Health Groups Can’t Intervene in Fight Over Tobacco Warning Labels

(CN) – A federal judge ruled Monday that a group of health organizations cannot intervene in a lawsuit filed by tobacco companies against the U.S. Food and Drug Administration over a rule expanding warning requirements to cigars and pipe tobacco.

In May 2016, the FDA – the federal agency responsible for regulating tobacco products – published a rule designating cigars, pipe tobacco and e-cigarettes as “other tobacco products” subject to the Tobacco Control Act.

The rule means that products like cigars and pipe tobacco would have the same requirements as cigarettes and smokeless tobacco, including “comprehensive warning requirements” for packaging and advertising.

The Cigar Association of America, International Premium Cigar and Pipe Retailers Association, and Cigar Rights America sued in July 2016 to challenge the FDA rule enforcing warning labels, saying it violates the Tobacco Control Act, the Administrative Procedure Act and the First and Fifth Amendments.

The American Academy of Pediatrics, Campaign for Tobacco-Free Kids, American Cancer Society Cancer Action Network, American Heart Association, Truth Initiative Foundation, and American Lung Association sought to intervene in the case by defending the FDA’s new rule.

The health organizations argued that if the tobacco companies succeed in challenging the rule, “such a result would reduce the effectiveness of their anti-tobacco efforts and cause them to expend additional resources to meet their objectives,” according to a ruling issued Monday by U.S. District Judge Amit Mehta.

The groups claimed they have a direct interest in the warning-label requirements because the purpose of the warnings is to educate and deter smokers and potential smokers from using tobacco.

They said they would be forced to spend money and resources on educating the public about the harms of smoking if cigar and pipe tobacco companies aren’t required by law to issue warnings.

The American Academy of Pediatrics argued it has standing to intervene on behalf of its 66,000 members, who are pediatricians and pediatric specialists.

Mark Del Monte, AAP’s chief deputy and senior vice president for advocacy and external affairs, said in an affidavit that “the relief plaintiffs request would increase the likelihood that young people would begin and continue smoking.”

“This would make it more difficult for AAP’s members to be effective in (a) giving young people an accurate understanding of the dangers of cigar smoking; (b) discouraging initiation of cigar smoking by young people; and (c) encouraging cigar smokers, particularly young people, to quit,” he said.

However, Judge Mehta ruled Monday that the health organizations didn’t establish that they would suffer “a legally sufficient injury-in-fact if plaintiffs were to prevail in this litigation.”

“Due to proposed intervenors’ failure to allege a cognizable injury to the organizations themselves or to any member of AAP, they have not carried their burden to establish organizational standing or associational standing and, therefore, cannot intervene as of right under Rule 24(a),” the 22-page order states.

Becky Wexler, spokeswoman for the Campaign for Tobacco-Free Kids, said her group is disappointed by the ruling.

“It’s important for the views of the public health community to be heard in this and other cases, and we’ll continue to pursue ways to do that,” she said in a statement.

Mary Rouvelas, senior counsel at the American Cancer Society Cancer Action Network, said via email, “We’re disappointed with this ruling and we’re examining our options.”

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