In the cigar industry’s challenge to the FDA’s Deeming Regulations, there has been a flurry of activity in anticipation of oral argument on the parties’ cross- motions. The case is Cigar Association of America, et al. v. FDA, et al., No. 1:16-cv-01460 (D.D.C.).

Defendants’ Cross-Motion for Partial Summary Judgment and Opposition to Plaintiffs’ Motions

On October 24, 2017, the FDA filed a Cross-Motion for Partial Summary Judgment. Their supporting brief serves also as argument against the Motion for Preliminary Injunction and Motion for Partial Summary Judgment filed by Plaintiffs on October 3, 2017.

As anticipated, throughout the arguments on the governing constitutional and statutory law, the FDA’s brief focuses on select tobacco-use statistics and legal principles on the deference courts sometimes give to agencies’ actions (“Chevron deference,” named after the case Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984)).

Amici Curiae’s Opposition to Plaintiffs’ Motions

As amici curiae have filed on the side of Plaintiffs, other amici curiae have filed on the side of the FDA. On October 31, 2017, amici curiae (several anti-tobacco advocacy and health groups) filed a brief supporting Defendants’ Cross-Motion for Summary Judgment and opposing Plaintiffs’ Motion for Preliminary Injunction and Motion for Partial Summary Judgment.

The amici curiae include the Campaign for Tobacco-Free Kids (earlier permitted to file briefs as amicus curie in the case), and also signing on are the American Academy of Pediatrics, the American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association, the American Thoracic Society, the Tobacco Control Legal Consortium, and the Truth Initiative.

Their brief is limited mainly to the asserted public-health concerns and argument on the issue whether the Deeming Regulations’ disclosure requirements unduly burden Plaintiffs.

Plaintiffs’ Reply Supporting Their Motions and Opposing Defendants’ Cross-Motion

On November 14, 2017, Plaintiffs responded to Defendants’ filings with a reply brief supporting their Motions and opposing Defendants’ Cross-Motion. In closing on the subject of the FDA’s resort to Chevron deference, Plaintiffs did not mince words: “Before an entire industry is destroyed, Chevron and the [Administrative Procedure Act] require more.”

What Remains

Closing out the briefing schedule, the FDA’s final brief is due to be filed by December 4. The Court will hear the parties’ oral arguments on December 14. After that hearing, it could be some time before the Court renders its decision. Stay tuned for further developments.