Smoking Bans

Cigars Aren't Cigarettes. A New Bill Proposes That the FDA Regulate Them Accordingly.

A bipartisan bill in Congress seeks to get the FDA out of the premium cigar industry.

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A bipartisan bill in Congress seeks to get the Food and Drug Administration (FDA) out of the premium cigar industry.

The measure, from Reps. Kathy Castor (D–Fla.) and Bill Posey (R–Fla.), was introduced in the House earlier this month. It aims to deregulate the manufacture and sale of premium cigars by removing them from the jurisdiction of the Tobacco Control Act of 2009.

In 2000, the Supreme Court case FDA v. Brown & Williamson Tobacco Corp. determined that the FDA did not currently have the ability to regulate tobacco as it was neither a "drug" nor a "device."

Consequently, the Tobacco Control Act of 2009 was passed to explicitly grant the FDA the new power to regulate tobacco products, similar to how it regulates food and pharmaceuticals. It allowed the FDA to establish its own tobacco product standards, restrict tobacco marketing, and mandate warning labels. Originally, it applied only to cigarettes, cigarette tobacco, and smokeless tobacco—but left room for the FDA to regulate "any other tobacco products that the Secretary by regulation deems to be subject." In 2016, the FDA decided that this meant it could regulate cigars and pipes.

The new bill proposed in the House would reverse this expansion, clearly delimiting the boundaries of the Tobacco Control Act so as to not apply to premium cigars. Similar legislation was introduced by Sen. Marco Rubio (R–Fla.) back in February.

Although the text of the new bill is not currently available, the Senate version defines premium cigars as "any roll of tobacco that is wrapped in 100-percent leaf tobacco, bunched with 100-percent tobacco filler, contains no filter, tip or non-tobacco mouthpiece, weighs at least 6 pounds per 1,000 count" and is either made entirely by hand, or by hand with the help of one simple wrapping machine. 

"Since the FDA decided to regulate premium cigars like cigarettes, our historic industry has been under threat because we are unable to comply with the costly and cumbersome regulatory regime created for mass-market tobacco products," Drew Newman, owner of Tampa-based J.C. Newman Cigar Co., told Cigar Aficionado. "Because FDA's own research shows that premium cigars are distinct from cigarettes, it doesn't make sense to treat them the same."

Newman is referring to a 2015 FDA report on the risks of cigar smoking. It suggested that smoking up to two premium cigars a day is associated with little significant health risk. Paired with the fact that of those who smoke premium cigars, only 3.3 percent smoke one every day and even fewer smoke two per day, the risk posed by cigar smoking, as it is usually done, is minimal. 

"[Cigars] were never included in the original Tobacco Control Act because everyone knew that kids were not running out and buying premium cigars or Dunhill pipes and expensive 965 pipe tobacco," wrote Rick Newcombe in Reason in 2016. "Congress granted the FDA authority over four very specific tobacco products: cigarettes, cigarette tobacco, roll-your-own and smokeless." 

Premium cigars are very different from cigarettes. They differ in the way that they are made, distributed, and enjoyed. If passed, this bill would ensure that the FDA's regulations are sensitive to that difference. 

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  1. Next up, legislators propose removing chauffeur-driven limousines from the purview of the NHTSA and top-shelf liquor from the purview of the AFT and filet mignon from the purview of the USDA.

    1. 1. ATF, not AFT.

      2. FDA never should have been given the tiniest drop of authority to regulate any tobacco products, including cigarettes. That’s what the Bureau of Alcohol, Tobacco, Firearms and Explosives (commonly referred to as the ATF) is for.

      1. Umm, I don’t know who told you that it was the ATF, but Joe Biden himself assured me it was the AFT. Although, come to think of it, he may have thought he was speaking to the American Federation of Teachers at the time.

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        2. “Umm, I don’t know who told you that it was the ATF”

          Their own official web site.

