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Free Minds & Free Markets

The FDA's Unauthorized War on Pipes and Cigars

The FDA is extending the meaning of the Tobacco Control Act to cover cigars, pipe tobacco, and even pipes.

George Washington was a tobacco farmer and John Adams a pipe smoker, and every town in America has had a cigar store or pipe tobacconist since the nation's founding. But the Food and Drug Administration is determined to end all that.

There are more than 2,000 cigar and pipe stores currently operating in this country, employing 35,000 Americans, and the FDA has put them all on notice that they need to stop doing business as usual and start filling their inventory with non-tobacco products. The situation is so bad that the three small trade groups representing cigars and pipes have been forced to file a lawsuit in federal court in Washington, D.C.

The FDA wants for anyone hand-rolling cigars to register with the government; same with artisan pipe makers. Tobacconists would no longer be able to offer their store's unique blends without special permission, and no cigar or pipe tobacco introduced after 2007 would have much of a chance of being allowed into the marketplace.

When representatives of the cigar and pipe industries pointed out to the FDA that these regulations would effectively put hundreds of stores out of business, their reply was frightening. As quoted in the lawsuit filed against the government, the "FDA's response to these small businesses is that they 'would be able to shift shelf space and other activities to non-tobacco products.'"

This all started in 2009 when Congress passed the Tobacco Control Act, which gave the FDA authority to prevent the use of tobacco by young people. This was a time when the House of Representatives was controlled by Nancy Pelosi (D-Calif.) and the Senate by Harry Reid (D-Nev.), with President Barack Obama in the White House. The sweeping new regulatory powers granted to the FDA are typical of the government expansion that has occurred in recent years. Without question, this was a contributing factor to the backlash vote we saw last month when Donald Trump and the Republicans, vowing to get rid of needless regulations, were swept into office.

This is not intended to be a politically partisan essay, but I mention the election because now is an ideal time for the cigar and pipe industries to find legislators who will propose a bill to exempt cigars and pipes and pipe tobacco from FDA control. If such a bill were passed, that would be that. But if not, there is the federal lawsuit filed by the Cigar Association of America, the International Premium Cigar and Pipe Retailers Association, and the Cigar Rights of America.

If you want a case study in how bureaucracies can become tyrannical, there is no better example than the FDA's control over cigars and pipes and pipe tobacco.

They 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. Congress granted the FDA authority over four very specific tobacco products: cigarettes, cigarette tobacco, roll-your-own and smokeless.

Well, you might ask, how does the FDA justify their regulations if pipes and cigars were not named in the original legislation?

Picture the Salem witch trials, where certain people in authority would "deem" a woman to be a witch and then call for her to be burned at the stake. That is precisely what happened with the Tobacco Control Act. The FDA was given the right to "deem" newly created tobacco products to be under their control. The Act was not intended to be used as a weapon for the prohibition of the oldest forms of tobacco enjoyment; namely, pipes and cigars. Yet, that is how the FDA is interpreting the law.

Whenever a federal agency wants to impose sweeping new regulations over an industry, there are several requirements they must satisfy before they are allowed to proceed. One is to ask in advance for feedback from the industry and the public. Well, the FDA did that. However, they completely ignored all of the comments. In fact, they doubled down and made their regulations even more onerous than originally proposed and more onerous than the Tobacco Control Act authorizes.

Secondly, a federal agency needs to perform a cost/benefit analysis to determine if their new regulations are worth more than they cost. The FDA failed to do this. They claimed it would be too difficult to analyze the thousands of small businesses operating in every state in the union. If that puts thousands of Americans out of work, so what, says the FDA.

When I first started smoking a pipe in the 1970s, one of the most appealing things was the camaraderie. I remember visiting Fader's in downtown Baltimore, where a handful of customers and store employees would stand around and enjoy a bowl. I remember one of the employees asking me what blend of tobaccos I most liked. I wasn't sure, so he proceeded to make a blend on top of a newspaper on the counter. "Here, try this," he said. I did, and it was wonderful. He told me it was the store's blend called Unique, which was a variation of Captain Black.

I loved it and smoked that blend for 13 years. Then my tastes changed and suddenly I was drawn to English and Turkish blends. After telling that to Bill Fader, he offered me his blend called Istanbul, which was fantastic. This level of customer service is emblematic of pipe and cigar stores—going back more than a century.

