Los Angeles Times - 24.02.2020

A10 MONDAY, FEBRUARY 24, 2020 LATIMES.COM

Decaffeinated coffee and re-
duced-sugar soft drinks have long
been around. Now, according to a
small biotechnology company, it’s
time for low-nicotine cigarettes.
Altria Group Inc. and RJ Reyn-
olds Tobacco told regulators two
years ago that such a product
might not be possible. But their
claims may be upended after 22nd
Century Group Inc., a
Williamsville, N.Y., company, went
before the Food and Drug Admin-
istration this month seeking to
market cigarettes with 95% less
nicotine than conventional ones.
22nd Century has for years
made Spectrum cigarettes, which
have varying levels of nicotine and

have been used for government-

funded research on tobacco and

addiction.

It won authorization from the

FDA in December to start selling a

brand to the public, which will be

named VLN. The next step is to get

permission to market the ciga-

rettes as a low-nicotine alternative.

“The product greatly reduces

your nicotine consumption, and it

smells, burns and tastes like a con-

ventional cigarette,” John

Pritchard, the company’s vice

president of regulatory science,

said in a phone interview before the

Feb. 14 FDA meeting.

His company aims to disrupt

the nearly $100-billion U.S. tobacco

industry by marketing its ciga-

rettes as a tool to wean adult smok-

ers off addictive nicotine.

Pritchard said he planned to pre-

sent data showing that former

smokers or those who never

smoked have low interest in the

product.

A nod from the FDA would give

22nd Century a useful marketing

tool that Marlboro maker Altria

lacks. Altria is selling Philip Morris

International’s IQOS device,

which heats but doesn’t burn to-

bacco, in the U.S.

But the agency still hasn’t ap-

proved an application to market it

as a reduced risk compared with

cigarettes.

22nd Century said its applica-

tion should be easier to evaluate

than Altria’s, given the body of re-

search on its Spectrum cigarettes,

which were used as part of $100 mil-

lion of federal grants to study low-

nicotine cigarettes.

The company also says its cen-

tral claim — that its cigarettes have

95% less nicotine content — is eas-

ier to verify than the reduced-risk

designation that Altria is seeking

for IQOS. It hopes to start selling

the cigarettes by the second quar-

ter.

After the FDA declared in 2018

that it intended to establish rules

on maximum nicotine levels in

cigarettes, Altria said it wasn’t

clear whether substantially reduc-

ing cigarettes’ nicotine “is techni-

cally achievable” or whether it

would lead to reduced smoking.

Reynolds, meanwhile, said the

industry is “at least 20 years away

from producing tobacco at a com-

mercial scale that would meet the

range of low-level nicotine dis-

cussed.”

22nd Century counters that by

citing the FDA’s own assessment of

a plan to lower nicotine to the levels

found in VLN products. The

agency says the restrictions would

lead to 5 million additional adult

smokers quitting within a year of

the plan going into effect, while

averting more than 8 million to-

bacco-related deaths by the end of

this century.

The company holds patents on

methods of producing cigarettes

by targeting different genes and

enzymes in tobacco plants, and

makes them from genetically engi-

neered tobacco.

It is also working on non-GMO

tobacco lines.

Kary writes for Bloomberg.

Reduced-nicotine cigarettes may soon be in U.S.

By Tiffany Kary

Nearly a decade after she
stopped smoking, Mabel Battle
still has the last pack of cigarettes
she ever bought. She keeps it as a
reminder of all the gray Ohio win-
ter workdays she spent standing
outside her office with the other
shivering smokers getting a nico-
tine fix.
The cigarette pack, still sealed
in its original cellophane, is a testa-
ment to her willpower, she says: af-
ter countless failed attempts, she
finally quit.
However, her success at giving
up is also a striking result of a con-
tentious corporate experiment.
What finally prodded her into her
decision was a fear that her habit
might threaten her employment. “I
wanted to keep my job more than I
wanted to smoke cigarettes,” Bat-
tle says.
The Cleveland Clinic, where
Battle works as a health unit coor-
dinator, has been a leader in corpo-
rate anti-smoking initiatives. It
first banned smoking on its 170-
acre campus in 2008, and followed
that up with a new policy to chemi-
cally screen job applicants for nico-
tine and refuse employment to
those who test positive.
Workers such as Battle who
were on staff before the ban would
not be fired for smoking in their
free time, but she could see the cul-
ture changing.
“Being a healthcare worker is
setting an example,” says Dr.
Bruce Rogen, the chief medical of-
ficer of the Cleveland Clinic’s em-
ployee health plan. Since the clinic
instituted the ban and started of-
fering free smoking-cessation pro-
grams to employees, Rogen says,
hundreds of people at the clinic
have quit.
Only 21 states (including Ohio,
where the clinic is based) allow
companies to exclude smokers
from their workforce outright. Cal-
ifornia is not one of them. And in
those states this sort of policy has
become the norm in the healthcare
sector, Rogen says. Now the prac-
tice is spreading, and companies in
other industries are implementing
similar policies.
This delights anti-smoking ac-
tivists. However, it has led civil lib-
erties advocates to sound alarms
about employers’ creeping control
over workers’ lives even when they
are off the clock.
U-Haul, the Arizona-based
moving company with about 30,
workers, this month became one of
the country’s largest employers to
stop hiring nicotine users — a term
that includes not just smokers but
users of “nicotine products.” This
potentially covers people who test
positive for nicotine because they
are trying to give up smoking using
vaping, gum or patches.
Like the Cleveland Clinic, U-
Haul will allow those hired before
the restriction to keep their jobs.
The hiring ban will apply only in
the same 21 states, and not in Cali-
fornia.
However, should a company
choose to fire any workers who use
nicotine, the employees would
have little recourse, depending on
where they work.
Smokers are not a “protected
class” safeguarded by federal law,
such as racial minorities or people
with disabilities. That means in
“at-will” employment states, a ca-
pricious boss can fire an employee
for practically any reason, whether
that is smoking off-duty or some-
thing as arbitrary as wearing the
wrong color shirt to work.
“How far do the employer’s
rights [to fire someone] go? It’s
pretty much fair game unless the
state prohibits it,” says Cathleen
Scott, a Florida employment law-
yer. “[A worker’s] choice is to take it
or leave — that’s how it works in an
‘at-will’ employer environment.”