          Bureau of Alcohol, Tobacco, Firearms and Explosives

          In case you missed the URL, that’s atf.gov.

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  2. Rich folks don’t need regulations.

  3. What is the impact of cigar flavored vaping juices?

  4. Remember folks, prohibition of any kind of tobacco or nicotine is the end game, even if it is enjoyed by Tesla driving 1 percenters, but at least they won’t get beat up by the cops like those poor Newpie smokers.

  5. Every pipe and cigar smoker thinks they are immune somehow.

    1. Sounds like you missed that eighth paragraph about the risks.

    2. Just buy the packs with the “pregnant woman” warning on it.

  6. Ah, the minutia. So fun. And generally, FDA regs are just a-ok as long as it’s not my ox being gored.

  7. So premium cigars, which are 100% tobacco, would no longer be treated as “tobacco products”, while vapes, which are 0% tobacco, still would.

    1. Now you’re catching on – class warfare is class warfare.

      1. That’s not class warfare. That was the cigarette industry achieving regulatory capture.

        Vape juice is easy to make. They needed to make it prohibitively expensive so small, local producers couldn’t pay the million dollars per flavor necessary to comply with the approval process. Now only the folks with those sorts of things in place and nationwide/worldwide distribution to amortize the costs can afford to “compete.” And it’s easier to amortize the cost since there’s no local competition, which was just too inexpensive for exactly the same thing.

        Yup. This is how, in the future, every restaurant is Taco Bell.

        1. Ha. Demolition Man. San Angeles. Our destiny!

    2. No, premium cigars would go back to being regulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives rather than the Food and Drug Administration.

  8. Sometimes a cigar is just a cigar penis.

    1. A very tasty penis with notes of cashew and cinnamon.

    2. AH! Bill Clinton’s mantra…LOL

  9. So true bi-partisanship only come is connection with vice?

    1. The replacement for HO2.

  10. LOL.

    I like how rich people don’t give a shit about regulatory burdens so long as they can personally avoid them.

    1. Hell the Gate’s and Bezos don’t give a damn about government rules and regulations, they got a penis in the governments ass, and a hand in our pockets, how do you think they got and stay rich.

  11. To all the people commenting about the rich not wanting regulations, how rich do you have to be to smoke cigars? I’ve enjoyed them since I was 22 years old and I’m certainly not rich

    1. Yeah, really.

    2. That depends on what kind of cigars you are talking about and where you draw the line for “premium” cigars.

      Hand made cigars can run anywhere from less than $1 apiece to several hundred $ apiece

      1. The bill defines premium cigars, pretty much anything hand rolled and larger than a cigarette

        1. Yeah, the bill uses almost identical language to that the cigar industry has used for the last several decades. At least since the cigar craze of the 90’s.

    3. *Premium* cigars. The headline and the story mention premium cigars. Premium cigars are , by definition, cigars only rich people can afford to smoke. If non-rich people could afford to smoke them, they wouldn’t be premium, would they?

      1. I really hope you’re a parody account because I’d hate to think anyone this stupid being out there unsupervised

    4. Yep, been smoking premium cigars for a few years now, usually try to get deals on boxes for less than $5 a stick, and usually smoke one every couple weeks. I am not rich, but I have splurged on a cigar from time to time, those Padron 40th Anniversary Maduros are delightful.

      1. Roger that, Necron. But I smoke one a day.

    5. Premium cigars are no more expensive, relatively speaking, than premium beers or premium liquors.

      .

  12. “In 2016, the FDA decided that this meant it could regulate cigars and pipes.”

    The primary reason FDA imposed the “deeming rule” in 2016 was to redefine vapor products as tobacco products to subsequently ban 99.9% of vapes (in order to protect cigarette sales by Altria, Reynolds, Imperial Tobacco and JTI, which is why they all endorsed the 2016 FDA regulation).

