FDA “Filtered/Little Cigar” FOIA Documents

O'Neill Institute | March 11, 2019

Packets of Marlboro and Swisher Sweets cigarettes Documents produced in response to Freedom of Information Act (FOIA) requests show that FDA has abandoned its prior conclusion that certain rolls of tobacco for smoking labeled as “filtered cigars” and “little cigars” were actually cigarettes and therefore subject to more stringent public health restrictions and requirements.

This reversal is surprising given that “filtered/little cigars” are the same basic size and shape of conventional cigarettes, have cigarette filters, are typically sold in packs of 20, just like cigarettes, are perceived to be cigarettes by many consumers, and are actively inhaled just like cigarettes. In addition, allowing cigarettes labeled as “filtered/little cigars” to evade being regulated as cigarettes can cause serious public health harms because cigarettes are currently subject to much stronger and more comprehensive health-directed restrictions and requirements than cigars.

The FOIA documents do not explain why FDA has changed its initial finding that “filtered/little cigars” are actually cigarettes, which was originally presented in warning letters sent to four manufacturers of “filtered/little cigars” during the final weeks of the Obama Administration. The FOIA documents do present the arguments the manufacturers made against FDA’s determination that their “filtered/little cigars” were actually cigarettes and, consequently, were violating the ban on flavored cigarettes in the U.S. Tobacco Control Act. But those manufacturer arguments are not persuasive.

Based on available research, analysis, and other evidence – including a 2019 study by O’Neill Institute Director Eric Lindblom and Prof. Darren Mays at Georgetown University’s Lombardi Cancer Center – it appears that FDA could reach all “filtered/little cigars” currently on the U.S. market under the U.S. Tobacco Control Act’s cigarette definition.