The states that do not allow

companies to ban nicotine users

often have laws that prohibit dis-

crimination against “legal off-duty

conduct,” says Karen Buesing, an

employment law specialist at Ak-

erman in Tampa, Fla. But the ex-

tent of the protections offered by

these laws can vary, and there is a

lot of debate around cases of em-

ployees who have been fired for le-

gally using medical marijuana.

Only a handful of employment

cases over off-duty nicotine use

have made it to court, but employ-

ment lawyers believe there could

be ways to get these bans made il-

legal.

Off-duty “smoking bans have

not been litigated sufficiently for

the public to have a grasp as to

whether [they are] enforceable,”

says Daniel Gwinn, an employ-

ment lawyer in Michigan. “It seems

interesting to me that you can be

grossly obese, which is a lifestyle is-

sue, and you can get protection

[under U.S. labor law] ... but you

can’t get protection for smoking.”

As for U-Haul, the company

says its new anti-nicotine policy is

part of its commitment to employ-

ee “wellness,” but there are also

clear financial motives at work.

When health insurance is provided

by employers, companies pay more

for health coverage if their work-

force includes a lot of smokers,

Buesing says.

About 1 in every 4 companies

with more than 500 employees of-

fers nonsmokers a reduced rate on

their healthcare premiums, says

Steven Noeldner, partner at con-

sultancy Mercer.

Yet off-duty smoking bans are

only one type of potentially inva-

sive “wellness” program offered by

companies. “Fitness contests” are

growing increasingly common, in

which employees use step-count-

ers or other tracking devices to

prove how active they are in ex-

change for a discount on their

health insurance.

These programs are perfectly

legal as long as they are structured

correctly, but companies can get

into trouble if the devices they use

track more than just employees’

steps, Buesing says.

Most companies use third-

party services to aggregate and an-

onymize the data they collect from

these wellness initiatives to try to

avoid this issue. But many compa-

nies are implementing even more

intrusive programs — such as

tracking workers’ locations via

company-issued mobile phones.

“Technology is creating new

ways to track and monitor employ-

ees,” says Brian Kropp, chief of hu-

man resources research at Gart-

ner, a technology consultancy.

Companies often scrape employ-

ees’ web-browsing history and

monitor what they write and say on

company equipment, he says. Oth-

ers go even further, turning on

workers’ webcams and using facial

recognition software to gauge their

sentiment about their jobs.

“The relationship between em-

ployees and employers is chang-

ing,” he says. Companies and their

staff used to be “basically strang-

ers” after the workday ended, but

that is no longer the way things are.

As with off-duty smoking bans,

lawyers say the legal landscape on

electronic surveillance is still

evolving. Complaints around these

issues often settle out of court —

such as a 2015 lawsuit brought by

Myrna Arias, a saleswoman who

was fired for turning off the GPS on

her company phone while off duty.

“What companies are truly

struggling with ... is that they have

not thought through the ethical

[ramifications of their] decisions,”

Kropp says. U-Haul’s manage-

ment is decreasing its health insur-

ance costs, but it is also making a

statement about what the com-

pany believes are appropriate be-

haviors, he says.

These practices do not typically

go down well with workers’ rights

advocates.

“There was a time when em-

ployers used to make sure their

employees went to church and

didn’t drink. ... Mine operators

would inspect people’s homes,”

says Dale Ewart, who heads the

Florida operations of labor union

1199SEIU United Healthcare Work-

ers East. “No one wants to live like

that. Your off-the-job behavior

should have no bearing on your

employment.”

Still, Gartner’s research shows

a growing level of acquiescence to

employer surveillance.

“A couple of years ago the per-

ception was, ‘This is so Big

Brother,’ ” Kropp says.

But thanks to the growth of dig-

ital surveillance in people’s day-to-

day lives by companies such as

Amazon and Facebook, that view

is changing. “If employees know

the employer is collecting data and

they know what it’s being used for,

and it’s being used for something

helpful, they are OK with it,” he

says.

And this can also be the case

with smoking bans. Battle, from

the Cleveland Clinic, initially held a

negative view of her company’s

smoking policy. “When they first

started it, I felt like [it was discrimi-

natory],” she says.

Eight years later, she feels dif-

ferent.

“After I quit, I was glad they did

it,” she says. “I am happy those

cigarettes are out of my life.”

© The Financial Times Ltd. 2020.

All rights reserved. FT and

Financial Times are trademarks of

the Financial Times Ltd. Not to be

redistributed, copied or modified

in any way.

Smoke, no hire? It’s legal in 21 states

California doesn’t let employers reject nicotine users, but other places do, raising civil liberties issues

By Billy Nauman

OFF-DUTY SMOKING BANSare only one type of potentially invasive “employee wellness” policy in place at some companies.

Spencer PlattGetty Images

U-HAUL,the Arizona-based moving company, became one of the country’s largest employers to

stop hiring nicotine users — a term that includes not just smokers but users of “nicotine products.”

Charlie NeibergallAssociated Press

MONDAY BUSINESS

THE AGENDA: TOBACCO