ASHINGTON — Smoke-filled rooms might be a vestige of the past on Capitol Hill, but a pitched battle over how to regulate cigars is roiling Washington.
More than four decades after cigarette ads were banned from TV and radio — and seven years after Congress tightened regulation of cigarettes — the stogie is facing the prospect of government oversight.
Proposed regulations could mean a host of changes for the industry, including a requirement that the Food and Drug Administration approve new cigar blends and blunt warning labels — “Cigars are not a safe alternative to cigarettes” — plastered across the elegant cigar boxes that some manufacturers liken to works of art.
That possibility has aficionados pushing back in Congress, where cigar smoking is banned in public places but still seen as a quiet pleasure behind closed doors.
“Cigars are not a path to nicotine addiction,” said J. Glynn Loope, executive director of Cigar Rights of America, which represents manufacturers and smokers. “We think we should be treated in a wholly different manner than cigarettes and e-cigarettes.”
For a long time they were. But a 2009 law that authorized the FDA to regulate cigarettes and other forms of tobacco prompted the agency to reconsider how it treats other products, including cigars and e-cigarettes. The implications for the e-cigarette industry has drawn significant scrutiny, but consequences for cigar makers could be just as far-reaching.
Public health advocates and their backers in Congress are angry that the proposed rule regulating both products has not been finalized.
“It’s enormously frustrating because while the administration has failed to act, the health of millions more Americans are being damaged,” said Oregon Senator Jeff Merkley, a Democrat who was one of the sponsors of the legislation. “I’ve had many dozens of contacts with the administration pushing for this rule to be completed. I’ve organized groups of senators to speak on the floor, all to no avail.’’
Tobacco companies, patient advocates, and others submitted more than 135,000 comments on the proposal, and the FDA convened countless meetings to work out the fine print. Lawmakers, too, may have a stake in the fight: Loope estimates 30 of them smoke cigars, and says he’s smoked with many of them at one time or another.
Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, a Washington-based research and advocacy group, blames the cigar industry for much of the delay.
“The cigar lobby is less visible than the e-cigarette lobby, and no one’s aware that they even exist,” Myers said. “But there isn’t any question that their ability to delay this process far exceeds their impact on the economy.”
Cigar makers are most concerned about whether the new rule will apply retroactively. The version submitted to the White House could let the FDA set a minimum age requirement to purchase cigars, e-cigarettes, and all related merchandise that has entered the market since Feb. 15, 2007. It could also subject any new blends to rigorous scientific review before they can be sold.
For cigar makers, this rule seems onerous. The Cigar Association of America predicts it would cost manufacturers more than $100 million a year.
Cigar makers also object to a proposed ban on free samples and the proposed warning labels, which would cover 30 percent of the front and top of boxes. Among the warnings, one would say, “Cigar smoking can cause cancers of the mouth and throat, even if you do not inhale”; another would say, “Tobacco smoke increases the risk of lung cancer and heart disease, even in non-smokers.”
Indeed, cigar smoke includes cancer-causing nitrosamines, as does cigarette smoke, according to the FDA. Although some cigar smokers don’t always think they are inhaling, they are often breathing in tobacco smoke, and also absorb nicotine through their mouths. The FDA estimates that cigar smoking causes 9,000 premature deaths a year.
To make its case against regulations, the cigar lobby has hired some key strategists: former Senator Mary Landrieu, a Democrat from Louisiana; former Representative James Walsh, a New York Republican; and Andrew Perrault, the former Office of Management and Budget staffer who actually helped write the tobacco rule.
Landrieu, who declined comment, has been especially helpful to their cause, according to Loope.
“She has been an absolute blessing,” he said. “She has facilitated every major executive branch meeting we’ve had.”
Among the legislators who have been involved in talks with the Office of Management and Budget over the rule are Senator Robert Menendez of New Jersey and Senator Bill Nelson of Florida.
Menendez declined to comment. But Ryan Brown, a spokesman for Nelson, said the senator has asked the FDA to consider treating ordinary cigars and premium cigars differently.
“Senator Nelson is trying to save the last cigar factory in a Florida town known as Ybor City,” said Brown. “If the FDA decides to regulate the premium cigar industry, it will likely put Ybor City’s last cigar factory — and hundreds of others like it — out of business.”
The distinction between ordinary cigars and premium cigars is a tricky one. Most lobbyists say premium cigars are hand-rolled, rather than mass-produced, are heavier, and have tobacco wrappers. If they use flavorings, they are expensive ones, such as bourbon. Mass-market cigars and small cigars are lighter and have wrappers that can be either all or part paper, and part tobacco.
“We are a higher-end product,” said Kevin “Kip” Talley, senior director of federal affairs for the International Premium Cigar & Pipe Retailers Association, whose members sell premium cigars and who says the rule would do nothing to discourage youth smoking them. “You don’t have a 15-year-old kid going in to buy a $20 cigar,” he said.
Premium cigar advocates say their manufacturers are always tinkering with blends, and that the cost of getting FDA approval would put many of them out of business.
But public health advocates like Myers worry that there isn’t a clear legal definition of “premium.” If those cigars were exempted from the rule, Myers said, it wouldn’t be difficult for makers of mass-market or small cigars to take advantage.
“The cigar lobby would argue that they are only trying to protect the small manufacturer who makes hand-rolled cigars that apparently members of the US Congress smoke,” said Myers. “The line between cigars that young people smoke and the line that young people don’t smoke is both ever-changing and ill-defined.”
Walsh, the former congressman who has joined the regulatory fight, disagrees. “One of the points we’ve made on premium cigars is they are not a gateway to other tobacco, they are sort of an end in themselves,” he said. “They are celebratory.”
Tobacco companies may not have the political clout they once did, but they still spend liberally to retain influence on Capitol Hill. According to public records analyzed by the Center for Responsive Politics, the top tobacco firms, all of which sell cigars, e-cigarettes, or both, donated more than $2.3 million to members of Congress during the 2013-14 election cycle and more than $1.1 million to congressional incumbents in 2016.
Their efforts to shape the new rule have complemented similar efforts by the manufacturers of electronic cigarettes.
Perrault, the former OMB tobacco staffer who oversaw the agency’s work on the rule until he left in September 2013, said he believes the delay is not politically motivated. Instead, he said, the delay is being driven by caution over how to regulate e-cigarettes, not cigars.
“In vapor products the science is new and developing,” said Perrault. “The policy questions are really large and there is a genuine desire to get this right and to secure health benefits for the American public without unnecessarily burdening the industry.”
“No one,” he said, “wants to see this get challenged in court.”