Court Grants Cigar Industry More Time to Respond to FDA’s Appeal of Premium Cigar Lawsuit (Update)

Last month, the government filed its appeal in Cigar Association of America et al. v. United States Food and Drug Administration et al., the federal lawsuit filed in 2016 by three cigar trade groups that successfully exempted premium cigars from most of FDA’s deeming regulations.

Update (Feb. 16, 2024) — The court has granted the cigar industry’s request for an extension. Its brief will be due on April 1, while the government’s response to that brief will be due on April 22. It’s unclear whether that will delay oral arguments until after May.

Now, attorneys representing the three cigar trade groups in the lawsuit—the Cigar Association of America, Cigar Rights of America and the Premium Cigar Association—have asked the U.S. Court of Appeals for the District of Columbia to respond to the government’s written brief for appeal, which was filed on Jan. 31, 2024.

The cigar industry is arguing for a 30-day extension so that it has more time to respond to the brief, as well as an amicus brief that was filed by six public health organizations on Feb. 7. Currently, the cigar industry must respond to these filings by March 1. In a motion to the court filed last Friday, Michael Edney—the lead attorney for the cigar industry—argued that the court should delay this deadline until April 1, 2024. He cited three reasons for the extension:

1. Give the cigar industry more time to review and respond to both the government’s filing and the amicus brief, which includes analysis of scientific studies.
2. Give the three plaintiffs and their respective member companies—i.e., cigar manufacturers, retailers and suppliers—more time to collaborate on a single legal strategy.
3. Give time for any amicus briefs in support of the cigar industry to be filed.

According to Edney, the government is opposed to this motion because it wants oral arguments on this appeal to be heard in May.

Edney pointed out that the government has not previously moved quickly with this appeal. The District Court vacated the rule for premium cigars on Aug. 9, 2023, while the government waited 50 out of the 60 days it had to announce that it would appeal. It then sought an extension of its own filing, which was granted on Dec. 20, 2023. He also pondered whether it’s possible—regardless of whether an extension is granted—for the court to hear oral arguments in May, citing that other cases which have completed briefs remain unscheduled through the court’s March schedule.

Last August, this lawsuit resulted in a major victory for the cigar industry when Judge Amit P. Mehta ruled in favor of the cigar groups, finding that FDA failed to properly evaluate comments submitted to the agency prior to the enacting of the deeming rule. This meant that cigars that meet the definition of “premium cigars,” large handmade cigars that are not flavored, were no longer subject to FDA’s deeming regulations, such as testing requirements, user fees and a ban on giving away those cigars for retail promotions or charitable donations.

This story was originally published on Feb. 12, 2024.

Charlie Minato

I am an editor and co-founder of halfwheel.com/Rueda Media, LLC. I previously co-founded and published TheCigarFeed, one of the two predecessors of halfwheel. I have written about the cigar industry for more than a decade, covering everything from product launches to regulation to M&A. In addition, I handle a lot of the behind-the-scenes stuff here at halfwheel. I enjoy playing tennis, watching boxing, falling asleep to the Le Mans 24, wearing sweatshirts year-round and eating gyros. echte liebe.