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

1 Jun 2016

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

photo credit: N/A

Drew Estate

11 Responses to “Commentary: One Man’s Grim Opinion of the FDA Situation”

  1. Rammathorn Wednesday, June 1, 2016 at 7:13 pm #

    I hope you are wrong but I think you are probably right.

  2. Cigar Seeker Thursday, June 2, 2016 at 5:56 am #

    Have to disagree with your statement that there is no “right” to consume tobacco. Certainly, tobacco is not specifically mentioned in the Constitution. But it does not have to be. Rights are not “given” by the Constitution. Everyone has rights, Natural Rights, from birth. And the government can only protect, or infringe upon, those rights. And in this case the government is most certainly infringing on our right to consume tobacco. I agree though that the trend has been for the government to increasingly infringe on our rights, in just about all aspects of life.

    • Dp Sunday, June 5, 2016 at 4:05 pm #

      I agree with you, our “rights” are being infringed upon in this case. Unless there is a crime, which means there needs to be a victim, the government really has no power to curtail an action or sale. This other view you are thinking of is based on one that stems from a long history of abuse of power that keeps growing. Peoples interest is just another buzz phrase for aggressing against our personal liberty.

  3. Ken Thursday, June 2, 2016 at 7:29 am #

    Well stated commentary.

    The Family Smoking Prevention and Tobacco Control Act was signed into law in 2009. Since that happened, the so-called right to use tobacco has been attacked by the anti-tobacco zealots with staggering effect. When the FDA asked for comments on the deeming rule proposed in 2014, did anyone really believe that they would do anything other than what the anti-tobacco groups wanted? Did anyone really believe that a significant number of members of Congress would “dare” to standup to the big-money anti-tobacco groups? Hence, the CRA is an ineffectual lobbying group.

  4. Mike Thursday, June 2, 2016 at 11:47 am #

    I agree, George. I was wrong that FDA would just choose to sit on the regulations like menthol cigarettes.

    But I still think lawsuits will likely slow the law’s effect on the cigar industry and they may force some changes, but chances were never great that the FDA would agree to exempt cigars from its oversight.

    The industry will adapt, however.

  5. JMac Thursday, June 2, 2016 at 1:22 pm #

    Will there be a black market for premium cigars?

    • Mike Thursday, June 2, 2016 at 3:15 pm #

      Premium cigars are not going away. Worst-case scenario will see the numbers of brands and blends slashed in about 3 years but I doubt there will be a major black market.

      Industries adapt, even to heavy regulations.

      • George E Friday, June 3, 2016 at 8:41 am #

        I agree with Mike. A black market any larger than the current one for Cubans seems highly implausible under any circumstances. There are numerous reasons, but the biggest is that the pool of potential customers is just too small to make it profitable.

  6. Tom N. Friday, June 3, 2016 at 9:30 pm #

    Add to this it’s the fact that the blood brothers in hand mades, Altadis and General, sat back and waited instead of acting and sealed the deal. The reason for their inaction is clear: their competition will dry up as mid-size and boutique tabacalaras fold while they cherry pick the best. It will be an end of an era.

  7. Dawn Tuesday, June 21, 2016 at 10:05 pm #

    This is why I’m voting Libertarian. They actually have cigar fundraising events. Gary Johnson believes that adults should make their own decisions. He currently has 12% of the votes, according to Fox News poll. I’m really hoping he gains momentum because I don’t trust either the dems or republican candidates…

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