Cigar Companies Fighting Over Definition Of Premium Cigars
The joint plaintiffs in the cigar industry’s legal battle with the U.S. Food & Drug Administration are now fighting with one another over the definition of a premium cigar—and in a strange twist of events, the groups aligned with the makers of handmade cigars are in agreement with the FDA after court documents filed yesterday.
The lawsuit against the FDA resulted in several victories for the cigar organizations, most recently the January 24th decision where the United States Court of Appeals for the District of Columbia shot down the FDA’s appeal. It appeared as if the battle was over, but recently one of the litigants broke ranks and proposed changing the government’s definition of a premium cigar.
The cigar industry’s lawsuit against the FDA is made up of three major cigar lobbying organizations: The Cigar Association of America (CAA), the Cigar Rights of America (CRA) and the Premium Cigar Association (PCA). While each of these organizations represent the cigar world, they differ in respect to what type of cigars they focus upon. The CRA and PCA focus on premium, handmade cigars—the kind of cigars that you read about in Cigar Aficionado magazine. The CAA looks at the entire market with a particular emphasis on mass-market cigars, which are produced in far larger quantities than handmade cigars, are often made with artificial flavorings and are sold in convenience stores rather than high-end cigar shops.
In June, the CAA filed to broaden the legal definition of a premium cigar, most notably by including flavored cigars and cigars made by machine but finished by hand. Given the industry’s recent successes in court—and how long it took to get a premium cigar legally defined—the CRA and PCA think this is a misguided idea that could be potentially harmful in the ongoing fight against FDA regulation.
“There are traditional, premium-cigar manufacturers who are members of the CAA. But, when push comes to shove, the CAA is led by companies who make most of their revenue from the mass marketing of relatively inexpensive machine-made cigars. These companies—Swisher International (maker of Swisher Sweets cigars), ITG Brands (maker of Backwoods cigars), and others—are using the CAA brief to get as many of their products into favorable regulatory treatment as possible,” wrote lawyer Michael Edney for the CRA and PCA in a brief filed late last night. “In short, the CAA’s proposal would create a world where—with just a few inexpensive changes—artificially flavored cigars, made from scrap tobacco and sold behind the convenience store counter, are ‘premium cigars’ protected from regulation by this Court’s remedy.”
The FDA, which has been battling with the CRA and PCA for years, agrees. “This Court should not disturb the eight-point definition of ‘premium cigars’ that is currently in effect, and that FDA and regulated parties have been operating under since at least August of 2020,” wrote the lawyers representing the FDA in a document filed yesterday. “Any changes to that definition now—large or small—risk creating significant practical problems for both FDA and regulated parties, as this Court’s prior orders have already (by necessity) been incorporated into the regulatory regime for tobacco products.”
The government defines a premium cigar as a cigar that:
- is wrapped in whole tobacco leaf
- contains a 100 percent leaf tobacco binder
- contains at least 50 percent (of the filler by weight) long filler tobacco (i.e., whole tobacco leaves that run the length of the cigar)
- is handmade or hand rolled (i.e., no machinery was used apart from simple tools, such as scissors to cut the tobacco prior to rolling)
- has no filter, non-tobacco tip or non-tobacco mouthpiece
- does not have a characterizing flavor other than tobacco
- contains only tobacco, water and vegetable gum with no other ingredients or additives
- weighs more than six pounds per 1,000 units
The next step in this process would be for the CAA to respond to the filings. The timetable for that is uncertain.
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