The FDA's Unauthorized War on Pipes and Cigars
The FDA is extending the meaning of the Tobacco Control Act to cover cigars, pipe tobacco, and even pipes.
By: Rick Newcombe
December 13, 2016
George Washington was a tobacco farmer and John Adams a pipe smoker, and every town in America has had a cigar store or pipe tobacconist since the nation's founding. But the Food and Drug Administration is determined to end all that.
There are more than 2,000 cigar and pipe stores currently operating in this country, employing 35,000 Americans, and the FDA has put them all on notice that they need to stop doing business as usual and start filling their inventory with non-tobacco products. The situation is so bad that the three small trade groups representing cigars and pipes have been forced to file a lawsuit in federal court in Washington, D.C.
The FDA wants for anyone hand-rolling cigars to register with the government; same with artisan pipe makers. Tobacconists would no longer be able to offer their store's unique blends without special permission, and no cigar or pipe tobacco introduced after 2007 would have much of a chance of being allowed into the marketplace.
When representatives of the cigar and pipe industries pointed out to the FDA that these regulations would effectively put hundreds of stores out of business, their reply was frightening. As quoted in the lawsuit filed against the government, the "FDA's response to these small businesses is that they 'would be able to shift shelf space and other activities to non-tobacco products.'"
This all started in 2009 when Congress passed the Tobacco Control Act, which gave the FDA authority to prevent the use of tobacco by young people. This was a time when the House of Representatives was controlled by Nancy Pelosi (D-Calif.) and the Senate by Harry Reid (D-Nev.), with President Barack Obama in the White House. The sweeping new regulatory powers granted to the FDA are typical of the government expansion that has occurred in recent years. Without question, this was a contributing factor to the backlash vote we saw last month when Donald Trump and the Republicans, vowing to get rid of needless regulations, were swept into office.
This is not intended to be a politically partisan essay, but I mention the election because now is an ideal time for the cigar and pipe industries to find legislators who will propose a bill to exempt cigars and pipes and pipe tobacco from FDA control. If such a bill were passed, that would be that. But if not, there is the federal lawsuit filed by the Cigar Association of America, the International Premium Cigar and Pipe Retailers Association, and the Cigar Rights of America.
If you want a case study in how bureaucracies can become tyrannical, there is no better example than the FDA's control over cigars and pipes and pipe tobacco.
They were never included in the original Tobacco Control Act because everyone knew that kids were not running out and buying premium cigars or Dunhill pipes and expensive 965 pipe tobacco. Congress granted the FDA authority over four very specific tobacco products: cigarettes, cigarette tobacco, roll-your-own and smokeless.
Well, you might ask, how does the FDA justify their regulations if pipes and cigars were not named in the original legislation?
Picture the Salem witch trials, where certain people in authority would "deem" a woman to be a witch and then call for her to be burned at the stake. That is precisely what happened with the Tobacco Control Act. The FDA was given the right to "deem" newly created tobacco products to be under their control. The Act was not intended to be used as a weapon for the prohibition of the oldest forms of tobacco enjoyment; namely, pipes and cigars. Yet, that is how the FDA is interpreting the law.
Whenever a federal agency wants to impose sweeping new regulations over an industry, there are several requirements they must satisfy before they are allowed to proceed. One is to ask in advance for feedback from the industry and the public. Well, the FDA did that. However, they completely ignored all of the comments. In fact, they doubled down and made their regulations even more onerous than originally proposed and more onerous than the Tobacco Control Act authorizes.
Secondly, a federal agency needs to perform a cost/benefit analysis to determine if their new regulations are worth more than they cost. The FDA failed to do this. They claimed it would be too difficult to analyze the thousands of small businesses operating in every state in the union. If that puts thousands of Americans out of work, so what, says the FDA.
When I first started smoking a pipe in the 1970s, one of the most appealing things was the camaraderie. I remember visiting Fader's in downtown Baltimore, where a handful of customers and store employees would stand around and enjoy a bowl. I remember one of the employees asking me what blend of tobaccos I most liked. I wasn't sure, so he proceeded to make a blend on top of a newspaper on the counter. "Here, try this," he said. I did, and it was wonderful. He told me it was the store's blend called Unique, which was a variation of Captain Black.
I loved it and smoked that blend for 13 years. Then my tastes changed and suddenly I was drawn to English and Turkish blends. After telling that to Bill Fader, he offered me his blend called Istanbul, which was fantastic. This level of customer service is emblematic of pipe and cigar stores—going back more than a century.
In the 1940s and '50s, Kramer's pipe store in Beverly Hills was frequented by a priest from the local Catholic church. His name was Fr. Dempsey, and he became great friends with the store's Jewish founder, Allen Kramer. Together, they mixed and matched tobaccos, trying to duplicate Dunhill's 965 blend. I just love the image of this ecumenical bonding of two men who became close friends over their shared passion for pipes. No wonder Native Americans called them peace pipes. After a lengthy period of trial and error, Fr. Dempsey and Mr. Kramer hit upon a blend that they called Fr. Dempsey's Special. They still sell it today at Kramer's, a family business run by the founder's daughter, Marsha Kramer, and her husband, Jim.
