On his first day in office, President Donald Trump issued an Executive Order putting a freeze on all new regulations. For the cigar industry, it doesn’t change the FDA regulations currently in play. However, it could temporarily slow down the progress of the current implementation of the regulations going forward.

The key point is that this affects pending regulations that have not been published to the Federal Register. For the cigar industry, the Deeming Rules were published to the Federal Register back in May, and were put into effect August 8th, 2016.  The Federal Register is the official publication mechanism for the implementation of regulations.

Since the rules have been published, many of the rules have been high level and the “devil in the details” have been (or will be) published in draft guidance documents. Most recently this was seen this past week with draft guidance issued covering free samples. The implementation of these types of regulatory activities could be slowed down, but it doesn’t freeze the over-arching rules. White House Chief of Staff Reince Priebus documented in this a memo notifying agencies of the freeze on pending regulations.

As used in this memorandum, “regulation” has the meaning given to ‘regulatory action’ in section 3(e) of Executive Order 12866, and also includes any “guidance document” as defined in section 3(g) thereof as it existed when Executive Order 13422 was in effect. That is, the requirements of this memorandum apply to ‘any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rule making,’ and also covers any agency statement of general applicability and future effect “that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.”

The reason for the freeze is not specific to cigars and tobacco. The delay is to allow a department or agency head designated by Trump to review and approve the regulations. Currently many cabinet posts and agency leadership positions are in a state of transition with the new Administration. In fact, the actions by President Trump are not unprecedented for a new President to take. When former President Obama took office in 2009, he did the same thing for similar reasons.

An Executive Order cannot repeal the FDA’s authority to regulate premium cigars. That can only happen with an Act of Congress. Several bills have been introduced over the past few sessions of Congress to do this, including the most recent Congress with HR 564.

Photo Credit: Cigar Coop