In the 1940s and '50s, Kramer's pipe store in Beverly Hills was frequented by a priest from the local Catholic church. His name was Fr. Dempsey, and he became great friends with the store's Jewish founder, Allen Kramer. Together, they mixed and matched tobaccos, trying to duplicate Dunhill's 965 blend. I just love the image of this ecumenical bonding of two men who became close friends over their shared passion for pipes. No wonder Native Americans called them peace pipes. After a lengthy period of trial and error, Fr. Dempsey and Mr. Kramer hit upon a blend that they called Fr. Dempsey's Special. They still sell it today at Kramer's, a family business run by the founder's daughter, Marsha Kramer, and her husband, Jim.

Why am I telling you these stories? Because if the FDA has its way, all of these blends would be subject to regulations and applications for approval. In other words, the FDA has announced, through the effects of the new regulations, its intent to wipe out this century-old tradition.

Their argument is that the tobacconist is "manufacturing" a tobacco blend. But the government has previously approved all of the tobaccos used. Mixing and matching them is no different from a chef making an omelet—with mushrooms, ham and cheese one time and avocado, onions and green peppers another. The tobacconist is not manufacturing tobacco any more than the chef is manufacturing food when he makes an omelet.

If the FDA prevails, the small-business owners would need to invest huge sums of money, perhaps tens of thousands of dollars or more, just to get approval of their existing brands, and any variation would be rendered impossible by the FDA's bureaucratic approval process. There is a grandfather clause in the regulations that makes it easier for brands that were selling before 2007 to continue to be sold; however, it is so arbitrary, and unfair to people new in the field, that I doubt it will be upheld.

Photo Credit: Pete Zarria/flickr

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  • timbo||

    Are you suggesting that we should not have a war on something?

  • Jimbo||

    Keep your fucking hands off my fucking cigars. I mean, if you want me to go all postal and shit, just take away my meds. Seriously, I am so happy that harpy lost. Hope Trump can make smoking great again.

  • ||

    O' Neill would be an awesome pick.

  • DiegoF||

    As with so much else, it's anyone's guess how things may play out in terms of tobacco policy in general. (There's this, the HUD smoking ban, and other stuff like smoking in the military that bureaucrats have been generally planning to tighten the noose on.)

    Trump is proudly a man of no vices other than fatty foods and pussy grabbing, and really tends to look down on those who are otherwise. And, as we all know, freedom from a particular vice is all it takes for the average "liberty-loving" American to be supportive of government force against it. And Trump is, of course, far more authoritarian-minded than even the average American.

    Causes for hope include the fact that Trump had no problem hawking a vodka he never sampled. And O'Neill (in general mentality) and Mike Pence, whose widely-mocked 90s anti-tobacco-regulation statements did indeed contain an unfortunately goofy overreach in the smoking-cancer link but were otherwise completely sensible. Then again, that was a long time ago. Much more recent were his statements about religious liberty and about the free market, and we have seen how those turned out.

  • Cloudbuster||

    And Trump is, of course, far more authoritarian-minded than even the average American.

    You have an unwarranted faith in the average American.

  • Hamster of Doom||

    Timely. Wasn't Zeb just saying something about this earlier?

  • Zeb||

    I believe I was.

    Now it looks like they want to close the "pipe tobacco" loop hole that allowed some to get around the ridiculous tax hike on loose cigarette tobacco.

    no cigar or pipe tobacco introduced after 2007 would have much of a chance of being allowed into the marketplace

    The big tax hike was in 2009, I think, so before then there was no reason to re-brand your cigarette tobacco as pipe tobacco.

  • ||

    Why don't they just make tobacco a schedule I drug and get it over with?

  • R C Dean||

    Because there's too much money in it?

  • ||

    Yes. Obviously that.

  • C. S. P. Schofield||

    Because they are at least dimly aware of the miserable history of the Volstead Act. The War on Drugs has raged for so long largely because there really isn't that big a market. The last DEA figures I read claimed 11 million "regular" users of illegal drugs, out of a population of 300 million, or about 3%.

    The FDA claims that only 20% of the population smokes, and A) they have incentives to lowball that figure and B) People have stronger incentives to lie about smoking than they used to. So, call it a floor of 60 million.

