There is another FDA lawsuit over cigars.
In a complaint filed on Friday, En Fuego Tobacco Shop, a Dallas area retailer; El Cubano Cigars, a League City-based manufacturer and retailer, and the Texas Cigar Merchants Association (TXCMA), a state retailer’s association, filed a lawsuit against the U.S. Food & Drug Administration’s (FDA) regulation of premium cigars, specifically the warning labels.
Unlike the already existing lawsuit filed by three national cigar trade groups, this lawsuit focuses on warning labels.
It forgoes arguments regarding user fees, which have been parts of previous lawsuit. Instead, the Texas complaint argues that the warning label requirements—and the process FDA went about deciding said requirements—is a violation of various laws including the first amendment and the Administrative Procedure Act, a law which requires the government to go through certain steps before introducing new laws.
In it, the Texas businesses argue that FDA has no evidence as to why it needed to require the larger 30 percent health warnings as opposed to the smaller ones used by various companies such as Altadis U.S.A., General Cigar Co. and Swisher International. Those companies agreed to use the smaller requirements as part of an agreement with the Federal Trade Commission (FTC). Instead, FDA opted for larger warning labels with more stringent requirements including strict rules and processes about rotating five or six warning messages.
Along with warning labels on packaging, FDA’s new regulations will require companies to submit warning plans 12 months prior to advertising detailing which warning labels will be used on all forms of advertising, which could cover email marketing, Facebook pages and most other communication. The lawsuit argues this process, submitting 12 months in advance and requiring FDA approval, amounts to an “indefinite government gag order” on the company’s ability to communicate with consumers.
The lawsuit also argues a point that was made in court by the three cigar trade groups in the joint lawsuit, FDA has acknowledged it is still deciding how to go about regulation, going as far as to delaying key deadlines until 2021.
That joint lawsuit—filed by Cigar Association of America (CAA), Cigar Rights of America (CRA) and the International Premium Cigar & Pipe Retailers Association (IPCPR)—is awaiting a ruling on a motion for summary judgment.
“IPCPR supports the decision by the TXCMA and other plaintiffs to file suit in district court,” said Daniel Trope, director of federal government affairs for IPCPR, in a text to halfwheel. He declined to answer whether the IPCPR was informed about the lawsuit prior to it being filed.