Japan Tobacco International Making a Mint by Circumventing Menthol Cigarette Ban

These practices have led to angry protests from the company’s competitors in the tobacco industry and frustration among tobacco control advocates across Europe. But they have struggled to react to the new wave of menthol-containing cigarettes, because of a key loophole written into the 2014 European Tobacco Products Directive (TPD).

After fierce lobbying by tobacco companies, the directive does not make any reference to a maximum menthol content in cigarettes. Instead, it bans cigarettes that have a “characterizing flavor” — a much vaguer term that has proven tricky to pin down.

Credit:
OCCRP

The EU’s Tobacco Products Directive.

After four years of discussions, the European Commission in June 2020 released its methodology for determining if cigarettes had a “characterizing flavor.” The 31-page document calls for convening a panel of 34 specially trained “sensory and chemical assessors” to smell cigarettes.

They spent 75 hours learning how to tell the difference between tobacco (which can smell of green pepper, sweetcorn, violet, saffron, or “rotted dry wood”) and flavor additives (more likely to be fruity, minty, or redolent of vanilla or marzipan), before being set to work sniffing the tobacco in question.

The guidance was released just in time — the following month, the European Commission launched an investigation into allegations that JTI was breaching the menthol ban, after the Swedish government opened an infringement procedure into new types of Camel and Winston cigarettes.

But over a year later, the Commission still hasn’t finished investigating the matter — and while it deliberates, JTI is free to keep selling the products.

OCCRP reporters visited tobacconists in five European countries and asked to buy menthol cigarettes. In every case, the tobacconist pointed to JTI’s new-line brands, including Camel Activate and Winston XSpression.

Davoli, who is also an expert in olfaction, said it’s easy to test for menthol in a lab, but much harder to sniff it out.

“Sensory analyses are in general very complex and difficult,” he explained. “There is a subjective component because they are not based on numbers and they can turn out to be a mess.”

“That’s why they added the word ‘characterizing,” Davoli added. He called the language “a wink at the tobacco industry.”

A JTI spokesperson told OCCRP that the company had reduced the levels of menthol in its cigarettes to comply with the law and was confident they did not have characterizing flavors.

“We did exactly what the law stipulated and did so responsibly at a time when, for over 10 months following the introduction of the ban on characterizing flavors, no official testing methodology was made available by the European Commission,” JTI said.

“We also do not believe that cigarettes with a characterizing flavor of menthol are appealing to minors,” the company added.

Most anti-smoking advocates disagree.

Menthol, a chemical traditionally derived from mint plants, has been a popular cigarette flavor additive for a century, marketed as a “cool” or “fresh” alternative to unflavored tobacco — and even, until the 1950s, as a health remedy for scratchy throats and irritated lungs. It triggers receptors in the body that perceive cold, masking the harshness of smoke so it’s easier for beginners to inhale.

“They appeal to young smokers,” said Charlotta Holm Pisinger, a professor of tobacco prevention at the University of Copenhagen.

Researchers say those who start off with menthols have a higher risk of becoming regular smokers.

“They get more addicted because the menthol has a cooling effect so you can inhale deeper, and it also has an effect on the cough reflex … so you learn to inhale,” said Pisinger.

That’s why tobacco control advocates have worked so hard to get them off the market. After years of debate in the European Parliament, the 2014 Tobacco Products Directive banned flavored cigarettes in the EU as of May 2016, and menthols as of May 2020.

But with a European market for menthols worth around U.S.$11 billion, the tobacco industry did not take this lying down. Companies had already spent many years, and millions of euros, lobbying against the ban.

“It was really crazy at that time,” recalled Pisinger. “I remember one of the Danish politicians working in Brussels said that on a scale from one to ten the lobby was 11.”

A key goal of Big Tobacco was to get menthols defined as vaguely as possible.

As early as 2007, Philip Morris International (PMI), one of the world’s largest tobacco companies, was already strategizing against the possibility that adding extra ingredients to cigarettes — such as menthol — would be banned.

An internal PMI report suggests that the company itself could “propose a ban on ‘characterizing flavors’ that are attractive to minors,” with menthol being exempt.

Five years later, the first publicly available draft of the Tobacco Products Directive used similar language. Official EU documents show that the paragraph dealing with flavors was one of the most amended in the entire law, with 18 requests from different members of the European Parliament to change or delete it.

Tobacco control experts say it was obvious from the start that a ban on “characterizing flavor” would be difficult to enforce.

“The incomplete ban and potential ambiguity of the term ‘characterizing’ are inherent weaknesses” in the law, said Anca Toma Friedlander, director of Smoke Free Partnership, a coalition of NGOs that works on EU policy analysis and advocacy.

“It’s clear this move was not clean,” added Davoli, of the Mario Negri Institute. “By inserting the word ‘characterizing,’ the sad results are that producers are adding additives just under the level that could be used in a trial against them and deemed as characterizing.”

After the ban took effect last year, some companies decided to double down on new products like IQOS, a popular heated-tobacco device made by Philip Morris International that uses tobacco inserts that can still be mentholated. But JTI, which doesn’t have a strong market share for its heated-tobacco product, had more to lose.

