United States: Deeming Regulations Litigation Update–FDA Attempts To Consolidate Cigar Challenges In U.S. District Court For The District Of Columbia

With a merits decision anticipated in a cigar-industry challenge to the Deeming Regulations, will other Courts have the opportunity to decide similar challenges? The FDA has suggested "no," in a motion to transfer filed on March 19, 2018.

Background

The complaint in En Fuego Tobacco Shop LLC, et al. v. U.S. Food & Drug Administration, et al., No. 4:18-cv-00028 (E.D. Tex.), was filed on January 11, 2018.

Cross-motions for summary judgment have been fully briefed in Cigar Association of America, et al. v. U.S. Food & Drug Administration, et al., No. 1:16-cv-01460 (D.D.C.), and were argued before the Court on December 14, 2017.

The FDA's Motion to Transfer

In En Fuego, the FDA moved to transfer the case to the U.S. District Court for the District of Columbia, where the case could be consolidated with Cigar Association. The FDA has asked that the Court do this to preserve judicial resources, avoid overlapping litigation, and "avert the possibility of inconsistent judgments."

Also, the FDA has given notice, to the Court hearing Cigar Association, of its filing of the motion to transfer En Fuego.

Similarities Between the Cases

Both En Fuego and Cigar Association are cases filed by cigar-industry plaintiffs, challenging the Deeming Regulations.

The FDA has argued that the similarity of these cases warrants the transfer. In so doing, the FDA has even noted that the En Fuego plaintiffs are each members or affiliates of the International Premium Cigar and Pipe Retailers Association, which itself is a plaintiff in Cigar Association.

As for the particular claims, the FDA contends that each of the "five claims" in En Fuego "duplicates a claim already pending in Cigar Association." The FDA elaborates: "Plaintiffs' claims here are identical to those currently pending on cross-motions for summary judgment in Cigar Association. What is more, Plaintiffs here also intend to seek a preliminary injunction with respect to these claims, just as the plaintiffs in Cigar Association have already done." (Citations and footnote omitted.)

The plaintiffs in En Fuego will have the opportunity to respond to the FDA's motion to transfer. It will be interesting to see both how the motion is resolved and how Cigar Association is decided, as an industry setback in Cigar Association could be buoyed by the possibility for a different outcome elsewhere.

We will monitor for further updates.

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