Cigar companies will not have to place warning labels on boxes beginning Aug. 10, 2018.
U.S. District Court Judge Amit P. Mehta ruled that requirements for cigar boxes and advertisements to carry warning labels will be delayed until 60 days after an appeal has been decided by the U.S. Court of Appeals for the D.C. Circuit.
In Mehta’s decision to delay, he specifically mentioned a recent ruling by the Supreme Court.
“The issues appealed by Plaintiffs present ‘serious legal questions’ as to the constitutionality of FDA’s warnings regime, a conclusion only reinforced by the Supreme Court’s recent decision in National Institute of Family and Life Advocates v. Becerra.”
That Supreme Court decision came down just minutes before the start of a hearing in another lawsuit, filed by three Texas cigar businesses against FDA warning labels. The attorneys in the Texas courtroom made the argument that FDA’s position was only weakened by Becerra, though earlier this week the Texas lawsuit was moved to D.C. and combined with the original lawsuit brought by the cigar trade groups.
Today’s order is a huge win for the cigar industry, who had argued that the requirements of warning labels on boxes and advertisements may not be legal and also could cost the cigar industry millions of dollars, particularly as the U.S. Food & Drug Administration (FDA) has shown interest in revisiting its cigar regulations.
It’s the latest development in a multi-year lawsuit filed by the Cigar Association of America (CAA), Cigar Rights of America (CRA) and the International Premium Cigar & Pipe Retailers’ Association (IPCPR) over FDA regulations
In May, Mehta ruled against the cigar industry regarding a motion that sought to remove and/or restrict many of FDA’s cigar regulations, including the requirements for warning labels on products and advertisements, the requirement cigar companies must pay user fees to FDA and questions about the entire process of regulation.
Mehta ruled for FDA on all of these claims, though he gave retailers that sell and mix their own pipe tobacco a bit of reprieve. He also repeatedly mentioned that he did not believe the process by which FDA determined and planned on implementing cigar regulations were fair.
He specifically mentioned the potential harms cigar companies would endure if FDA decides to modify its warning label requirements, something that could be on the table, particularly as FDA has formally opened up a comment period for the public and industry to submit suggestions and data to the agency about premium cigars and its regulation, a sign it could modify its regulations
“Requiring the premium cigar industry to incur substantial compliance costs while the agency comprehensively reassesses the wisdom of regulation, before the warnings requirements go into effect, smacks of basic unfairness. In the court’s view, the prudent course would be for FDA to stay the warnings requirement as to premium cigars,” wrote Mehta in his opinion. “The court’s displeasure with the FDA’s handling of the status of premium cigars, no doubt, provides little consolation to the industry. But the court can do no more. Its hands are tied by both the law and the posture of the case.”
Following that decision, attorneys for the three cigar trade groups began the process of submitting an appeal, which began its formal process in the D.C. Appeals Court last week.
No schedule has been set for the appeal. Today’s ruling will likely slow down the speed at which the cigar trade groups were seeking resolution, though Mehta’s ruling provides a 60-day gap between a ruling by the appeals court and the implementation of warning labels.
“This deadline has been bearing down on our members for some time now,” said Scott Pearce, executive director of IPCPR, in a statement. “And while this is a temporary reprieve, it is a welcome development and hopefully a sign that our message is resonating. IPCPR is proud to be a party to this lawsuit, and we’ll continue to work with our great legal team and staff in DC to bring about the optimum regulatory framework for the premium cigar industry.”