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Stogie Commentary: Protecting Our Cigars from the FDA

27 Oct 2009



When first signed into law, Food and Drug Administration (FDA) regulation of tobacco seemed by many to be a distant threat to cigars. The apparent consensus was that the bill was targeting cigarettes and, if it any threat to handmade premium cigars existed, it would be many years before the impact would be felt.

Lately, however, cigar makers who would be most impacted, along with retailers and consumers, have started to recognize the serious and immediate threat that FDA oversight poses to handmade cigars.

This was brought to a head when, nearly simultaneously, reports started surfacing that the FDA was sending agents into cigar shops to investigate the need for further regulations, and that a House Committee was investigating “flavored” cigars. Of course, I would be remiss if I didn’t point out that StogieGuys.com has been warning about FDA regulation the entire time the bill was being considered and being signed into law.

Part of the confusion over the impact of the FDA bill—called “The Family Smoking Prevention and Tobacco Control Act” by its proponents—is that the bill does two different things which at first glance seem somewhat in conflict. First, the legislation authorizes the FDA to regulate all tobacco, with the only major restriction being that the FDA cannot create an outright prohibition on tobacco products without an additional act of Congress. Second, the bill instructs the FDA to use that authorization to regulate cigarettes, including a ban on flavored cigarettes (except for menthol).

While focusing on the second provision of the bill, many in the cigar industry failed to recognize that by authorizing FDA regulation of any tobacco products, the bill now puts the fate of the handmade cigar industry in the hands of unelected FDA bureaucrats. This puts cigars behind the eight ball, where opponents of cigars no longer need to pass any additional legislation to subject the industry to extremely restrictive regulations that would include bans on most advertising and a burdensome FDA product approval process.

Since repeal of FDA oversight isn’t a realistic option with the current makeup of Congress (and frankly it would be a tough sell under any Congress we’re likely to see in the next decade), the current strategy should focus on differentiating handmade cigars from other products. Unlike small machine-made cigars and cigarettes, handmade cigars aren’t “manufactured”—they’re crafted. For example, blends are often tweaked from year to maintain an overall flavor even when the tastes of the tobaccos in the blend change due to climate or other factors.

Unless the FDA recognizes this, innovation in the industry is likely to be stifled, particularly for smaller boutique cigar makers who can’t afford the testing that an FDA approval process would include. Splitting handmade cigars from machine-made cigars would be a positive step towards protecting the innovation that has brought us so many of the great cigars that have come to market in recent years. It would also have the added benefit of stalling implementation of regulations until further FDA studies are completed.

The ultimate goal should continue to be to free handmade cigars entirely from the chains of FDA oversight. However, until that is possible, organizations like the International Premium Cigar and Pipe Retailers Association (IPCPR) and Cigar Rights of America (CRA) should focus on protecting cigars as best as possible through the FDA by creating a “handmade cigars” designation that would recognize the unique characteristics of our beloved premium cigars.

Patrick S

photo credit: FDA

Drew Estate

18 Responses to “Stogie Commentary: Protecting Our Cigars from the FDA”

  1. dmjones Tuesday, October 27, 2009 at 3:06 am #

    Great analysis of this issue, Patrick. The only thing I don't necessarily agree with is your doubt that "any Congress we're likely to see in at least the next decade" would overturn this latest government over-intrusion into our lives.

    While I could be wrong, I think we may well see the House of Reps change hands next year in a massive Obama/Pelosi/Reid-backlash. I have serious doubts about the Senate changing hands as well, but it is looking likely that Harry Reid at least will be out of a job and we'll get a new Majority Leader. If the Republicans actually stick to their principles this time around, they could retake the Senate in 2012, and then I think this FDA control of tobacco could be repealed.

    The question then is "Will they bother?" To many elected officials this may seem to be a total non-starter; they may feel like they've got too many other big fish to fry to even bother loosening regulations on tobacco products. Of course, that's where the IPCPR and CRA should be ready to swoop in and demand our rights back.

  2. CigarsThomas Tuesday, October 27, 2009 at 5:25 am #

    Great article. I had not researched the topic and this article answered most of my questions…..thanks.

  3. Mike Tuesday, October 27, 2009 at 6:48 am #

    I'd like to read somethig verifiable about these FDA "excursions" into cigar shops. Are you sure it wasn't more than a spot check to see if they're still selling cloves? The FDA hasn't even staffed its tobacco center yet.

