Cigar Industry Groups Join Forces To Sue FDA

Jul 15, 2016 | By Andrew Nagy
Cigar Industry Groups Join Forces To Sue FDA

The Food and Drug Administration recently announced a series of strict regulations that threatens the livelihood of cigar companies, and now the industry is fighting back.

Early this morning, the three major lobbying groups that represent the cigar and pipe industries filed a joint lawsuit against the FDA in the U.S. District Court for the District of Columbia. These groups—Cigar Association of America, International Premium Cigar and Pipe Retailers, and Cigar Rights of America—are challenging the FDA's Final Rule, claiming it "violates numerous federal statutes as well as the federal rulemaking process."

The FDA's strict new rules include quarterly user fees, pre-market approval for new products and more stringent packaging/warning label guidelines. Many cigar companies believe adhering to these new rules will be both costly as well as time consuming.

"After a thorough and detailed legal review, we are challenging this unlawful regulatory action in federal court to protect the statutory and constitutional rights of our industry and its members. The fact that all three of our organizations are acting in one voice speaks to the urgency and seriousness of this action," said Mark Pursell, chief executive officer of the International Premium Cigar and Pipe Retailers association.

The lawsuit is asking the court for a declaratory injunction to "vacate, set aside and enjoin the enforcement of the Final Rule."

Specifically, the lawsuit challenges the following:

  • FDA's improper application of the February 15, 2007 grandfather date to cigars and pipe tobacco, which subjects those products to more intrusive regulations than cigarettes and smokeless tobacco;
  • FDA's impermissible assessment of a tax in the form of user fees, and its allocation of these user fees only to cigars and pipe tobacco and not to other newly deemed products (Edit note: such as e-cigarettes);
  • FDA's failure to perform an adequate cost-benefit analysis to take into account the effects of the Final Rule on small businesses as is required by the Regulatory Flexibility Act;
  • FDA's unjustified decision to require cigar health warning labels to be 30 percent of the two principal display panels of packages;
  • FDA's unlawful designation of tobacconists who blend finished pipe tobacco or create cigar samplers of finished cigars as "manufacturers," which subjects those businesses to greater regulation than if they were "retailers";
  • FDA's incorrect decision to regulate pipes as "components" or "parts" rather than as "accessories."

"The FDA ignored the law to craft these expansive and sweeping regulations and cannot justify many of the arbitrary and capricious regulations it purports to enact," said Glynn Loope, executive director of Cigar Rights of America. "This lawsuit is a specific and detailed challenge to the FDA's unprecedented assertion of rulemaking authority."

Craig Williamson, president of the Cigar Association of America, said: "We all worked in good faith to inform and educate the FDA on the unique nature of our industry, its members and our consumers. We hoped the FDA would craft a flexible regulatory structure that accounted for the uniqueness of our industry. Instead, we got a broad, one-size-fits-all rule that fails to account for how cigars and premium cigars are manufactured, distributed, sold and consumed in the United States."

