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Stogie News: FDA Rules on Cigars Due Soon

27 Jul 2010



I know it has been said before, but FDA regulation of cigars is on the way. On April 26 the FDA published a notice in the Federal Register (Vol. 75, No. 79, Pg. 21794) of intent to regulate cigars under the so-called “Family Smoking Prevention and Tobacco Control Act” passed by Congress and signed into law by President Obama.

Cigars had originally been excluded from the law, passed in 2009, but the law also allowed for the FDA to come back later and establish regulatory authority over cigars at a later date. The specific language of the notice related to cigars is below:

147. CIGARS SUBJECT TO THE TOBACCO CONTROL ACT

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.

According to the notice, the FDA should have published a proposed rule in June 2010. At the time of this writing, a proposed rule has not yet been published. So what does all of this mean for the cigar industry? The best way to get some indication of what we can expect is to look at the regulations already in place for cigarettes and the policy reasons behind those regulations.

On June 22, some new restrictions (21 Code of Federal Regulations §1140.1-1140.34) went into effect for cigarettes and smokeless tobacco. Among them is a prohibition on distribution of free samples, prohibition on advertising in newspapers and magazines, prohibition on advertising on billboards and posters, and a prohibition on the sale or distribution of clothing or other non-tobacco items bearing the logo, motto, or other identification of a particular brand.

All of these regulations could easily be adopted for cigars. The regulations mentioned above would seriously change the atmosphere at many of the cigar events I have attended, many of which featured free samples and clothing with cigar purchases.

The only way to combat these intrusions is to speak up and be heard. So be sure to join Cigar Rights of America and contact your representatives as appropriate.

Patrick M

photo credit: FDA

Drew Estate

23 Responses to “Stogie News: FDA Rules on Cigars Due Soon”

  1. scratch Tuesday, July 27, 2010 at 2:41 am #

    I'm still in awe that the government has been able to discriminate against an industry and make it illegal for it to advertise openly. While pharmaceutical companies can openly advertise and mislead people into asking for prescriptions they most likely don't need. You suggest to someone they may have a problem with vague symptoms that can be applied to anything and they might be neurotic enough to believe it. I just don't understand at what point the governmment can stop regulation in the name of the "well-being of america's youth." I'm sure that vague ideal can be misused for anything. Please excuse my disgruntled rant.

  2. Ethan K Tuesday, July 27, 2010 at 4:04 am #

    Scratch & dmjones, government regulations can be challenged through the courts; so, Obama is not an almighty king, nor the FDA totally unaccountable. (I concede that challenges would have little chance of success.)

    If regulations stop advertising & handouts of shirts & caps etc, we may see some lower prices. I do not need to read ads in cigar magazines, nor to get a 40% cotton t-shirt for free w/ purchase of a box, and don't want to pay for them indirectly.

    So, I'm hoping FDA = lower prices, but like you, I worry. I'll keep my humidor full.

  3. dmjones Tuesday, July 27, 2010 at 7:43 am #

    So, basically, the Obama regime can change the rules on us without even the most basic vote needing to take place…no legislation, no room for appeal…the FDA just implements new “regulations” under the auspices of some vague, far-reaching law that was passed a couple years ago and we can do nothing except talk about it because the FDA is completely unaccountable to voters. Great…time for a regime change in this country!

  4. st Tuesday, July 27, 2010 at 7:59 am #

    dmjones – are you under the impression that under Bush, executive agencies couldn't implement regulations under the auspices of far-reaching laws passed years before? Because they could and did. This is not an Obama issue, and Bush's FDA sought this authority over tobacco just as assiduously as the current FDA. Comments about "regime change" cast more heat than light.

    And just to play devil's advocate, the big cigar companies have been idiots in this regard, pumping flavored cigars (grape, and I've seen for god's sake bubble gum flavor) into the market. Anyone who watched the history of the DOJ's serious enforcement interest against cigarettes knows that the momentum really got underway when the marketing to kids became more obvious and hard to ignore (flavored cigs, cartoon mascots). Making yourself more like the cigarette industry in ways that have triggered oversight and lawsuits in the past is just stone stupid, no matter your political position.

