Cigar Industry Argues FDA Warnings in Appeals Court

Cigar Industry Argues FDA Warnings in Appeals Court

The cigar industry earlier today argued in the U.S. Court of Appeals for the Washington D.C. Circuit, one of the country’s highest courts, that the Food and Drug Administration’s warning scheme included in its Final Deeming Rule is unconstitutional.

“The FDA warnings must cover 30 percent of the two main sides of every cigar and pipe tobacco box and 20 percent of every cigar and pipe tobacco advertisement. They come in a stark, black on white format that makes the government the most prominent speaker on each medium,” said Michael Edney, lead counsel for the cigar industry, in his opening statement. “The law has developed to make clear that these warnings violate the First Amendment.”

Today’s hearing was the latest development in Cigar Association of America, et al. v. United States Food and Drug Administration, et al., a case that can be traced back to July 2016.

Edney, representing the three major cigar lobbying groups—The Cigar Association of America, Premium Cigar Association and the Cigar Rights of America—challenged the FDA’s warning plan in front of Judges Merrick Garland, Gregory Katsas and A. Raymond Randolph.

According to Edney’s arguments, roughly 80 percent of all cigars on the market today must display one of four warnings that was settled upon in 2000 when the Federal Trade Commission and the then seven largest U.S. cigar manufacturers agreed to include health warnings on their products.

The FDA's new warning requirements not only adopt the FTC's, but builds upon them, too. In addition to the four FTC warning labels, the FDA is adding two more warning labels for use on cigar packaging, including an addictiveness warning that is required to appear on cigarettes, roll-your-own tobacco and other tobacco products.

At this point, there is no set deadline for those warnings to appear, and the FDA remains undecided on many of the particulars for the warnings as it reevaluates its own policy and reconsiders details such as how broad the rule should be and whether there is any evidence that premium cigars pose less of a health risk than other tobacco products.