Why am I telling you these stories? Because if the FDA has its way, all of these blends would be subject to regulations and applications for approval. In other words, the FDA has announced, through the effects of the new regulations, its intent to wipe out this century-old tradition.
Their argument is that the tobacconist is "manufacturing" a tobacco blend. But the government has previously approved all of the tobaccos used. Mixing and matching them is no different from a chef making an omelet—with mushrooms, ham and cheese one time and avocado, onions and green peppers another. The tobacconist is not manufacturing tobacco any more than the chef is manufacturing food when he makes an omelet.
If the FDA prevails, the small-business owners would need to invest huge sums of money, perhaps tens of thousands of dollars or more, just to get approval of their existing brands, and any variation would be rendered impossible by the FDA's bureaucratic approval process. There is a grandfather clause in the regulations that makes it easier for brands that were selling before 2007 to continue to be sold; however, it is so arbitrary, and unfair to people new in the field, that I doubt it will be upheld.
Then there are the pipes themselves. While interpreting the Tobacco Control Act, the FDA acknowledges that it has no authority over accessories—they only control components and parts of pipe tobacco. An accessory is defined by the FDA as something that can be used for the consumption of tobacco but is not made from tobacco.
You'd think they were describing a pipe or a cigarette holder or cigar holder. But you would be wrong —the FDA is now taking the position that pipes are components and parts of pipe tobacco. How's that again? My pipe, made of wood and vulcanized rubber, is a component of my pipe tobacco no different from the Latakia and Perique?
Wait a minute. By this logic a beer stein is a component of beer and a brandy glass a component of brandy.
This is so far fetched as to be called silly—preposterous, in fact. I have seen bubble gum cigars and licorice pipes that you can eat, but I have never seen a briar pipe that can be rolled into a cigar leaf and smoked! A pipe is NOT pipe tobacco. It is a vessel for consuming pipe tobacco—an accessory by the FDA's own definition.
Although the Tobacco Control Act was aimed at reducing youth smoking, the FDA has expanded the reach of the law by applying it to all adults who use tobacco products. When they announced their new regulations last summer, they went out of their way to claim that cigars are just as dangerous to your health as cigarettes.
As part of their announcement, they included their research in detail. The problem is that their research shows comparable dangers only when usage is comparable. But for the average cigar smoker who enjoys one or two cigars a day, there is no significant health hazard. Dr. Brad Rodu, an oral pathologist who is a Professor of Medicine at the University of Louisville, has analyzed the FDA findings and concludes that moderate cigar use poses little to no health risk.
How many pipe bowls equal one cigar? Well, if you compare a standard-sized pipe and cigar, you could fill up the pipe at least five times with the tobacco in one cigar. But if you smoked them, I'm guessing that two pipe bowls take about the same amount of time as one cigar. So if you have one or two cigars a day—a safe range according to the FDA—then two to four pipe bowls a day would be fine. Personally, I smoke between two and three pipe bowls a day and do not inhale, and I am 66 going on 36!
Surprisingly, there are a number of young American pipe makers who make a living from woodworking briar pipes as fine art. Several of them have asked me if I think they should register with the federal government, and my instinct was to tell them to stay under the radar, hoping that either the lawsuit will win in court or that new legislation will be passed bringing sanity to these issues.
But this is easy for me to say because I am not in the business. I am a pipe smoker and collector who enjoys writing about the many benefits I derive from pipe smoking, but this has always been a hobby for me. I suspect that were I a pipe maker myself, I would hire an attorney experienced in dealing with government agencies to handle the situation.
I discussed this issue with Sykes Wilford, founder of the highly successful smokingpipes.com, and he was adamant that "doing nothing leaves pipe makers completely exposed. If American pipe makers do not comply with product listing by Dec. 31 (and we've given them—at least the 40-odd we work with—a very simple step-by-step guide for compliance) then they are in violation of the law. It's just a bad idea for them to do nothing."
This I understand. We are a nation governed by the rule of law, and as ridiculous as that law is, it should be followed until either new legislation makes it null and void or the courts crush the FDA "deeming" pipes and cigars—America's oldest forms of tobacco enjoyment—suddenly under government control.
The most cutthroat tyrants in history—Hitler, Stalin and Mao, for example—never tried to regulate pipe makers. And, suddenly, in the United States of America, the land of the free, if you want to make pipes you now need permission from the federal government.
This will never stand. It is too stupid, too ridiculous and, frankly, too dangerous. No matter how many times the bureaucrats claim that pipe tobacco and pipes are one and the same—it does not make it so.
Let's hope the new Congress will pass a law reining in the FDA in their attempt to ban cigars and pipes from America, or the courts will side with small businesses and freedom and against the tyranny of the bureaucracy. The FDA will lose this one—I'm sure of it. Their over-reach into the territory of prohibition—something the average American abhors—will be their undoing.