In “Making a Mint,” a marketing handbook for its retailers in Scotland, the company laid out suggestions for how to handle the ban — including stocking up on JTI’s new line of “alternative products with distinctive tobacco blends plus product and pack innovations.”

The innovations included new cigarettes with holes in the filter for mentholated “crushballs” to be inserted, and menthol-infused papers for those who roll their own tobacco.

JTI was vague about what the “distinctive blends” entailed, but it promised retailers eight new product lines to choose from. Some were thinly rebranded versions of their menthol cigarettes. Mayfair Green was redubbed Mayfair New Green; Sterling Superkings Green became Sterling New Superkings Green.

“If you change the name of the product and the ingredients are the same, can you consider that an identical product?” said a source close to the European Commission, who spoke on condition of anonymity.

He added that the rules for considering a cigarette mentholated were also “vague and difficult to grasp,” much less measure.

“These are big problems that the TPD left behind for others to solve.”

These loopholes have tied regulators in knots as they try to figure out how to determine whether a “characterizing flavor” exists in dozens of different JTI products being marketed across Europe.

In Romania, authorities wrote to JTI in mid-2020 to ask if it was selling cigarettes containing menthol. OCCRP obtained a copy of the correspondence.

JTI responded that it had “reduced the menthol aroma in its flavor to the level below the characterizing flavor imposed by the European Directive.” It did not explain how it had measured this.

Romania ended up fining JTI for the minty-looking packaging of Winston XSpression — “a green circle with three small mint branches [that] could influence consumer behavior since the logo suggests the pack contains mint’ — but hasn’t yet managed to punish the company for the menthol content of the cigarettes.

“In order to ban it, the authorities need to prove it,” explained a Romanian government official, speaking on condition of anonymity because he is not authorized to talk to the media. “It is a complicated procedure that lasts up to a year — a period during which those cigarettes are still being sold.”

“[C]ompanies use the text of the law, the literal understanding of the words of the law in the directive, and have come up with products that fool you to your face.”

In Hungary, Romania, and the U.K., JTI has admitted to concerned health officials that their products do contain menthol, but insisted the cigarettes lack a “characterizing flavor,” essentially daring them to prove otherwise.

But in a confidential email to the U.K. public standards regulator obtained by OCCRP’s partner The Bureau of Investigative Journalism, the company acknowledged it had no way of knowing whether the menthol flavor was “characterizing.”

“There is no mandatory or official testing method that JTI can use to determine whether finished products containing our new blend have a “characterising” flavour or not,” it said.

European countries are also hamstrung by another rule in the TPD: Member states can’t launch their own investigations into a cigarette if the same product is being investigated by the EU-wide sensory panel.

This has led at least one country, the U.K., to put its own probe on hold. A letter from a JTI lawyer to the Danish Safety Technology Authority also demanded that Denmark accept the EU’s findings and refrain from “unilateral action.”

If individual countries were free to make their own decisions about what ingredients could be added to cigarettes, JTI argued, it would “affect the smooth functioning of the internal market.”

Still, some countries have taken action on their own. In September, Hungary notified the European Commission that the country plans to ban cigarettes that contain any amount of menthol. The notification came a year after the Hungarian consumer protection body in Budapest fined JTI almost $500,000. (JTI appealed the fine.)

In the absence of clarity on the rules, JTI’s competitors have been pushing regulators to act. Imperial Brands conducted its own tests on JTI’s New Green cigarettes and found the products had a “clearly noticeable menthol taste” and contained menthol, the company wrote in a letter to Public Health England in July 2020. Another competitor, British American Tobacco, had Sterling Dual New cigarettes tested and got similar results.

After being informed that the U.K. would wait for the results of the EU investigation before making a decision on the matter, BAT wrote an angry letter threatening to launch its own range of competing menthols.

The EU is set to release a decision on the JTI products in coming months. But the lack of clarity around the rules means there are still plenty of opportunities for the cigarettes to be sold — and smoked — around Europe.

Luca, a tobacconist in Rome, said he is still selling Camel Activate cigarettes even though they are supposed to be off the market in Italy. “My clients feel there is still menthol inside,” he said.

In Romania, a woman named Andreea said she has been smoking JTI’s new-line menthols ever since she was approached by a young female promoter last year in a pub in the Transylvanian city of Cluj.

The menthol ban was in force by then, but the woman asked her table if anyone smoked menthols, then gave Andreea a brand-new pack of Winston XSpression.

Now, more than a year later, she is a regular XSpression smoker.

“I’m happy — I know it sounds stupid — that despite the ban I’m still smoking menthol cigarettes,” Andreea said. “And I’m happy that these cigs don’t taste like toothpaste, like Kent with the crushing capsule. And I’m also happy that I don’t feel the industrial taste of tobacco anymore.”

Ben Stockton (TBIJ), Laura Margottini (TBIJ), and Matej Zwitter (Oštro) contributed reporting.