Further briefing and deliberation are expected on a Motion to Intervene filed by several anti-tobacco advocacy and health groups in Nicopure Labs, LLC, v. FDA, No. 17-5196 (D.C. Cir.). The would-be intervenors include the American Academy of Pediatrics, the American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association, the Campaign for Tobacco-Free Kids, and the Truth Initiative.
By a per-curiam order entered on November 17, 2017, the U.S. Court of Appeals for the D.C. Circuit has ordered “that the motion for leave to intervene be referred to the merits panel to which this case is assigned.” The Court has also directed the parties to re-brief the issue “rather than incorporate . . . arguments by reference” – the would-be intervenors had earlier filed briefs as well as letters of supplemental authority.
Of interest, the decision of the Motion may give an early preview of the merits panel assigned to the case.
The decision will also be significant in light of the similar motions to intervene filed in other Deeming Regulations challenges. The U.S. District Court for the District of Columbia denied intervention in Cigar Association of America v. FDA, No. 1:16-cv-01460 (D.D.C.), and the U.S. District Court for the Middle District of Alabama has yet to decide the issue in Cyclops Vapor 2, LLC v. FDA, No. 2:16-cv-00556 (M.D. Ala.).
Stay tuned for further developments.