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Attorneys General, Nonprofit Support Cigar Industry In FDA Lawsuit

Feb 23, 2017 | By Blake Droesch
Attorneys General, Nonprofit Support Cigar Industry In FDA Lawsuit

A group of attorneys general and a nonprofit organization have filed amicus briefs supporting the cigar industry's fight against FDA regulation. Both documents argue in favor of the recently proposed Motion for Summary Judgment and opening brief filed by the Cigar Rights of America, the International Premium Cigar and Pipe Retailers Association and the Cigar Association of America as part of their lawsuit against the U.S. Food and Drug Administration.

An amici curiae is a legal briefing filed by a party that is not involved in the litigation but is qualified to offer information relevant to the case.

The first amicus briefing, filed late Tuesday evening, was written by Arizona Attorney General Mark Brnovich with the support of Louisiana Attorney General Jeff Landry, Michigan Attorney General Bill Schuette, and Texas Attorney General Ken Paxton. Yesterday, a second amicus briefing was filed by Cause of Action Institute (CoA), a nonprofit that works to protect individual and economic liberties by limiting government overreach. Both documents were filed with the U.S. District Court for the District of Columbia, the same court where the cigar industry's lawsuit was filed earlier this year.

"The government in Washington D.C. may be a lot of things, but the people's nanny shouldn't be one of them," said Attorney General Mark Brnovich in a press release. "... Our legal challenge is about preventing unnecessary regulations so that small business owners and entrepreneurs can focus on serving their adult customers instead of Washington bureaucrats."

In "Brief Of The States Of Arizona, Louisiana, Michigan And Texas As Amici Curiae In Support Of Plaintiffs," the attorneys general of their respective states argue two main points against the FDA's regulations on newly deemed tobacco products.

The brief states that the FDA "failed to provide an adequate cost-benefit analysis" before commanding its regulatory overhaul of the cigar industry. In other words, the attorneys general believe the FDA has not adequately proven that the purpose of its Final Deeming Rule—preventing youth smoking—would outweigh the economic burden that new regulations would put on "thousands of small businesses."

Additionally, the amicus brief argues that FDA regulation would lead to a reduction in excise tax revenue as a "natural result of driving manufacturers and retailers out of business through costly regulation." Excise taxes are used in many states to fund youth anti-tobacco initiatives. The reduction in revenue, the brief argues, would "undermine the public health programs" that are normally funded by these taxes.

The CoA Institute argues a similar case in its "Brief Of Amicus Curiae Cause Of Action Institute In Support Of Plaintiffs' Motion For Summary Judgment." Its briefing states that the FDA is violating the Information Quality Act—a section of the Treasury and General Appropriations Act for Fiscal Year 2001—as the agency "failed to consider the best quality data" when choosing to regulate premium cigars. The brief also contains language accusing the FDA of failing to conduct a legitimate cost-benefit analysis.

"We hope our brief will persuade the District Court that [the] FDA failed to properly account for the costs imposed on consumers by this abusive regulation, as well as the dangerous impact this will have on thousands of U.S. jobs," said Eric Bolinder, counsel at CoA Institute. "Millions of Americans enjoy smoking cigars, including me, and we shouldn't have that taken away by big government overreach."

FDA

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