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Commentary: What I Told the FDA

26 Jun 2014


Spurred by a recent article from one of my colleagues, I’ve submitted my comments to the FDA on its proposal to regulate cigars.

I tried to follow Patrick’s excellent advice, especially to be brief and focused. I’d add only one suggestion to his—sign your name. A signed comment is worth dozens of anonymous ones.

I took a somewhat different tack than most filers, focusing on suggestions that I believe could increase the likelihood of getting an exemption with minimal impact on the industry.

Since I shared my recent letter to the FDA’s tobacco czar, I thought I’d do the same with these comments:

I am an adult cigar smoker and fully support an FDA exemption for premium, hand-rolled cigars. I’ll let others enumerate the reasons this should be done. Instead, I’ll focus on three areas that I believe both sides could accept and that would facilitate reaching an agreement on an exemption.

– Enact a federal minimum age of 21 for purchasing premium, hand-rolled cigars. This would both demonstrate the industry’s sincerity that it does not market to underage youth and allay fears of tobacco opponents.

– Require officers and directors of cigar companies whose products are exempted to annually attest, under penalty of perjury, that their companies and products adhere to the requirements of the exemption.

– Ensure that the exemption is clear and unambiguous, and does not, under any circumstances, allow creation of other exempted products, such as lower-cost cigarette alternatives.

I do feel compelled to comment on one specific component of the proposal: the $10 price floor. This would be devastating, leaving an industry so diminished as to require no more regulation than luxury-priced dark chocolate truffles. I urge that rules be enacted without an impractical, ruinous price floor.

Thank you for your consideration.

I hope everyone will file their own comments. Feel free to copy, adapt, or use any portion of mine. Read through our (many) previous articles on the subject for other ideas and sources. But don’t miss the opportunity to register your views here.

George E

photo credit: Stogie Guys

7 Responses to “Commentary: What I Told the FDA”

  1. Ricky Thursday, June 26, 2014 at 8:05 am #

    I really respect and appreciate all the work you guys have done over the years to inform us about the dangers of FDA regulation, how to stand up for our rights, etc.

    But I must ask this question of George specifically: Respectfully, why did you choose to bring up increasing the legal age to 21 when this isn't currently on the table of restrictions/considerations?

    I get the idea of making some concessions to show we're genuine in our interest to only provide/sell cigars to adults. But 18 is an adult. I have a hard time with the notion of some American soldiers, for example, not being able to legally smoke a cigar when they come home.

    • George E. Thursday, June 26, 2014 at 9:05 am #

      Ricky – My personal belief is that 18 should be the legal age for alcohol and tobacco purchase and consumption. But that's all that is: my opinion. I also believe that the anti-tobacco forces have so captured the field when it comes to fears about underage smoking that dealing with the issue head-on is the best approach.

      I think it's also important to keep in mind that the age limit is not standardized, for smoking or many other activities. For example, the argument is often made that someone old enough to be in the military should be allowed to purchase alcohol, so lower the age limit back to 18. But it's also possible to enlist in the service at age 17. Another alcohol anomaly is most states allow those 18-20 to serve alcohol but not to purchase or consume it. One state, I believe, even permits serving by 17 year olds.

      State laws on tattoos are all over the board, as they are on the age for sexual consent and marriage. Even with tobacco, some states and localities have set minimum ages above 18, and in some states it is not illegal for underage individuals to smoke while in some states it is illegal for those underage to possess tobacco products. And then there's the whole issue of how emancipated minors are treated by governments.

      The bottom line to my proposal rests, though, on what I think is realistic and practical and would best serve the premium cigar industry and smokers for the long haul.

  2. Mike Thursday, June 26, 2014 at 12:48 pm #

    I believe that the law giving the FDA the ability to regulate cigarettes and possibly other forms of tobacco says that the minimum federal smoking age cannot be raised except by Congress, although it does call on FDA to study the issue (which FDA is supposed to do within the next year or two).

    • George E. Thursday, June 26, 2014 at 1:19 pm #

      Mike – You're correct. The law does prohibit FDA from using its new authority to unilaterally raise the age limit above the federal minimum of 18. What is unclear — at least unclear to me — is whether the prohibition applies to all tobacco products or only to cigarettes and smokeless tobacco products, which are what I understand the federal minimum age applies to. If necessary, proponents of a premium cigar exemption could agree with the FDA that it should seek from Congress the authority to raise the age limit for exempted cigars to 21.

      • Mike Friday, June 27, 2014 at 10:44 am #

        That's a good point, and I'd guess a court would have to sort that out if it was attempted. But since no states that I am aware have an age 21 standard for just one class of tobacco, I doubt the feds would attempt such a move ("If 21 is a good age for premium cigars, why not all tobacco?") would probably be the rationale.

      • George E. Friday, June 27, 2014 at 11:31 am #

        Mike – While as far as I know, you're right that no state has different ages for tobacco types, there is precedent for treating tobaccos differently. For example, the 1970 Public Health Cigarette Smoking Act banned cigarette ads on radio and TV, but not cigars or pipe tobacco. The 2009 act, and several states, imposed bans on clove-flavored cigarettes. My thinking is that establishing an FDA exemption would carve out premium cigars as a distinct category and including a minimum purchase age of 21 would help to establish the distinctiveness.

      • Mike Monday, June 30, 2014 at 1:33 pm #

        A good point. I just think the anti-smoking lobby — and a fair number of cigar merchants and cigar makers — would oppose such a move, albeit for different reasons.