    Outlaw a drug used by that many people, and the prohibition WILL fail. Fail that badly, and even a Federal agency misght get the axe.

  • ||

    Do the regulations cover bongs intended for... ummmmm... non-tobacco products?

  • bacon-magic||

    Don't think so, man. *tokes away

  • Rhywun||

    Like hookahs? NYC wants to ban hookah joints. I'll be grabbing the popcorn for that.

  • {|}===[|}:;:;:;:;:;:;:>||

    +1 self-radicalized MENA emigre

  • DiegoF||

    Meh. NYC "hookah" bars, per smoking laws, are already bullshit. "Non-tobacco shisha" only. You know how hookah is tobacco mixed with some sticky, ostensibly fruit-flavored glyceriny chemical concoction? Picture smoking only the glyceriny bit. If you want real shisha you have to go to a shisha bar in the East Village that was grandfathered in in 2002. There's one shisha bar, one cigarette bar, and a handful of cigar bars. And some retail cigar lounges, which can still be opened although I believe the city likes to stonewall that.

    It's actually pretty surprising, given that we were the first (outside of California) that in terms of actual smoking laws (as opposed to our ever-advancing and ever-more-ineffective tobacco purchase dystopia), we have not actually done much since then. (Joke of a) ban in parks early 2010s. But no "doorway ban," no "courtyard ban," no hotel ban, etc.

  • Zeb||

    You mean these nice glass flower vases? Those other bits of tubing are just decorative.

  • timbo||

    What about these bicycles?
    Kids have been riding around on them for 2 centuries with basically the exact same archaic mechanisms. How are we going to purge the earth of this clear and present danger?

  • ||

    More like one century for the modern, metal-spoked wheel, rubber tire bike. They had some Strider-style wooden bikes in Colonial times but not very widespread or practical. Materials science for the mother-grabbing win.

  • bacon-magic||

    Fuck off FDA. I'm a vaper now, but I still say fuck off you jackbooted scumbags.

  • timbo||

    I suppose you don't recycle either.

  • bacon-magic||

    timbo,
    Surprisingly, I do, mainly because of the convenience of the recycle bin the city forced me to pay for.

  • timbo||

    Your forced recycling employed 1.5 angry garbage workers who think you stole from them somehow.

    Thank you for your benevolence.

  • كبير الهراء, Jr.||

    I'm a vaper now

    Before that, you were Anakin Skywalker?

  • ||

    He was nearly killed by smoking.

  • bacon-magic||

    Never underestimate the power of Ohm's Law.

  • bacon-magic||

    I find your lack of vape disturbing.

  • Billy Bones||

    First they came for the cigarettes, and I did not speak up because I do not smoke cigarettes. Then they came for the pipe tobacco, and I did not speak up because I do not smoke pipes. Then they came for vape pen, and there was no one left to speak up for me.

  • Billy Bones||

    But in all seriousness, Bacon-Magic, haven't you read the numerous articles here on Reason about all the regs the FDA is imposing on vapers? IMO, it is 3x worse than what they are trying to do cigar/pipe tobacco.

  • juris imprudent||

    And just how did hookahs escape this?

    In the distance, listen, is that the sound of woodchippers? Many, many woodchippers.

  • Scarecrow & WoodChipper Repair||

    I wonder what the regs are on growing tobacco plants in backyards....

  • Libertarian||

    My guess is that it's even more restrictive than growing cotton. Yes. Cotton.

    "It's illegal for home owners to grow cotton in Georgia—and any other state where cotton is a cash crop—because of the boll weevil eradication program", she explains, adding that they had to turn down a request from the governor!

    http://www.gardensalive.com/pr.....our_garden

  • ||

    From what I can tell of driving through south and central GA, a good portion of the cotton crop rots in the field because it doesn't ever achieve enough density to be worth harvesting.

  • SIV||

    It all seems to get harvested, though in some cases the subsidy likely pays more than the yield.

  • C. S. P. Schofield||

    I actually looked into that. The problem being that the process of curing the tobacco leaves is a long and involved one that takes a lot of space.

  • Zeb||

    I doubt you'd have much of a problem as long as it's pretty small scale. I know a number of people who have grown tobacco for personal use without issue. You can get seeds easily enough.

