Cigar News: The FDA is Two Small Steps from Banning Handmade Cigars
7 Mar 2013
Jacob Grier (writer, cocktail expert, cigar smoker, and a friend of this site) has a must-read article at The Atlantic‘s website about the FDA’s approval process, or lack thereof, for new tobacco products. Essentially, the FDA is supposed to be “regulating” cigarettes but instead is blocking all new products from reaching the market.
The article describes the impossible delays and bureaucratic hurdles (over 1,000 new products are pending review but none have been approved) thrown up by the FDA under it’s authority under the Tobacco Control Act of 2009, particularly the story of Hestia Tobacco, which tried for over a year to get FDA approval for a new organic cigarette. And while the focus of the article is on cigarettes, a careful reading of Grier’s piece contains some grave warnings for cigars.
Repeatedly during the story Hestia Tobacco founder David Sley describes attempt after attempt at getting a straightforward answer from the FDA, only to be stymied repeatedly. One passage in particular, regarding aging tobacco in cedar, has important implications for cigars:
Also in October 2011, Sley asked whether his plan to age tobacco in cedar, a common practice in the cigar industry, would violate the Tobacco Control Act’s ban on characterizing flavors. David Ashley, director of the Office of Science at the FDA’s Center for Tobacco Products, replied by merely quoting the statute without clarification. Despite multiple follow-ups, Sley still has not received an answer. In an interview in February, Ashley said that he had not thought about the question. A spokesperson for the FDA has declined any further comment on the issue.
It wouldn’t be a stretch to estimate that the vast majority of handmade cigars are “aged” in cedar in one way or another (think cedar-lined aging rooms, cedar cigar boxes, and cedar sleeves) because cedar’s qualities (especially Spanish cedar) make it ideal for storing cigars. That means that a ruling by the FDA that aging tobacco in cedar violates statutory language against “characterizing flavors” could be one step away from a near total ban on cigars.
And every indication is that other step is only weeks away. As the article notes, the FDA plans to introduce its first rules on cigars by April. Many have speculated that this could include an extension to cigars of the flavor ban that makes flavored cigarettes (other than menthol) illegal. A group of Senators even tried to mandate such a flavored cigar ban last year by attaching it to an appropriations bill.
With the FDA unwilling (after being asked multiple times over the course of 17 months) to foreclose cedar aging being a violation of the flavor ban that is central to the FDA’s tobacco regulatory regime, the coming FDA rules on cigars could leave the FDA dangerously close to banning very common practices fundamental to the creation of the premium handmade cigars you smoke.
photo credit: EPC
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Very scary that some busybodies at the FDA could ban the use of cedar in cigarmaking. Thanks for the info.
It goes to show that "flavored cigar" bans are a massive loophole for banning almost all cigars. The "ban on characterizing flavors" could be used to ban almost anything designed to enhance flavor.
The fact is cigars are all about flavor, because unlike most cigarettes they are not simply nicotine delivery devices.The entire cigar making process is designed to maximize the pleasant flavors that cigar smokers seek out. That's what makes us cigar smokers, not cigarette smokers.
Now, does anyone need more reason to contact his or her representative and senators to urge support for HR792? Passage of this bill would have a profound effect by walling off premium cigars from FDA oversight. Shame on you if you're a cigar smoker and you don't make your opinion known to your solons.
George you're 100% right. Calling is the best way to contact your legislators, but you can also use this form on CRA's website: http://capwiz.com/cigarrights/issues/alert/?alert…
Not to support the government's moves, but everything regarding FDA's adding cigars to its oversight is conjecture right now. I highly doubt cedar aging meets the definition of a "characterizing flavor." Cigars don't taste like wood chips any more than Marlboro cigarettes taste like chocolate for the cocoa and sugar added to burley tobacco to eliminate harshness.
The fact the FDA has taken so long to come out with proposed regulations shows they don't intend to simply reproduce the same rules used for cigarettes. They could have done that a year ago. The former head of the tobacco office at the FDA acknowledged the problems they were having in figuring out how to regulate cigars and bona fide pipe tobacco.
