The U.S. Food & Drug Administration (FDA) has published its most recent thoughts on its ban on “free samples” of cigars and other products and for the most part the document reiterates what has already been known.
First, consumers are prohibited from receiving free cigars from manufacturers or retailers, unless the sale of a tobacco product takes place.
That means it’s perfectly legal to run a “buy one, get one free” promotion, however, a retailer couldn’t legally run a promotion where a consumer purchased a coffee and was given a free cigar. The retailer could however run a promotion where a consumer purchases a cigar and is given a free coffee, however.
Similarly, FDA clarified that rewards programs, such as punch card promotions—where a consumer would receive a “punch” for every cigar purchase they made and received a free cigar after the 10th punch—would also be legal.
For industry, FDA clarified that it believes business to business transactions are okay, though of note there wasn’t a specific mention of media:
FDA does not consider this regulation to apply to businesses distributing free samples in a limited quantity (i.e., no more than necessary to achieve a business or market goal, such as awareness of and exposure to the product for the purposes of product or inventory selection) to another business as part of a genuine effort to sell or market a tobacco product to that business.
Nowhere in the document did FDA address charitable donations of cigars. This has become a large issue for many because of Cigars for Warriors, a non-profit dedicated to sending cigars and other times to military members stationed around the world.
While Cigars for Warriors gets donations from individual consumers, cigar manufacturers have also donated large amounts of cigars to the organizations, which accounted for the bulk of the charity’s donations up until last August, when FDA regulations took effect.
Because no monetary transaction for cigars takes place, FDA deemed these donations illegal.
While a bill has been introduced to try to make these donations legal again, there’s little chance of it passing.
Consumers are still allowed to donate their cigars to Cigars for Warriors, but even so, Cigars For Warriors has acknowledged its donations have been greatly reduced.
Finally, FDA acknowledged that contests and giveaways of tobacco products were legal, so long as they required a purchase of a tobacco product to enter. Many states require a typical contest to be run as no purchase necessary, meaning that in some states it would likely be illegal—because of the combination of state and federal laws—to run a contest of a tobacco product.
It also didn’t address whether media organizations would be allowed to giveaway product to consumers, though that seems unlikely given FDA’s belief that “distributing a tobacco product in exchange for something non-monetary, such as a consumer’s contact information, is a prohibited free sample.”