Recent filings in the cigar industry’s challenge to the FDA’s Deeming Regulations involve outside support and opposition. The case is Cigar Association of America v. FDA, No. 1:16-cv-01460 (D.D.C.).

After Plaintiffs in the cigar-industry challenge to the Deeming Regulations filed a Motion for Preliminary Injunction and a Motion for Partial Summary Judgment on October 3, 2017, filings of amici curiae have come on their side. Meanwhile, the Court has denied a Motion to Intervene filed by several anti-tobacco advocacy and public-health groups.

State and Nonprofit Support for Cigar Industry’s Challenge

Supporting the cigar industry’s challenge are the State of Arizona and the Cause of Action Institute.

On October 10, 2017, the State of Arizona filed a brief supporting Plaintiffs’ Motion for Preliminary Injunction and Motion for Partial Summary Judgment. “Arizona agrees with the Plaintiff Associations that [the Deeming Regulations’] warning label regime is excessive, arbitrary, and unconstitutional and that this Court should set it aside.” Arizona’s Brief, in sum, argues that “[t]he FDA failed to provide an adequate cost-benefit analysis determining that the benefits of enforcing new warning requirements on the manufacture and retail of premium cigars outweigh the undeniably severe costs, particularly to thousands of small businesses.” (Emphasis added.) The FDA issued the Deeming Regulations without sufficient analysis and in violation of Congressional intent, Arizona says.

The Cause of Action Institute has filed in support of Plaintiffs’ Motion for Partial Summary Judgment. Per its filing of October 10, 2017, the Cause of Action Institute has filed on the cigar industry’s side as a “nonpartisan, nonprofit strategic oversight group committed to ensuring that government decision-making is open, honest, and fair.” The Cause of Action Institute maintains, among other things, that “small business entrepreneurship should not be harmed in the regulatory process” and that “[i]t is essential that agencies follow statutorily-mandated procedures in promulgating rules and regulations.”

Denial of Anti-Tobacco Intervention

By Order of October16, 2017, the Court denied several anti-tobacco advocacy and public-health groups’ attempt to intervene in the litigation as Codefendants. As explained in the Court’s Opinion of the same day, “no Proposed Intervenor has demonstrated that its activities will be ‘perceptibly impaired’ as required to make out a concrete and demonstrable injury for purposes of Article III [of the U.S. Constitution]. Each organization does no more than assert that it will have to expend some undefined amount of additional resources if the Rule is vacated. Such a generalized harm. . . . amounts to ‘no more than an abstract injury to its interests.’”

And, among other things, the Court denied the would-be intervenors’ permissive or discretionary intervention, citing the existing parties’ current conduct in the litigation.

Still, this does not preclude these would-be intervenors’ filing of briefs as amici curiae.

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More is yet to come in this case, and more views might be shared by amici curiae. Stay tuned for further developments.