Although the FDA took five years from the passage of the Family Smoking Prevention and Tobacco Control Act (Tobacco Act) (P.L. 111-31) to extend its regulatory authority to cover cigars, it has now issued guidance on required warning statements for cigar products. By May 10, 2018, cigars may not be manufactured, packaged, sold, offered for sale, or imported for sale or distribution without one of several warning statements appearing on product packaging. Manufacturers may not distribute products in non-compliant packaging beginning June 11, 2018.
Final rule and new regulations
The Tobacco Act, enacted June 22, 2009, granted the FDA the authority to deem statutorily defined tobacco products as subject to the agency’s regulation. The FDA did so through a Final rule (81 FR 28974), which established the FDA’s authority over any product made or derived from tobacco and intended for human consumption. These regulations establish responsibilities of manufacturers, distributors, and retailers, which include proper presentation of warning statements and the submission of warning plans (21 C.F.R. parts 1100-1143).
As of the effective date, all cigar packages and advertisements must contain one of the following statements:
- WARNING: This product contains nicotine. Nicotine is an addictive chemical.
- WARNING: Cigar smoking can cause cancers of the mouth and throat, even if you do not inhale.
- WARNING: Cigar smoking can cause lung cancer and heart disease.
- WARNING: Cigars are not a safe alternative to cigarettes.
- WARNING: Tobacco smoke increases the risk of lung cancer and heart disease, even in nonsmokers.
- WARNING: Cigar use while pregnant can harm you and your baby.
- SURGEON GENERAL WARNING: Tobacco Use Increases the Risk of Infertility, Stillbirth and Low Birth Weight
Although retailers are subject to the regulations, they will not be considered in violation of these requirements if the cigars offered for sale contain a health warning, are supplied from a source that has the required licenses or permits, and are not altered by the retailer in a meaningful way. Individually sold cigars without packaging are exempt from packaging requirements, but retailers must post a warning sign with all six warning statements at the point of sale.
The requirement to submit warning plans to the FDA for cigars will take effect May 10, 2017. These plans must provide that all warning statements are displayed in each 12-month period, on each product brand, and are randomly displayed as equally as possible and randomly distributed in all areas of the US.
Generally, for packaged cigars, the FDA believes that the brand manufacturer is best able to ensure that the warning plan contains sufficient information for approval and that the packaging complies with the requirements. If a product is manufactured under contract, the contracting entity is best suited to submit the plan. Importers of finished cigars usually control packaging and distribution, and should submit the plan. Usually, retailers should not submit warning plans, unless they are responsible for the placement of warning statements.