Commentary: A Good Omen in Fight Against FDA Cigar Rules?

For the first time in a while, there is reason for real optimism about the fight to overturn the onerous FDA cigar regulations. Living and working in Washington, I’ve learned to take optimistic reports from advocates about forthcoming progress on an issue with a grain of salt, since people often mistake their own enthusiasm and passion for confidence in the impact they are having.

Frequently, a better measure of progress is what those on the other side of the issue are saying and, most critically, doing. That’s why the actions of a group of anti-tobacco organizations this week should give those opposed to the FDA rules some hope.

On Monday, six so-called “public health” organizations filed a motion to intervene in the lawsuit filed by the Cigar Association of America (CAA), International Premium Cigar and Pipe Retailers Association (IPCPR), and Cigar Rights of America (CRA) challenging the FDA’s rules that cover cigars.

The cigar groups’ lawsuit, filed in the DC Circuit Court a year ago, challenges the rules on various grounds that the regulations were enacted improperly and exceed the authority granted to the FDA by Congress when it passed the Tobacco Control Act in 2009. A similar lawsuit was filed weeks earlier by cigar-specializing Florida attorney Frank Herrera on behalf of Global Premium Cigars, maker of the the 1502 cigar line.

According to attorneys who have been on both ends of such challenges to agency regulations—both challenging government regulations and defending them on behalf of government agencies—the uphill battle the cigar industry faces in its lawsuits is that courts generally give agencies deference when it comes to exercising rulemaking authority. Under a controversial judicial doctrine known as “Chevron deference” (established in a 1984 Supreme Court decision), judges give administrative agencies a wide berth to interpret the scope of the authority granted to them by Congress.

The reason the anti-tobacco groups motion to intervene can be seen as good news is the groups cite the FDA’s delays and apparent reluctance to defend the rule in court as reasons they should be allowed to become a party in the case. They want to join the lawsuit to defend the rule because they don’t think the new Trump-appointed leadership at the FDA will vigorously do so.

If the FDA does eventually tell the court to hold proceedings while they contemplate new rulemaking to pare back the regulations, suddenly the challenge of administrative deference becomes a strength for cigar groups opposed to the rules. The fact that the Tobacco Control Act gave the FDA the option, but not the obligation, to regulate cigars and other tobacco products (beyond cigarettes and smokeless tobacco) would suddenly be the biggest weapon against anti-tobacco groups seeking to keep the rule in place.

So while Monday’s motion to intervene isn’t proof the FDA is going to reconsider the FDA rule, and ultimately only an act of Congress can provide more definitive protection for the industry against overbearing regulations, it is surely a good sign. Let’s hope theses anti-tobacco zealots are correct, and the FDA is preparing to roll back FDA regulations that threaten the innovation, competition, and creativity that makes handmade cigars so interesting and enjoyable.

–Patrick S

photo credits: Stogie Guys