With 2020 now in the books, we recognize how challenging 2020 was and remains for so many. We also pay tribute to the first responders and the frontline healthcare workers who did and continue to do so much during the COVID-19 pandemic. While 2020 may go down as unprecedented in the annals of American history, in many respects it was business as usual for Cigar Association of America (CAA) in our continued mission to protect all cigars from overreaching governmental regulation.
The year saw significant legal victories in the courts for cigars. First, the U.S. District Court for the District of Columbia reversed Judge Amit Mehta’s May 2018 decision on health warnings and held that “[b]y its terms, section 906(d)(1) required the FDA [U.S. Food and Drug Administration] to ‘tak[e] into account’ whether the warning requirements would affect the number of smokers. Because the FDA declined even to consider that question, it violated section 906(d)(1) and acted arbitrarily and capriciously.” Therefore, for the foreseeable future, no FDA health warnings will be required on cigar or pipe tobacco packages or advertisements.
Second, in December 2019, the industry filed its summary judgment brief on the remaining claims in the industry litigation, including those relating to substantial equivalence (SE). In August 2020, Judge Mehta held that the FDA did not adequately consider whether a streamlined SE process should exist for “premium cigars.” In his opinion, Judge Mehta cited CAA’s comments on what a proposed streamlined SE process could look like for premium cigars. Due to this decision, the FDA may not enforce the premarket review provisions of the Tobacco Control Act as to premium cigars. Briefing continues on industry’s motion to clarify procedural aspects of Judge Mehta’s decision. As Judge Mehta rejected all of the other arguments in the summary judgment motion, the industry is appealing certain claims, with the opening brief held on Dec. 14, 2020.
Third, the case challenging Chicago’s imposition of a crushing other tobacco product (OTP) tax was heard by the Illinois Supreme Court on Sept. 17, 2019. An industry coalition led by CAA and including CAA member Arango Cigar won at the trial level, but an appellate court reversed the trial court. The industry then appealed to the Illinois Supreme Court and was rewarded for its efforts—the Illinois Supreme Court reversed the appellate court and struck down the OTP tax.
Fourth, in December 2019, the City of Philadelphia imposed a flavor ban on all cigars. On June 16, 2020, CAA, ITG Cigars, Swisher and Swedish Match North America sued the City of Philadelphia in state court over the ordinance on a variety of counts, including that it is preempted by Pennsylvania law. Following removal to federal court, on July 28, 2020, Judge Jean Pratt entered a stay of enforcement pending the outcome of the preliminary injunction motion filed by the industry. On Nov. 13, 2020, Judge Pratt ruled in favor of the industry granting a preliminary injunction. Judge Pratt held that Pennsylvania law preempted the Philadelphia ban and that the industry was likely to prevail on the merits of the case.