The creation of “expert panels” to detect characterizing flavors hints at the folly of the tobacco ingredients discussion.
By George Gay
I’m fascinated by the idea of having regulations that provide for a panel of people to decide whether a tobacco product has or hasn’t a characterizing flavor other than tobacco—a judgment that will mean in the case of the former that the product in its current format is banned, while in the case of the latter the product may remain on the market.
The setting up of such a panel is provided for within the EU’s revised Tobacco Products Directive that came into force last year, though it is not clear to me when the panel might be ready to start work. Presumably, however, it won’t be anytime soon because, I assume, protocols will need to be put in place, a lexicon will have to be agreed, reference products will have to be identified, and panelists will have to be trained in the various products to be tested.
One of the fascinating aspects of this exercise for a person such as me, whose olfactory system cannot tell red wine from white wine in a blind tasting, is its apparent subjectivity. Of course, the European Commission says that the method to be used will be robust. It says that the panel, comprising experts in sensory analysis, chemical analysis and statistics, will be backed by a technical group that will carry out sensory assessments based on a comparison of the scent properties of the test product with those of a reference product. In addition, where necessary, chemical assessments will be made, in part because a flavoring is taken to mean an additive that imparts scent and/or flavor.
And the commission assures us that sensory, including scent, analysis is an established scientific discipline that applies principles of experimental design and statistical analysis to assess and describe perceptions of the human senses, including smell, to evaluate consumer products. It has been found to be a suitable method for producing valid, robust, reliable and reproducible results when assessing whether a tobacco product has a characterizing flavor, the commission says.
This sounds all well and good, but, if as I understand it, a characterizing flavor is defined as a clearly noticeable smell or taste other than one of tobacco, the question arises as to what is the need for all of these experts and the chemical analysis. If it’s clearly noticeable, any person off the street—with the possible exception of me—could handle the job.
It must surely be the case, given the presence of the experts, that while some products will have a smell clearly different from tobacco and some will smell only of tobacco, some products will be marginal in their smell, and it is these that raise the interesting questions. If it takes a panel of experts backed by technicians, chemical analysis and statistical modeling to determine whether product A has a scent beyond tobacco, what is the point in the exercise? I mean, if the different-from-tobacco scent is so difficult to pin down that it requires a trip to the laboratory, product A is hardly likely to create a stampede of smokers and nonsmokers at retail outlets. And it is largely the attractiveness of product A, especially in the case of young people, that the EU is hoping to eliminate.
Of course, it might be argued that the chemical analysis is needed because the commission’s purpose is also to guard against additives that increase the addictiveness or toxicity of the product. But is this possible? Is it meaningful? What level of addictive or toxic agents would have to be discovered so that it could be said with confidence that the product under test was more addictive and/or more toxic than was the reference product? After all, we are often told that the cigarette, in whatever form, is more addictive than heroin is, and that it is the only licit consumer product that kills when used as it is meant to be used.
More bureaucrats and consultants
OK, you could argue that this doesn’t really matter because it’s jolly interesting to have a bunch of experts sitting around sniffing and analyzing tobacco products, but it does matter. Many people living in the EU have been suffering from the effects of austerity, a system of transferring what little money the financially poor have been left with following the negligent and criminal activities of some banks to the better off, and many of these impoverished people are smokers. As I understand it, EU member states and the commission will be allowed to charge manufacturers and importers of tobacco products for assessing whether a tobacco product has a characterizing flavor, whether prohibited additives or flavorings are used, and whether a tobacco product contains additives in quantities that increase to a significant and measurable degree the toxic or addictive effect of the tobacco product concerned. But while they might charge the manufacturers and importers, the bill for these activities is going to land in the laps of smokers, and this is unfair.
