IPCPR, CAA, & CRA File Lawsuit Against FDA

Three major cigar and tobacco industry associations file suit against FDA's deeming rule

CAA, IPCPR, & CRA ask District Court of Washington D.C. for declaratory injunction 

For Immediate Release: July 15, 2016 WASHINGTON D.C. - The three major cigar and tobacco industry associations filed suit Thursday against the United States Food and Drug Administration's "Deeming Rule." The Cigar Association of America, International Premium Cigar and Pipe Retailers Association, and the Cigar Rights of America are asking the District Court for the District of Columbia for a declaratory injunction "vacate, set aside and enjoin the enforcement of the final rule" because it is violates numerous federal statutes as well as the federal rulemaking process. A full copy of the filing, which details nine counts against the FDA and the United States Department of Health and Human Services, can be found here.

"Just over one month ago, our three associations pledged to work together to develop the appropriate response to the FDA's new deeming rule. After a thorough and detailed legal review, we are challenging this unlawful regulatory action in federal court to protect the statutory and constitutional rights of our industry and its members. The fact that all three of our organizations are acting in one voice speaks to the urgency and seriousness of this action," said Mark Pursell, CEO of the International Premium Cigar and Pipe Retailers Association. The complaint challenges:

• FDA’s improper application of the February 15, 2007 grandfather date to cigars and pipe tobacco, which subjects those products to more intrusive regulations than cigarettes and smokeless tobacco
• FDA's impermissible assessment of a tax in the form of user fees, and its allocation of these user fees only to cigars and pipe tobacco and not to other newly deemed products
• FDA’s failure to perform an adequate cost-benefit analysis to take into account the effects of the Final Rule on small businesses as is required by the Regulatory Flexibility Act
• FDA's unjustified decision to require cigar health warning labels to be 30% of the two principal display panels of packages
• FDA’s unlawful designation of tobacconists who blend finished pipe tobacco or create cigar samplers of finished cigars as “manufacturers," which subjects those businesses to greater regulation than if they were “retailers”
• FDA’s incorrect decision to regulate pipes as “components” or “parts” rather than as “accessories”

"The FDA ignored the law to craft these expansive and sweeping regulations and cannot justify many of the arbitrary and capricious regulations it purports to enact," said Glynn Loope, Executive Director of Cigar Rights of America. "This lawsuit is a specific and detailed challenge to the FDA's unprecedented assertion of rulemaking authority. "We are acting in one voice to protect the legal rights of our industry at all levels, from the manufacturer, the community retail tobacconist, to the adult patrons of cigars."

Speaking about the lawsuit, Cigar Association of America President Craig Williamson said, "We all worked in good faith to inform and educate the FDA on the unique nature of our industry, its members and our consumers. We hoped the FDA would craft a flexible regulatory structure that accounted for the uniqueness of our industry. Instead, we got a broad, one-size-fits-all rule that fails to account for how cigars and premium cigars are manufactured, distributed, sold and consumed in the United States. The FDA exceeded its statutory authority and violated the federal rulemaking process when crafting this set of broad and sweeping regulations. This challenge asserts nine violations of federal law and rulemaking authority. We are asking the court to enjoin the enforcement of this unlawful regulatory scheme. We are confident that when the court reviews our case on its merits, we will prevail."

The Certified Consumer Tobacconist Evolution

Any tobacconist worth their salt can tell you about innumerable atrocities committed by ignorant consumers: these include lighting cigars backwards, lighting the cedar sleeve (sometimes including the silk ribbon at the foot), using a torch lighter on a briar pipe, complaining about stems in premium cigar filler, licking an entire cigar then using a shop cutter, sticking a cigar in their nose then returning it to a display box, and many many more!

Furthermore, few people truly understand what priming is, the importance of air curing, the magic of fermentation, the extraordinary skill it takes to blend and roll a cigar, much less the thousands of artisanal steps between seed and ash.   

