Prof. Banzhaf Concerned FDA Considering Exempting "Fat Cat Smokes" // Loophole for Premium Cigars Could Explode, But Help Senators, He Says

Although indicates that most attention to the proposed tobacco regulations the FDA just announced focused on its limited regulation of e-cigarettes, a largely overlooked sleeper issue is the health agency's apparent willingness, as set forth in its notice, to exempt from all regulation the tobacco product apparently most used by and closely associated with so-called "Fat Cat Smokers," says public interest law professor John Banzhaf.

Washington, DC, April 28, 2014 --( By coincidence, this probably include some members of Congress and their large donors, notes Banzhaf, who has been called "The Man Behind the Ban on Cigarette Commercials."

The FDA said in its notice that it is seriously considering exempting from any of the regulations, applicable to all other tobacco products, a very specific type of cigar; one defined not by any propensity to addict or to cause death, but rather upon how it is made and how much its costs, says Banzhaf, who has also been called "The Law Professor Who Masterminded Litigation Against the Tobacco Industry."

There's no public health reason why those who can afford to pay at least $10 for their smoke should be less "burdened" - or protected - than those who can't afford fat cat cigar prices, argues Banzhaf.

The stated legislative purpose of the FDA is to protect public health, not make it easier for politicians to raise fortunes at "smokers" where only premium cigars are likely to be produced or distributed, he argues.

Moreover, he suggests, what appears to be a very limited loophole now may explode into a much larger one if clever marketers can work within the FDA’s proposed definition of "premium cigar" to make it include many new products. Banzhaf points, for example, to his own experience with so-called "little cigars."

Banzhaf notes that when he helped force cigarette commercials off the air, the tobacco industry immediately began looking for loopholes in the law. They found them in so-called "little cigars," he suggests.

Suddenly, he remembers, instead of tobacco products which looked like somewhat smaller versions of the familiar stogie, the major tobacco companies quickly started turning out what looked like cigarettes.

They were exactly the same size and shape as existing cigarettes, came 20 to a pack like real cigarettes, and were largely advertised, promoted, and sold just like cigarettes with the same commercials, he says.

But, because the wrapper contained traces of tobacco, the products - some of which even had the same name as popular cigarettes - were exempt from the ban, and could be advertised on radio and television, using virtually the same commercials as the cigarette brands they so closely resembled, he says.

Sales of the products, often called "cigarettes in disguise," thus - according to research published by School of Public Health, University of Medicine and Dentistry of New Jersey, Piscataway - quadrupled in the U.S. in just two years from 1971 (when the ban on cigarette commercials went into effect) until 1973, when Banzhaf helped get a new federal law which extended the ban on commercials to include little cigars, he reminds us.

If the tobacco industry can so effectively make use of a tiny exemption for so-called “little cigars," and advertise hundreds of millions of these deadly and addictive products for two years, isn't it likely that the same efforts by creative marketers would be made to likewise capitalize on any FDA exemption, from all regulation, for so-called “premium cigars," speculates Banzhaf.

"With virtually every other product sold in America - including foods, drugs, chewing gum, cars, computers, and even dolls and pencils - subject to regulation by at least one federal agency, it makes no sense whatsoever to exempt a product containing many carcinogens and a deadly neurotoxin, and which is capable of sustaining an addiction to a chemical which causes heart attacks," argues Banzhaf.
George Washington University Law School
Public Interest Law Professor John Banzhaf
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