The FDA has yet to outline its plans, leaving plenty of speculation about whether the agency will regulate different cigars differently — without creating loopholes.
“If they can’t figure out a way to keep this thing from being gamed, then they basically shouldn’t make any exemptions,” said Richard A. Daynard, a Northeastern University law professor and president of its Public Health Advocacy Institute.
The 2009 tobacco control law banned candy and fruit flavorings in cigarettes, which had been shown to disproportionately appeal to young people. Some companies reacted by making small changes in the products, such as adding tobacco to the wrapper to help them meet the legal definition of cigars.
Another 2009 federal law put in place sharp tax increases on cigarettes and small cigars but spared larger cigars. In response, companies added weight to their products to qualify for the lower taxes.
Even as cigarette smoking decreased between 2000 and 2011, consumption of loose tobacco and cigars grew 123 percent, according to the Centers for Disease Control and Prevention. The CDC found that tax disparities prompted many smokers to switch from cigarettes to other products such as cigars.
In at least six states, including Maryland, youth cigar smoking now equals or surpasses cigarette smoking, according to numbers compiled by the Campaign for Tobacco-Free Kids — a figure the group says underscores the urgency of FDA regulation.
Spann hopes that the FDA at least decides to exclude the small companies and storefronts that make and sell premium cigars — or that if the agency doesn’t, Congress will.
“There are 85,000 Americans working in or around the premium cigar market in America,” he said. “The government should be helping them, not trying to regulate them out of business.”
Matthew Myers, president of the Campaign for Tobacco-Free Kids, said there is no evidence that the FDA intends to impose a host of onerous, unnecessary regulations on mom-and-pop manufacturers of large cigars. “They have bigger fights to fight,” he said.