The Texas air outside was sweltering but the atmosphere inside the little Plano courtroom was even steamier.
It was the location for the most recent battle between the cigar industry and the FDA. There have been several rounds of discussions in courts around the country. This one was a little different.
The basic issues are the same as the ones we discussed in previous blogs. However, the past have been made by the entire cigar business. This new case was made on behalf of three small cigar boutiques. So, this time the argument centered on premium cigars alone.
This is important to us because Tabanero Cigars is a boutique as well, and the only cigars we sell are premium ones made by hand. So, we are very interested in this case.
Ok, let’s break this down.
Main idea presented: Premium cigars should not be subjected to rules that largely apply to all cigars, more specifically mass market cigars.
Naturally, the first thing was to decide what makes a cigar premium. In 2014 the FDA established seven factors:
- Is wrapped in whole tobacco leaf;
- Contains a 100 percent leaf tobacco binder;
- Contains primarily long filler tobacco;
- Is made by combining manually the wrapper, filler, and binder;
- Has no filter, tip, or non-tobacco mouthpiece and is capped by hand;
- does not have a characterizing flavor other than tobacco; and
- Weighs more than 6 pounds per 1000 units.
If this definition can be accepted then the next determination is why premium cigars should be treated differently than other tobacco products. The lawyer representing the cigar boutiques brought up new research. He cited studies from the Centers for Disease Control and Prevention, Oxford’s Nicotine and Tobacco Research Journal, the New England Journal of Medicine, and the Journal of the American Medical Association. He said these studies show:
- Children do not smoke premium cigars.
- That 96.7 percent of premium cigar consumers do not smoke them in an addictive manner.
- Premium cigars do not necessarily increase the rate of mortality.
The final discussion centered upon what should be the requirement for warning labels. As it stands the FDA is requiring a label be placed prominently on the top and sides covering at least 30% of the cigar box.
The key question was asked by the judge who wondered why the labeling needed to be different from both food and alcohol.
She then asked why a smaller warning label—one that wouldn’t disrupt the look of the box—wouldn’t suffice and whether the government could justify a large warning label.
In fact most of the proceedings consisted of the judge questioning the FDA’s lawyer. At the end of the day one had the impression that the judge was favorable to the cigar boutiques. However, this was also true in the recent court case in Washington D.C. In the judge’s summary, he basically said that he didn’t agree with the regulations, but believed them to be legal. So, it was a moral victory, but overall a loss.
Unfortunately, we could see the same result in Texas.