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Cigar Industry Seeks Action on Deeming Rule Challenge

WASHINGTON, D.C. — Three leading cigar associations have taken the next step in its fight against the Food and Drug Administration's (FDA) final deeming rule.

The Cigar Rights of America (CRA), the International Premium Cigar and Pipe Retailers Association (IPCPR) and the Cigar Association of America (CAA) jointly filed a Motion for Summary Judgment and opening brief on Feb. 13 in the U.S. District Court for the District of Columbia, according to the Cigar Aficionado

The move comes seven months after the associations joined in and asked the U.S. District Court in the District of Columbia for a declaratory injunction "vacate, set aside and enjoin the enforcement of the final rule," as CSNews Online previously reported.

The groups argue the rule — which went into effect Aug. 8 — violates numerous federal statutes as well as the federal rulemaking process.

According to the Cigar Aficionado, a motion for summary judgment is usually filed when one party in a lawsuit believes that the other party has no case and therefore shouldn't even go before a jury because only one outcome would be legally possible.

A judge then reviews the case and decides whether or not to grant the motion.

The opening brief filed by the three groups lays out numerous arguments as it asks the court to annul the FDA's deeming rule and its regulations, the news outlet added.

"The premium cigar industry continues its adamant objection to the Deeming Rule and its defective implementation," said Glynn Loope, executive director of the CRA, in a press release. "This process has resulted in premium, handmade cigars being subjected to requirements that will cause irreparable economic harm to this artisan industry, and the Main Street America small businesses that rely upon it. We trust that the merits of our argument will demonstrate to the court that the deeming rule is fundamentally flawed and legally deficient."

According to the report, some of the primary arguments in the filing include:

  • FDA's deeming rule improperly subjected cigars and pipe tobacco to all aspects of the regulations.
  • FDA arbitrarily imposed premarket review provisions without clarifying the substantial equivalence pathway for cigars and pipe tobacco.
  • FDA impermissibly denied to cigars and pipe tobacco the same stay of enforcement pending review of premarket applications as was provided to cigarettes.
  • FDA rejected "Option 2," exempting premium cigars from regulation without any basis.
  • FDA's Final Rule warning label requirements violate the First Amendment.
  • FDA erroneously interpreted the Tobacco Control Act to treat retailers who blend pipe tobacco as tobacco product manufacturers.

"As the cigar industry navigates through this new world of regulation, I'm happy that CAA, IPCPR and CRA can all work together," said Craig Williamson, president of the CAA. "Everyone recognizes that we are stronger as one voice to push back against unfair treatment by the FDA. It is our hope that this lawsuit will bring relief to the entire cigar and pipe tobacco industry."
The three cigar associations have the support of the Cause of Action Institute (CoA Institute), which filed an amicus curiae brief on Feb. 22. 

"Common sense appears to be dead at the FDA," said Patrick Massari, assistant vice president at CoA Institute. "Inexplicably, the FDA ignored tens of thousands of comments from the premium cigar industry, Congress, local government, media, and the citizens of the United States, particularly those affected in ways large and small by FDA's power grab. 

"Under this new rule, the tradition of premium, hand-rolled cigars handed down by generations will turn into a corporate profit mill," he added.

In its brief, CoA Institute argues that FDA failed to conduct a legally sufficient cost-benefit analysis, as required by federal law and Executive Orders issued by President Bill Clinton and President Barack Obama. 

To read the full amicus brief, click here.

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