Because the Food and Drug Administration (FDA) doesn’t have expressly granted authority to do so from any piece of Congressional legislation.
And because it’s just generally obnoxious for government to capriciously take freedoms from human beings.
Here’s the text:
Hon. Robert Califf
U.S. Food and Drug Administration
Re: Docket No. FDA-2021-N-1309
Proposed Tobacco Product Standard for Characterizing Flavors in Cigars
Dear Commissioner Califf:
Less Government exists, as our name implies, to reduce the size, scope, and sphere of influence of government. So we would be generally inclined to oppose new regulation of any kind. Certainly regulation of an industry that contributes as much in terms of economic activity and consumer enjoyment as cigars. Our opposition is even more acute when a regulatory action is as unnecessary, expensive, and intrusive as the Food and Drug Administration (FDA)’s proposed product standard banning characterizing flavors in cigars.
The FDA knows as well as anyone that:
- The rule is unnecessary: Cigars of any kind, including flavored varieties, pose little threat to the health of adult smokers. Research confirms they are consumed in moderation. And are not inhaled – and are therefore not associated with either smoking-related cancers or other health issues.
- The rule is unnecessary: Underage use of flavored cigars is not “substantial,” as the FDA claims. Underage use was less than 1% in 2020 surveys. And acknowledged consumption by high-schoolers dropped by more than 50% from 2020 to 2021 according to the National Youth Tobacco Survey. The FDA has also failed to offer persuasive evidence that flavored cigars contribute to underage cigar initiation.
- The rule is expensive: By the FDA’s own admission, it will disrupt profitable private business activity at every step of the production process. From farmers – to manufacturers – to wholesalers – to retailers. It will impose billions of dollars of compliance costs – with small businesses picking up the overwhelming majority of the titanic price tag.
- The rule is intrusive: It infringes upon the rights of cigar consumers – who should be free to make their own health and lifestyle decisions. There is less than no compelling government interest in this issue – given the comparatively low health risks.
We as Americans have always recognized that freedom – even the freedom to savor a fine, flavor-infused cigar – is precious in its own right, and worth defending at all costs. Freedom is a high bar for the government to overcome – which the government must do to justify diminishing it. The FDA comes nowhere near clearing this bar in this instance.
Oh: And as the Supreme Court recently reminded us in West Virginia v The Environmental Protection Agency, Executive Branch bureaucracies can not do anything unless and until the Legislative Branch (Congress) passes law expressly instructing the bureaucracies to do it.
Congress has passed no such law regarding the banning of flavored cigars. Therefore the FDA must refrain from doing so – unless and until Congress expressly empowers them to do it.
Founder and President