Sometimes a Cigar Is a Cigarette

The federal ban on flavored cigarettes, imposed by the same law that authorized the Food and Drug Administration to regulate tobacco products, took effect yesterday. The New York Times reports that the FDA is sending mixed signals about whether the ban also covers small flavored cigars:

At a news conference on Tuesday, agency officials were deliberately vague when asked whether the ban would apply to the growing market of flavored small cigars like Swisher Sweets or cigarillos like Black & Mild, which can have flavors like apple and chocolate.

F.D.A. agents visited a tobacco store in Mobile, Ala., on Saturday and told the owner that the flavoring ban included cigarillos like Black & Mild, according to Norman Sharp, president of the Cigar Association of America.

Another cigar store owner told Mr. Sharp that an agency representative called last week to tell her to remove every flavored tobacco product from her shelves that "looked like a cigarette" but could not define what that meant, Mr. Sharp said.

In a letter to manufacturers, the agency said the ban applied to all cigarette-like tobacco products even if they "are labeled as cigars or as some other product." And in another document to manufacturers, the agency wrote that it was "examining options for regulating both menthol cigarettes and flavored tobacco products other than cigarettes."…

Dr. [Lawrence] Deyton [director of the FDA's new Center for Tobacco Products] was asked several times on a conference call with reporters if the ban applied to any small cigars or cigarillos. "According to the law, if something is wrapped in a tobacco leaf, that would not be considered…" he said and then stopped and added, "Hold on just a second."

After a delay, Catherine Lorraine, a lawyer in the agency's tobacco center, got on the call and said that if consumers believe a product is a cigarette, then the law defines it as one no matter how it is wrapped or labeled.

"We will be looking at products on an individual basis to determine if it meets that aspect of the legislation," Ms. Lorraine said.

If a consumer believes a product is a cigarette, even if it is not manufactured or marketed as such, that makes it a cigarette? Evidently tobacconists are now expected to read their customers' minds.

The rationale for this arbitrary ban is that flavored cigarettes appeal to minors and therefore cannot be tolerated, even though most of the people who consume them happen to be adults. (The law makes an exception for menthol cigarettes, which are an important source of profit for Philip Morris, the only tobacco company that supported the law.) The same logic condemns not only "alcopops" (sweet malt beverages) but any alcoholic beverage sweeter than a martini.