    Tobacco isn't terribly easy to turn into a product that you'd want to smoke (assuming you want to smoke tobacco at all).
    Though I've heard that people buy and smoke shitty black market homegrown tobacco in Australia, so maybe that isn't as much of a barrier as I think.

  • Necron 99||

    A friend of mine did this, then he dried the leaves all throughout his house. The smell took me back to the tobacco barns in Kentucky I misspent some time in as a youth. He had such a bumper crop that he believes he can go 10 years before needing to grow any more. When he is ready to roll some cigarettes he just pulls leaves from different plants, has his own blends he likes, shreds it in a blender and rolls up a couple hundred cigarettes at a time. Although I vape now, I have tried his cigs and they are excellent – a real quality tasting cigarette without all the crap added by the big manufacturers. Since the FDA seems to be ready to pull the plug on vaporizers, I may give this a go myself if I have to go back to smoking.

  • ||

    And just how did hookahs escape this?

    Because arabs...muslims...racism.

  • L.S. Hines||

    BINGO!

  • Diane Reynolds (Paul.)||

  • Rhywun||

    Which is hilarious because there are plenty of hookah joints patronized by disfavored race(s) too.

    Anyway, leave it to Seattle to always be a proving-ground for whatever proggy nonsense that NYC is contemplating.

  • I can't even||

    Hopefully Trump really does nominate Jim O'Neill and he rolls this kind of shit back quickly. That might even make the party-poopers at Reason happy.

    http://www.vapingpost.com/2016.....fda-chief/

  • bacon-magic||

    That would be awesome! I hope.

  • Injun, as in from India||

    "*rolls* this kind of shit"

    Perfect verb for a story on tobacco.

  • ||

    D'oh!

    Read all the way to the bottom...
    Read all the way to the bottom...
    Read all the way to the bottom...

  • I can't even||

    On a mid-afternoon 2-pager? Surely you jest.

  • Libertarian||

    I've long advocated for burning the Cuban tobacco crop, even if it's only one leaf at a time. And this is how you treat such patriotism? That's bullshit, man. Bullshit!

  • GILMORE™||

  • ||

    We are a nation governed by the rule of law, and as ridiculous as that law is, it should be followed until either new legislation makes it null and void or the courts crush the FDA "deeming" pipes and cigars—America's oldest forms of tobacco enjoyment—suddenly under government control.

    I was actually a little disheartened by the above. Ceci n'est pas una libertaire.

    If a law is unjust, a man is not only right to disobey it, he is obligated to do so. -Jefferson*
    If the machine of government is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law - Thoreau
    From my cold dead hands! - Heston
    I can't breathe! - Garner
    Well, if the law says we must, we must. - Newcombe

    *Not actually Jefferson or, paraphrased from Jefferson

  • Zeb||

    Perhaps I'm being over-charitable, but it seems like he is saying that the government should at least follow its own laws.

    I would hope that no one claiming to be any kind of libertarian believes that individuals are morally or ethically obliged to obey unjust or stupid laws.

  • Diane Reynolds (Paul.)||

    Unauthorized according to whom?

  • Half-Virtue, Half-Vice||

    The most cutthroat tyrants in history—Hitler, Stalin and Mao, for example—never tried to regulate pipe makers. And, suddenly, in the United States of America, the land of the free, if you want to make pipes you now need permission from the federal government.

    Humanity raises the bar in all things; today's socialists will raise the bar past their predecessors achievements.

    God help us all.

  • marshaul||

    As I understand it, the FDA rule changes aren't supposed to have much actual effect, because new tobacco blends are "substantially similar" to existing blends – nobody is actually using new types of tobacco. As a pipe smoker, I had to wade through a lot of hysteria to come to this conclusion.

    But then again, when did government not manage to screw something up?

  • R C Dean||

    Personally, I wouldn't bet my livelihood on the FDA making a reasonable interpretation of "substantially similar".

    If they meant the law to only cover blends that use new types of tobacco, why didn't they write it that way? No, these people are out of control nanny staters. Their goal is to outlaw tobacco usage. They will apply their weasel words accordingly.

  • L.S. Hines||

    BINGO! YOU understand it perfectly. the others can only hope.....

