Cigar and Pipe Tobacco Firms Can Forego Health Warning Statements

WASHINGTON (CN) – Cigar and pipe tobacco companies will not have to add health warning statements to their products on August 10, a federal judge has ruled.

U.S. District Judge Amit Mehta said Thursday that the May 2016 Food and Drug Administration rule will be delayed until 60 days after the D.C. Circuit rules on an appeal from cigar and pipe retailer associations.

The FDA rule at issue will require cigar and pipe tobacco products to display one of six large warning statements, much like those found on cigarette products, on their products and advertisements about the health risks of cigar and nicotine use.

Mehta’s July 5 opinion notes that the appeal presents “serious legal questions” about the constitutionality of the FDA’s rule, particularly in light of a recent Supreme Court decision in National Institute of Family and Life Advocates v. Becerra, which held that anti-abortion crisis pregnancy centers don’t have to tell pregnant women about state services, including abortion.

In a 5-4 ruling in the case, conservatives on the court said the California law at issue in the case likely violates the First Amendment.

Mehta noted that the First Amendment challenge to the FDA’s warning regime involves complex legal questions, including whether the government’s interest is substantial, what burden it bears to compel factual government speech and whether the size of the warnings chills protected speech.

“These are difficult legal questions, and the D.C. Circuit might well disagree with this court’s resolution of them,” Mehta said.

Thursday’s injunction comes not long after Mehta sided with the government on a challenge to the warning regime from the Cigar Association of America, Cigar Rights of America and the International Premium Cigar and Pipe Retailers Association.

The associations say the rule would cost the industry millions, and had argued that the FDA rule violates the Tobacco Control Act, the Administrative Procedure Act and the First Amendment.

In a May 15 opinion Mehta disagreed, finding the rule constitutional. The ruling prompted an appeal from the associations, which they followed with a request for a stay while the D.C. Circuit considers the matter.

Mehta’s July 5 opinion notes that per D.C. Circuit precedent, the court must grant an injunction pending appeal when parties present serious legal questions.

“The fact that the court does not share Plaintiffs’ conviction that it erred is not fatal to their request for an injunction pending appeal,” the ruling says.

Mehta found that the factors the court must consider weighed in favor of granting an injunction.

“Plaintiffs likely will suffer irreparable harm absent injunctive relief: they will have to communicate purely factual government speech in a form and size to which they object; will have their own commercial speech diminished; and will have to incur millions of dollars in compliance costs, which they will not be able to recover if the warnings regime is determined to be unconstitutional,” the opinion says.

Scott Pierce, the executive director of the International Premium Cigar and Pipe Retailers Association, welcomed the ruling.

“This deadline has been bearing down on our members for some time now. And while this is a temporary reprieve, it is a welcome development and hopefully a sign that our message is resonating,” Pierce said in a statement.

Pierce added that the association is “proud” to be among the three plaintiffs in the case and vowed to continue working with their legal team – which includes attorneys from Goodwin Proctor, Norton Rose and Perkins Coie – on the regulatory framework for cigars and pipe tobacco.

The Justice Department did not immediately respond to an email seeking comment on the ruling.

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