In 2009, the Family Smoking Prevention and Tobacco Control Act (TCA) granted the U.S. Food and Drug Administration (FDA) regulatory authority over tobacco products, although initially this only included cigarettes, smokeless tobacco and roll-your-own tobacco. In 2016, the deeming rule extended regulatory authority to include all tobacco products, including cigars. The deeming rule prohibited the introduction of new tobacco products into the marketplace without proper marketing authorisation and laid out pathways for tobacco companies to follow. The deeming rule should have frozen the cigar marketplace in 2016. In this paper, we describe how the cigarillo marketplace, nevertheless, continues to diversify with new brands, flavors, styles and packaging sizes entering the market regularly. As an example, we highlight recent promotional efforts by Swedish Match North America (Swedish Match) for their popular cigarillo brands, including White Owl, Night Owl and Garcia y Vega’s Game brand. We argue that ambiguities in the TCA make it unclear whether Swedish Match’s seemingly new cigarillos fit the definition of new tobacco products and, if so, whether they are on the market legally. Swedish Match and other cigarillo companies may be taking advantage of these ambiguities to promote a variety of cigarillo flavors and styles in innovative ways. Given that cigars are combustible tobacco products that pose many of the same risks as cigarettes, this business practice raises significant concerns regarding the protection of public health, particularly among young people.
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