  • The Laissez-Ferret||

    They're having an effect. I know a few guys who work for Rocky and Gurhka and they're already trimming their lines and reworking their products to meet standards. As we all know, the law itself isn't the biggest problem. It's the enforcement and oversight that brings the hammer down.

  • Jaime Gracia||

    Adding insult to injury is the ban on cigar donations to troops. My organization, Cigars for Warriors, is the only 501c3 with the mission to send cigars to troops in combat zones. As a result of this FDA regulation, our donations are down tremendously, adversely affecting operations and preventing us from sending holiday packages.

    Cigars for Warriors is in favor of efforts by several members of the U.S. Congress, most notably Representative Duncan Hunter (R-CA), and Kathy Castor (D-FL), to alleviate the confusion of the FDA regulations through both legislation and demanding clarity from the FDA. Further, we hope the Trump Administration provides the needed relief to roll back this regulatory overreach.

    We strongly support these efforts, and hope that the time honored tradition of cigar donations to combat deployed troops may continue unfettered.

    Jaime Gracia
    Chief Financial Officer
    Operation: Cigars for Warriors

  • Diane Reynolds (Paul.)||

    Hey, whoa... what's next, Lucky Strikes issued to every soldier?

  • BriarAndBrine||

    Jaime,

    Thanks for all the work you do bringing cigars to our soldiers. I know that many people serving their country overseas take comfort in the cigars that are donated to them. They're emblems of care from their communities at home and help to take their heads away from the stressful situations that they are dealing with while serving. Let's hope that the regulation is reversed.

  • Jaime Gracia||

    Thank you.

  • L.S. Hines||

    I also applaud your work, Jaime. But hope doesn't do it. You have to work for the results you want. Write, call your representatives. Put it out to national news (maybe Reason can help in that). Do the PR. See my comment somewhere down below stating similar.

    Vladimir Jabotinsky said:
    Carry a torch to burn, to ignite.
    Since quietude is like mire
    Risk your blood and soul.

  • BriarAndBrine||

    Tobacco is unhealthy in the way many vices are. Sugar, alcohol, fat, & drugs all can hurt the body if abused. Many, many things are not good for us in large quantities. But, most of these are legal in some way or another.

    I'm a moderate smoker. I average a few bowls of pipe tobacco a week. I never inhale and go months without smoking at all. I also exercise regularly and race in triathlons and half-marathons. I eat well. I drink. I live life and I love it!

    The problem that I have is that tobacco has become the whipping boy of the substance world. It makes a lot of money and is therefore picked on as a public health risk--as if many other vices are not. I don't mind some regulation and even some sin taxing. But such taxation ought to be reasonably moderate and even between all or many of the aforementioned 'sins.'

    The newest FDA regulation aimed at vaping shows evidence of meddling by those who have an ax to grind against a particular 'sin' while others are left alone. Moreover, as Mr. Newcombe has identified, its implementation is so broad that it takes other smaller industries along with it, potentially putting small business owners and their tens of thousands of employees out of business. Stop picking winners and losers. And stop telling adults how to live their lives. If an adult chooses to do something with which you disagree, leave them to it.

  • Rational Exuberance||

    I hope our new monocle wearing overlords smoke enough pipes and cigars that they will nix this regulatory overreach.

  • DiegoF||

    Even if not, I understand they can easily be bribed with properly marked sacks of gold coins.

  • JAlanPipes||

    I'm a professional pipe maker. 12 years ago I fell in love with my craft and left what I had intended to be my career in academia to give myself fully to making the perfect pipe. It's a business that has taken me around the globe, and has allowed me to study and work with some of the finest craftsmen and people I have ever known. It's a business that supports my family--my wife and my two kids. And now, this year my industry received a huge blow when we found out about this FDA regulation that may suddenly bring a startling halt to my vocation.

    There are dozens of pipe makers in the United States who may lose their jobs because of this regulation. People who are my friends, and people who I have trained and have been delighted to watch develop in their craft. It is hard enough to make a life as a small business owner, and I feel fortunate to have been able to do it for the last dozen years. I am hopeful that the challenges to this regulation will be successful and that those of us who take such joy in our work will be allowed to continue. And I hope that those who enjoy my work, those who collect them and use them will be able to continue to do so into the future.

    Thanks to Rick for writing this article and getting this conversation started.