This panel is like tracking and tracing in that it takes a sledgehammer to crack a nut. It is about well-off people in suits attending meetings where the coffee and biscuits are paid for by various overt and covert imposts brought down on impoverished smokers and where the discussions are all about “helping” smokers. But smokers cannot afford this sort of help. They cannot support further layers of bureaucrats, consultants and hangers-on. Surely, the EU, having convinced itself of the need for tracking and tracing, cannot be unaware that many smokers are addicted to a product they no longer can afford.
But hey, that’s their problem, right? Tobacco and tobacco consumers have been denormalized, so they cannot expect to be treated fairly, or in the same way as other products and consumers are treated. Other consumer products launched into a market system are judged by consumers so that those products that pass that judgment remain on the market while those that don’t wither and die. But, in the case of tobacco in the EU, the judgment is being passed over to people who are probably not consumers of that product and, as far as I am aware, will not test it as a normal consumer would use it. And their judgment is not about ensuring that the most attractive products remain on the market but about ensuring that some of those products are removed from the market.
The reason for turning the world on its head in this way, I guess, is that the consumption of tobacco is said to be highly risky, which it is in relation to some products, though not all. Alcohol, which is linked with at least six types of cancer and which is far riskier than is tobacco at a societal level (in terms of contributing to violence and road accidents), has no such panel sitting in judgment of it. Perhaps this is because it is accepted that, after an hour or two of work, the panel members would no longer be able to function properly, and might be tweeting inappropriately, making unwelcome sexual advances to fellow panel members and fighting in an unseemly manner.
Menthol
Of course, the tobacco smelling panel won’t have to sit in judgment of menthol because the EU has decided already that this flavoring should be banned as of 2020. This is interesting because it raises the question of prohibition. A lot of people claim that tobacco prohibition can’t be brought in because alcohol prohibition didn’t work in the U.S. But I have argued in the past that this is a false comparison. Drinkable alcohol can be produced at home and can be drunk in the evenings out of sight of prying eyes. Producing a smokable tobacco and smoking it without detection is virtually impossible.
But prohibiting only menthol cigarettes is another matter. How can this be policed when smoking most other products is still permitted? Will we have to set up a new smelling enforcement agency? For sure there will be ways of getting around the menthol ban. Some smokers will make use of the black market, while for others the commission has kindly hinted at what they might do by including in the ban the addition of flavors in cigarette components and packaging. After a little experimentation, any smoker will be able to leave her tobacco-only cigarettes overnight in a jar with some readily available menthol crystals so as to enjoy menthol cigarettes the next day. And I suppose that if our smoker had a cold, or wanted to make believe that she was smoking menthol cigarettes in the tropics, she could add some menthol crystals to a bowl of hot water, stick her head under a towel over the bowl and smoke away on her regular cigarettes. Virtual reality without having to buy a fancy gadget that makes you look like a standard lamp.
Of course, it is not only the consumer who will suffer from these flavor bans. If, as seems likely, the bans on traditional-cigarette additives in the EU start to apply downward pressure on licit cigarette sales, licit flavor companies will suffer too. And while there is always the hope that the traditional-cigarette business lost by flavor companies will be made up, or partially made up, in supplying flavors for new nicotine-delivery products, there are clouds on the horizon here too.
The EU has not clamped down on flavored electronic cigarettes, but, in the U.S., the future for nearly all electronic cigarettes looks nonexistent under the Food and Drug Administration’s deeming regulations. And whereas moves are being made to try to take the sting out of the worst excesses of the deeming regulations as they apply to electronic cigarettes, wipeout could be replaced by death by a thousand cuts. The New Jersey Assembly health committee recently passed and sent to the Assembly appropriations committee a bill that would ban the sale and distribution of electronic nicotine-delivery devices that have characterizing flavors other than tobacco, menthol and clove. And it would be surprising if other jurisdictions didn’t follow suit—not because it is a good idea but because governments are given to bouts of collective hysteria.
Why menthol and clove, you ask? Well, there’s a logic at work there, but it has nothing to do with the health of the consumer.
The writer would like to thank Roger N. Penn, who has worked in the tobacco flavoring industry for more than 30 years, for his kind help in preparing this story.