Cigar lovers, industry unite to snuff out FDA regulatory agenda

David Martosko | Executive Editor

Cigar smokers are mad as hell, and they aren’t going to take it anymore. Faced with an unprecedented assault on their guilty pleasure from President Barack Obama’s Food and Drug Administration, aficionados and industry insiders told The Daily Caller that they’re picking up their torch lighters and revolting.

Usually divided by their preferences for mild, medium and full-bodied smokes, they’re uniting against regulations that threaten to make cigars prohibitively expensive, shut down scores of small cigar shops, jeopardize tens of thousands of jobs and erase the traditionally bright line between Camels and Cohibas.

Cigar lovers are also recruiting members of Congress to defend what public health activists and anti-cancer crusaders see as little more than gentrified cigarettes smoked by economic one-percenters.

“Only a couple weeks remain,” one apocalyptic online pitch warns, “to stop the FDA from ruining cigars.” If that seems like a stretch, don’t bother telling Famous Smoke Shop. The e-tailer has sent 1.7 million emails to customers on its mailing lists, asking them to encourage their representatives in Congress to co-sponsor legislation designed to tie the FDA’s hands.

Cigar industry representatives told TheDC that efforts like this have already generated more than 113,000 messages to Congress.

It’s no surprise, then, that 125 House members and four senators are on board. They include 26 Democrats, along with six of Congress’ 20 physicians and two of its seven nurses — all strange bedfellows for a pro-tobacco law in the making.

Sen. Mary Landrieu, a Louisiana Democrat, announced Wednesday that she will join them. Landrieu chairs the Senate Committee on Small Business & Entrepreneurship, a crucial position from which to influence an issue that affects mostly mom-and-pop retailers.

Cutting an Exception

The Traditional Cigar Manufacturing and Small Business Jobs Preservation Act of 2011 arrived in the House in April and the Senate in August. Much of the domestic cigar supply enters the United States in the Sunshine State, and two Florida legislators — Republican Rep. Bill Posey and Democratic Sen. Bill Nelson — are leading the charge.

The bill’s focus is to carve out an exception for premium cigars in the Family Smoking Prevention and Tobacco Control Act, signed into law by President Obama in 2009.

The Tobacco Control Act (TCA) gave the FDA new authority to regulate tobacco, and the agency has most famously wielded that power by requiring garish photographic warnings this year on cigarette packs. But the law, an FDA spokesperson told The Daily Caller in an email, “also permits FDA to deem other ‘tobacco products’ subject to the TCA’s general controls by regulation.”

The FDA spokesperson explained that a “proposed rule deeming cigars to be subject to FDA’s jurisdiction” could be “finalized” after a public-comment period expires, giving the agency the authority to regulate “any product that meets the definition of a ‘tobacco product’ under the TCA, including cigars, little cigars, and certain novel nicotine containing products (such as certain electronic cigarettes).”

The FDA seems to be taking its longer leash seriously. On three occasions since December 2010, the agency has already put the cigar industry on notice that it intends to propose a rule to “deem cigars subject to the Tobacco Control Act.”

The “non-face-to-face sale and distribution of tobacco products” is likely to be the first battleground. A Sept. 9 FDA announcement called for public comment on whether Internet and mail-order sales of tobacco — all varieties of tobacco — serve as a giant loophole for consumers under 18 who can’t legally buy it at retail counters.

A federal regulation banning long-distance sales of cigars could be finalized soon after December 8, the date when the FDA is scheduled to stop accepting public comments on that particular objective.

Smoke-Free Kids

Rep. Posey isn’t buying the argument that teens are spending their money to buy Kristoffs, Montecristos and Perdomos through the mail.

“The intent of the Tobacco Control Act was to regulate products that are marketed to children,” Posey and Florida Democratic Rep. Kathy Castor wrote in a “Dear Colleague” letter circulated to members of Congress on March 31. And “traditional large and premium cigars are not a product used by youth.”

“When was the last time you saw 18-year-olds plunking down big bucks for Cohibas?” a customer at JR Cigar in downtown Washington, D.C., asked TheDC on Tuesday. “They wouldn’t appreciate it anyway.”

Cigar Rights of America executive director Glynn Loope told TheDC that “premium cigars’ price point, and the very marketing of cigars, are not directed toward youth. We feel very strongly that no one underage should have any type of access to tobacco products.”

Loope’s organization is less than three years old, but already represents retailers in 49 states with a combined customer base of more than 3 million cigar smokers.

FDA Commissioner Margaret Hamburg has received a steady stream of friendly but pointed letters from members of Congress — at least 20 so far — all of which draw clear distinctions between high-end cigars and youth smoking concerns.

