The premium cigar industry caught a break when Judge Kimberly Priest Johnson of the U.S District Court for Eastern District Court of Texas denied a motion by the U.S. Food and Drug Administration (FDA) that requested the lawsuit filed by a group of Texas cigar companies be moved to Washington D.C. Oral arguments for the lawsuit are scheduled for June 26th.

The lawsuit was filed in January by En Fuego Tobacco Shop, El Cubano Cigars (Cuba Libre Enterprises LLC), and the Texas Cigar Merchants Association (TxCMA) – all entities based in Texas. The crux of the Texas lawsuit is a challenge to the FDA’s Warning Label requirements on premium cigars. In April, the FDA petitioned the court to move the case from the Eastern District of Texas to U.S. District Court in the District of Columbia and combine it with the lawsuit filed by the three trade associations (CAA, CRA, and IPCPR). The FDA’s rationale was the Texas lawsuit overlaps with the trade industry lawsuit.

It was last week when Judge Amit P. Mehta ruled in favor of the FDA on the issue of warning labels as well as user fees. As a part of that decision, the Judge ruled that pipes can be considered a component of a tobacco product, but ruled against the FDA stating retailers who blend their own pipe tobacco are not considered manufacturers.

Judge Priest Johnson noted a big difference is that the Texas lawsuit is focused solely on premium cigars.

Only the first issue (Warning Labels) is remotely similar. However, the crux of the present lawsuit—the FDA’s failure to treat premium cigars differently from other cigars and to exempt premium cigars from the warnings requirement—was not an issue before the court in Cigar Association. In fact, Judge Mehta specifically noted that the FDA’s rulemaking concerning premium cigars was not before the court. Id. at 1254-55. Although Judge Mehta observed that staying the warnings requirement as to premium cigars might present a more “prudent course” in light of “the sheer breadth of the ANPRM,” he made it clear that the court could do nothing more than express its displeasure because the issue was not presently before the court. Id. at 1255. As such, the decision in Cigar Association leaves open a primary issue in the present case—whether the premium cigar industry should be forced to comply with the warnings requirements (at great expense) while the FDA continues to study whether the premium cigar industry should even be subject to the regulations at all.

As a result, this gives new life to the Warning Label battle for the premium cigar industry as the Texas lawsuit remains in the Eastern Texas District Court. The Judge also said in light of the Warning Label requirements going into effect on August 10th, 2018 that oral arguments for the case will begin on June 26th, 2018. Both parties are expected to submit a joint status report and scheduling order by May 29th, 2018.