Commentary: One Man’s Grim Opinion of the FDA Situation

If the cigar industry needed any more bad news, it could be found recently in a couple of unrelated developments that involve sugar rather than tobacco.

U.S. District Judge Edward Chen turned down a request by the powerful American Beverage Association for a temporary injunction against San Francisco’s requirement that some soft drink advertising include warnings about the dangers of consuming drinks with added sugar.

An abridgment of freedom of speech? No. A potentially fatal and unfair blow to the industry? No. Regulation in the public interest? Yes.

Then the U.S. Food and Drug Administration announced its new nutrition facts food label with an additional category: added sugars.

Now, to be clear, there is a world of difference between these actions involving sugar and the FDA’s tobacco restrictions. And there is sure to be more court action on the soft drink front, as there will be against the FDA’s tobacco rules.

But I believe the moves on sugar are indicative of the legal trajectory.

Here’s why I think the cigar fight against the FDA is, sadly, doomed. (Remember, this is just my view. No one else’s from this site.)

First, despite the outcry that government regulations are taking away our rights, there’s little doubt that there is no “right” to smoke tobacco, and certainly not one that can’t be curtailed. Legal challenges to smoking prohibitions based on a recognized constitutional right (be it privacy, property, or equal protection) have generally failed.

Additionally, the legality of a product doesn’t shield it from restrictions or a ban. Just ask those who live in one of the United States’ remaining dry counties. Up until 1914, cocaine was legal. Caffeinated alcohol drinks were legally sold a few years ago until the government decided they shouldn’t be.

Examples are endless.

Then there is the frequent complaint of a “war on tobacco.” There isn’t a war. There was a war. Tobacco lost. We’re now in the aftermath.

Petitions underway in the cigar community seem, to me, unlikely to accomplish anything. One, urging the White House to act, may garner enough signatures, though I doubt it. But even if successful, it will induce only reconsideration, not action. A reversal or exemption would require a monumental change. The chances of that are slim and none, and, as they say, Slim already left town.

(By the way, are you looking to the future? It’s hard to distinguish which presidential candidate, Hillary Clinton or Donald Trump, dislikes tobacco more.)

Demanding congressional action also appears dubious. Congress didn’t approve an exemption in the past when it would have been much easier. Why expect it to do so now?

Cutting off funding for enforcement, as has been proposed, seems to me little more than a replay of the earlier Congressional move to include an exemption in its funding bill: a bargaining chip to be traded for something else. And even if a funding halt were to be approved, the FDA could likely go right back to work with new funding in the future.

I think the most likely outcome to the FDA regulations is legal action that slows, but doesn’t stop, the process.

Perhaps my years in Washington made me too cynical. Maybe I am just too negative in general.

I hope so. I can’t think of anything that would bring me more joy than writing another piece with the headline: I Was Wrong.

–George E

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