Opinion: We’re Not That Important and That’s a Good Thing

Small Batch Cigar

We're Not Important and That's a Good Thing.

The FDA announced recently that it is illegal to sell tobacco, in all forms, to individuals under the age of 21. Sort of. As with all things political and legal when it comes to the national government, nothing is simple or straightforward. The legislation that increased the national purchasing age was actually a spending bill that included a very small section that amended the current law which set the purchasing age at 18. This spending bill was recently signed by President Trump, reportedly late at night while aboard Air Force One, and is why the change went unreported for some time. It wasn’t until the FDA tweeted and posted on their website that anyone knew of the change.

According to one source, if a bill does not explicitly state when the law is to take effect, it is effective upon execution; meaning when it is signed into law. Since this is the case in this situation, the law would be effective as of late last month. There is, however, a wrinkle. That’s not how the FDA works. The law states that the FDA is allowed six months from the execution date to publish a new regulation that would implement the increased tobacco purchasing age requirement. Once the new regulation is published, it would become effective no later than three months from publication. This would give the FDA, at most, nine months to actually implement the new law.

This incongruity brings up an interesting question: How can an entity enforce a law that they have not legally implemented? What’s more, the FDA went on to state that premium, hand rolled cigars are a low priority for the agency. This is an interesting insight into the thinking of the FDA. It would be logical to conclude that if premium, hand rolled cigars are a low priority now, that has likely been the case since Congress gave the regulative authority over the premium cigar industry years ago. Or it might be the case that public opinion and current litigation have made an impact.

The big win in this revelation is something that has been sought by the cigar community for many years, yet almost nobody is talking about it. The focus of the FDA is on vaping. Vaping is a problem amongst the youth of this country and the attention it is garnering is warranted. But Congress did not task the FDA with reigning in the vape industry. Congress enabled the FDA to regulate tobacco products (all of them) and, in their defense, the FDA has somewhat been unable to differentiate the various products due to this directive. This announcement is the first tip-of-the-hat to the cigar industry from the FDA. It signals that the agency does, in fact, recognize premium cigars as different. This is a gigantic win and will set the stage for the coming months as the lawsuits move forward.