The cigar industry got a victory as the United States Court of Appeals for the District of Columbia unanimously struck down warning labels for cigars and pipes ruling in favor of the industry trade associations (Cigar Association of America, Cigar Rights of America, and the Premium Cigar Association). The ruling was based on the fact that the FDA did not do the necessary work to show the effect that warning labels would have on reduced smoking rates.
The appeal stems from a May 2018 decision by U.S. Federal Court Judge Amit Mehta that originally upheld the FDA’s Warning Label plan. Since then a couple of intermediate steps happened. First, in July 2018, Mehta reversed course and granted an injunction delaying the implementation FDA Warning Labels until 60 days after the conclusion of the appeal being filed by the cigar trade organizations. Second, in February 2020, Mehta ruled against FDA on warning labels for cigars classified as “premium”.
While the two intermediate steps provided some victories for the cigar industry, the Appeals Court ruling overturns Mehta’s original decision upholding the FDA Warning Label plan. On top of that, the Appeals Court ruling goes beyond cigars deemed as “premium” and encompasses all cigars and pipes.
The decision was rendered unanimously by a three-judge panel. In the Court’s ruling Judge Gregory G. Katsas notes in the opinion, “The Tobacco Control Act permits the Food and Drug Administration to regulate tobacco products for the public health, but only after considering whether the regulation would likely increase or decrease the number of smokers. Under this authority, the FDA promulgated regulations requiring extensive health warnings on packaging and in advertising for cigars and pipe tobacco. The FDA concluded that these warnings would help communicate the health risks of smoking, but it failed to consider how the warnings would likely affect the number of smokers. We hold that this failure violated the Tobacco Control Act and the Administrative Procedure Act.”
In a press release announcing the decision, Glynn Loope, executive director at Cigar Rights of America, stated upon the release of the court’s decision, “This pronouncement by the court ratifies what the courts and members of congress have been saying for years: A reflexive, unstudied, “one-size-fits-all” approach to regulation simply doesn’t work. For all too long, that has been the approach of the agency, and the courts continuously tell them they’re wrong. It’s time for court decisions like today, and messages from hundreds of members of congress from both sides of the aisle to be heard: Exempt premium cigars from the most onerous elements of these regulations, and reform the most economically threatening rules that have already been implemented.”
Meanwhile, Premium Cigar Association Executive Director Scott Pearce stated, “We commend the work of our legal team on this case and providing a win for the industry. We believe that similar flaws infect the substantial equivalence requirements, which we continue to fight in the courts and with the administration.”
The next big hearing the cigar industry faces is on July 22nd. That hearing will challenge the FDA regulations as a whole with the important Substantial Equivalence regulations in the spotlight.
For a view of the Court of Appeals ruling, click here.