But the real shame is the lack of activism and pro-activity of luxury cigar and pipe smokers.  After all, luxury tobacco can be a selfish pursuit, in that we enjoy it solely for ourselves.  It can be easy to forget that our beloved products, lifestyle and freedoms are constantly being demonized and  eroded by over-regulation and over-taxation.  No other profession suffers more punishment and threats from local, state, and federal governments.  And of course countless "health" groups, with hundreds of millions of dollars in their budgets, drive their mission to erase us from existence.  

Ultimately, the only way to combat these forces is through education and activism.  That activism can be as simple as sharing your passions with those who don't know any better, educating your peers, and of course supporting Cigar Rights of America so they can provide a political voice in Washington DC and at the state and local level.  

If you really love these products, then you must take a stand and be proactive.  Any loud mouth can pontificate about what they think they know, but only a Tobacconist University (TU) Certified Tobacconist has proven their fundamental knowledge.  The new TU Certified Consumer Tobacconist (CCT) degree is a historic and revolutionary way to prove your knowledge and join the fight for our freedoms at the same time.  The new CCT program can be purchased in the GET CERTIFIED section of the TU website for $100 and comes with a free one year membership to Cigar Rights of America (CRA).  If you are smart enough to pass the test, you will be a Certified Consumer Tobacconist and a member of the CRA.  There is no better representative of this industry than a CCT/CRA member and we encourage you to join our ranks and help us preserve luxury tobacco for generations to come!

THE CCT PROCESS

1. Accept The Consumer Code of Ethics & Standards & Apply for Apprenticeship

- After your $100 payment your apprentice listing will appear on the TU website and the CRA will initiate your annual membership

2. Study the TU Academic Curriculum at your own pace

3. Take the Final Exam* on the TU website

- if you pass you will be awarded your CCT degree and your website listing will be certified

- if you fail, you will be removed from the TU website, but your CRA membership will continue

* The TU Final Exam for CCT is 50 questions, multiple-choice and True/False.  It is the same length and difficulty as the original professional test for certified tobacconists which was used from 1996-2005.

Dear FDA, Tasting Is Essential

 

Tasting Is The Only Way To Distinguish

What is the difference between these two nearly indistinguishable cigars?  They are both premium, Nicaraguan, Churchill sizes with similar construction techniques.  They would both commonly be described as "rich, earthy, and mild to medium strength".  In addition, they both have the same suggested retail price of $6.50 USD.  Yet, one of these cigars is a masterpiece that was a limited production (approx. 55,000 produced) while the other reflects mediocre fermentation, poor construction, and inferior or unimpressive ingredients... in my opinion.  Both of these premium cigars come from the same place, are described the same, are priced the same, and look the same!  The point is, you wouldn't know the difference unless you smoked one.  And you could even prefer the one that I don't like, because taste is subjective!

Of course, for every person that appreciates the flavor complexities, richness and nuance of a premium cigar, there are many who simply think they "stink" or think they all smell and taste like "tobacco".  But nothing could be further from the truth (see Flavor Descriptor Tasting Chart below).  There are also people in the world who don't like the taste of clove, bar-b-q, whiskey, wine, meat, fennel, broccoli, etc.... The same is true for smells: just visit a perfume or candle store to prove the point that there is something for everyone.  Variety is indeed the "spice" of life, taste is subjective, and there is no accounting for taste!

A cigars most important flavor qualities are impossible to ascertain without tasting or sampling it.  And unlike a bottle of wine or fine spirit, which can be sipped a few times and understood and savored by the consumer, a cigar cannot be sampled in just a few puffs.  Why?  Because the nature of a liquid is that it is perfectly blended while premium cigars are crafted with five to eight distinct leaves, in varying proportions.  Each of these leaves must be measured and placed in a hand crafted bunch which will combust at the perfect rate:  perfect combustion is what releases the flavor properties of a cigar. So, in order to assess the qualities of a cigar, it must be smoked, in its entirety. 