    The IPCPR, to my knowledge, has not changed its stance that they believe the law's focus is on cigarettes. That's where 90% of the US tobacco market is, and cigarette makers are the ones paying the "user fees" to the FDA, not cigar companies.

    In additon, while it is true that all tobacco can come under the FDA, they cannot apply the same restrictions to cigars as they do to cigarettes without going through a multiyear rukemaking process.

    If there is anything to worry about now, it would be a ban on "little cigars" that come in flavors, not handmades.

  4. Patrick S Tuesday, October 27, 2009 at 6:54 am #

    dmjones- I wish I could be more optimistic, but even in the so-called "Republican Revolution" of 94 we didn't see the repeal of laws, or the complete removal of regulation. Mostly, we just saw a slowing of the growth of government, and in some cases easing of regulations.

    In my years of watching government and politics, it is an extraordinary rare thing for Congress to actually repeal a law. More often (like the SCHIP expansion), fights are over whether or not to expand government programs. I'm afraid in the unless we see something extraordinary, repealing the FDA law within 10 years is at best a long shot.

  5. Patrick S Tuesday, October 27, 2009 at 7:29 am #

    Mike-

    Cigar Aficionado's subscription-only Cigar Insider reported in its October 6 issue on the visits from FDA agents. One shop owner in Baton Rouge, LA talked about an FDA representative visiting to catalog the cigars being sold, particularly the flavored cigars. CAA confirmed other instances in the article, and I've also been told by the CRA of such visits.

    I can also say that at least some people with positions at the IPCPR now see FDA regulation as a major threat. I'm not sure they've taken an official position, but I can report that unofficial lobbying efforts have already begun.

    As for how immediate a threat it is. I was told by one shop owner that when it first passed, he was told it would be years before any such rule making on cigars even started. Now it looks like months, and because there is no difference between how small machine made cigars and large handmade cigars are classified, handmade cigars could get wrapped up in a battle over whether small machine made cigars are really just a way around the rules for cigarettes.

  6. Ken Tuesday, October 27, 2009 at 7:48 am #

    I don't think the distinction between handmade and machine made cigars will ever enter into any thought process by the FDA or the nanny-crowd. As far as they are concerned they are all "evil".

    I believe we are seeing the start of all tobacco products, regardless of how they are made, sold, or whaterver, being taken off the market. It may take 10, 20 years, but I think the anti-whatever crowd has now got the ear of our so-called law makers.

    Of course this is all for our protection as we are constantly being told…

  7. Sea Jay Tuesday, October 27, 2009 at 8:23 am #

    I am a devotee of handmade cigars.

    That being said, I cannot defend the manufacture and sale of cheap machine-made flavored cigars which are, in my opinion, clearly intended to lure trendy teens and twenties to smoking and inhaling this product.

    Remember the movie The Insider? Cheap flavored cigars are purely another clever "nicotine delivery system."

  8. Marc E Tuesday, October 27, 2009 at 8:25 am #

    So tell me again how this is not just the march towards a new "Prohibition" movement? Maybe us cigar smokers need to put a bug in the ears of the anti tobacco crowd that alcohol is also "evil" and needs to be outlawed…maybe then they can be pushed back to the fringe where they belong by an uprising of public sentiment to "keep the hell away from my booze" on the coat tails of which cigars could emerge from the danger of legalized extinction in this country. How is alcohol safer than tobacco, remind me again? Oh yeah that's right it's not. I wish being an idiot hurt, then all of these anti tobacco folks would be in the hospital being treated for their ailment.

  9. mighty Tuesday, October 27, 2009 at 8:35 am #

    A picture that I like to use to differentiate between cigars and cigarettes is the difference between a BB gun and a 9mm. Sure, both are "guns," but they are in totally separate classes of regulations, rules, etc.

    Sure, both cigarettes and cigars are both tobacco (or guns from my example) but as we know, and what we need to get the word out on is that they are totally different from each other, just like the BB and 9mm are. People smoke cigarettes for a fix, where many people smoke cigars for the good company, relaxing atmosphere, nuances in flavors, and much more. I dont get into nicotine withdrawal if I dont get to have my occasional cigar.

