Why the FDA’s Proposed Ban on Flavored Cigars Is Misguided

If you appreciate the rich chocolate undertones found in a Padrón 1964 Anniversary No. 4 or the hint of espresso in a freshly lit Rocky Patel DBS Robusto, you may be enjoying the very qualities that could soon see those smokes, as well as numerous other popular premium cigars, pulled from the shelves—at least if the Food and Drug Administration has its way.

This still-smoldering situation was first ignited by a 2009 government ruling in which, as part of the Family Smoking Prevention and Tobacco Control Act, Congress gave the FDA authority to oversee all tobacco products, including high-end cigars. The FDA then proposed to classify even premium cigars—which is to say, individually hand-rolled by skilled craftspeople using all-natural tobaccos—no differently than mass-produced, additive-laden cigarettes. As part of its oversight, in 2016 the FDA suggested that every cigar brand must register annually (and pay a corresponding fee) as well as provide the FDA with a list of ingredients per product (in this case, tobaccos used) and submit them for laboratory testing. Realizing this logistical morass would devastate an industry that not only prides itself on but survives thanks to the practice of releasing small batches of distinctive smokes each year, the relevant trade associations—Cigar Association of America (CAA), Cigar Rights of America (CRA), and Premium Cigar Association (PCA)—sued. In 2022, U.S. district judge Amit P. Mehta ruled that the FDA was “arbitrary and capricious” in its attempt to regulate the category using the same criteria as cigarettes; the FDA appealed in August of last year, and the case remains in process.

More from Robb Report

But it’s hardly the only concern for enthusiasts. In April 2021, the FDA proposed banning all “flavored” cigars, without defining the classification apart from demonstrating “characterizing flavors… such as strawberry, grape, cocoa, and fruit punch.” The obvious rationale was to eliminate anything that might tempt children to light up (despite the fact that it has been illegal for retailers to sell tobacco products to anyone under 21 since 2019) but confirmed the agency’s unwillingness to differentiate between a machine-made Swisher Sweets Coastal Cocktail sold at a convenience store and a handmade premium cigar that by definition contains no artificial flavors and might cost more than a pair of Nike slides.

“Youth usage of cigars is almost nonexistent,” says David Ozgo, former president of the Cigar Association of America, referring to an age designation that covers 12- to 17-year-olds. (Ozgo was president of the CAA until January of this year, including when he spoke to Robb Report for this column.) “The FDA’s own data show only 0.7 percent of youth used any kind of cigar in the past 30 days, and that less than 0.2 percent used a flavored cigar.”

As with all attempts at bureaucratic overreach, the real threat lies not in what’s stated on the record but rather in what’s left unsaid. Is a cigar considered “flavored” if it uses tobaccos that have been aged or finished in containers previously used for wine or spirits—a growing trend among exclusive brands—such as Macanudo’s Flint Knoll, in which the wrapper has been aged in Cabernet Sauvignon barrels, or Davidoff’s Sir Winston Churchill “The Late Hour,” which uses Nicaraguan and Dominican filler tobaccos aged in American oak barrels that once held single-malt Scotch? Who can say? For some brands, the vagueness could be considered an existential threat.

“Although our handcrafted cigars do not contain flavor additives, we are concerned that the FDA’s proposed ban on flavored tobacco could affect premium cigars, because reviewers often describe our cigars using flavor descriptors,” says Drew Newman, fourth-generation family member of and general counsel for the J.C. Newman Cigar Co., the oldest family-owned premium cigar maker in America. “The FDA has not yet defined what a ‘flavored tobacco product’ is, and it would be very difficult, if not impossible, for the agency to walk into a cigar lounge and determine if a premium cigar has a flavor additive. In Massachusetts, for example, state health officials meet in a government office to smell cigars to determine whether they’re flavored or not. Leaving the fate of a cigar up to the sniff of a bureaucrat is very concerning.”

Concerning, and potentially decimating. “It’s impossible to know what products will be considered by FDA to have a ‘characterizing flavor,’” Ozgo says. “However, one analysis showed that the proposed ban could impact up to 47 percent of the entire cigar market, reducing retail sales by nearly $4 billion and employment by 16,000 jobs.”

Under the FDA’s proposal, entire labels could be declared illegal on a whiff and a whim. (This, despite the irony that making a product verboten tends to increase demand, with Prohibition and the Cuban embargo being two examples that spring readily to mind.) Nearly three years after its proposal, following numerous delays, the FDA has yet to put the kibosh on flavored cigars (at least, it has yet to make a decision as of press time for this issue)—good news so far, but the industry remains in limbo.

Ozgo notes that “in order for FDA to impose a flavored-cigar ban, the law requires that the agency consider whether the potential product standard is appropriate for the public health, taking into consideration scientific evidence concerning the risks and benefits to the population as a whole, [plus] the increased or decreased likelihood that existing users of tobacco products will stop using such products, and the increased or decreased likelihood that those who do not use tobacco products will start using such products.” The flavored-cigar standard fails on all three counts, he says. “There is simply not a pattern of use of these products that can justify eliminating an entire category while depriving adult consumers of the right to choose these products.”

The FDA, of course, may disagree. And whatever the outcome, you can bet it will be appealed. Still, it might not hurt to stock up on some of your favorite smokes—whether citrusy, nutty, meaty, chocolate-y, peppery, or any of the other beguiling flavors that define a world-class cigar—just in case.

Richard Carleton Hacker is an award-winning wine, spirits, and cigar writer and the author of 12 books, including The Connoisseur’s Guide to Worldwide Spirits and The Ultimate Cigar Book

Best of Robb Report

Sign up for Robb Report's Newsletter. For the latest news, follow us on Facebook, Twitter, and Instagram.

Click here to read the full article.