On August 9, a judge in the District Court of D.C. issued a ruling that vacates the “deeming rule” that subjected premium cigars to the same regulations the agency uses on cigarettes. In so doing, he struck a blow against the bloated federal administrative state and for common sense.
The case goes back to 2014, under the Obama administration, when the FDA first proposed its rule to lump all tobacco products into one category and regulate them all by “deeming” that the agency had jurisdiction to regulate in such a manner. The rule, FDA-2014-N-0189, faced immediate push-back from cigar smokers and industry groups, who flooded the FDA with public comments opposing it. The rulemaking process was finalized in 2016 when the FDA published its decision:
The Food and Drug Administration (FDA) is issuing this final rule to deem products meeting the statutory definition of “tobacco product,” except accessories of the newly deemed tobacco products, to be subject to the Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended by the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act). The Tobacco Control Act provides FDA authority to regulate cigarettes, cigarette tobacco, roll-your-own tobacco, smokeless tobacco, and any other tobacco products that the Agency by regulation deems to be subject to the law.
The ruling by Judge Amit Mehta vacates this rule:
The decision concludes a seven-year conflict between the cigar industry and FDA. As previously reported, FDA issued a Final Rule on August 8, 2016, deeming all products meeting the statutory definition of a “tobacco product” to be subject to its regulatory authority, including premium cigars (“Deeming Rule”). In the preceding rulemaking phase, the Cigar Association of America (CAA), the Cigar Rights of America (CRA), and the Premium Cigar Association (PCA) had submitted comments to FDA regarding the usage patterns of premium cigar consumers, asserting that premium cigars did not pose the same type of public health concerns as other tobacco products. Nonetheless, in the Federal Register notice for the Deeming Rule, FDA asserted that no data had been provided to support different usage patterns and public health concerns.
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The ruling does not affect all cigars, only those classified as premium cigars, under the following rubric:
The ruling only vacates the FDA’s authority over premium cigars, leaving regulations on machine-made cigars, little cigars, and flavored cigars intact. Products classified as premium cigars must meet a list of requirements:
“(1) are wrapped in whole tobacco leaf; (2) contain a 100 percent leaf tobacco binder; (3) contain at least 50 percent (of the filler by weight) long filler tobacco; (4) are handmade or hand rolled; (5) have no filter, nontobacco tip, or nontobacco mouthpiece; (6) do not have a characterizing flavor other than tobacco; (7) contain only tobacco, water, and vegetable gum with no other ingredients or additives; and (8) weigh more than 6 pounds per 1,000 units.”
In short, this means that most of the cigars one would find at a specialty tobacconist will qualify as premium, while the cheaper cigars sold in convenience stores will not.
Vacating this rule makes sense from an administrative bloat standpoint, as well as from a scientific standpoint. The federal government never met a product it didn’t want to control. The prevailing attitude seems to be that they’d get no pushback for continued attacks on big bad Big Tobacco, no matter what form it takes. That perspective leaves out several differences between habitual cigarette smoking and the enjoyment of premium cigars.
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Even the National Institutes of Health and the National Cancer Institute used to acknowledge this before it became politically expedient to demonize tobacco in all its forms. This is from a monograph published in 1998 (hat tip to Jacob Grier over at Reason):
Most cigarette smokers smoke every day. In contrast, as many as three-quarters of cigar smokers smoke only occasionally, and some only smoke a few cigars per year. This difference in frequency of exposure translates into lower disease risks.
The Premium Cigar Association (PCA) states that it has spent millions litigating this arbitrary rule in partnership with Cigar Rights America and the Cigar Association of America:
Watch today's PCA Live! session on Facebook, LinkedIn and YouTube to learn more about this week's monumental court decision that vacated the Deeming Rule and what's ahead in terms of advocacy efforts for the PCA. #cigars pic.twitter.com/BAaMQMizrm
— Premium Cigar Association (@PCA1933) August 11, 2023
Hey, did you know there’s a Cigar Smokers Congressional Caucus? They had a lot to say about this ruling as well:
“The FDA had no business bringing premium cigars under its jurisdiction, and I am pleased that the courts agree,” said Congressman Dan Meuser. “I’m glad to see the court system has checked this regulatory overreach and granted some peace of mind to the hundreds of thousands of people that work in the industry. Pennsylvania is highly respected in the cigar industry for growing specialty tobaccos, and this ruling is a win for all of the farmers, wholesale distributors, and retailers in my district, which are overwhelmingly small businesses. Congratulations to the Cigar Association of America, the Premium Cigar Association, and Cigar Rights of America for this victory. It would not have been possible without your tireless efforts and advocacy on behalf of the small business owners that make up the cigar industry.”
Congressman Troy Carter said, “This ruling is an important victory for small businesses. The proposed FDA regulations imposed burdens on small business owners while offering no public health benefit. The Court found that the agency ignored relevant data. I generally support the rule-making processes of the FDA, but this time they overstepped.”
The Congressional Cigar Caucus is a bipartisan working group of more than 50 Members of Congress. The Caucus promotes educational opportunities for lawmakers to better inform policies impacting the cigar industry.
Tony Katz and Fingers Malloy of Eat Drink Smoke interviewed folks from PCA over the weekend to get the lowdown. Check it out.
This week on Eat Drink Smoke, @tonykatz spoke with @JoshuaHabursky & Glynn Loope of @PCA1933 about the cigar industry's HUGE win over the Food and Drug Administration.
You can WATCH the interview at the Eat Drink Smoke @OnLocals Lounge!https://t.co/g5s18F89PW#PCA #locals #FDA
— eatdrinksmoke (@GoEatDrinkSmoke) August 15, 2023
So if you feel like celebrating a rare win over the red-tape addicts and unelected bureaucrats who run the administrative state, light up your favorite stogie and take a little extra time to savor the feeling.
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