Federal Judge Delivers Big Win to the Premium Cigar Industry
By Jeff Reynolds
On August 9, a judge in the District Court of D.C. issued a ruling that vacates the “deeming rule” that subjected premium cigars to the same regulations the agency uses on cigarettes. In so doing, he struck a blow against the bloated federal administrative state and for common sense.
The case goes back to 2014, under the Obama administration, when the FDA first proposed its rule to lump all tobacco products into one category and regulate them all by “deeming” that the agency had jurisdiction to regulate in such a manner. The rule, FDA-2014-N-0189, faced immediate push-back from cigar smokers and industry groups, who flooded the FDA with public comments opposing it. The rulemaking process was finalized in 2016 when the FDA published its decision:
The Food and Drug Administration (FDA) is issuing this final rule to deem products meeting the statutory definition of “tobacco product,” except accessories of the newly deemed tobacco products, to be subject to the Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended by the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act). The Tobacco Control Act provides FDA authority to regulate cigarettes, cigarette tobacco, roll-your-own tobacco, smokeless tobacco, and any other tobacco products that the Agency by regulation deems to be subject to the law.
The ruling by Judge Amit Mehta vacates this rule:
The decision concludes a seven-year conflict between the cigar industry and FDA. As previously reported, FDA issued a Final Rule on August 8, 2016, deeming all products meeting the statutory definition of a “tobacco product” to be subject to its regulatory authority, including premium cigars (“Deeming Rule”). In the preceding rulemaking phase, the Cigar Association of America (CAA), the Cigar Rights of America (CRA), and the Premium Cigar Association (PCA) had submitted comments to FDA regarding the usage patterns of premium cigar consumers, asserting that premium cigars did not pose the same type of public health concerns as other tobacco products. Nonetheless, in the Federal Register notice for the Deeming Rule, FDA asserted that no data had been provided to support different usage patterns and public health concerns.