The three trade associations (Cigar Association of America, Cigar Rights of America, and Premium Cigar Association) have filed a motion for summary judgment and permanent injunction with the U.S. District Court for the District of Columbia asking the Court to nullify the U.S. Food and Drug Administration’s Final Deeming Rule. The Deeming Rule is defines the regulation of premium cigars.
The motion was filed on February 19th. The motion stated:
For the reasons set forth in the accompanying Memorandum in Support of Plaintiffs’ Motion for Summary Judgment and for a Permanent Injunction and the Declaration of Michael J. Edney, as applied to premium cigars, the Final Deeming Rule, Deeming Tobacco Products to be Subject to the Federal Food, Drug, and Cosmetic Act, as Amended by the Family Smoking Prevention and Tobacco Control Act; Restrictions on the Sale and Distribution of Tobacco Products and Required Warning Statements for Tobacco Products, is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law, in violation of the Administrative Procedure Act (5 U.S.C. § 706), and fails to demonstrate a reasonable, good-faith effort to minimize the significant economic impact on small businesses, in violation of the Regulatory Flexibility Act Plaintiffs respectfully request that the Court vacate and set aside the Final Deeming Rule, to the extent it applies to premium cigars. Plaintiffs further respectfully request that the Court permanently enjoin enforcement of the Final Deeming Rule against premium cigars. At a minimum, the Court’s vacatur of the Final Deeming Rule and permanent injunction should extend to those cigars previously defined as “premium cigars” in this Court’s Memorandum Opinion and Order of August 19, 2020.
A permanent injunction is typically issued once a lawsuit over the underlying activity is resolved, as distinguished from a preliminary injunction, which is issued while the lawsuit is pending. In this case, the permanent injunction is stemming from the August 19th, 2020 ruling when Judge Amit P Mehta delayed the implementation of substantial equivalence.
That same ruling also established the definition of a premium cigar stating it is:
(1) is wrapped in whole tobacco leaf;
(2) contains a 100 percent leaf tobacco binder;
(3) contains at least 50 percent (of the filler by weight) long filler tobacco (i.e., whole tobacco leaves that run the length of the cigar);
(4) is handmade or hand rolled (i.e., no machinery was used apart from simple tools, such as scissors to cut the tobacco prior to rolling);
(5) has no filter, nontobacco tip, or nontobacco mouthpiece;
(6) does not have a characterizing flavor other than tobacco;
(7) contains only tobacco, water, and vegetable gum with no other ingredients or additives; and
(8) weighs more than 6 pounds per 1,000 units.” Mem. Op. and Order, ECF No. 214, at 8 (Aug. 19, 2020).
