The Food and Drug Administration’s (“FDA”) proposed deeming regulations raise concerns for cigar manufacturers with product labels that include descriptors such as “light,” “mild,” “medium” or “low.”  In 2009, the Tobacco Control Act banned these descriptors for cigarettes.  The stated rationale for the ban was the assertion that many consumers believed that descriptors such as “light” or “mild” meant that certain cigarettes were less harmful than other cigarettes.

On August 4, 2014, thirteen Members of Congress signed a letter calling on the Food and Drug Administration (“FDA”) to expand the regulations on e-cigarettes to include more stringent rules regarding alleged youth exposure to the products.  The signatories state: “While FDA’s proposed rule sets the stage for future regulations, strong regulatory actions on marketing to children, e-cigarette flavors, and online sales cannot wait. FDA has an existing mechanism to protect children now—without waiting years to implement new regulations to accomplish these goals.”

The FDA’s proposed deeming regulations call for testing of harmful and potentially harmful constituents in electronic cigarettes.  Those requirements would not be triggered until three years after the regulations become effective, and in the meantime the FDA presumably would need to establish protocols for e-cigarette testing and a list of constituents to be reported.

The Troutman Sanders tobacco practice has been quoted in two recent articles regarding the FDA’s recent move to extend regulatory oversight to e-cigarettes, cigars, pipe tobacco and other tobacco products. 

The FDA issued proposed regulations yesterday that would extend the FDA’s regulatory authority under the Tobacco Control Act to all tobacco products, including e-cigarettes, cigars and pipe tobacco.  It is important to note that this is a proposal only, and the regulations could become more reasonable or more onerous after a public comment period.