  10. Mike Tuesday, October 27, 2009 at 9:38 am #

    I'm surprised CA didn't put that news in their regular magazine or at least online. I guess I could see some of the large, handmade flavored cigars by companies like CAO coming under scrutiny.

    While I suppose heavy FDA regs for cigars are possible, I still doubt it. Canada has had regulations simalar to the FDA's new powers for two decades and cigars are still sold there and at least as far as nonflavored cigars, exempt from many of the rules governing cigarettes.

    And when you consider that most handmade cigars are made outside the US, that further complicates US efforts to impose its manufacturing standards.

    Finally, I think it's a question of resources. Dealing with cigars are not a good use of the FDA's manpower.

    Thanks for the info, Patrick.

  11. Mike Tuesday, October 27, 2009 at 9:46 am #

    And here is what the FDA's Web site still says about cigars. I think any cigar regulations, even if the FDA decided to fast-track them, would be delayed for at least a couple years by rulemaking and lawsuits over this issue:

    Are cigars impacted by the passage of the Act?

    Cigars are considered tobacco products under the FSPTCA. However, the Act does not automatically apply to cigars. FDA must issue a regulation deeming cigars to be subject to the law.

  12. George E. Tuesday, October 27, 2009 at 3:21 pm #

    The Wall Street Journal today (10/27) had one of its top writers weigh in with an interesting report on the controversy over the FDA and clove cigarettes/cigars.

  13. Dave Mowers Saturday, October 31, 2009 at 11:33 am #

    Today the FDA banned carbonated alcohol drinks due to an alarming rise in teenager alcohol abuse. They found the carton packaging on the cans along with names like, Purple Unicorn to psychologically designed to appeal to younger users of the powerful drug. Further research that was performed in convenience stores across America showed at least a cursory connection to marijuana blunt smoking and crack cocaine use increase when high-powered 40 and 50 ounce carbonated alcoholic can drinks were offered for sale in low-income neighborhoods. These neighborhoods are the same ones your children may live in, further more the same study produced evidence that teenagers did in fact live within two miles of more than 78% of the stores where alcoholic intoxicants were marketed to young people.

    Judith Denko, a high school senior at Sanderson High School in Raleigh stated, "I became an alcoholic by the time I was in sixth grade, the corner store sold what I thought were sodas and they turned out to be alcohol drinks. After I began using drugs the combination nearly ruined my life, my grades went down, I had risky sexual behaviors leading to health problems..and that is when I was approached by some guys at a hardware store about inhalants. I got hooked on high alcohol content flavored sodas and spray paint…my teeth there ruined, just like my life"

    Her heart-felt testimony before a Congressional committee, brought many members to tears as she showed the x rays of what doctors now say is permanent liver damage. "I just wanted to fit in" said M.s Denko "Flavored, carbonated alcohol drinks stole my life before i could really live it."

    America, your children's lives are at stake. Ban flavored alcohol drinks and pastel colored spray paint cans. Judy might be your little girl some day. We have done in the candy flavored cigarettes for preschoolers, let's finished the job and ban tasty alcohol while we have a Democratic majority willing to inhibit personal freedom for special interest.

  14. UberZero Friday, April 30, 2010 at 10:14 am #

    They're here… FDA filed this week its intent to include cigars under its authority.

    search for "CIGARS SUBJECT TO THE FAMILY SMOKING PREVENTION

    AND TOBACCO CONTROL ACT" in

    http://frwebgate3.access.gpo.gov/cgi-bin/TEXTgate

    It reads:

    "Legal Authority: 21 USC 301 et seq, The Federal Food, Drug, and

    Cosmetic Act; PL 111-31, The Family Smoking Prevention and Tobacco

    Control Act

    Abstract: The Family Smoking Prevention and Tobacco Control Act (the

    Tobacco Control Act) provides FDA authority to regulate cigarettes,

    cigarette tobacco, roll-your-own tobacco, and smokeless tobacco.

    Section 901 of the Federal Food, Drug, and Cosmetic Act, as amended by

    the Tobacco Control Act, permits FDA to issue regulations deeming other

    tobacco products to be subject to the Tobacco Control Act. This

    proposed rule would deem cigars to be subject to the Tobacco Control

    Act and include provisions to address public health concerns raised by

    cigars."

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