The Open Door

img_20180528_124658On a visit to Fayetteville, Arkansas, my wife and I dropped in at Open Door Cigars and Pipes, where we were warmly welcomed to this fabulous tobacco establishment, bar, and lounge. It reminds me of those great wood-paneled clubs of old. I picked up some G. L. Pease Haddo’s Delight and Cornell & Diehl Star of the East, both of which I enjoyed on first smoke. I also acquired an HIS black straight apple sandblast, which is now breaking in quite nicely. I’ll definitely be back.



Preliminary Court Win! But It’s Not Over Yet

This week a U.S. district judge ruled the FDA’s legal grounds insufficient for requiring local tobacco shops that blend pipe tobaccos to register as manufactures, a costly and onerous process that would destroy in-shop blending and other services traditionally rendered by tobacconists. However, the judge has given the FDA a chance to come up with stronger legal grounds, so this victory is not final.

This is from the website of the International Premium Cigar & Pipe Retailers (IPCPR):

Earlier this week, a Federal Judge seemingly rejected the FDA’s assertion that retailers who blend pipe tobacco in store must register as manufacturers and adhere to certain other compliance obligations. But what does this mean? What requirements and responsibilities must retailers now be aware of following this ruling? IPCPR attempts to provide some clarity below.

Brief Background:
In the Deeming Rule’s preamble, the FDA claimed that those retailer establishments that blend pipe tobacco are subject to and must comply with “all applicable statutory and regulatory requirements for ‘tobacco product manufacturers.” This would mean that retailers who blend pipe tobacco in store would have to annually register as manufacturers with the FDA, submit initial listings for their blended “products,” submit bi-annual updates for those product listings, and otherwise comply with a host of requirements applicable to tobacco product manufacturers, including the premarket review requirements and compliance policies applicable to “new tobacco products.”

Did the Court settle this issue definitively?
No. In his ruling, Judge Mehta essentially told the FDA that the technical legal basis FDA cited to defend its decision that in-store blending triggered the section 905 registration and product listing requirements was lacking and struck down that decision. However, the Judge acknowledged that the FDA still may designate what retailer activities will trigger these requirements but must do so by applying the appropriate legal standard. So, in his ruling he sent the issue back to the FDA for reconsideration. If the FDA believes it can find a strong legal justification beyond what the Judge opposed, the Agency can double down on its previous approach to the section 905 requirements.

What about how FDA broadly defines manufacturing?
Judge Mehta’s decision expressly applied only to FDA’s position on application of the registration and product listing requirements.  It does not prohibit the FDA from enforcing other requirements applicable to “tobacco product manufacturers.” This includes required health warnings, ingredient listings, labeling and in some cases pre market approval.

However, IPCPR has previously released guidance on these issues and what retailers can do to try to avoid triggering these requirements.  These guidance documents can be found by visiting the IPCPR FDA Toolbox Compliance Hub.  The association recommends that retailers review this information.

Do Smokers Have Rights?


In 1994 I participated in a panel discussion at the Cato Institute on the question in the title. I did not mention pipe (or cigar) smoking because the fire of the anti-tobacco crusade back then was concentrated on cigarette smokers. As we know, inroads against cigarettes only set precedents for moves against pipes and cigars, as well as e-cigarettes, vaping, and smokeless tobacco. I’ve added links where appropriate.

I am offended by people in government who think that it’s their job to use television and the print media to tell me not to smoke. I have read the Constitution, and I cannot find authorization for government to hector us and pester us on issues of private conduct.

It’s not as if people don’t know that smoking entails some health risks. The term “coffin nail” was coined in the 19th century. People know that smoking carries risks. Those risks are not news to anyone, so I really can’t see a case for government’s hectoring us about it. I’m especially offended that kids are hounded in school from a very young age to take pledges that they won’t smoke, to go home and bug their parents about smoking, and to report their parents’ smoking and drinking habits to the social welfare agents who go to schools to talk to the kids. Government paternalism permeates society more than nicotine does, and it’s much more toxic, much more pernicious.

When we talk about regulating smoking, or most other behavior, we are talking about rights and liberty and people’s ability to conduct their lives the way they wish. In my view, civil liberties are always resolvable into property rights. All violations of civil liberties violate someone’s right to use and dispose of his property. I’m starting with the most basic property your self, your person, your body, and your personal resourcesÚand then going on to the external things that you justly acquire. Free speech violations, for example, interfere with the right to use one’s communications resources, starting with the mind and the larynx. Bona fide violations of privacy interfere with the use of one’s home, or papers, or place of business. Thus, civil liberties are property rights. Government smoking regulations, by their very nature, therefore, violate civil liberties and property rights. All such regulations dictate what people may do with their property.

Now I want to say something about the word “public.” The equivocation over the word is inexcusable and, I think, intentional in many cases. The Capitol is a public building, but the Cato Institute building is also a public building, in a sense, and a restaurant is a public building, in the sense that the public is able to come into it. A private home, however, is not “open to the public.” But, obviously, the Capitol and a restaurant are not public in the same way. So I suggest that we use three terms for the three kinds of property we’re going to be discussing: “government property,” for property that’s ultimately funded and maintained by the taxpayers; “commercial property,” for property that’s open to the public; and “private property,” for homes. My remarks are going to be about commercial and private property.