"The #28,000 figure is not official. As far as I know, there has been no dollar figure released as to how much it would cost to license a SKU or a line as yet." —July 18, 2016 17:06 PM
"We can try to fight but, unfortunately the FDA will prevail in the end. The deck is stack against us already, with the decision makers on the side of the FDA..... " —July 17, 2016 14:06 PM
"The regulations appear to affect cigar manufacturers in the USA. Correct me if I am wrong. Therefore Internet purchases from outside would not be affected. That would suggest that consumers could order new product from offshore. Moreover an "improved" existing product may also be exempt. " —July 17, 2016 12:00 PM
"Gentlemen, No need to bicker on this thread. We're all entitled to support the candidate we choose is best. Let's remember the point of this story--that the cigar industry groups (despite their differences) have unified to fight a government agency that aims to harm our industry. " —July 17, 2016 10:35 AM
"Herr Kaufman. I thought we were commenting on cigar regulations. Sorry I touched your Drumpf nerve. Did you really bring Hitler into this discussion. Good grief. Mr. Haynes: I've read the Constitution several times and still can't find anything in there about cigars! Get a grip, they might be coming to take your guns!" —July 17, 2016 00:12 AM
"Good on!. Although, I live in Canada, much of what happens in the US is reviewed in Canada and often applied in some manner. It is a global trend to infringe on our rights and it is time for all cigar lovers whether they are casual cigar smokers or regular cigar smokers, stand-up to the non smoking lobby and to the hypocrites in that are the government bureaucrats. Our rights matter to. Gary Tovey, Toronto, On, Canada" —July 16, 2016 14:46 PM
"Unfortunately our citizens have long since forgotten or don’t even understand our constitution. There is supposed to be a difference between our Government which is supposed to be “of the people, for the people and by the people” and the agencies such as the FDA which is a regulatory agency which is run by bureaucrats. I will continue to be a supporter of CRA and hopefully we will elect a president who also believes and understands the difference between the people’s Government and bureaucratic control since the current administration has been the source of the abortion of our Constitution and the Bill of Rights." —July 16, 2016 10:27 AM
"Steve Schulz; you are delusional. If you think things will "work out," think again. That's what the Jews in Germany thought when Hitler came to power, to their regret. And, if you think that Hillary will straighten out the problem you are smoking something other than tobacco." —July 16, 2016 08:28 AM
"I understand that cigar companies formed after a certain year will have to submit to,the FDA a list of every ingredient in each of their products. Each submission for each cigar will cost a company $28,000. If a company that fits this description (like Rocky Patel) has, let's say, 30 cigars in their portfolio, that will cost them well over 3/4 of a million,dollare, irrespective of the cost of each scientific analysis. It is not difficult to see that the main purpose of the FDA is to drive as many cigar manufacturers out of business as is possible." —July 16, 2016 08:21 AM
"Frank & Preston. Stay calm. The budget has nothing to do with this issue and neither does that serial liar and racist Drumpf. Let the big 3 work on this for us, and support their efforts when asked. And Michael, the President is pretty busy trying to keep this mess we call a country from imploding. Sit back, have a favorite stogie and a Summer Shandy. This will work itself out. Semper Fi (Desert Storm)" —July 16, 2016 00:18 AM
"7/15/16, I like my stogies & although TRUMP neither smokes nor drinks, I trust his admin will relax some of the regulatory constraints on the industry. So TRUMP2016 or bust; a lot more than just the cigar industry is riding on it." —July 15, 2016 23:25 PM
"I would like to hear the reasoning behind FDA's costly,destructive list of regulations for the cigar industry.FDA may believe they are protecting society by destroying the cigar industry. As a long time cigar aficionado,I feel like I'm being picked on... like they are doing this because they can... like we are too small to stop them.Their punishment of the cigar industry is too severe for the perceived crime of smoking cigars." —July 15, 2016 21:17 PM
"That's Funny Paul" —July 15, 2016 21:03 PM
"FDA wins the logo contest, hands-down." —July 15, 2016 17:04 PM
"I am surprised that the President has not stepped in on this matter. He is whole-hardheartedly trying to end the Cuban Embargo, as has come a long way so far. If the FDA is allowed to keep their ridiculous regulations in place, then you will not see a single Cuban Cigar Company wanting to conform to their regulations. They will not need the US as they do so well all over the rest of the world. I applaud these three groups for coming together as one Voice to try to stop this. Every Cigar Company that does business in the US should follow suit as well and sue the FDA!" —July 15, 2016 13:55 PM
"We must fight the governments overbearing regulations. This is just another example of Governments inability and incompetence to manage the budget. I am also a financial advisor and we have additional regulation coming out of these incompetent politicians that can't manage money and destroy the average American' enjoyment of life. This Government is heading into a revolution with the average American citizen. They have been quiet up till now. But the U.S Government must stop destroying the capitalistic system or the people will rise up and destroy this Government. Frank A. Ammirato ChFC,CLU, E.A." —July 15, 2016 13:20 PM

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