Not Everyone Celebrates
Public health groups including the American Lung Association, the American Heart Association, the American Academy of Pediatrics and the American Cancer Society filed briefs with the court urging the judge to keep the regulations in place.
On Thursday, Thomas Carr, the national director of policy for the American Lung Association, called the decision deeply disappointing.
“All tobacco, including premium tobacco, can cause death and disease, and no tobacco product should be unregulated of any kind,” he said. “Even luxury cars have to have seatbelts and airbag warnings. Premium cigars should be no different.”
Mr. Carr also mentioned the conclusion of the National Cancer Institute: “Cigarette smoking causes cancer of the oral cavity, larynx, esophagus and lungs.”
In a court filing, public health groups warned that an exemption “creates the false impression that premium tobaccos are safer tobacco products because they are not regulated.”
How the War on Cigarettes Began
The FDA’s effort to regulate these tobaccos stems from the Tobacco Control Act of 2009, in which Congress specifically awarded the agency broad authority over cigarettes and smokeless tobacco. It also allowed the agency to “consider” or identify other products that would be subject to the law. So in 2014, the FDA began a process to regulate cigars.
The agency did seek public comment on whether premium cigars could be less tightly controlled. Cigar Rights of America, an advocacy group and plaintiff in the case, urged the FDA to slow down, saying that smoking premium cigars is a thing of the past and that many users are “not inhaling.”
The group also argued that most of the users are adults who are outside the age and demographics that need the protections provided by Congress in passing the law.
In turn, the FDA chose to require premium tobacco manufacturers to conduct extensive studies of their products, list ingredients and register them annually.
The agency noted that the tobacco industry has not offered compelling evidence about health effects or youth use that would justify an exemption. The agency concluded that regulating all tobacco equally “more fully protects public health.”
Groups supporting the tobacco industry, in turn, sued.
The Bigger Picture
The FDA is still busy implementing many parts of the landmark 2009 law. Legal challenges are frequent, especially as the agency tries to remove thousands of e-cigarette products from the market.
Michael Edney, a partner at Hunton Andrews Kurth LLP who represents tobacco plaintiffs, said the decision has broader implications for tobacco enforcement.
“I think what the court is saying here is that the decision of whether and how to regulate certain tobacco products is complicated,” he said.
“When industry and retail groups come in and provide evidence about a different path,” the FDA really needs to study it, he said. “They can’t just say, ‘We want to regulate you, and our decision is final.’”
The American Lung Association said it was discussing the decision with other public health groups. The FDA said Thursday that it does not comment on the litigation.
It is unclear whether the agency will appeal.
