Today, the U.S. Department of Justice (DOJ) filed paperwork on behalf of the U.S. Food and Drug Administration (FDA) with the courts officially appealing the decision made by Judge Amit P. Mehta that ordered the Deeming Rule to be defeated.
The Court of Appeals typically reviews the case that was decided in District Court to see if the law was applied correctly in the decision. It does not present new arguments or testimony.
In July 2022, Judge Mehta ruled the FDA’s decision to not exempt premium cigars from regulation on the Final Deeming Rule was arbitrary and capricious. Mehta asked the cigar industry and FDA to prepare briefings before deciding on a remedy. Last month Judge Mehta said that the FDA’s briefing was not strong enough and ordered the Deeming Rule to be vacated.
Since the DOJ represented the FDA, it filed the motion for the appeal.
“This decision to appeal is consistent with an agency in disarray failing to meet deadlines, provide guidance, follow the law, and strongly influenced by a cadre of public health organizations that view this court decision as opening Pandora’s box. The premium cigar industry has law and fact on our side and this decision by FDA will not deter our resolve to protect our membership,” commented Joshua Habursky, Deputy Executive Director of the Premium Cigar Association (PCA), one of the plaintiffs in the original lawsuit.
“This is disappointing but not entirely surprising. We will be as diligent and vigilant in fighting this appeal as we have been over the past 7 years of litigation efforts,” added Scott Pearce, Executive Director of the PCA.
The notice of appeal that was filed with the U.S. District Court for the District of Columbia can be found here.
The industry needs to get together to fund the defense of this appeal. I strongly encourage them negotiate a flat fee for the appellate work with Michael Edney.
The appeal should be no more than a few hundred thousand dollars of legal work. There is no argument about the value of this appeal to the industry and we will see who is serious about walking the walk in the fight on FDA regulation by who funds the defense of this appeal.
Big Four, where are you? Let’s not leave the CRA hanging this time. The only reason we are at this point is because they pushed for, and solely funded, this particular line of attack.
We get the government we deserve.