The hand blending of multiple leaves in premium cigars makes it is natural to expect differences between cigars that were created at the same time using the same blend; but there will also be changes over time due to production realities.  Weather conditions (sun, temperatures, humidity, cloudiness, rain, etc...), soil rotation, and countless other variables make it impossible to plan and predict what a cigar blend will be in the future and what a cigar will ultimately taste like.  So, while consistency is important when creating cigars, it is impossible to achieve.  Recipes do not exist and blends have to vary.  For this reason, consumers and professional tobacconists must constantly taste and sample premium cigars to determine whether it suits their taste.  There is no accounting for taste, and shallow and factual descriptions are not nearly enough information to base decisions upon (e.g. rich, earthy, and mild to medium strength).

Premium cigars, like fine vintage wines, are released in limited, boutique, vintage, one-off, and rare editions.   As an agricultural product that is cultivated, cured, fermented, aged, blended, and hand crafted, the limited, rare and special nature of cigars is inherent to the product.  Premium cigars cannot be created via recipes, rather, they are a cigar makers artistic interpretation of what has grown out of the soil.  And since taste is subjective, this can be a very esoteric process and product.  Ultimately, only consumers can help to quantify or judge taste by determining whether or not that cigar is successful in the marketplace.  But, it is simply impossible to regulate, judge, or impose, taste.  There is no accounting for taste.

When you buy a car, you know the horsepower, MPG and other vital stats and specifications and you get to test drive it.  When you buy a turkey at the market, you know the calories, carbs, weight and other nutritional information.  And, of course you can have a reasonable expectation of what that turkey will taste like because there is very little variability in turkeys.  But, in case you don't, your super market may have someone there promoting and offering samples of that turkey. 

Every industry and product class has reasonable methods for sampling, assessing, and tasting products because it is necessary.  In the luxury tobacco industry, it is imperative.  Ultimately, not allowing samples and tasting of luxury and premium tobacco products would undermine and destroy the whole industry.  Limiting sampling and tasting will handicap retail tobacconists, undermine consumers, and stifle all creativity on the part of cigar makers.  If sampling and tasting is outlawed, the cigar industry will be left with a handful of generic or homogenized products created by the worlds largest corporations, leaving behind an industry that looks more like the mass-market cigarette industry rather than the boutique, artisanal, and creative industry that exists today.

Tobacco Flavor Descriptors from the Tobacconist University Certified Cigar Review Blueprint:

 

ANIMAL		SWEET & FRUITY			SPICES		PLANTS & EARTH		CHEMICAL
bbq		bittersweet			anise		alfalfa		ammonia
gamey		black cherry			black pepper		barnyard		astringent
leather		blackberry			cardamom		bell pepper		bitter
manure		buttery			chili pepper		cardboard		burnt match
meaty		caramel			cinnamon		cedar		diesel
musky		cherry			cloves		charred		dry
roasted meat		chocolate			cumin		dark roast coffee		harsh
smoked meat		citrusy			ginger		dusty		kerosene
venison		coffee			mulling spice		espresso		lead
		creamy			nutmeg		flowers		mineral
		currant			smoked pepper		fresh cut grass		rust
		dark chocolate			sugar		grass		salt
		dried fruit			wasabi		hay		soapy
		fruity			white pepper		herbs		sulfur
		honey					hickory		tar
		marshmallow					manure
		molasses					mesquite
		orange peel					mildew
		plum					moldy
		raisin					moss
		sugar					moss
		toffee					mushroom
		vanilla					musty
		white chocolate					oak
							old cellar
							papery
							peat
							raw nuts
							roasted nuts
							smoky
							soil/dirt
							tannic
							tea
							toasted
							vegetal
							wet forest
							wet grass
							wine cask

Jorge L. Armenteros, CMT
President & Founder
Tobacconist University

The FDA & Cigars

Here is a letter written to the FDA by several members of Congress.  In it, our representatives ask and implore the FDA to exclude cigars from the regulations which are being imposed on cigarettes and smokeless tobacco. 

 

According to Glynn Loope, Executive Director of Cigar Rights of America (CRA), “this is the most over arching issue confronting this industry.”  We must not allow the onerous legislation and taxation to encroach on the premium cigar industry.  Please read the letter and sign up for the CRA Grassroots Email Network.  Its free and imperative that you participate to preserve our extraordinary industry.  

 

 

 

If we fail to act now our industry will surely perish.  Join the CRA! And fight for our rights!

