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Stogie News: House Votes to Regulate Tobacco Under the FDA

31 Jul 2008

Yesterday, the House of Representatives voted 326-102 to place tobacco under the jurisdiction of the Food and Drug Administration. The move would give FDA bureaucrats the ability to regulate tobacco as well as tobacco advertisements, a power that both Health and Human Services Secretary Michael Leavitt and FDA Commissioner Andrew von Eschenbach oppose. In a statement (pdf) released today, the White House threatened to veto the bill if the Senate passes a version pending there and sends it to President Bush’s desk:

“The bill would mandate significant added responsibilities for the Food and Drug Administration (FDA) that conflict with FDA’s mission of ensuring the safety and effectiveness of drugs, biologics, and medical devices…

Requiring FDA to oversee the regulation of tobacco products would not only distract the agency from its oversight of food, pharmaceuticals, and medical products but could be perceived by the public as an endorsement that these products are safe, resulting in more people smoking.”

Speaking in favor of the bill, Representative Christopher Van Hollen Jr. (D-MD) made clear that the goal of the bill wasn’t to make cigarettes safer, but to regulate tobacco to reduce its use: “[Smoking] has a huge cost to our society. We have an opportunity to put an end to that…”

The bill would be a significant step towards the FDA declaring all tobacco products unsafe and thus prohibited. As we’ve written before, in an interesting twist, the law forbids the FDA from certifying that some forms of tobacco are safer than others, despite a mountain of evidence, meaning that the only “regulation” the FDA would have at its disposal would be limits on advertising or bans on certain types of tobacco products.

While the bill’s primary target seems to be cigarettes, it could have dire effects on cigar smokers. Besides being another step down the road to complete tobacco prohibition, FDA regulation may mean substantially limited advertising of cigars in magazines and also potentially on websites such as this one. If FDA mandates mean that cigar makers have to worry about nicotine (or other chemical) levels in cigars, it would stifle the creativity that has marked the cigar industry in recent years.

The bill also includes a prohibition on flavored cigarettes (although, oddly, it contains an exception for Menthol). While it is not clear that the flavored smoke ban would include cigars, if it does flavored cigars like Acid and Havana Honeys could be made illegal. Further, demands for “safer” tobacco products could mean a de facto prohibition for handmade cigars which, unlike cigarettes, cannot change their chemical makeup because they are entirely natural products.

Patrick S

photo credit: FDA

16 Responses to “Stogie News: House Votes to Regulate Tobacco Under the FDA”

  1. Mike Thursday, July 31, 2008 at 4:03 am #

    While all those things are possible in a worst-case scenario, they are unlikely. The bill, which is doubtful to get through the Senate in 2008, explictly forbids the prohibition of tobacco or nicotine, and it focuses on cigarettes and smokeless tobacco.

    The advertising restrictions are subject to court challenge and many are unlikely to withstand First Amendment scrutiny, since similar laws at the state level have been shot down. And cigar ads are pretty rare anyway.

    I suppose the FDA could one day take aim at handmade large cigars, but they are mostly made overseas, complicating the situation, and in countries like Canada, which already have similar tobacco regulations, imported cigars are not banned or any different from those available in the US.

    In addition, the cigar market is quite small compared with cigarettes, and the FDA will be very busy with cigarettes.

    I'm not very worried. SCHIP was a much bigger deal.

  2. dmjones Thursday, July 31, 2008 at 4:26 am #

    Any step toward more government control in the tobacco industry is just an additional step toward a Commie-Fascist-style totalitarian government. If Obama is elected, it will only accelerate as socialized health care will give the federal government a vested interest in exactly how healthy we are. Therefore, they will be very able to regulate what we put into our bodies (whether it be tobacco or trans-fats–outlawed in California restaurants this week) and how we live.

    They may not be gunning for your cigars today, people, but if you give them an inch they'll take your whole life.

    Interesting side note on the exception for menthol cigarettes: apparently, the biggest demographic for menthols is black people. So if they banned menthols, it might be construed as racist! 😛

  3. Ben Thursday, July 31, 2008 at 5:18 am #

    Perhaps it's time to build that walk in humi in the basement and go on a buying spree…

  4. Phil Thursday, July 31, 2008 at 7:41 am #

    Guys, remember that Obama is former smoker, I think he'll understand our plight. Hopefully.

  5. Mike Thursday, July 31, 2008 at 7:55 am #

    McCain and Obama are both co-sponsors of this legislation.

    But again, I don't expect the bill to get through this year and most of the provisions that could apply to cigars are either unlikely to withstand court challenge or will have a minor effect.

  6. dmjones Thursday, July 31, 2008 at 10:33 am #

    The very fact that they are considering this as legislation is frightening–just like the fact that 4 out of 9 Supreme Court justices don't really believe the 2nd amendment applies today as written! The fact that both parties' candidates are in support of this travesty shows how leftward both parties have swung, too. I used to say that JFK wouldn't be welcome in today's Democrat party because they are far too leftist, but I'm beginning to think the Republicans are going to far to the left to accept someone like him, too! Insanity…

    The solution is to "throw the bums out" and replace them with a congressional delegation (including the Senate) that respects our individual freedoms and doesn't strive to grow the nanny-state. Good luck with that, I guess…

  7. Miguelito Thursday, July 31, 2008 at 10:46 am #

    Look at the silver lining: flavored cigars might be banned! 😛

  8. John Saturday, August 2, 2008 at 9:14 am #

    I agree with dmjones comments above. The two party system has failed the American people. The Republicans have lost my support and trust. The Democrats never had it. Vote Libertarian! Go Bob Barr… Go Ron Paul!

  9. Blah Thursday, August 21, 2008 at 7:50 pm #

    "“[Smoking] has a huge cost to our society. We have an opportunity to put an end to that". No, it actually doesn't. Longevity cost our society more in terms of dollars and cents than any smoker ever has. That's a fact and something that is not being discloused to America.

    Just think about it. Cutting a tumour and giving someone chemo costs a lot less than sticking someone in a money pit covered by insurance companies for the last 20yrs of their life.

  10. ET Saturday, June 13, 2009 at 6:57 am #

    While the primary focus is cigarettes, we can all bet that any legislation will simply state "tobacco" which will group cigarettes, cigars, pipe tobacco, chew, into the flavor ban. There are many manufacturers who only produce flavored cigars and the impact on many companies will be bad. Pipe tobacco has practically always had flavoring.

    We have all these flavored beers, hard teas, flavored vodka's which is MORE of a lure for underage use than smoking. Alcohol is a drug, however it is not being *flavor regulated* like tobacco. They complain about secondhand smoke, but what about the DUI's and deaths from underage drinkers consuming alcohol that tastes like Kool-Aid?

    Our country is headed down a very bad path. It's no wonder ammo is so hard to find. You can't keep taxing and taking away peoples pleasures. First SCHIP, now the FDA. Where does it end?

  11. cheney english Sunday, November 29, 2009 at 11:41 am #

    the law that has gone into effect made it illegal for me to purchase djarum blacks which are an Indonesian clove cigarette with natural fruit juices infused into the tobacco there are no legal clove cigarettes even for sale in the united states it is absurd that just because it has clove in it, it is considered flavored

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