House panel warns FDA off regulating ‘premium cigars’

McClatchy NewspapersJune 19, 2012 

— A congressional committee moved Tuesday to exempt so-called "premium hand-rolled cigars" from oversight by the Food and Drug Administration.

The carve-out, backed in large part by lawmakers from Florida with close ties to cigar makers, wouldn’t outright prohibit the FDA from regulating the fancy cigars sold primarily at high-end tobacco shops.

But there’s a stern warning in the language accompanying an FDA spending bill that the House of Representatives Appropriations Committee passed Tuesday: "The committee reminds FDA that premium cigars have unique characteristics and cost-prohibitive price points and are not marketed to kids. Any effort to regulate cigars should take these items into consideration."

That language worries anti-tobacco crusaders such as the Campaign for Tobacco-Free Kids. They fear that tobacco companies will exploit a loophole to apply the regulations to all cigars, including those that "encompass a variety of non-premium cigars with sweet flavors, low prices and colorful packaging that appeal to youth."

Some tobacco companies tried to avoid taxes by making modest changes to their products that reclassify them as small cigars instead of cigarettes. In Florida, some convenience stores have maneuvered around hefty state and federal tobacco taxes by letting smokers roll their own cigarettes in on-site machines.

"We’ve seen how the companies can manipulate their products," said Danny McGoldrick, the vice president of research for the Campaign for Tobacco-Free Kids. "Some products that used to be cigarettes are now large cigars."

The notice to the FDA is buried within 89 pages of report language, the text that accompanies legislation. It doesn’t carry the force of law, but it’s often used to convey congressional intent. Agencies that don’t follow the report language may have to answer to the committee as to why they didn’t.

The Senate FDA spending bill has similar language: "The committee strongly encourages the agency to issue this proposed rule and promulgate regulations as necessary. The committee instructs the agency to consider, among other things, the issue of cigars with characterizing flavors, particularly as it applies to the marketing and sale of these products to children."

Both are based in part on legislation sponsored by two Florida lawmakers, Republican Rep. Bill Posey and Democratic Sen. Bill Nelson. A spokesman for Nelson said his office had no role in today’s House action and that they wrote the legislation only for premium hand-rolled cigars. Sen. Marco Rubio, R-Fla., is a co-sponsor.

Posey’s House bill has the support of 203 fellow lawmakers from both parties, including almost all those from Florida: Republican Reps. Sandy Adams, Gus Bilirakis, Vern Buchanan, Mario Diaz-Balart, Connie Mack, John Mica, Jeff Miller, Rich Nugent, David Rivera, Tom Rooney, Ileana Ros-Lehtinen, Dennis Ross, Steve Southerland, Allen West and Bill Young. Democratic Reps. Kathy Castor, Alcee Hastings and Frederica Wilson also are on board.

Florida lawmakers also recently crossed party lines to help defeat an amendment to the farm bill that would have phased out a federal sugar quota. Nelson and Rubio supported the state’s sugar industry in the fight.

Jenny Haliski, a spokeswoman for the FDA’s Center for Tobacco Products, said the agency didn’t comment on pending legislation. The FDA has the power to regulate the manufacture, distribution and marketing of tobacco products under the Tobacco Control Act, enacted in 2009, and it’s "moving as expeditiously as possible" to write a rule for cigars that will be open to public comment, Haliski said.

George Cecala, a spokesman for Posey, the House sponsor of the bill, cast it as a consumer choice issue. Washington is all too eager to create a nanny state, Cecala said: "This is an instance of people in Washington who don’t like a product trying to remove the freedom of people to enjoy it."

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