Tobacco Prohibition 2.0: Banning Flavor

Today, the New York City city council voted 46 to 1 to ban/prohibit flavored tobacco products.  The ban does not include Menthol or Mint, like the FDA ‘Protect Your Family from Smokers’ bill, and it does not ban flavored pipe tobaccos - yet.

All of this is happening in the same city where the nanny-minded mayor changed the law so he could stay for a third term in office, banned indoor smoking, and is now trying to ban outdoor smoking in parks and beaches – because ‘children should not have to see smokers’.
 
Where are all of the infuriated people?  Where are Americans who value freedom? Individual Rights?  And not just the rights you use, but all individuals’ rights?

Within thirty minutes of this news breaking, I have witnessed emails, facebook, and twitter messages from industry members and not one of those messages had anything to do with the usurpation of our freedoms.  Topics did include: tonight’s featured bottle of wine to drink at home; something about farmville; a note about splurging on a ribeye steak because it’s ‘hump day’; a bejeweled score; what you are watching on TV or the internet; what you are smoking; what you are wearing for Halloween; what game you are watching tonight; who you are rooting for; and something about a golf tournament.

Sadly, many NYC tobacconists did not find out about the vote until the day before; so some of us are being rail-roaded and disenfranchised by the system.   But, the real problem is our own apathy and lethargy.  Where is the anger?  The vote was 46 to 1!

These prohibitions started with the FDA justifying a ban of cigarettes that have a ‘characterizing’ flavor that ‘can be attractive to children’.  Yet, this is the most bankrupt and illogical justification because IT IS ILLEGAL TO SELL TOBACCO TO CHILDREN.  So, that should be the focus – stop sales of tobacco to underage children!  It’s not rocket science; you don’t have to be a genius to figure it out.  The prohibition of products that are ‘attractive to children’ is the most insipid legislative trend I have ever seen in my lifetime; it is as bad as McCarthyism, Racism, anti-Semitism, and any other ‘ism’ which is based on an ideology of hatred and bigotry.

One hundred years ago men congregated in bars, pubs, and clubs to discuss matters of the day… at the time, most of them smoked.  Yet today, we are not allowed to congregate, smoke, and talk in the same place – except for the rare retail tobacconist.  And now the walls are crumbling around us….  The guiding principle behind the founding of America was ‘the individual pursuit of happiness’…. so it was.  What is the guiding principle behind America today?

Unfortunately, the path to freedom is wrought with challenges and sacrifice.  For starters, join the CRA, get Certified, and finally, get your head out of your arse and take half of the time you spend watching TV, sports, or shopping for crap, and start fighting for your freedoms.  Otherwise, all that is worth living for, the simple human pleasures, will be lost.

The Hard Truth

Rostros Anonadado (Bewildered/Stunned Faces) by Eduardo Expósito

 

As a retail tobacconist, I can unequivocally state that the last ten years have been difficult (dramatic understatement).  The challenges we face are unlike any other business persons’ or industry (i.e. FDA, S-CHIP, OTP, smoking-bans, tobacco de-normalization, etc…).  And, if you think the last ten years have been bad… what do you think the next ten will be like?
  
If we don’t make dramatic changes to our industry and culture, our future will be exponentially worse!  This is the hard truth.  While marketers, manufacturers, salespeople, and retailers tell you ‘business is good’, that is either a lie or tunnel vision.  Business people must ’spin’ positivity because negativity does not improve sales.  But, just because you make money this year does not mean ‘business is good’.  A viable industry/business-model needs to be sustainable; we must be able to plan ahead for things like retirements, recessions, childrens’ educations, growth, asset preservation, business sales, etc…

One of the worst trends that has infected our industry and political climate is the ‘grandfathering’ of existing tobacconists and cigar bars without allowing the creation of new ones.  Yet, whenever these laws pass, our industry claims a victory because we preserved a ‘business’.  But we also put a nail in our coffin if no one can open a new business!

