Cigar Smoker's Rights

Why the Premium Cigar Industry is Suing the FDA

WASHINGTON, DC ? July 18, 2016 ? On Friday, July 15, 2016, The Cigar Association of America, International Premium Cigar and Pipe Retailers Association, and the Cigar Rights of America filed suit against the Food and Drug Administration's recent "Deeming Rule" on premium handmade imported cigars.

The rule, which was announced on June 2nd of this year, includes a 499-page litany of guidelines that tobacco growers and premium cigar manufacturers in the United States and Central America allege is "draconian," and will tighten the regulatory noose already around their necks even further.

The three cigar associations are asking the District Court for the District of Columbia for a declaratory injunction to "vacate, set aside and enjoin the enforcement of the final rule" because it violates numerous federal statutes as well as the federal rulemaking process. A full copy of the filing, which details nine counts against the FDA and the United States Department of Health and Human Services, can be found here.

"Just over one month ago, our three associations pledged to work together to develop the appropriate response to the FDA's new Deeming Rule," said Mark Pursell, CEO of the International Premium Cigar and Pipe Retailers Association. "After a thorough and detailed legal review, we are challenging this unlawful regulatory action in federal court to protect the statutory and constitutional rights of our industry and its members. The fact that all three of our organizations are acting in one voice speaks to the urgency and seriousness of this action."

This challenge asserts nine violations of federal law and rulemaking authority starting with the FDA?s improper application of the February 15, 2007 grandfather date, which "subjects cigars and pipe tobacco to more intrusive regulations than cigarettes and smokeless tobacco."

The suit also includes the following complaints against the FDA's "Deeming Rule:"

  • The impermissible assessment of a tax in the form of user fees, and its allocation of these user fees only to cigars and pipe tobacco and not to other newly deemed products
  • The failure to perform an adequate cost-benefit analysis to take into account the effects of the Final Rule on small businesses as is required by the Regulatory Flexibility Act
  • The unjustified decision to require cigar health warning labels to be 30% of the two principal display panels of packages
  • Unlawful designation of tobacconists who blend finished pipe tobacco or create cigar samplers of finished cigars as ?manufacturers," which subjects those businesses to greater regulation than if they were ?retailers?
  • The incorrect decision to regulate pipes as ?components? or ?parts? rather than as ?accessories?

"The FDA ignored the law to craft these expansive and sweeping regulations and cannot justify many of the arbitrary and capricious regulations it purports to enact," said Glynn Loope, Executive Director of Cigar Rights of America. "This lawsuit is a specific and detailed challenge to the FDA's unprecedented assertion of rulemaking authority. We are acting in one voice to protect the legal rights of our industry at all levels, from the manufacturer, the community retail tobacconist, to the adult patrons of cigars."

Adding his voice in support of the lawsuit, Cigar Association of America President, Craig Williamson said, "We all worked in good faith to inform and educate the FDA on the unique nature of our industry, its members and our consumers. We hoped the FDA would craft a flexible regulatory structure that accounted for the uniqueness of our industry. Instead, we got a broad, one-size-fits-all rule that fails to account for how cigars and premium cigars are manufactured, distributed, sold and consumed in the United States. The FDA exceeded its statutory authority and violated the federal rulemaking process when crafting this set of broad and sweeping regulations."

Now that the suit has been filed, cigar manufacturers and consumers will have to wait for the courts to decide. Should the regulations stand, it could mean the loss of hundreds of jobs throughout the premium cigar industry and could also result in dozens of cigar manufacturers, and for that matter, retailers, closing their doors forever.

"We are asking the court to enjoin the enforcement of this unlawful regulatory scheme," added Mr. Williamson, "And we are confident that when the court reviews our case on its merits, we will prevail."

Those interested in reading a detailed summary of the FDA deeming regulations by the National Association of Tobacco Outlets should click here.

An important message to our Famous Smoke Shop customers:

On May 5th, the Food and Drug Administration (FDA) introduced its final, 499-page ruling regarding their authority and intent to regulate cigars under the Tobacco Control Act. As we take the necessary time to examine all of the information in this lengthy document, there are a few important things that cigar enthusiasts like you should know:

  1. There is no exemption for premium cigars in this FDA rule.
  2. The rule calls for a predicate date of February 15 2007, meaning any cigar introduced after that date will be required to go through an expensive and time-consuming approval process by 2018 to stay on the market.

Many more regulations are included in this new FDA document, and we appreciate your patience as we continue to digest this ruling and discuss its impact with our cigar manufacturer partners. Famous Smoke Shop remains committed to providing you the cigars you enjoy at the lowest possible prices, and to defending your right as a responsible adult to enjoy the premium cigars you love. Those efforts continue through proposed legislation that limits the enforcement of the FDA rule, and to protect you ? the consumer ? from these new, overreaching regulations.

For more information:

  • If you?d like to view the entire 499-page text of the FDA deeming rule, you can read it here. (PDF)
  • FDA issued a press release detailing the actions the agency took on May 5; you can read it here.
  • Cigar Aficionado has published a brief summary, with quotes, of the ruling?s effect. Click here to read it.
  • Cigar Rights of America (CRA) has issued their response to this new ruling; read it here.
  • Halfwheel has summarized some of the top level issues into a 5 point list of takeaways; you can read it here.

For 75 years, Famous Smoke Shop has dutifully served millions of cigar smokers, supporting their freedom to enjoy premium handmade cigars wherever and whenever they choose. Sadly, that freedom is under attack by an anti-smoking movement who, through a variety of tactics (including support for burdensome cigar taxes and lobbying for restrictive smoking bans), seek to revoke your simple right to choose.

In addition to advocating on your behalf as a premium cigar enthusiast, we're providing you the information you need to be a well-informed consumer with regard to those who are working to take that right away.

We are fighting for you. We are empowering you to do the same.

Famous Smoke is a secure retailer of the finest cigars online at the web's best prices. Please note that Famous Smoke Shop does not sell tobacco products to anyone under the age of 21 (or the minimum age in your local jurisdiction, whichever is higher). Note also that it is unlawful to even attempt to purchase cigars below the minimum age. If you are not of legal age, please do not enter our site. For more information on how we verify age click here.
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