The Texas-based lawsuit over the U.S. Food & Drug Administration’s (FDA) cigar regulations is staying in Texas.
Judge Kimberly C. Priest Johnson, a magistrate judge, ruled against FDA’s motion to combine the Texas-based lawsuit with the original lawsuit filed in Washington D.C. As such, the case will stay in Texas. This lawsuit was filed by En Fuego, a Dallas-area retailer; El Cubano Cigars, a League City-based manufacturer and retailer; and the Texas Cigar Merchants Association (TXCMA) in the U.S. District Court for the Eastern District of Texas.
The news is good for cigar smokers, as the D.C. court ruled against the cigar industry last week.
FDA had argued the cases should be combined under a first-to-file precedent. Priest Johnson noted that first-to-file “is discretionary” and found little of the agency’s arguments compelling: the plaintiffs are members of the International Premium Cigar & Pipe Retailers’ Association, one of the plaintiffs in the D.C. case; the attorneys are the same in both cases; and the issues are the same.
Priest Johnson acknowledged the overlap over the discussion of warning labels—one of four main tenants of the D.C. case—but found it to be a compelling argument for the cigar side.
Last week, U.S. District Court Judge Amit P. Mehta declined to overturn or stop the deeming regulations largely because he felt that the legal arguments being made in his courtroom did not give him an avenue to overturn the regulations, which he described as “smacks of basic unfairness.”
That unfairness, along with Mehta’s belief that the upcoming Aug. 10 requirement for warning labels on cigar boxes should be stayed, i.e. halted, are specifically cited by Priest Johnson. She argues that the lawsuit filed in Texas will deal with the issues that Metha believed he could not touch.
“As such, the decision in Cigar Association (the Washington D.C. lawsuit) leaves open a primary issue in the present case—whether the premium cigar industry should be forced to comply with the warnings requirements (at great expense) while the FDA continues to study whether the premium cigar industry should even be subject to the regulations at all,” writes Priest Johnson.
The Texas lawsuit focuses on warning label requirements, something that was a part of the D.C. lawsuit. However, the Texas lawsuit goes far more into depth on the issue, arguing that FDA failed to distinguish the differences between premium cigars and mass market cigars. In addition, this lawsuit brought a discussion of FDA’s requirements for warning labels on advertising.
Priest Johnson also denied a motion to stay from FDA.
As such, a status report is due by May 29 and oral arguments are set to begin June 26 at the U.S. Courthouse in Plano, Texas.