On March 28, 2011, Representative Henry Waxman, the architect of the Tobacco Control Act giving the FDA authority to regulate tobacco products, sent a letter to FDA Commissioner Margaret Hamburg suggesting that the FDA extend the ban on flavored cigarettes to flavored cigars that have purportedly been designed to “circumvent” the flavored cigarette prohibition.
The Tobacco Control Act generally prohibits flavored cigarettes but allows flavored smokeless tobacco. The Tobacco Control Act does not currently allow the FDA to regulate cigars, but allows the FDA to do so by issuing additional regulations. After the flavored cigarette ban became effective, flavored cigars began to proliferate in the market.
The Waxman letter could result in the FDA prohibiting flavors in certain cigars, although it is not clear how the FDA would determine whether cigars are designed for purposes of “circumventing” the flavored cigarette ban. One possible course of action could be to ban all flavored cigars. Another possibility is that the FDA will take broader action to more extensively regulate cigars, consistent with its authority under the Tobacco Control Act.