Sen. Nelson was among the first, writing to Hamburg in August 2010. “Premium cigars are generally more expensive than mass produced tobacco products and are sold almost exclusively at specialty tobacco shops,” Nelson wrote, “making them significantly less likely to be used by adolescents. … The concern about widespread cigarette dependence and youth access simply does not apply to a discussion about premium cigars, which is why Congress focused on cigarettes rather than premium cigars in the Tobacco [Control] Act.”

Public Health Push-back

Lined up in opposition to the stogie revolution is a coalition of more than 40 medical, cancer prevention and public health groups. On Sept. 7 they wrote to co-sponsors of Posey’s bill, asking them to remove their names from the legislation. To date, no one has.

“While the health risks of cigar smoking are not the same as cigarette smoking,” the groups wrote, “cigar smoke is composed of the same toxic and carcinogenic constituents found in cigarette smoke.”

The most vocal opponents in Congress have been Democratic Senators Sherrod Brown of Ohio, Richard Blumenthal of Connecticut and Frank Lautenberg of New Jersey.

Sen. Lautenberg is a long-time advocate for cancer research funding. He established the Lautenberg Research Center at The Hebrew University of Jerusalem in memory of his father, who died of cancer at a young age.

The six members of Congress with medical degrees — Reps. Paul Broun of Georgia, Charles Boustany of Louisiana, Dan Benishek of Michigan, Scott DesJarlais and Scott Roe of Tennessee and Ron Paul of Texas — are bucking the medical establishment in co-sponsoring Posey’s H.R. 1639. Reps. Renee Ellmers of North Carolina and Diane Black of Tennessee, both nurses before becoming congresswomen, are following suit.

None of the three physicians in the Senate — Republicans Tom Coburn of Oklahoma, John Barrasso of Wyoming, and Rand Paul of Kentucky — is a co-sponsor of S. 1461, the Senate’s version of Posey’s bill.

Sen. Landrieu, along with Reps. Benishek, Black, Boustany, Broun, DesJarlais and Roe did not respond to requests for comment about their reasons for co-sponsoring the legislation.

A spokesperson for Rep. Paul, who is also a Republican candidate for president, emailed TheDC to say that while Rep. Paul does not smoke cigars himself, he believes “Americans have the right to use tobacco products without being subject to federal restrictions, regulations, or taxes.”

“The federal government has no constitutional authority to regulate any form of tobacco product,” Rep. Paul’s spokesperson added. “Youth smoking is a legitimate concern but discouraging young people from using tobacco products is the responsibility of local communities, schools, churches, and most importantly, parents — not the federal government.”

Rep. Ellmers, a former surgical intensive care nurse, said through a spokesperson that “tobacco use is an individual choice and legally protected.” She called H.R. 1639 “a technical correction on how cigars are classified,” and a small-business measure “that will save approximately 85,000 American jobs.”

Regardless, the National Cancer Institute is certain that cigars are a health risk worth avoiding. “Although cigar smokers have lower rates of lung cancer, coronary heart disease, and lung disease than cigarette smokers,” the agency says, “they have higher rates of these diseases than those who do not smoke cigars.”

Most cigar smokers, Loope told TheDC, already know this. He sees the FDA as “an activist federal agency” interfering with “adults making adult decisions.”

“Our opposition wants nothing short of tobacco prohibition,” Loope said. “And we’ve seen how the first attempt at vice prohibition worked.”

Determined to Regulate

A close reading of the FDA’s proposed rule shows that the agency is taking seriously its responsibility to make sure no one can buy tobacco without showing an ID — a scenario that the Internet makes practically impossible to guarantee.

The Alcohol and Tobacco Tax and Trade Bureau, a division of the U.S. Treasury Department, acknowledges that there is no federal law explicitly banning the sale of tobacco over the Internet. But Famous Smoke Shop is one of the biggest online cigar retailers, and it’s taking the FDA’s proposals seriously.

Posey’s new legislation “is the last hope against legislation that would spell the end of premium cigars as we know them,” Famous spokesman Hayward Tenney told TheDC in an email.

The public health coalition opposing the bill are mainly concerned with what they see as widespread teen use of “cigarillos” and “small cigars,” many of which “come in flavors and are among the most popular with youth,” according to their Sept. 7 letter.

The most recent youth risk behavior survey from the Centers for Disease Control and Prevention seems to support them. “Nationwide,” the CDC reported in 2009, “14.0% of students had smoked cigars, cigarillos, or little cigars on at least 1 day during the 30 days before the survey.”