    That said, when the NPRM (Notice of Proposed Rulemaking) comes out, by law there will be a comments period, and I'm sure all of the players (companies and trade groups) will be active and will both submit comments and solicit smokers to grass-roots action submitting form postcards, etc. Having been involved in drafting industry comments on some pretty hot-button energy and environmental issues in the past, readers might be surprised how responsive the agencies can sometimes be when a clear case is made for a regulatory distinction. But so long as the big boys are shoving white owl grapes into every drugstore, the giants are giving tobacco opponents a huge brush with which to tar the whole industry. I'm just saying.

  5. Patrick M Tuesday, July 27, 2010 at 9:48 am #

    @Ethank K I get what you are saying about not wanting to pay for these marketing costs indirectly. I have 2 thoughts though. 1.) Do you want the industry to be consolidated down to just a few big name companies because the little boutique guys can’t get their name out there? and 2.) Do you from think the government should be prohibiting of a company that sells a legal product from being able to advertise?

  6. scratch Tuesday, July 27, 2010 at 10:01 am #

    @Ethan K, I really don’t believe that this will lower costs, because guess who pays for the oversight committees? The tax payers through higher taxes on the product or on some other product that more Americans use. I also have to agree, that its not totally on Obama, but he did have a chance to stop it. I am disturbed by his overwhelming trend to expand the government during his presidency. But I rather not go into those programs since it is a cigar site.

  7. Patrick M Tuesday, July 27, 2010 at 12:18 pm #

    @st – I agree whole heartedly that the cigar industry should be trying to distance itself from the things that got whacked when the FDA took over cigarette legislation (i.e.. flavored cigars etc.). Since that legislation passed I have wondered about lines like Drew Estate's Acid and Ambrosia especially with the advent of the Fat Tips. Further the clove cigarette makers just changed their banned products to come under the auspices of cigars and that doesn't bode well either.

  8. Ethan K Tuesday, July 27, 2010 at 3:15 pm #

    Patrick M et. al., Of course, no advertising of legal products seems ridiculous, as does greatly restricting where these products may be consumed yet taxing them. Moreover, we who smoke handmade premiums are suffering for concerns about machine-made cigars. Many Dutch Masters Blounts & similar cigars are used to hold marijuana; and, in some places the shell of these type of cigars are sold w/o filler. Bubblegum flavors etc. might be targeted at this market w/ the hope that such cigars will also be consumed for flavor and not just as a throwaway pipe. I say, “So what!”
    How does this compare to crucial threats to the world, such as chaotic weather patterns, shortage of clean water, peace? How do cigars merit so much attention? Well, if the serious problems don’t get enough attention, they need to work on something, because….
    Cutting much of the advertising for kid’s cereals led to lower prices for Cocoa Puffs etc. Advertising was a huge part of the cost of those cereals. I have no idea how much $ is spent to market cigars. If it is a lot, and such advertising is stopped; then, cigar-prices could come down; and, I don’t know that that would lead to consolidation in the industry.

  9. cms Tuesday, July 27, 2010 at 5:22 pm #

    marketing doesn’t seem as big an issue as the abolishment of on-lines sales, which I believe took pace in July with smokeless and cigs. Those of us with limited access to BMs would definitely be effected. Let’s fight this!

  10. dmjones Tuesday, July 27, 2010 at 5:24 pm #

    st:

    No doubt that leftist bureaucrats are entrenched in the FDA and other federal agencies regardless of who holds the Presidency, but it was a Democrat Congress that gave the FDA the right to regulate tobacco and a Democrat President who signed the bill into law and who installed his people in the bureaucracy.

    I'll admit that "regime change" is a strong phrase, but even Howard Dean referred to the "Obama regime" in the last week so it fits.

