In an August 27, 2012 letter to FDA Commissioner Margaret Hamburg, Representative Henry Waxman (the architect of the Tobacco Control Act giving FDA regulatory authority over tobacco products) again urged FDA to assert jurisdiction over cigars and pipe tobacco. Representative Waxman complained that the 2009 increase on federal excise taxes for tobacco products resulted in many manufacturers relabeling and/or reconfiguring their products from little cigars to large cigars, and from roll-your-own cigarette tobacco to pipe tobacco.
Representative Waxman asserted that some manufacturers are manipulating their products to avoid FDA regulation and to avoid higher taxes imposed on other tobacco products. Incredibly, Representative Waxman urged FDA to deem as “misbranded” products that are “mislabled as pipe tobacco or large cigars,” apparently even if the products satisfy the appropriate Internal Revenue Code definitions. It is not clear how or why FDA could assert jurisdiction over such products, where they satisfy the applicable statutory definitions, and where the Alcohol and Tobacco Tax and Trade Bureau would have authority regarding any mislabeling.
Representative Waxman also asserted that the pipe tobacco and cigars are being used to evade the Tobacco Control Act’s ban on flavored cigarettes. It is not clear how this could be true, since the Tobacco Control Act’s proscription on flavored tobacco products applies only to cigarettes.
In any event, as Congress continues pressuring FDA to regulate additional tobacco products, look for FDA to take action soon.