    Jeffrey Alan Burt-Gracik
    J. Alan Pipes

  • L.S. Hines||

    Jeff - you're a dynamo. Write. Call. It's optimistic to be hopeful (charming word, isn't it), but doing something puts the odds more toward your side. Vladimir's quote (above) is valid.

  • NoVaNick||

    I still have a couple of pipes stashed away somewhere. Haven't smoked them in a while but really used to enjoy them. I might go buy some pipe tobacco and fire 'em up after reading this. Anyway, I am not at all surprised by the FDA's position on cigars and pipes. They are basically on a mission to ban/regulate out of existence all forms of tobacco, including now e-cigs, by 2030 in keeping with WHO guidelines for a tobacco-free world. The tobacco control act was passed by a dem congress during Obama's honeymoon period in the early months of 2009 and I suspect few actually read the "deeming" language carefully if they did, even gave a shit The best we can hope for is that a Trump administration will gut the FDA tobacco regulatory section, or order them not to enforce the regs. I am not optimistic though.

  • Entropy Drehmaschine Void||

    "FDA's response to these small businesses is that they 'would be able to shift shelf space and other activities to non-tobacco products."

    To what? Like Vaporware?

    oh, right ......

    Fucking nannystater assholes.

    Damn, I hope Trump folds the FDA out of existence.

  • NoVaNick||

    To what? Like Vaporware?

    green tea and yoga pants

  • Armac||

    It's an excellent article, simply excellent. I wish a hard copy could be sent to every member of congress. The head of the FDA is a non-smoking zealot and I don't think the planned action of the FDA was the intent of congress when they passed the bill. Perhaps there's a chance in the not to distant future to replace the head of the FDA and to stop any action that would stifle small business. The rules proposed by the FDA are onerous and incomprehensible.

  • L.S. Hines||

    Excellent article - but a few things worry me. First - in the last paragraph, the idea of HOPE. That indicates that we do nothing but sit around and hope for someone to do something. My creed is that I do something, and I encourage others to do something - like write their members of Congress - especially with so many of those representatives being new. Also, write the newly chosen cabinet head of the HHS - yes, Health and Human Services - that division is in charge of the FDA. A brief note to say that you oppose the unfairness of the expansion of the FDA-Center for Tobacco Products rulings that include pipes.
    Second - just the idea of "banning" pipes, pipe tobacco and cigars is ridiculous - especially in America. The idea that such could occur is shaming. The head of the CTP (see above) has delved extremely past what Congress intended in the Tobacco Control Act in my opinion. And, he is arming himself with supposed experts to justify his zealotry. We know what zealots do - and this person needs to be fired. When you write the letters - call for banning zealotry instead of our tobacco and pipes and to get this person out of the government payroll.
    If you don't say anything, they will come for you.....you've heard that proverb.

  • برامج انترنت||

    Excellent article - but a few things worry me. First - in the last paragraph, the idea of HOPE. That indicates that we do nothing but sit around and hope for someone to do something. My creed is that I do something, and I encourage others to do something - like write their members of Congress - especially with so many of those representatives being new. Also, write the newly chosen cabinet head of the HHS - yes, Health and Human Services - that division is in charge of the FDA. A brief note to say that you oppose the unfairness of the expansion of the FDA-Center for Tobacco Products rulings that include pipes.
    Second - just the idea of "banning" pipes, pipe tobacco and cigars is ridiculous - especially in America. The idea that such could occur is shaming. The head of the CTP (see above) has delved extremely past what Congress intended in the Tobacco Control Act in my opinion. And, he is arming himself with supposed experts to justify his zealotry. We know what zealots do - and this person needs to be fired. When you write the letters - call for banning zealotry instead of our tobacco and pipes and to get this person out of the government payroll.
    If you don't say anything, they will come for you.....you've heard that proverb.برامج 2017 برامج كمبيوتر.

  • Tenet Opera||

    Great work. For an excellent insider view of the politics and special interest aspects of the FDA's involvement with tobacco and other issues, see David Kessler's book, "A Question of Intent: A Great American Battle with a Deadly Industry" available in used hardback for as little as a penny (plus S&H) at Amazon.com. You won't like what it says, but the information is invaluable for understanding the development of the FDA's involvement with tobacco and other issues.

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