Premium Cigar Industry Argues In Texas Court
As the August 10 effective date nears for the FDA’s new premium cigar warning label scheme, the Texas cigar industry on Tuesday argued for the first time in federal court why premium cigars are distinct from other tobacco products.
Magistrate Judge Kimberly C. Priest Johnson of the U.S. District Court for the Eastern District of Texas heard oral arguments from the attorneys representing each side in En Fuego Tobacco Shop et al. v. United States Food and Drug Administration et al.
The lawsuit was jointly filed in January by a group that includes En Fuego Tobacco Shop, El Cubano Cigars, and the Texas Cigar Merchants Association that represents 43 premium cigar manufacturers, retailers and distributors. In April, the group filed a partial summary judgment seeking preliminary relief from the FDA’s onerous warning requirements.
Tuesday’s proceedings centered on whether or not Judge Priest Johnson should delay or suspend the August 10 date that the warning requirements are scheduled to go into effect.
Michael Edney, a partner at Washington D.C.-based law firm Norton Rose Fulbright, represented the premium cigar side while Eric Beckenhauer, a lawyer for the Department of Justice, represented the FDA. The lawyers previously argued against each other last December in the cigar industry’s Washington D.C. lawsuit, called Cigar Association of America, et al. v. United States Food and Drug Administration.
While the Washington D.C. suit included all cigars, from mass market to premium, the Texas lawsuit is focused primarily on premium cigars.
During his argument, Edney was able to introduce to the court new research on premium cigars, including a 2013 study conducted by the Centers for Disease Control and Prevention, Oxford’s Nicotine and Tobacco Research Journal, the New England Journal of Medicine, and the Journal of the American Medical Association. Notably, these studies demonstrate that children do not smoke premium cigars, that 96.7 percent of consumers smoke fewer than one premium cigar per day, and that premium cigars do not necessarily increase the rate of mortality.
Judge Priest Johnson also questioned the government about the advance notice of proposed rulemaking (ANPRM) issued by the FDA in March. The ANRPM seeks comments and scientific data related to the patterns of use and the health impact of premium cigars to perhaps inform the FDA’s new premium cigar regulatory policy. Essentially, the judge wondered why the government sought to implement its costly warning requirements now when they might change in the near future.
At the end of the hearing, Judge Priest Johnson conveyed that she understood that premium cigar manufacturers are facing an urgent deadline, and therefore hopes to file a decision in the next couple of weeks. However, she did say that it could take until the end of the year to fully resolve the case.
