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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 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