Let’s look at some violations of freedom of speech or the First Amendment in the name of making America smoke free. We’ve had since about 1970 or 1971 a ban on television and radio advertising, a clear violation of freedom of speech. In Baltimore, there’s a proposal to restrict youth-oriented, whatever that is, billboard advertising of cigarettes. A clear violation of freedom of speech. Why is that not being immediately laughed out of court? It’s compulsion.

In California and Massachusetts there are laws that require that cigarette taxes be used to fund anti-tobacco messages. The taxes sometimes go to nonprofit organizations that lobby for more restrictions. That is not so much a violation of free speech as it is an example of forced speech. People are being forced to finance speech with which they don’t agree and that they may not wish to hear broadcast.

We are faced with an ever-growing list of infringements of our rights. The Occupational Safety and Health Administration is proposing a rule to ban smoking in all workplaces. Washington has become the first state to ban smoking in commercial and state buildings. In Maryland the regulator of occupational safety and licensing has imposed a workplace smoking ban that is currently being held up in the courts. Los Angeles has banned smoking in outdoor cafes which, it seems to me, is overkill. And Rep. Henry Waxman (D Calif.) has introduced the Smoke-Free Environment Act in Congress to compel owners of nonresidential buildings that are open to the public and regularly frequented by more than 10 people to ban smoking or restrict it to a separately ventilated room.

I would like to look ahead slightly. It seems to me that the nonresidential criterion is surely only a temporary distinction and that if we get a ban on smoking in workplaces, it won’t be long before we begin to see regulation, perhaps creeping, of the home. Why not? Repairmen come into people’s homes. Don’t those workers have a right to be in a smoke-free environment? And what about children? They are more vulnerable than adults. The issue has already come up in custody cases, and John Banzhaf, head of Action on Smoking and Health, has said, “The same protection as in custody battles will eventually be extended to children in ongoing marriages through child neglect proceedings.”

Our rights of association and contract are being violated as well. All-smoking flights are banned; in other words, the government won’t even allow airlines to have designated flights for smokers, or set up an all-smoking airline. Now, let me point out a violation of freedom of contract on the other side. We’re seeing actions against employers who want to discriminate against smokers, either refusing to hire smokers or requiring, as a condition of employment, that employees not smoke, even in their own homes. Smokers and the tobacco companies don’t like that, but it is perfectly within the rights of an employer to specify terms of employment. I don’t think I’d like to work under those conditions but the employer has the right to lay down that condition. Such bans have been passed, I think, in 28 states and the District of Columbia. Smokers have even gotten some protection from the Americans with Disabilities Act, because nicotine is being claimed to be addicting, and, therefore, smoking is a disability.

The Food and Drug Administration is considering regulating nicotine as a drug, which presumably will mean limits on nicotine content. That is a violation of freedom of contract between tobacco companies and customers. It’s also an extension of the drug war and will have the predictable results. When we argue against drug prohibition, we like to say that people don’t shoot each other over cigarettes; that happens only in the black market. Well, if the FDA gets its way, people will be shooting each other over cigarettes, the illegal high-nicotine cigarettes that you will have to buy on the street.

The bottom line in all these cases is that the government presumes to dictate the terms of association between adults. I’d like to point out that the validity of the alleged hazard of secondhand smoke is irrelevant to what I’ve been saying; even if secondhand smoke does present a health risk, that does not justify the regulations. The official in Maryland who presumed to ban smoking said that if nerve gas were wafting through a restaurant, it would certainly be appropriate for the government to protect people. Obviously, that’s a very bad comparison. When you walk into a restaurant and take your first whiff of cigarette smoke, you are perfectly capable of leaving. Try that in a room full of nerve gas. Competition for customers and for employees may induce private no-smoking rules or less severe regulations, but that’s a separate issue, having nothing to do with civil liberties except that it’s within the rights of an employer to set such rules. The key point here is that there’s no right to be on someone else’s property on terms other than those set by the property owner. That’s really the bottom line.

In his book Cigarettes Are Sublime, Richard Klein said that life means choosing your poisons. I think that was a fancy way of saying that life is risk, that risk is inherent in life. It follows from that maxim that the rules we’ve been discussing interfere with a fundamental right and civil liberty, namely, the right to choose your own poison. In 1990 the Tobacco Free America Coalition, consisting of the American Cancer Society, the American Heart Association, and the American Lung Association, published its “Blueprint for Success: Countdown 2000, 10 Years to a Tobacco-Free America.” It was not a blueprint for a campaign of persuasion; no, it called for enactment of legislation to make America smoke free by the year 2000. All of that stands on the flimsy foundation of what the EPA itself calls “the a priori hypothesis that a positive association exists between exposure to environmental tobacco smoke and lung cancer.”

Liberty is under assault. I am not a cigarette smoker, most people are not smokers, but it is perilous for us to ignore this assault merely because it is aimed at someone else. Let’s not have to say years from now, “When they came for the smokers, I didn’t speak out because I wasn’t a smoker.” How long before something you do is singled out by the health fascists? The cigarette may be an unfortunate symbol of today’s struggle for freedom in the United States of America, but those of us who value liberty over security, and even over health, must now rally round it.

More to read
“Put That in Your Pipe,” by Rick Newcombe
“The FDA’s Unauthorized War on Pipes and Cigars,” by Rick Newcombe
“Anti-Smoking Paternalism Infantilizes Adults,” by A, Barton Hinckley
“FDA’s New Tobacco Rules Will Be Terrible for Cigar Smokers Too,” by Jacob Sullum