    And just to make sure I'm not misunderstood: I'm not defending centrist or left-leaning Republicans like the Bushes or John McCain. When Republicans owns all branches of government early in the decade they showed they can be asses just as much as the Democrats are. The problem now is that their leftward creep has been turned into full-fledged sprint and American freedoms (smoking among them) have been taking a hard hit.

  11. Patrick M Tuesday, July 27, 2010 at 5:36 pm #

    @cms you are correct although it was banned by legislation other than the Family Smoking Prevention and Control Act. That is not to say that the FDA or some other agency won’t decide to ban the mailing of cigars too.

  12. st Wednesday, July 28, 2010 at 4:59 am #

    dmjones – not looking for a political foodfight here; just pointing out that the establishment of the executive agencies in the middle of the last century has led to a lot of independent policymaking authority being taken away from the legislature and given to the executive branch. This authority has been used to vindicate political agendas on the fringes of both perspectives for years. There is a very cogent conservative legal critique of the constitutionality of these agencies and their rulemaking authority, as they are anticipated nowhere in the constitution, but this theory has fallen out of favor as the competing "unitary executive" theory has gained wider acceptance among conservative legal scholars. It's an interesting debate, and one that doesn't have much to do with the overheated day-to-day of party politics.

  13. Nameshy Wednesday, July 28, 2010 at 10:02 am #

    As long as there is enough money to fund evidence-based strategies rather than evidenced-based science and to fund national preventive media initiatives, we will not be living in an America as we once thought it was. The money supporting our “recovery and reinvestment” takes us even beyond the imagination of George Orwell.

  14. CS Wednesday, July 28, 2010 at 7:17 pm #

    Menthols, of course, also got a pass last year.

  15. CS Thursday, July 29, 2010 at 12:16 am #

    The ‘little cigars’ from djarum, and other makers SUCK. they don’t taste anything like the original . They are harsh and almost unsmokable.

  16. Mike Thursday, July 29, 2010 at 3:35 am #

    Regulations are probably not coming anytime soon, and would likely target the small, flavored "little cigars" sold in convienence stores more than large cigars. Handmades are such a small market, made up mostly of over-30 males, I doubt they will attack it. It's not worth the effort, at least now.

    I read this report from a trade journal a few months ago:

    Dr. Lawrence Deyton, director of the FDA's Center for Tobacco Products (CTR), said in a May speech at an annual conference of the Tobacco Merchants Association… the FDA had just begun a fact-finding effort to decide whether to add cigars to the list of tobacco products that it will closely regulate.

    "We are examining the public health impact of other products" besides cigarettes and smokeless tobacco, he said, "but on no particular deadline."

    ***

    That may explain why no rules were published at this time. That keeps their options open, however.

    If they were truly in the midst of rulemaking, groups like the former RTDA and CRA would be very active in getting members involved.

    Although nothing is certain, I doubt the same types of restrictions would be attempted for cigars. Many of those for cigarettes are already tied up in court.

    The majority of cigars, already an expensive product, are not popular with minors. Cigar advertising is miniscule.

  17. Mike Thursday, July 29, 2010 at 5:03 am #

    Perhaps, but manpower and resources are not infinite, even for the FDA. But I also base my opinion on Canada, which I visit often. They have long had regs similar to the FDA's on a federal and provincial level.

    They have just moved to ban flavored small cigars, but I can go into an Ontario tobacco shop — it's windows may be black and it may not say the word "tobacco," but still — and buy the same Rocky Patel I get in the US, albeit at about 3 times the price.

    The fact no regs were proposed yet — more than a month overdue — leads me to believe Deyton. They're not looking to rush this.

    Going back to Canada, they have been seeking public comment on how and whether to beef up their regs on tobacco other than cigarettes for about 6 years and still haven't proposed anything.

  18. Padronnie Thursday, July 29, 2010 at 9:47 am #

    Mike-
    Yes, but you presuppose that the FDA is reasonable and looking only to prevent children from using tobacco. Unfortunately, I think they are far more militant than that.

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