FDA Regulation Could Doom Cigar Shops


The cigar industry is trying to stop the Food and Drug Administration from regulating its products, which it fears would result in onerous restrictions and burdensome fees that would drive many retailers and manufacturers out of business. The Family Smoking Prevention and Tobacco Control Act of 2009 gave the FDA authority over cigarettes, smokeless tobacco, and "any other tobacco products that the Secretary [of Health and Human Services] by regulation deems to be subject to this chapter." If the FDA "deems" cigars to be covered by its regulations, an agency spokesperson tells The Daily Caller, they "would be subject to general controls, such as registration, product listing, ingredient listing, good manufacturing practice requirements, user fees for certain products, and the adulteration and misbranding provisions, as well as to the premarket review requirements for 'new tobacco products' and 'modified risk tobacco products.'" The Daily Caller outlines some of the practical consequences:

New taxes—or "user fees," in FDA lingo—would reach every corner of the cigar world, [International Premium Cigar & Pipe Retailers CEO Bill] Spann said, from giant online retailers to small-batch importers and neighborhood shops.

Beyond that, Spann warned, customers wouldn't be permitted to touch or smell cigars. There would be no walk-in humidors and no cigars flavored with cognac or bourbon. The FDA could stop the sale of new cigar blends until manufacturers submit them to the government for testing and analysis.

And cigar boxes—and perhaps even individual cellophane wrappers—could be subject to the same graphic warning labels scheduled to be required on cigarette packs in September 2012….

Shami Walia, an Indian-American who opened Burke Cigar in the Virginia suburbs of Washington, D.C. four years ago, doesn't hold out hope that shops like his would survive that level of government control.

"A lot of shops—all small businesses—would just not be able to handle it," Walia told TheDC. "They'll probably shut down…You won't be able to keep your doors open."

The FDA also could ban online sales of cigars in the name of preventing minors from buying them—about as plausible a scenario as teenagers getting drunk on boutique Cabernet they order from an out-of-state winery.

To avoid all this heavyhanded interference, the industry is backing legislation (H.R. 1639 and S.B. 1461) that would prevent the FDA from regulating "traditional large and premium cigars," defined as "tobacco that is wrapped in leaf tobacco, contains no filter, and weighs at least 6 pounds per 1,000 count." Backers of the bill, dubbed the Traditional Cigar Manufacturing and Small Business Jobs Preservation Act of 2011, argue that the main rationale for the tobacco control law was preventing underage smoking, and not many teenagers are plunking down $10 for an Ashton Churchill. CDC survey data  indicate that 14 percent of high school students are "current" cigar smokers, meaning they smoked a cigar, cigarillo, or little cigar on at least one day in the month before the survey. The premium cigars covered by H.R. 1639 likely account for a very small portion of those smokes. In any event, selling tobacco products to children is already illegal, and cigar shops like Walia's do not admit unaccompanied minors.

Last week I noted New York City's ban on flavored cigars, which the FDA could end up replicating at the national level. The FDA's new warning labels, which could apply to cigars as well as cigarettes, are on hold as a result of a First Amendment challenge.