New Study Finds Filtered “Little Cigars” are Actually Cigarettes Under Existing Laws And are Evading Taxes and Public Health Regulations

 

CONTACT: Johan Marulanda / jm3245@georgetown.edu

FOR IMMEDIATE RELEASE

Washington D.C. – A new study, by researchers at Georgetown University’s O’Neill Institute for National & Global Health Law and Lombardi Comprehensive Cancer Center shows that many filtered ‘little cigars’ are actually cigarettes under applicable laws and are evading the higher taxes and stronger public health regulations that typically apply to cigarettes but not cigars. 

The study, How and Why Consumers View “Little Cigars” as Legally-defined Cigarettes, appears in the March/April issue of the Tobacco Regulatory Science journal. Its sample of cigarette smokers and non-smokers perceived filtered ‘little cigars’ to be substitutes for conventional cigarettes. That finding is key to accurately categorizing, taxing, and regulating these products because many cigarette definitions in federal, state, and local laws define cigarettes to include any roll of tobacco for smoking, however labeled or wrapped, if “it is likely to be offered to, or purchased by, consumers as a cigarette.”

According to those definitions, the study also found that filtered ‘little cigars’ have many characteristics that a majority of the consumers saw as making a smoked product definitely or probably a cigarette, such as having a filter, being sold in packs of 20, having menthol flavor, being offered in light/low versions, and being able to be inhaled deeply. However ‘little cigars” did not have certain key characteristics that would seem to make them a little cigar, such as being wrapped in tobacco leaf, being sold as singles or in packs of five, or having a plastic or wooden tip.

“If these ‘little cigars’ were labeled as cigarettes, their other characteristics could not support regulating them as cigars,” observes study author, Darren Mays, an Associate Professor at Georgetown’s Lombardi Comprehensive Cancer Center.

So far, the FDA, the TTB, and state and local governments have not taxed or regulated such ‘little cigars’ as cigarettes.  But this new study adds to the accumulating evidence that filtered ‘little cigars’ are actually cigarettes under the U.S. Tobacco Control Act, the Internal Revenue Code, and those state and local laws with similar definitions.

As referenced in the study, previous research has found that some people who self-identify themselves as being cigarette smokers, identify various filtered ‘little cigar’ brand as their usual cigarette brand.  In fact, says Mays, “some researchers have taken measures to instruct research participants who smoke ‘little cigars’ not to identify themselves as cigarette smokers or identify their ‘little cigar’ brands as cigarettes.  This means some data on this topic may be misleading.”

It is also clear that some filtered ‘little cigar’ brands emerged directly to evade more stringent regulations placed on cigarettes compared to cigars.  For example, clove cigarettes were quickly rebranded as clove “little cigars” after the Tobacco Control Act prohibited cigarettes from having flavors other than menthol.

According to study author Eric Lindblom, a former FDA Center for Tobacco Products official and now the Program Director for Tobacco Control and Food & Drug law at Georgetown’s O’Neill Institute, “This study shows FDA and other government officials how they can readily distinguish between bona fide little cigars and fake-cigar cigarettes and stop manufacturers from gaming the system to evade higher tax rates and stronger government health regulations.”

In December 2016, FDA sent warning letters to the manufacturers of four different brands of flavored filtered ‘little cigars” stating that they were actually cigarettes and were, therefore, misbranded and being sold in violation of the Tobacco Control Act’s cigarette flavor ban.  However, FDA has not announced any subsequent enforcement action pursuant to those warning letters and the filtered ‘little cigar” brands remain on the market.

Besides the flavor ban just on cigarettes, federal law states that cigarettes (but not cigars) cannot be sold in packs of less than 20 or as “loosies,” cannot be sold through self-service displays or publicly accessible vending machines, and cannot be delivered to consumers through the mails pursuant to Internet or mail-order sales. Although the federal government’s tax rate for cigarettes and little cigars is the same, many states and localities tax cigarettes a much higher rates than little cigars. The Multistate Settlement Agreement between the states and many tobacco companies also places various payment obligations and health-directed restrictions and requirements on cigarettes, but not cigars, and uses a cigarette definition that parallels the federal cigarette definitions.

As Lindblom notes, “Even if FDA does not follow this study’s findings and start regulating filtered ‘little cigar” as cigarettes, states and localities that have laws with similar cigarette definitions could still do so, setting a good example for FDA.”   

The authors report no potential financial conflict of interest related to the work described in the paper. The study was supported in part by DC Metro Tobacco Research and Instruction Consortium (MeTRIC), the U.S. Food and Drug Administration Center for Tobacco Products and the National Institutes of Health (grant numbers K07CA172217 and P30CA051008).

The O’Neill Institute for National and Global Health Law at Georgetown University is the premier center for health law, scholarship, and policy. Celebrating its 10th year in 2017, its mission is to contribute to a more powerful and deeper understanding of the multiple ways in which law can be used to improve the public’s health, using objective evidence as a measure. The O’Neill Institute seeks to advance scholarship, science, research, and teaching that will encourage key decision-makers in the public, private, and civil society to employ the law as a positive tool for enabling more people in the United States and throughout the world to lead healthier lives.

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