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FDA Might Decide When a Cigar Is Just a Cigar

An expensive, high-end cigar selected from one of the best boutique manufacturers. A small grape-flavored Swisher Sweet bought in a pack at a gas station for less than $1 each. Are they the same thing?

The premium cigar industry worries that the Food and Drug Administration might think so. Under a 2009 law (PL 111-31), the FDA has the power to regulate several tobacco products, including cigarettes and smokeless tobacco. Since the law’s passage, the agency has set up its Center for Tobacco Products, issued several guidance documents and regulations and banned certain types of cigarettes.

But the agency may not be done, and that’s what has some cigar stakeholders on edge. Under the law, the FDA is allowed to expand its regulatory authority to other tobacco products, including cigars, if it decides they meet certain standards relating to the public health.

The industry is now waiting on a proposed rule from the agency that could make other tobacco products subject to the same regulations as cigarettes, cigarette tobacco, roll-your-own tobacco and smokeless tobacco. The FDA plans to issue the rule by April.

“The law also permits FDA to deem other tobacco products to be subject to the Family Smoking Prevention and Tobacco Control Act by regulation,” Lawrence Deyton, director of the agency’s Center for Tobacco Products, said in a statement. “FDA has announced its intent to issue a proposed rule for public comment that would deem products that meet the statutory definition of ‘tobacco product’ to be subject to FDA jurisdiction.”

The premium cigar industry is concerned that the agency will decide all cigars are subject to the law — and regulate the expensive, high-end ones the same way it does cheap drugstore cigars.

“Our industry’s concern is that they just decide that a cigar is a cigar. They’re going to have many problems,” said Bill Spann, CEO of the International Premium Cigar and Pipe Retailers Association.

Health advocates and some Democratic lawmakers are pushing to include cigars under the regulations, noting that studies show that more young people are smoking cigars as cigarette use declines. According to the Centers for Disease Control and Prevention, cigar use among high school boys in 2011 was at 15.7 percent — close to cigarette use at 17.7 percent.

But Spann says that when underage smokers use cigars, they buy the cheap, small ones available for purchase in gas stations and drugstores — not high-quality, expensive cigars. The FDA should not group all the products together in one category in an effort to prevent their use by youth, he said.

“Our product is not desired by, it is not marketed to, nor is it affordable by underage youth,” Spann said. “We fully support keeping our products, the premium cigars, out of the hands of anyone who is not 18 years or older.”

“You don’t see a 15-year-old standing on a street corner with a $20 cigar hanging out of his mouth,” he added.

The International Premium Cigar and Pipe Retailers Association and the Cigar Rights of America support legislation from two Florida lawmakers, Democratic Sen. Bill Nelson and Republican Rep. Bill Posey, that would stop the FDA from regulating “traditional large and premium cigars” the same way it does other tobacco products.

George Cecala, a spokesman for Posey, said the congressman plans to reintroduce the legislation in the 113th Congress.

Aides say the FDA could have the flexibility to propose different regulations for different kinds of cigar manufacturers — if it does decide to regulate cigars in the first place. Once the FDA issues a proposed rule, it accepts comments from stakeholders and the public and can revise the rule to reflect those concerns.

Another concern among Democrats is that tobacco manufacturers are now promoting flavored cigars to appeal to young smokers. The law bans fruit and other flavors in cigarettes, but because it does not yet cover cigars, flavorings in cigars are allowed. According to the CDC, 16 percent of young adults ages 18 to 24 are smoking cigars, and nearly 60 percent of them smoke cigars with candy, fruit or other flavors.

“Declines in cigarette smoking among our youth are only buffered by increases in other forms of tobacco use — like flavored cigars,” Sen. Richard Blumenthal, D-Conn., said in a statement on an August 2012 CDC report.

Rep. Henry A. Waxman, D-Calif., also accused manufacturers of promoting other tobacco products, including flavored cigars.

“After Congress outlawed flavorings in cigarettes, tobacco companies began promoting cigarette-like cigars and pipe tobacco as a way to circumvent the flavoring ban and avoid paying their fair share of taxes,” he said in a statement on the report.

Waxman wrote to FDA Commissioner Margaret A. Hamburg in August after the report was issued. Along with his letter, he included internal tobacco company documents that he says show they are introducing new lines of cigars and pipe tobacco, which are not regulated and have lower taxes rates. He plans to continue his push for stricter regulations of tobacco products that are trying to make use of loopholes to avoid regulation.

“I’m pleased to see the FDA has begun to enforce the law. I continue to call on them to take forceful action to protect the public health with the authority given to them,” Waxman said in a statement. “We need to take action to stop tobacco companies from exploiting loopholes and continuing to addict youth.”

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