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Texas Cigar Industry Gets the ‘OK’ to Square Off with FDA

May 24th, 2018

EAST TEXAS: Following a petition by a coalition of Texas cigar retailers and manufacturers, Texas Judge Kimberly C. Priest Johnson has ruled against the FDA’s request to transfer the legal motion to Washington, D.C. courts. The transfer was part of the FDA’s motion to consolidate two on-going lawsuits into one.

The action brought forth by the Texas coalition, filed in January, focused on the advertising restrictions listed in the FDA’s final deeming rule, as did the existing lawsuit. The FDA argued the suit had enough arguments in common to combine the lawsuits. However, Priest Johnson ruled the two cases “do not substantially overlap”, as the Texas lawsuit focused solely on premium, handmade cigars while the D.C. case included little cigars, machine-made cigars, and pipes.

While the FDA cited the ‘first-to-file precedent’, Priest Johnson rebutted that the precedent “is discretionary” and could not find the FDA’s arguments compelling.

What Happens Next?

On June 26th, the magistrate will hear oral arguments from both sides regarding the FDA’s advertising restrictions. The late June date was selected specifically to get ahead of the August 10th enforcement date when the new label requirements are set to take effect.