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TOBACCO BUSINESS INTERNATIONAL
NOVEMBER/DECEMBER 2016
The complaint challenges:
H FDA’s improper application of the
February 15, 2007 grandfather date
to cigars and pipe tobacco, which
subjects those products to more in-
trusive regulations than cigarettes
and smokeless tobacco;
H FDA’s impermissible assessment of
a tax in the form of user fees, and its
allocation of these user fees only to
cigars and pipe tobacco and not to
other newly deemed products;
H FDA’s failure to perform an adequate
cost-benefit analysis to take into ac-
count the effects of the final rule on
small businesses, as is required by
the Regulatory Flexibility Act;
H FDA’s unjustified decision to require
cigar health warning labels to take
up 30 percent of the two principal
display panels of packages;
H FDA’s unlawful designation of to-
bacconists who blend finished pipe
tobacco or create cigar samplers of
finished cigars as “manufacturers,”
which subjects those businesses to
greater regulation than if they were
“retailers”;
H FDA’s incorrect decision to regulate
pipes as “components” or “parts”
rather than as “accessories.”
CAA President Craig Williamson
said, “We all worked in good faith to
inform and educate the FDA on the
unique nature of our industry, its mem-
bers and our consumers. We hoped the
FDA would craft a flexible regulatory
structure that accounted for the unique-
ness of our industry. Instead, we got a
broad, one-size-fits-all rule that fails to
account for how cigars and premium ci-
gars are manufactured, distributed, sold
and consumed in the United States.The
FDA exceeded its statutory authority
and violated the federal rulemaking pro-
cess when crafting this set of broad and
sweeping regulations.This challenge as-
serts nine violations of federal law and
rulemaking authority. We are asking
the court to enjoin the enforcement of
this unlawful regulatory are
confident that when the court reviews
our case on its merits, we will prevail.”
FDA ignored the law to craft these
expansive and sweeping regulations and
cannot justify many of the arbitrary and
capricious regulations it purports to en-
act.This lawsuit is a specific and detailed
challenge to FDA’s unprecedented as-
sertion of rulemaking authority. We are
acting in one voice to protect the legal
rights of our industry at all levels, from
the manufacturer, the community retail
tobacconist, to the adult patrons of cigars.
But Congress can still act to correct
this clear overreach by an overzealous
band of federal this writ-
ing, there will be about four weeks left
this year for Congress to adopt a budget,
with language that was approved by the
U.S. House of Representatives Appro-
priations Committee on April 19 of this
year that forbids FDA from using funds
to advance these regulations.
In the words of Congressman Jeff
Denham of California, speaking to the
nation’s community of tobacconists and
manufacturers on July 24, “We’ve got
to win at this. This is a freedom that I
enjoy—that Americans should have the
opportunity to enjoy across the coun-
try. And if we don’t beat this rule back,
if we don’t define this in Congress, we
will continue to see an overreach that
will take our freedoms away complete-
ly. We have an opportunity, a very small
window. We need a grassroots effort to
contact every member of Congress and
tell them how important this is, not just
from the small business approach, but
explain from every consumer across the
country. Hit people in their own district,
and tell them this is something that is
just wrong.”
Every member of Congress needs to
hear from you, as never before, that cigar
manufacturers, retail and distribution
channels and you, the consumer, deserve
and demand that premium handmade
cigars should not be subject to draconi-
an federal regulations that will assuredly
alter the course of cigar history.
We are calling for every manufac-
turer, retail tobacconist and consumer
in America to contact their U.S. mem-
ber of Congress and two senators. Visit
their district offices, call their local of-
fices and their Washington, D.C. offices
to voice your disapproval of the cigar
regulations. Invite them to your local
cigar shops, host a “Cigar Town Hall,”
or get your cigar brethren together for
a group call.
Tell them to support H.R. 662, S. 441
and the actions of the House Appropria-
tions Committee that call for exemp-
tion and “No Funding for FDA Actions
Against Premium Cigars.” Tell them that
you are watching, and you will remember
their actions on Election Day. Tell them
who you are: cigar voters. TBI
Visit
for more information.
J. Glynn Loope is
executive director
of Cigar Rights of
America.