Cigar Exemption, FDA Predicate Date Change Approved by Appropriations Committee (Update)

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Cigar smokers got two wins at today’s meeting of the House of Representations Committee on Appropriations.

The committee met for a markup meeting, a process where members can propose amendments to the proposed FY 2017 Appropriations bill. During the meeting, two different amendments regarding exempting premium cigars from regulation by the U.S. Food & Drug Administration (FDA).

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One passed, one failed—both good news for cigar smokers.

Rep. Rosa DeLauro, D-Conn., proposed an amendment that would remove language passed last week by the Appropriations Subcommittee on Agriculture that would exempt premium cigars from FDA regulation.

That amendment failed by a vote of 14-34.

“Unfortunately, FDA did not follow the Congressional intent and it chose to include them, this provision intends to remove that,” said Rep. Robert Aderholt, R-Ala., something that was repeated later by Rep. Hal Rogers, R.-Ky. Aderholt also argued that the 160 bipartisan sponsors of H.R. 662, a standalone bill that would do essentially the same, was another reason to reject the amendment.

DeLauro argued that the exemption, which would defund FDA if it did not adhere to the exemption, would hold FDA “hostage” in regards to deeming rules.

The language reads:

SEC. 749. None of the funds made available in this Act may be used to finalize, implement, administer, or enforce the proposed rule with the regulation identifier number 0910–AG38 published by the Food and Drug Administration in the Federal Register on April 25, 2014 (79 Fed. Reg. 23142) if such rule would apply to traditional large and premium cigars. For the purposes of this section, the term traditional large and premium cigar means—
(1) any roll of tobacco that is wrapped in 100 percent leaf tobacco, bunched with 100 perfect tobacco filler, contains no filter, tip or non-tobacco mouthpiece, weighs at least 6 pounds per 1,000 count, and—
(A) has a 100 percent leaf tobacco binder and is hand rolled;
(B) has a 100 percent leaf tobacco binder and is made using human hands to lay the leaf tobacco wrapper or binder onto only one machine that bunches, wraps, and caps each individual cigar; or
(C) has a homogenized tobacco leaf binder and is made in the United States using human hands to lay the 100 percent leaf tobacco wrapper onto only one machine that bunches, wraps, and caps each individual cigar; and
(2) is not a cigarette or a little cigar (as such terms are defined in paragraphs (3) and (11), respectively, of section 900 of the Federal Food, Drug, and Cosmetic Act).

While that ammednment failed, an amendment in favor of cigar smokers passed earlier in the day.

The first of which is a new amendment that would change the predicate date, i.e. the grandfather date, for tobacco products. The committee has not taken up an expected challenge to language that would exempt premium cigars from FDA regulation.

Under the language passed by the Family Smoking Prevention and Tobacco Control Act of 2009, products marketed prior to Feb. 15, 2007 would be exempt from most FDA regulation.

Rep. Tom Cole, R-Okla., successfully introduced an amendment that would change that grandfather date to whenever FDA rules are announced.

That amendment passed 31-19.

This amendment is controversial largely because of electronic cigarettes. Under the current language, essentially none of the e-cigarette and vaping products on the market today would be able to remain on the market once FDA announces its deeming regulations.

This is the second year in a row this language has been passed by the Appropriations Committee.

The predicate date change language was added as an amendment in today’s markup meeting, whereas the premium cigar exemption was passed by the Appropriations Subcommittee on Agriculture last week.

Once the Appropriations Committee finishes markup on the entire bill, it will head to the House floor for full vote.

For more information on FDA’s regulation on premium cigars, visit halfwheel.com/fda)

Update (April 20, 2016) — This article originally identified Rep. Hal Rogers as being from Alabama when he is from Kentucky. It has been corrected and we regret the error.

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Charlie Minato
About the author

I am an editor and co-founder of halfwheel.com/Rueda Media, LLC. I previously co-founded and published TheCigarFeed, one of the two predecessors of halfwheel. I handle the editing of our written content, the majority of the technical aspects of the site and work with the rest of our staff on content management, business development and more. I’ve lived in most corners of the country and now entering my second stint in Dallas, Texas. I enjoy boxing, headphones, the Le Mans 24-hour, wearing sweatshirts year-round and gyros. echte liebe.

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