Yet another sad sign that we are in trouble is the inconspicuous nature of our customers.  One of my oldest and dearest friends/customers who has a passion for cigars hides this from his own children; he takes a ‘fabreeze’ shower before going home and swears to his kids that he does not ’smoke’.  Partly, this is because children are thoroughly indoctrinated in school that ’smoking kills’ and they do not distinguish between types and frequency of tobacco use.  On a similar note, I am still irate, years after a policeman went to my little sister’s school, in full uniform with a badge and gun, and gave an hour long lecture about how ’smoking kills’ – still no distinguishing between types of smoking and the value of human freedom and personal choice.  Plus, what is a policeman doing lecturing kids about smoking?

So, without writing a book here…. I would like to end on a positive note… since I have devoted myself and resources to the preservation of the luxury tobacco industry and retail tobacconists.  I am not a negativist!  Our path to salvation will not be easy.  First, we must join and support the CRA in order to fight the short term battles and legislative momentum.  Next, we must get Certified, and project our credibility!!!  But, when we say ‘project our credibility’, we do not mean sit around with other cigar/pipe smokers and talk about how good or knowledgeable we are!  Projecting our credibility is about making non-smokers, friends and family, and the society we live in understand and RESPECT our profession, passions and choices!  Make converts out of non-aficionados!  If every cigar and pipe smoker convinced 10 people to respect our rights, then we would still have our rights!
   
Final Note:  Part of the TU Mission is to “research, learn, and teach in order to educate …”  and our Vision is to “build and project the credibility of the luxury tobacco industry in order to gain cultural acceptance around the world…”  With that said, we are not beholden to any person or business.  We are an independent educational institution with a clear mandate to speak the truth: the truth as we see it - not the ‘truth’ as devised or spun by marketers or business people.  We receive no money from the IPCPR or any other industry trade or political organization.  You can rest assured that TU will continue to research, learn, and teach while delivering the truth and working to build the credibility we will need to survive… for generations to come.  Ultimately, we will only be successful if you and the rest of the industry participate.  So, what are you doing to ensure the survival of the luxury tobacco industry?

Our Vision

To build and project the credibility of the luxury tobacco industry in order to gain cultural acceptance around the world – preserving luxury tobacco for generations to come.

    

We have just finished  re-crafting our Vision to better communicate the long-term goals of Tobacconist University.   While our Mission is tailored to serve tobacconists and consumers, our broadest goal is to help preserve our industry for generations to come.  And the last decade has proven how difficult the challenges we face really are.  Legislation, taxation, smoking bans, and tobacco de-normalization have moved forward at an astounding rate because the culture we live in has turned against us.  Clearly, these are not the ‘glory’ years of the mid-1990s when Cigar Aficionado glamorized cigar smoking; those customers are long gone or ‘in the closet’ smokers today.

    

While the IPCPR and CRA battle on the economic and political fronts, there is much more to accomplish in order to sustain our industry.  Cigar and pipe smokers comprise a mere 5% of the population, so we must build and promote our credibility outward, into the society we live in, to survive.   If you don’t believe that, just think of what the last ten years have brought, and then consider the next ten years…

 

  

    

“We now stand upon the brink of a precipice from whence the smallest help plunges us headlong.” – Gen. George Washington

    

TU and our industry need your help to change the culture.  Get Educated!  Get Certified!  And participate with TU in making a substantive difference!

A Real Revolution

 

 

Merriam-Webster defines revolution as ” a sudden, radical, or complete change” … “a fundamental change in political organization” … ” activity or movement designed to effect fundamental changes in the socioeconomic situation” and a fundamental change in the way of thinking about visualizing something: a change of paradigm”.  All of these definitions can apply to Tobacconist University (TU).  

  

When TU certifies a tobacconist they accept a professional code of ethics and standards and learn the fundamental as well as technical knowledge they will need to be extraordinary professionals.  This foundation of professionalism is important to our customers and our industry.  But, more importantly, as we grow our ranks (140+ today) and forecasted to triple by year end), we will be able to turn our credibility outward and start to carve out a sustainable existence in our society.  Tobacconists and our industry need to move beyond the taxation and legislative nightmare that is currently usurping our freedoms and beating our industry to death.  There is no sustainable future for retail tobacconists or the luxury tobacco industry in the current political, social, and cultural climate.  We desperately need a revolution!  A paradigm shift. 

