CEI v DOT: COURTROOM MINUTES OF ORAL ARGUMENT, Apr 10, 2017

April 10, 2017 4:33 pm by Gene Borio

The PDF is Here

EXCERPT:

BEFORE:

Circuit Judge Kavanaugh, and Senior Circuit Judges Ginsburg and
Randolph

COURTROOM MINUTES OF ORAL ARGUMENT

PROCLAMATION BEING MADE, the Court opened on April 10, 2017 at 3:11 p.m. The
cause was heard as case No. 3 of 3 and argued before the Court by:

Sam Kazman, counsel for Petitioners.

Tara S. Morrissey (DOJ), counsel for Respondents.

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CIGAR ASSOCIATION OF AMERICA, et al. v FDA: NOTICE OF AMICUS CURIAE CAMPAIGN FOR TOBACCO-FREE KIDS IN RESPONSE TO THE COURT’S NOTICE TO PARTIES

April 5, 2017 10:38 pm by Gene Borio

The PDF is Here

NOTICE OF AMICUS CURIAE CAMPAIGN FOR TOBACCO-FREE KIDS IN RESPONSE TO THE COURT’S NOTICE TO PARTIES

EXCERPT:

Lawyers with the law firm, Zuckerman Spaeder LLP, have been representing Tobacco-Free Kids and other public health and medical organizations in connection with amicus curiae briefs either filed, or to be filed, in various lawsuits challenging FDA’s deeming rule extending the agency’s authority to, among other tobacco products, e-cigarettes and cigars. Although Tobacco-Free Kids does not anticipate having Zuckerman lawyers enter an appearance before this Court, Andrew N. Goldfarb and Carlos T. Angulo at Zuckerman have performed approximately four (4) hours of work on this matter thus far and are expected to provide substantial assistance in drafting the amicus brief that Tobacco-Free Kids intends to file in this case.

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CIGAR ASSOCIATION OF AMERICA, et al. v FDA: NOTICE TO PARTIES, Apr 3, 2017

April 3, 2017 4:03 pm by Gene Borio

The PDF is Here

EXCERPT:

I hereby provide notice to the parties that my former law firm, Zuckerman Spaeder LLP, has, from time to time, and still may, represent the Campaign for Tobacco-Free Kids (“CTFK”). When I was a lawyer at the firm, I did not work on any matter on behalf of CTFK. Additionally, my wife is a partner at Zuckerman Spaeder LLP. She has never worked on a matter for CTFK.

. . .

I do not know whether Zuckerman Spaeder LLP is assisting CTFK in the amicus brief it intends to file in this matter. In the event that my former firm has provided or will provide any assistance or advice concerning the amicus brief that CTFK intends to file, CTFK shall file a notice with the court

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CIGAR ASSOCIATION OF AMERICA, et al. v FDA: BRIEF OF AMICUS CURIAE CAUSE OF ACTION INSTITUTE, Apr 3, 2017

April 3, 2017 3:57 pm by Gene Borio

The PDF is Here

EXCERPT:

To Those Courageous Men And Women Who Came To This Country In Search Of Personal Freedom, Economic Opportunity And A Future Of Hope For their Families

These words, etched on the Immigrant Statue in historic Ybor City, ring hollow in the face of regulatory onslaught by the Food and Drug Administration’s (“FDA”) “Deeming Rule.”3 FDA is destroying personal freedom, eliminating economic opportunity for small businesses engaged in the premium cigar industry, and crushing hope for a better life for those working so hard to feed and clothe their families. These people and their families deserve better and should be treated fairly. FDA’s regulatory abuse in this case is unfair and un-American.

. . .

Inexplicably, FDA ignored all comments from the premium cigar industry, Congress, local government, media, and the citizens of the United States, particularly those affected in ways large and small by FDA’s power grab.

Had FDA and the Department of Health and Human Services existed during the period of 1885–1930, the ill-conceived regulation of the premium cigar industry would have destroyed Ybor City’s factories and put thousands of immigrants out of work. FDA now belatedly and disastrously inserts itself into the biography of the premium cigar industry and generations of cigar growers and producers. But the result is the same. Simply put, FDA’s “Deeming Rule” threatens to destroy a $20 billion industry and put at least 20,000 Americans out of work.14

As noted in a recent letter by several Members of Congress to Vice President Michael R. Pence, “when Congress passed the Family Smoking Prevention and Tobacco Control Act in 2009, its stated intent was to prevent youth access to tobacco products and the negative health effects of smoking addiction. Neither of these concerns applies to premium cigars which are consumed in moderation and by adult consumers.”

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DOCKET for CIGAR ASSOCIATION v FDA, Apr 3-5, 2017

April 3, 2017 3:40 pm by Gene Borio

Date Filed # Docket Text

04/03/2017 29 MOTION for Leave to File by Campaign for Tobacco-Free Kids (Greenwold, Mark) (Entered: 04/03/2017)

04/03/2017 MINUTE ORDER granting 23 Cause of Action Institute’s Motion for Leave to File Brief as Amicus Curiae. Signed by Judge Amit P. Mehta on 04/03/2017. (lcapm3) (Entered: 04/03/2017)

04/03/2017 30 ORDER granting 29 Unopposed Motion of Campaign for Tobacco-Free Kids for Leave to File Brief Amicus Curiae. See attached Order for additional details. Signed by Judge Amit P. Mehta on 04/03/2017. (lcapm3) (Entered: 04/03/2017)

04/03/2017 31 NOTICE TO PARTIES. See attached Notice. Signed by Judge Amit P. Mehta on 04/03/2017. (lcapm3) (Entered: 04/03/2017)

04/03/2017 32 AMICUS BRIEF re 22 IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT by CAUSE OF ACTION INSTITUTE. (jf) (Entered: 04/03/2017)