    Altria, which bought Middleton’s Black and Mild cigars in 2008, first urged FDA to regulate cigars as tobacco products in 2010 in order to give Altria a cigar monopoly (similarly because 95% of other cigar companies cannot afford the $100+ million cost of complying with the absurd FDA regulations for each type of cigar).

    “[Cigars] were never included in the original Tobacco Control Act because everyone knew that kids were not running out and buying premium cigars or Dunhill pipes and expensive 965 pipe tobacco,” wrote Rick Newcombe in Reason in 2016.

    Newcombe is wrong, as then GlaxoSmithKline lobbyist (and now FDA Center for Tobacco Products director) Mitch Zeller sent out an e-mail back in 2004 (after he and J&J financed CTFK’s Matt Myers secretly negotiated and agreed to the Kennedy/Waxman legislation with Philip Morris lawyer Mark Berlind) informing me (and many other public health activists) that cigars were excluded from the legislation because they wouldn’t otherwise be able to get enough Senate votes to enact the legislation), which ultimately occurred in 2009 (after Democrats gained control of the WH, Senate and House).

    For disclosure, from 2004-2009 I exposed and opposed this legislation as the Marlboro Monopoly Act because it protected PM’s cigarettes from market competition by far lower risk smokeless tobacco products).

    After collaborating with SE and NJOY to defeat FDA’s 2009 illegal vapor import ban in federal court, I unsuccessfully campaigned to defeat FDA’s 2016 “deeming rule” that subjected vapes and cigars to the same FDA regulations that have protected cigarettes from truthful harm reduction marketing by smokeless tobacco products since 2009.

    Disastrously for public health, the 2009 Tobacco Control Act, the FDA’s 2009 illegal vape ban and the FDA’s 2016 deeming rule have protected deadly cigarettes by demonizing and severely restricting smokeless tobacco and vapes (which are 99% less harmful than cigarettes) and cigars (which are about 90% less hazardous than cigarettes because most cigar smokers don’t inhale and don’t smoke cigars daily).

    1. Mitch Zeller is a well-known prohibitionist whose goal is to completely eliminate recreational nicotine so that it will be available by prescription only. Appointing him in any regulatory role would be like appointing Jerry Fallwell director of LGBTQ affairs. They are already starting with the menthol ban which they will most certainly expand to vapes, then reduce the nicotine to zero and go after nicotine pouches too. They have been working on this for the past twenty years at least.

    2. Yep. It’s all regulatory capture at it’s finest.

    3. Hmm. Looked you up Bill. You’re the real deal. Keep up the advocacy.

  13. Tobacco is tobacco. End of story. Being a 25-year-out-of-date hipster doofus and waving around a chunk of baccy rolled on virgin thighs (as close as any of you ever get to a thigh, virgin or otherwise) doesn’t change things. I guess that Napoleon brandy you think ‘enhances’ your leaf isn’t really alcohol because it’s expensive.

    1. But not all tobacco is prepared and consumed in the same way. Its more like claiming you should need a liquor license to sell (and be 21 years old to buy) rubbing alcohol and hand sanitizer, because “alcohol is alcohol”

  14. Seems reasonable to break them out into their own category. A weird piece of non-commentary for reason but an interesting piece of news.

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  16. prohibition of any kind of tobacco or nicotine is the end game https://instasave.onl/w3toys/

  17. How about we end all regulation except for prohibition against force or fraud?

  18. Expensive hand-made beer is still beer. Expensive hand-made bourbon is still bourbon. Expensive hand-made cognac is still cognac. But cigars are different because, um, well, c’mon man, we lubbertarians needz to be koolz. Purple haze, blue haze, all the same to us, dude. Of course, pace Sigmund Freud, we don’t know what a smoke is because we don’t grok sexual innuendo — twenty dollars same as in town? The free market at work!

    The really amazing thing is that it’s impossible to tell if cigar-smoking lubbertarians think they’re Fidel Castro or The Penguin.

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