarly exploited by the tobacco industry.21
55
As other jurisdictions seek to implement flavour bans, standardised packaging and
display bans, we suggest they aim to eliminate the weaknesses the industry exploited
in the UK legislation. This could be achieved by including all tobacco products and
accessories, encompassing all pack types and flavours. Presenting legislation this
way, rather than specifying each product included, also helps future-proof it. Further,
as in Canada, banning menthol as an ingredient has the benefit of ensuing the industry
cannot continue to include menthol at below observable levels. There should be no
derogations or phase-ins, in order to maximise impact and curtail sales quickly.