  

In the short and medium term, the CRA (join now) battles on the legislative and political fronts.  But, we will need to do much more to create a sustainable industry that will be able to thrive for years and generations to come.  The real ‘war’ is global, political, economic, and social in nature and there are no small or easy solutions – it is a culture war. 

  

The most fundamental and first thing we need to do is prove to the world that we are indeed valid and credible professionals* … and that process starts with certification.  If you want to join a real revolution, not just pretend**…. Get Certified!   We are proactively fighting for our survival and we must do everything possible to change public (mis) perceptions and earn respect.

 

*Most people don’t even recognize or know that Tobacconist is a profession… much less one worthy of preservation. 

  

**Marketers throw the word “revolution” into their marketing mix to evoke satisfying emotions/thoughts and motivate you to bond with their products.  Just because you smoke an oddly shaped cigar or chat on a particular forum does not make you a revolutionary.  In fact, the word “revolution” has been diluted and emptied of its true meaning for far too long.  If you really want to be a revolutionary, it will take work, focus, and commitment.  Otherwise, it’s just an empty word propped up with useless actions…. Don’t be a fake revolutionary. 

  

Leave a comment and tell us how TU can make the biggest contribution towards changing public perceptions of tobacco and tobacconists.  

Cigar Culture Wars

   
This week Cigar Rights of America (CRA) reported that the Cancer Action Network (lobbyists for American Cancer Society*) are about to spend $3 million dollars over the next few months to lobby the administration and Congress to increase taxes on cigars and other tobacco products. Absurdly, this is happening just weeks after the S-CHIP tobacco tax increases that will fund health care for people making under $80,000 per year. The Campaign for Tobacco Free kids noted, “There is plenty of room to go [for taxes] for cigars and smokeless.”
   
You must see by now that tobacco taxation is not really about using the money to recoup societal costs incurred by smokers. Sadly, it is estimated that only 5% of tobacco tax money is used for health care, cigarette cessation and education programs! Clearly, this level of extreme taxation is a punitive measure used to penalize a minority of people who do not conform to ‘dictated’ norms. In fact, the de-normalization of smokers is nearly complete as in California it is almost illegal to smoke outdoors on public sidewalks. And the hysteria and lies regarding second hand smoke has people believing smokers are dangerous and dirty people. Yet, any open-minded person who has ever read beyond the first page of the Surgeon’s General report on ETS must find smoking bans perplexing and unjustified.
 
Sadly, tobacco taxes and smoking bans will continue to increase because they are politically expedient. Over the last two decades our economic, political, scientific, and ideological arguments have failed to preserve individual, business owner, and tobacco user rights. Just take a look at how many republicans vote for smoking bans, declining rates of return on increased taxation, and the fact that smoking rates are relatively flat.
 
The increased persecution and taxation of tobacco users defies logic. It is about ideology. This is a cultural war against a certain ‘kind’ of people. And apparently, I am one of those people. Yet, cigar smokers only represent about 5% of the population – we are a bonafide underdog. That means each of us will need to convince at least 11 people to respect and support our freedoms, just to survive. In addition, as cigar and pipe smokers, we must proactively support the CRA as they are our infantry which battles the local, state, and federal government on a daily basis.
 
However, winning political battles will not be enough either. The anti-smoking movement is funded and organized beyond reason and comparison to any other political farce (sp?). They have waged a cultural war and we must meet them with commensurate force. The only force capable of resisting this movement is the value of freedom, inherent to being American. And the only way to change the culture is through education. So, Tobacconist University continues to build and project the credibility of our industry – endeavoring to preserve luxury tobacco for generations to come. There is a lot of work to be done and we must start yesteryear. Please join the CRA, convince 11 people to respect you, and get educated – sign the TPA, share & communicate, and learn something.
 

   
* Yes, it’s true, American cancer has a society and lobbyists. And if they have their way, all of the delicious carcinogens and smoke surrounding this steak will eventually be taxed, controlled, and eliminated as well.