When the U.S. Food and Drug Administration (FDA) announced its regulations on premium cigars, one of the items in the regulations was a ban on cigar sampling. One gray area has been whether or not charitable contributions of cigars could be considered a sample. As a result, the question arose on whether cigar companies could continue to donate cigars to various charities. One group that typically receives donated cigars are military troops deployed overseas, thus now some have now questioned whether this practice could continue. It’s a question that is now looming and one that seems to have the attention of Congress and mainstream media more than the actual impacts of the regulations themselves.

Better Safe than Sorry

First up, one thing that should be made clear – whether you can donate cigars to the troops or any charity is a gray area and not something that is written in stone. There is no specific language in the regulations regarding a charitable donation for cigars. Right after the May 5th announcement of the FDA regulations, the question on whether cigars could still be donated to charity was pretty much immediately put into question. While many manufacturers and retailers acknowledged the fact that donations to the troops are a gray area, many opted for a “better safe than sorry approach” in terms of cigar donations to charity. In other words, rather than risk a fine, several manufacturers and retailers opted to discontinue donations.

These actions have resulted in rampant (and perhaps inaccurate) conversation on social media that the FDA had banned donations to both charities and the troops

The 2016 IPCPR Retailers Seminar Addresses the Question

Fast-forward to the 2016 IPCPR Trade Show, and there was a seminar for retailers on the FDA. The question on whether cigars could be donated to the troops came up. During this meeting David Clissold of Hyman Phelps and McNamara who serves as counsel for IPCPR responded to a question on this. It was Clissold’s belief that manufacturers, brand owners, and retailers should be allowed to donate cigars to charitable organizations or events because they have a monetary value. Clissold also acknowledged the question on charitable contributions had not been asked directly to FDA. You can hear these comments from the IPCPR Retailers Seminar starting at the 43:34 mark.

Mainstream Media Gets Hold of the Story

Following IPCPR, the question of charitable contributions of cigars did not go away. Fast forward to August 28th where this story started to reach mainstream media as an article appeared in the Tampa Bay Times. The article specifically called out the fact that cigar donations to the troops are now in question. While the article did not specifically say donations were prohibited, it definitely called into attention that this was a gray area and talked to several manufacturers and retailers indicated they had stopped sending cigars to the troops.

The Question Gets the Attention of Congress

It didn’t take long for the story to get the attention of members of Congress.

On August 29th, 2016 (the day after the Tampa Bay Times story was published), the Tampa Bay Times reported that Representative Kathy Castor [D-Florida] had planned to introduce a bill that would “specifically address allowing charitable contributions of premium cigars to U.S. military members and non-profit organizations that support them.”.  This appeared to be direct result of the earlier story by the Tampa Bay Times calling donations to the troops in question. Castor is one of the original co-sponsors of the current H.R 662 legislation that calls for an exemption for premium cigars from FDA regulation. This past week, Since the article, Castor has formally introduced the bill under H.R. 5955.

One Congressman is going directly to the source. Representative Duncan Hunter [R-California] has decided to write directly to the U.S. Food and Drug Administration (FDA). In a letter to FDA Commissioner Robert Califf, Hunter states: “Given the lack of clarity presented by the FDA’s latest tobacco regulations, I demand clarification of whether these regulations prohibit tobacco manufacturers and distributors from donating tobacco products to service members. If donations are prohibited, please provide a detailed justification for the FDA’s actions. I look forward to your immediate response.”

One footnote is that the three major trade organizations have filed a joint lawsuit against the FDA. However it is worth noting that one of the items not being challenged is the ban on cigar sampling.

Editor’s Note (10/23/16): It turns out that language did exist in the Food Drug and Cosmetic Act for which the Deeming Regulations add amendments to. Details here.