But researchers include more expensive premium cigars in the same category as Swisher Sweets and other mini-cigars that convenience stores typically sell for less than a dollar. And very few gas stations sell $10 cigars from premium brands like Partagas, Padron or Arturo Fuente.

So for a cigar industry concerned with higher-end products, which make up less than 4 percent of the 7 billion cigars sold globally each year, the CDC’s statistics are hard to reconcile with reality.

Behind the Counter, the New Playboy

Cigars and other “additional tobacco product categories” covered by new regulations, an FDA spokesperson said in an emailed statement, “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.'”

International Premium Cigar & Pipe Retailers CEO Bill Spann is a former chief of staff at the Florida Department of Children & Families. He told TheDC that extending cigarette regulations to cover cigars would devastate his industry.

“We have been walking the halls of the House and the Senate regularly,” he told TheDC.

New taxes — or “user fees,” in FDA lingo — would reach every corner of the cigar world, 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. (A federal judge temporarily blocked that rule earlier this month, and both sides of the skirmish expect the Supreme Court to ultimately decide its fate.)

Language from the FDA seems to justify many of Spann’s concerns.

Cigars and other “additional tobacco product categories” covered by new regulations, an FDA spokesperson said in an emailed statement, “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.'”

Spann pointed to the Canadian province of Ontario as the model for a future FDA-approved cigar marketplace. Customers there, he told TheDC, can’t see cigars displayed at all. Even color photos are prohibited. The cigars themselves are kept out of view like contraband pornography two generations ago.

“In Ontario, you’re given a list,” he said, “and it says ‘type of cigar, size, price, country of origin.’ You point, [and] the guy goes back into a room that you cannot see. He gets your cigar … He can’t recommend or tell you, ‘Oh, if you liked this cigar last week you’re going to love this new product I’ve got in.'”

Small Business, Global Business

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.”

Walia, whose shop is a veritable man-cave with leather seating, big-screen televisions, and a soft-drink honor bar, said his customers are keeping tabs on what they see as government interference with something they enjoy.

“A lot of guys are asking me, ‘What do you think? What are we going to do?’” Walia said. “And I’m in the process of getting a lot of copies of H.R. 1639 printed here, because everybody wants to send it to their representatives.”

Walia, without a hint of pretense, also explained his concern about the impact his industry’s demise would have on the Central American nations that produce his inventory.

“It’s going to affect some other countries like Honduras, the Dominican Republic, and Nicaragua,” he said. “In a lot of these places, the complete economy of towns relies on our industry.

“I just came back from Honduras two days ago. And pretty much entire neighborhoods, whole towns — they survive on this industry. There are thousands and thousands of jobs over there too.”

Hand-rolled cigars are labor-intensive products, involving nearly 250,000 workers in Central America. And another 85,000 Americans depend on the cigar industry for their livelihoods, said Spann.

Honduran ambassador to the U.S. Jorge Ramón Hernández Alcerro is already concerned enough to complain to the powerful U.S. House Committee on Foreign Affairs.  Last week in a letter to the committee, Hernández Alcerro wrote that the adverse economic impact of the FDA’s plans will hinder good diplomatic relations with the United States.

Casting a Wider Net

It remains to be seen how quickly the FDA will act on its cigar proposals, and exactly what they will look like at the end of the exercise. But the FDA spokesperson confirmed that its agenda is expanding.

“The scope of the proposed rule deeming cigars to be subject to FDA’s jurisdiction … is being broadened to encompass all products that meet the statutory definition of ‘tobacco product,'” the FDA spokesperson said in an email to TheDC.

The resulting government interventions, cigar aficionados fear, could be rife with unintended consequences.

“Every time any given state raises cigarette taxes,” Loope told TheDC, “we see what could happen with the cigar industry. The black market ends up running rampant. All you end up doing is running up law-enforcement costs, and a black market is nothing but lost revenue for the government.”

Spann was more emotional. “We’re tired of big government telling us what we can do and where we can do it,” he said.

On an easel in the entryway of JR Cigar in Washington sits a four-foot-tall mounted poster that warns, in giant type, “Your Freedom to Smoke is in Grave Danger!” Beneath a sales pitch for supporting H.R. 1639 and S. 1461 is the exhortation: “We can defeat FDA regulation!”

Walia, too, from his vantage point on the front lines of the new war on tobacco, sees things from his customers’ perspective.

“You know, first it’s cigars, and then it’s soda, and then it goes into every direction in your life,” he warned. “Somebody is monitoring, somebody is dictating, somebody is trying to tell you what to do or what to buy. Where is the regular common sense left for a human being to decide what he wants?”

David is The Daily Caller’s executive editor. Follow him on Twitter

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