The pace of the legislative and regulatory process is already proving to be rapid at this stage of 2018. As of this writing, as Congress is convened, the omnibus budget package has been adopted by the House of Representatives and Senate—and reluctantly signed by President Trump—and the U.S. Food and Drug Administration (FDA) has issued its promised advance notice of proposed rulemaking (ANPRM) on issues surrounding nicotine and another on cigars.
While language to exempt premium handmade cigars and to change the predicate date did not make it into the final budget package, despite being included in previous packages from the House of Representatives, new opportunities to revisit the regulations that could prove to be so economically detrimental to the premium cigar sector of the industry have presented themselves. The ANPRM is one of those opportunities.
Issued on March 26, 2018, the FDA’s ANPRM seeks input on three issues specifically surrounding premium cigars, which include the definition of premium cigars, usage patterns for premium cigars and public health considerations associated with premium cigars.
The FDA noted in the Federal Register that this solicitation for new information came as a result, in part, of the “ongoing interest from many parties,” including from “members of Congress.” The message was being heard.
Advocacy comes in many forms, and the very existence of the legislation H.R. 564 and S. 294 calling for a premium cigar exemption from regulation has served as a platform for conveying the premium cigar industry’s message that the regulatory agency cannot and should not take a one-size-fits-all approach to the regulatory process.
On April 15, 2011, the premium cigar industry initiated this first-ever legislative effort to protect itself from onerous regulations. It was on that day that Rep. Kathy Castor (D-FL) and Rep. Bill Posey (R-FL), as well as Sen. Bill Nelson, (D-FL) and Sen. Marco Rubio (R-FL), joined together in a bipartisan effort by introducing legislation to exempt premium cigars from federal oversight.
Throughout the course of the 112th to 115th sessions of Congress, 314 current and former members of the House of Representatives and 31 current and former members of the Senate co-sponsored the Traditional Cigar Manufacturing and Small Business Jobs Preservation Act.
Of these 314 members of Congress representing 44 states, several were the chairs of committees, and many were physicians or nurses. More importantly, however, 73 of them had voted in favor of the original Family Smoking Prevention and Tobacco Control Act, meaning there was recognition of premium cigars being in a distinctive class and not warranting such regulatory scrutiny.
These legislators have carried the message to key committees within Congress and the White House. Consistently since 2011, the House committees on appropriations, foreign affairs, energy and commerce, oversight and government reform, and small business have been briefed on the issue. In addition, the U.S. Senate committees on foreign relations; appropriations; health, education, labor and pensions; and small business have all received briefings and information on why premium cigars simply don’t deserve this type of regulatory treatment.
This process has proven premium cigars are not a partisan issue. The support for a premium cigar exemption from FDA rules includes 254 Republicans and 60 Democrats in the House of Representatives. Also, of the supporting co-sponsors in the Senate, 20 were Republicans and 11 were Democrats, which in the current political climate represents a bipartisan coalition.
The message regarding the harm these regulations would bring to premium cigars is also being heard well beyond the halls of Congress. The Department of Health and Human Services, Department of Agriculture, Department of Homeland Security, Department of State, Department of Commerce, U.S. Small Business Administration and National Security Council have each been briefed, received correspondence and been informed on the implications of regulation.
There have been more than 350,000 petitions to Congress and more than 40,000 to the White House in support of a premium cigar exemption from regulation. A significant number of the 135,000 public comments received by the FDA between April 25, 2014, and Aug. 25, 2014, were also in support of exemption.
It is also important to note that the embassies of Honduras, Nicaragua and the Dominican Republic have made their concerns known through correspondence to the U.S. Department of State, Department of Commerce, FDA, National Security Council, Department of Agriculture, Small Business Administration and Department of Homeland Security. The ambassadors from these nations have also sent this correspondence to the membership of the Senate Committee on Foreign Relations and the House Foreign Affairs Committee.
The implications of regulation are also local. Hence, correspondence representing the concerns from the mayors of Tampa, Miami and Las Vegas, coupled with issues raised on local economic impacts from non-cigar associated organizations such as chambers of commerce, retail associations, the hospitality sector and agricultural interests have each played a role in building an unprecedented coalition.
In a little over 2,555 days, the artisan and culturally based premium cigar industry has made its voice heard, mitigated threats where possible and will continue to work for protection from an unwarranted web of bureaucratic overreach. This new ANPRM from the administration is a unique opportunity to tell the story—again—for what is hoped to be a more objective audience that recognizes the flaws in their first brush with this process.
– Contributed by J. Glynn Loope, executive director of Cigar Rights of America.
This story first appeared in the May/June 2018 issue of Tobacco Business magazine. Members of the tobacco industry are eligible for a complimentary subscription to our magazine. Click here for details.