Update (Oct. 25, 2016) — FDA has stated that donating cigars to troops would classify as a “free sample.” As such, manufacturers and retailers are prohibited from donating cigars to troops.
It’s Friday and today we take on a topic that has been talked about a lot over the last few weeks: donating cigars to troops.
Reader Jay wanted to know:
So, what do you think? Do the FDA regulations preclude Cigar Stores and Manufacturers from donating cigars to charitable events and fundraisers?
What I know is that I am not an attorney. So you should take everything I have to say as nothing more than someone who spent way too much time reading dozens of documents from the U.S. Food & Drug Administration (FDA) and come up with an opinion. This is in no way intended as legal advice. More on that, here.
What I think is that there’s nothing in the 499-page document, or any additional documents related to the deeming regulations, that I’ve read that explicitly discusses charitable donations of deemed products.[ref]There is actually a comment in the 499-page document about “gifts,” something FDA doesn’t specifically address.[/ref]
For me, two things seem pretty clear:
- FDA cannot prevent a private citizen from donating/giving as a gift a cigar they legal purchased to another individual who is of age.
- Retail establishments should not be giving cigars to any individual without charging (something) for them.
The language in the deeming regulations regarding sampling, or the giving of free product, is largely centered around the concept of enticement, i.e. a retailer/manufacturer gives someone a free cigar in order to get them to become a regular smoker of that cigar and/or purchase more of that cigar. Because of the central focus of enticement, if I was a retailer I would not be giving cigars to anyone for free.
There are lots of gray areas that exist and I’m going to go through them shortly. I’m not going to try to pick a side because the truth of the matter is I really don’t know and until FDA further clarifies sampling in the context of donations, something they may honestly never do, no one really knows.
- Can manufacturers, as organizations, donate cigars directly to troops?
- Can manufacturers/retailers, as organizations, donate cigars to a third party, like Cigars for Warriors, who ultimately send them to troops?
- Can individuals who work for or own a cigar company or cigar shop give cigars directly to troops?
- What would be the penalty for donating cigars to troops?
Even if there’s no real resolution, or if the strictest of interpretations is chosen, there is a pretty simple way around this. Just charge a nominal amount to the military member. Nothing in the deeming regulations prevent anyone from selling cigars at a loss, even a big loss, and FDA in its webinars has even admitted that promotions like “buy two, get one free” are perfectly legal so long as there is an exchange of money for goods.
So if I’m running the La Casa del halfwheel retail operation,[ref]We found the other half of the wheel.[/ref] if a military member asks for some cigars for their unit, I’ll sell them the “Friday Active Duty Sampler”—it’s $1 and comes with as many cigars as I can fit in the box.
For more information on FDA’s regulation of premium cigars, please visit halfwheel.com.
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