I don't think the FDA's regs woould be a good thing and would almost certainly add another federal tax to each cigar, but nothing I have read makes me think it will be the doomsday some make it out to be. Many of the worst-case scenarios (walk-in humidor bans, logo bans) violate the First Amendment and would be hashed out in court for years if attempted.
If I made Acid cigars or even Swisher Sweets, I'd be a little worried, however.
"…but nothing I have read makes me think it will be the doomsday some make it out to be."
The threat of rule promulgation is enough to invalidate lines of credit and bank loans. Were this hazard to capital markets the only issue, it would be enough to see impending doom. However, its not. User fees, analysis studies, epidemiological impact reports, new product guidelines that prohibit/curtail limited editions and new product development, nicotine administration (that alone could destroy the industry overnight), the fostering of a regulatory capture environment ( that could destroy market share for small to mid range premium cigar manufacturers, odious manufacturing guidelines, the institution of constituent removal, and a characterizing flavor definition in the statute that is so vaguely worded that it threatens to capture the entire category of premium cigars to just name a few all combine to be a threat worth taking seriously. Keep in mind, the W.H.O. and the Framework Convention on Tobacco Control, as well as multitudes of tobacco control advocates in N.G.O.'s, universities, A.G.'s offices, F.D.A., H.H.S., E.P.A., etc are all unapologetically working toward a "tobacco-free world" Its time to worry– Contact your Congressman today and ask him to support HR792.
Great article above, thanks for writing it!
And the traditonal cigar mfg protection bill is a great thing, but it is going nowhere in the Senate, and House leadership knows that. Unless they can attach it to a must-pass bill, it will languish. At least it puts the FDA on notice that Congress doesn't like a heavy-handed approach to large handmade cigars.
I disagree. Last session, there was fairly significant support in the Senate to the bill introduced by Bill Nelson and co-sponsored by Rubio, one of the few issues the two of them agree on. There was support from both sides and along the ideological spectrum. I agree that this kind of specific legislation is rarely passed on its own, but as part of some other legislation I think it has a decent chance if there's support.
Mike- At this point it is more than conjecture:
1- The FDA has said they will be proposing rules \”by April\” and as you acknowledge when you write \”If I made Acid cigars or even Swisher Sweets, I\’d be a little worried\” a ban on flavored cigars is probably the most likely thing to be included.
2- There is no scientific reason (and according to the FDA\’s mandate \”science\” is supposed be behind these decisions) why cedar aging would be a banned flavoring for cigarettes and not for cigars. That\’s why it\’s so troubling that despite being directly asked multiple times (by the cigarette company and in multiple interviews/questions by the writer of the article I referenced) the FDA won\’t say \”no\” cedar aging is not flavoring.
And if you don\’t think cedar impacts the flavor of a cigar, you should try HdM Reposado en Cedar, whose technique is simply to immerse the cigars in cedar shavings (which is a change only in degree from aging cigars on cedar racks or in cedar sleeves). There is nothing to suggest that the FDA is going to distinguish between \”traditional characterizing flavor\” and non-traditional (Acid, strawberry Phillies, French Vanilla, etc…).
Fair points. The FDA has said they would issue proposed regs several times in the last 15 months. Who know if it will really happen this time.
I agree that cigars can pick up cedar flavors; I just doubt it meets the standard of "characterizing." Cedar is not banned for cigarettes as long as it still tastes like tobacco when smoked. But I understand your point about uncertainty.
I am basing some of my beliefs on where the FDA is likely to spend its muscle, as well as my experience in countries like Canada which have long had tighter tobacco regulations.
Cigarettes at retail are invisible in Ontario, and flavored small cigars are on the way out, but I can still purchase a habano or heavily taxed Dominican when I visit. They have not prevented regional blends and limited editions from entering the country. For such a comparitively small market as the US premium cigar industry, I doubt the FDA will take drastic actions.
They're out to make criminals of us all. Que sera, sera, I fear, for our political class is institutionally incapable of defending basic liberties.
I have come to the conclusion that we all have a little blame global warming and its consequences and guilt even more politicians who do not slow down. http://www.globalwarmingweb.com/