04/05/2017 33 NOTICE in Response to the Court’s Notice of April 3, 2017 by CAMPAIGN FOR TOBACCO-FREE KIDS (Greenwold, Mark) (Entered: 04/05/2017)

DOCKET for CIGAR ASSOCIATION v FDA, Feb 21-Mar 22, 2017

March 22, 2017 9:47 pm by Gene Borio

EXCERPT:

MINUTE ORDER granting 27 the parties’ Joint Motion to Amend Scheduling Order. The revised schedule is as follows: Defendants’ Opposition to Plaintiffs’ Motion for Summary Judgment and Cross-Motion for Summary Judgment shall be filed on or before May 1, 2017; briefs of any amici granted leave to file in support of Defendants shall be filed on or before May 8, 2017; Plaintiffs’ Reply in Support of its Motion for Summary Judgment and Opposition to Defendants’ Cross-Motion shall be filed on or before June 14, 2017; Defendants’ Reply in Support of their Cross-Motion for Summary Judgment shall be filed on or before July 14, 2017; Plaintiffs shall file the appendix of excerpts of the administrative record on or before July 28, 2017; and oral argument is scheduled for August 30, 2017, at 10 a.m. in Courtroom 10.

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CIGAR ASSOCIATION OF AMERICA, et al. v FDA: BRIEF OF THE STATES OF AZ, LA, MI AND TX AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS, Feb 21, 2016

March 17, 2017 5:17 pm by Gene Borio

The PDF is Here

EXCERPT:

First, the FDA failed to provide an adequate cost-benefit analysis determining that the benefits of deeming premium cigars to be regulated tobacco products outweigh the undeniably severe costs, particularly to thousands of small businesses. In doing so, the agency ignored the principles that Congress set for balancing the costs of regulation against its benefits: Congress sought “appropriate” regulations that permit the continued sale of cigars and pipe tobacco to adults. Secondly, the FDA failed to adequately address the way in which deeming cigars will undermine the public health programs funded by state excise taxes on non-cigarette tobacco products.

. . .

The decision to regulate premium cigars was not appropriate, not supported by quantitative analysis or reasoned decision making because the costs outweigh the benefits. The FDA failed to provide quantitative measurement of benefits that were aligned with the purposes of the Family Smoking Prevention Act and failed to justify its opinion that these benefits outweighed the extreme costs, which will shut down premium and pipe tobacco retailers and manufacturers and effectively make cigar and pipe tobacco products used by adults for decades unavailable for sale.

Finally, Amici States are concerned that the Final Rule will unsettle the evidence-based state tobacco control programs that are funded in many states by excise tax revenues on tobacco products. Excise taxes on tobacco products fund many other state budgetary priorities as well. Despite this, the FDA summarily dismissed comments raising this issue with the unsupported conclusory assertion that there will be “no net social cost or benefit associated with any reduction in excise tax collections.”1 This is a truly remarkable statement and is akin to an assertion that governments should not be collective taxes at all, if the money has equal social value in the hands of the private sector. Through its attack on the cigar industry, the FDA’s rule will reduce resources available to tobacco control programs that have been proven to reduce youth use and initiation in favor of a blunderbuss regulation the FDA barely can even speculate will have such an effect.

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CIGAR ASSOCIATION OF AMERICA, et al. v FDA: PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, Feb 13, 2017

February 15, 2017 12:27 pm by Gene Borio

The PDF is Here

EXCERPT:

For these reasons and those set out in the accompanying Memorandum of Law, Plaintiffs request that the Court grant their motion for summary judgment on all claims and: (1) vacate and set aside the Deeming Rule; (2) vacate and set aside the User Fee Rule; (3) declare that the User Fee Rule violates the Fifth Amendment; (4) declare that the Deeming Rule warning label requirements violate the First Amendment; (5) enter a permanent injunction restraining the FDA from implementing or enforcing the Deeming Rule or User Fee Rule; (6) award Plaintiffs their litigation costs and attorneys’ fees; and (7) order such other and further relief as the Court deems just and proper.

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DOCKET for CIGAR ASSOCIATION v FDA, Jul 15, 2016-Feb 16, 2017

February 15, 2017 11:58 am by Gene Borio

The PDF is Here

EXCERPT:

07/15/2016 1 COMPLAINT against SYLVIA M. BURWELL, in her official capacity as Secretary of Health and Human Services, Robert Califf, M.D., in his official capacity as Commissioner of Food and Drugs, UNITED STATES FOOD AND DRUG ADMINISTRATION, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES filed by CIGAR ASSOCIATION OF AMERICA, CIGAR RIGHTS OF AMERICA, INTERNATIONAL PREMIUM CIGAR AND PIPE RETAILERS ASSOCIATION.

. . .

02/16/2017 MINUTE ORDER resetting briefing deadline in this case. Briefs of any amici granted leave to file in support of Plaintiffs shall be filed on or before February 21, 2017. The court hereby vacates the previous deadline of February 20, 2017, due to the federal holiday. Signed by Judge Amit P. Mehta on 02/16/2017. (lcapm3) (Entered: 02/16/2017)

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CEI v DOT: ORDER: Schedule, Feb 14, 2017

February 14, 2017 9:35 pm by Gene Borio

The PDF is Here

EXCERPT:

O R D E R

It is ORDERED, on the court’s own motion, that this case be scheduled for oral argument on April 10, 2017, at 9:30 A.M. The composition of the argument panel will usually be revealed thirty days prior to the date of oral argument on the court’s web site at www.cadc.uscourts.gov.

The time and date of oral argument will not change absent further order of the Court.

A separate order will be issued regarding the allocation of time for argument.

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