The FDA is Officially Creeping into Your Humidor –
Time for your Voice to be Heard
By J. Glynn Loope, Executive Director
Cigar Rights of America
We wrote our first article about what federal regulation of cigars could mean on June 12, 2009. Seems like a lifetime. During that time, many thought it was a case of ‘crying wolf,’ with thoughts the U.S. Food & Drug Administration would be consumed with attacking other tobacco products well into the next decade, or even another generation. On that date in June of ’09, I stated “the actions of the agency will have to be monitored on a consistent basis.”
PRESIDENT LAYS GROUNDWORK FOR TOBACCO CONTROL STATUTE
The President signed The Tobacco Control Act on June 22, 2009. The first hearing on laying the groundwork for a federal tobacco control statute, conducted by California Representative Henry Waxman, was held in 1994. They’ve been creeping up on us for a long time.
On October 2, 2009, Cigar Rights of America issued a call to action when the FDA conducted its first public comment period on ‘how the Tobacco Control Act should be implemented.’ Even though premium cigars were not on their docket at that moment, we asked the nation’s cigar consumers to rally with their comments on “how cigars are different,” that they are an ‘adult lifestyle choice,’ and how ‘additional regulatory burdens should not be imposed’ on the cigar shops of America.
LIFE & LIVELIHOOD RADICALLY ALTERED FOR THE CIGAR PATRON AND SHOP OWNER
We, the cigar community of consumers, Main Street tobacconists and manufacturers can’t wait any longer to act and mobilize. On
April 24, 2014, life changed for any passionate cigar patron, or for those who have their livelihood linked to premium cigars. Everything you value about cigars was attacked, as never before – and it’s just the beginning.
On that morning, the FDA issued its first round of regulations for cigars. The Commissioner of the FDA even called it “a foundational document,” which is a virtual promise of ‘more to come.’
Within that 241 pages, are seventy-eight items that pertain to cigars. For you, some of the detrimental highlights include a ban on samples. We all enjoy that moment when new cigars come into the market. They hit the shelves of your local cigar shop. They issue that proverbial email that notes the arrival of that new stick you’ve read about, and you head down to the shop with your friends right behind you.
The cigar company sales representative may be there, and hands you one as a courtesy, saying, “I hope you like it, so you’ll buy a few – or a box.’ Cigars are a significant purchase, and everyone’s palate is different. You deserve that chance to try that cigar, and now, the FDA says you can’t – by mandate of the federal government. That should be unacceptable to you.
THE FDA MUST TEST EVERY NEW CIGAR GOING TO MARKET?
But what about getting that cigar into the shop, in the first place? Within this ream of paper known as the Deeming Regulation, the federal government is telling the amazing premium cigar manufacturers of the world that before that cigar comes to the shop, it is subject to ‘pre-market review,’ demanding that it be submitted to the FDA before going to market, for testing, dissection and who knows what else.
The FDA is currently nearly 4,000 applications behind on judging new products for other tobacco categories. Now, they’re saying cigars have to come in ‘behind that?’ It would destroy the premium cigar industry.
Oh, but it gets even more interesting. By their own standards, the FDA states that it will take a company 5,000 hours to go through
this process. Now, if you have a lawyer walk you through this regulatory malaise, it could take well into the seven digits to even get a new cigar on the market. That, in one shot, would destroy the boutique cigar makers of the world. The fear (and reality) of this was highlighted through case studies presented at the most recent meeting of the Tobacco Merchant’s Association, where one applicant for a new tobacco product stated that when he applied to FDA, his child was a sophomore in high school. When he got the permit, the child was a freshman in college.
At the same Tobacco Merchant’s Association meeting, David Adams, as former FDA Associate Chief Counsel and Director of Policy Development for the Commissioner noted, “It might be easier to get a new drug approved at FDA, than a new tobacco product.” We can not let this happen to the premium cigar industry.
As you know, every year, based upon tobacco crops, aging, blending – all of the magic that goes into creating great cigars, that those golden leaves change, evolve, and become that circular coalescence of peace we crave to escape reality, for just a moment. Yes, the federal government wants to control that moment.
THE FDA WANTS TO SET THE PRICE AS WELL
Then, there is price. The FDA has placed within this proposed set of regulations, as a component of being deemed a ‘premium’ cigar that it has to cost $10. That’s right, $10 to be declared a ‘premium cigar.’ You and I know of the many brands that obviously sell for less. It’s 85% of the market. Are they any less “premium” than more expensive cigars? Of course not. In the history of federal regulation, we cannot find a precedent for the federal government dictating the price of a consumer product.
The good news is the legislation in Congress is still alive to exempt premium cigars from FDA oversight. H.R. 792 and S. 772 are working to send a resounding message. With 156 bi-partisan members of the U.S. House of Representatives and sixteen U.S. Senators telling the FDA to stay away from premium cigars, we need to continue the pressure for a legislative remedy to this regulatory overreach.
SOUNDS LIKE CIGAR PROHIBITION TO US
Remember the FDA Commissioner called this a “foundational document.” For the next round, we have to look out for advertising and marketing restrictions, regulations on self-service sales (the walk-in humidor at your local shop), events and promotions rules, further attacks on the manufacturers of premium cigars, and the ever creative attempts to dictate flavor, cost, distribution, and production. Make no mistake. We do not use the word ‘PROHIBITION’ lightly. That, is their “end game.”
We cannot accept this action of April 24, and those regulations yet to come. Now, is the time every cigar consumer in America has to rise and let their voices be heard. There is a 75 day public comment period, and the clock has already started. Go to www.cigarrights.org and front and center, you can link onto our suggested speaking themes that the FDA needs to hear, and by law, has to consider. Place your own thoughts into the regs.gov site that is provided for you.
Also, call your member of Congress. Tell them how you feel about this federal act of tyranny against our passion for great cigars. Tell them to act, or you will on Election Day.