U.S. Magistrate Judge Kimberly C. Priest Johnson has denied a motion to transfer the Deeming Regulations challenge in En Fuego Tobacco Shop LLC, et al. v. U.S. Food & Drug Administration, et al., No. 4:18-cv-00028 (E.D. Tex.). On June 5, the FDA appealed her decision to District Judge Amos L. Mazzant III.

The FDA’s motion, previously discussed by this blog, asked the Court to transfer the case to the U.S. District Court for the District of Columbia for consolidation with Cigar Association of America, et al. v. U.S. Food & Drug Administration, et al., No. 1:16-cv-01460 (D.D.C.). On May 15, Judge Amit P. Mehta issued a decision on competing motions for summary judgment in that case.

Magistrate Judge’s Decision

Judge Priest Johnson’s May 22 order observed that the FDA’s argument for transfer “failed to establish the requisite commonality of questions, subject matter, and core issues.” Looking to Judge Mehta’s decision in Cigar Association of America, she observed that the only issue “remotely similar” to an issue in En Fuego was “the imposition of health warning requirements for cigar packaging and advertisements.”

“However, the crux of the present lawsuit—the FDA’s failure to treat premium cigars differently from other cigars and to exempt premium cigars from the warnings requirement—was not an issue before the court in Cigar Association. In fact, Judge Mehta specifically noted that the FDA’s rulemaking concerning premium cigars was not before the court,” opined Judge Priest Johnson. “As such, the decision in Cigar Association leaves open a primary issue in the present case—whether the premium cigar industry should be forced to comply with the warnings requirements (at great expense) while the FDA continues to study whether the premium cigar industry should even be subject to the regulations at all.”

Although the FDA had also invoked commonalities between the parties and counsel in En Fuego and Cigar Association of America, these factors “carr[ied] little, if any, weight in the Court’s analysis.”

Accordingly, Judge Priest Johnson denied the FDA’s motion to transfer, allowing the case to proceed on the plaintiffs’ pending motion for partial summary judgment.

The FDA’s Appeal to the District Judge

In its appeal of June 5, the FDA raised three objections to Judge Priest Johnson’s order:

  1. the FDA contended that the overlap in counsel and parties deserved to be given more weight in the analysis;
  2. the FDA questioned the transfer denial based on issues that Judge Mehta could eventually resolve; and
  3. the FDA disputed Judge Priest Johnson’s evaluation of the confluence of other issues in the cases.