The Agency intends to propose a regulation that would extend the Agency’s “tobacco product” authorities in Chapter IX of the FD&C Act, which currently only apply to certain specifically enumerated “tobacco products,” to other categories of tobacco products that meet the statutory definition of “tobacco product” in Section 201(rr) of the Act. The additional tobacco product categories 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.”

Although we recognize that FDA has not yet asserted jurisdiction over the full range of tobacco products potentially subject to regulation under the statute, FDA does have authority over smokeless tobacco products. For this reason, we do not understand why Ariva-BDL and Stonewall-BDL should not be categorized as “smokeless tobacco products” and subjected to immediate FDA regulation. We fear that this action will encourage other tobacco companies to introduce new forms of dissolvable tobacco products in an effort to avoid regulation as smokeless tobacco products, an outcome that Congress intended to prevent. Already, another tobacco manufacturer, R.J. Reynolds, recently reintroduced dissolvable, candy-like Camel products, including Sticks, Strips and Orbs, in Charlotte and Denver. Yet another manufacturer, Altria has debuted its “smokeless tobacco stick” and is test marketing it in Kansas. The recent proliferation of dissolvable tobacco products—which can easily end up in the hands of children—in the marketplace, makes FDA’s decision particularly disturbing.

Now, we respectfully request that FDA build on these successes and move swiftly to issue a strong regulation that would legally treat or deem all tobacco products, including cigars, pipe tobacco, and hookah tobacco and accessories, as subject to the Tobacco Control Act. We appreciate FDA‘s past work to issue this important regulatin. Now we ask that you provide us with an update on the agency’s progress and anticipated timeline for completion of this regulation, commonly known as the “deeming” rule. In addition, we would appreciate the opportunity to discuss the specifics of this new rule with you, and would also ask that you respond to this letter with a date indicating your availability for such a meeting.

On July 13, 2011, Dr. Lawrence Deyton, Director of FDA‘s Center for Tobacco Products, met with Senators Blumenthal, Sherrod Brown, and Merkley to discuss FDA‘s regulatory decision around Star Scientific’s products Ariva-BDL and Stonewall-BDL, two recently-developed dissolvable tobacco lozenges. In June, FDA deemed both products to be outside the direct regulatory authority afforded the agency under Chapter IX of the FSPTCA, thus requiring FDA to issue an additional regulation in order to assert authority over such products. While we continue to respectfully disagree with this decision, we were encouraged during this meeting to hear of FDA‘s commitment to swiftly issue such a “deeming” regulation, and were pleased to hear of an anticipated October release.

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 toFDA’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.”