The premium cigar industry received good news today as Judge Amit P. Mehta issued his opinion on the lawsuit between the Food & Drug Administration and the three main cigar industry organizations. The judge sided largely in favor of the cigar groups, calling the FDA’s move to regulate premium cigars “arbitrary and capricious,” while inviting additional briefing from both sides before he issues his final judgement, which will happen after July 26.
Many in the cigar industry are hoping that this will lead to final relief from warning labels, premarket review of product and other limitations that have hindered their ability to get on with the business of making and marketing handmade cigars.
In his opinion, the judge was quite critical of the FDA in its court battle with the Cigar Rights of America, Premium Cigar Association and the Cigar Association of America. In a joint filing, the three groups sued the FDA in early 2021, challenging the FDA’s rejection of an exemption for premium cigars from FDA oversight, which attempted to place many of the same regulations on premium, handmade cigars as cigarette makers. Judge Mehta picked apart the FDA for its misuse of data.
“The agency’s statement that ‘all cigars produce toxic smoke’ is exactly the sort of nonresponsive, circular reasoning the court faulted previously,” wrote the judge.
“Instead of addressing the relevant data before it, the agency resorted to a common refrain to obscure the issue,” he wrote, referring to the FDA claim that there was no data provided to support the idea that there are different patterns of use among premium cigar smokers, patterns that result in lower health risks. The FDA statement, he wrote, “was not accurate then, and despite litigation counsel’s efforts it is not accurate now.”
Reaction in the cigar industry ranged from exuberant to cautiously optimistic.
“This is everything we dreamed of,” said Cory Bappert, president of Oliva Cigar Co.
“Our small artisan cottage industry has been under attack for over a decade with unscrupulous taxes and overreaching regulations. I am overwhelmed with tears of joy with the court’s ruling. Happy that we can go back to work and save thousands of jobs that were in jeopardy worldwide,” says Rocky Patel.
In a joint statement, Robert and Sathya Levin of Ashton Distributors said: “We are overjoyed by Judge Mehta’s ruling that the FDA’s proposed regulation of premium cigars was arbitrary and capricious. This victory is the result of more than a decade of relentless hard work and collaboration between the CRA, PCA, and all the stakeholders. Today is a truly great day to celebrate for the premium cigar industry, and cigar lovers everywhere.”
“The family-owned manufacturers and retailers that make and sell premium cigars have long believed the FDA mishandled its decision to regulate premium cigars,” said Michael Edney, lead attorney for the cigar industry, in a statement provided by the Premium Cigar Association. “We are grateful for the court’s decision and the opportunity for further proceedings in this matter.”
“For the past five years, we have been living in regulatory purgatory, knowing that not only scientific evidence does not support regulating premium cigars like cigarettes but that complying with FDA regulation could crush America’s historic premium cigar industry, which is largely comprised of small, family-owned businesses,” said Drew Newman, of J.C. Newman Cigar Co. “For nearly a decade, we have presented evidence to FDA confirming that children do not smoke premium cigars, that adults enjoy premium cigars in moderation, and the health effects of such moderate use limited.…Today’s decision is a landmark ruling that will shape America’s premium cigar industry for generations.…Although Judge Mehta’s opinion did not go as far as striking down FDA regulation of premium cigars today, we are hopeful that he will do so later this year after the parties submit arguments on the appropriate remedy and next steps later this month.”
The lawsuit was filed nearly 17 months ago. The claimants appeared in court on May 23, presenting their sides to the judge. Judge Mehta invited the parties to file briefs by July 26, after which he will issue “an appropriate remedy.”