Case 1:16-cv-01460-APM Document 247 Filed 02/19/21 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CIGAR ASSOCIATION OF AMERICA, )

PREMIUM CIGAR ASSOCIATION, and )
CIGAR RIGHTS OF AMERICA, )
)
Plaintiffs, )
)
v. ) Civ. No. 1:16-cv-01460-APM
)
UNITED STATES FOOD AND DRUG )
ADMINISTRATION, )
UNITED STATES DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )
NORRIS COCHRAN, in his official capacity )
as Acting Secretary of Health and Human Services )
Office of the Secretary, and )
JANET WOODCOCK, M.D., )
in her official capacity )
as Acting Commissioner of Food and Drugs, )
)
Defendants.1 )
_________________________________________ )

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

AND FOR A PERMANENT INJUNCTION

Pursuant to Federal Rule of Civil Procedure 56, Plaintiffs Cigar Association of America,

Premium Cigar Association, and Cigar Rights of America (collectively, “Plaintiffs”), by and

through undersigned counsel, respectfully move for summary judgment on Counts IV and V of

their Fourth Amended Complaint (ECF No. 236).

For the reasons set forth in the accompanying Memorandum in Support of Plaintiffs’

Motion for Summary Judgment and for a Permanent Injunction and the Declaration of Michael J.

Edney, as applied to premium cigars, the Final Deeming Rule, Deeming Tobacco Products to be

1
Pursuant to Fed. R. Civ. P. 25(d), Plaintiffs substitute Norris Cochran and Janet
Woodcock, M.D., for their predecessors in office.
 Case 1:16-cv-01460-APM Document 247 Filed 02/19/21 Page 2 of 4

Subject to the Federal Food, Drug, and Cosmetic Act, as Amended by the Family Smoking

Prevention and Tobacco Control Act; Restrictions on the Sale and Distribution of Tobacco

Products and Required Warning Statements for Tobacco Products, 81 Fed. Reg. 28,974 (May 10,

2016), is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law,

in violation of the Administrative Procedure Act (5 U.S.C. § 706), and fails to demonstrate a

reasonable, good-faith effort to minimize the significant economic impact on small businesses, in

violation of the Regulatory Flexibility Act (5 U.S.C. §§ 601-612). Plaintiffs respectfully request

that the Court vacate and set aside the Final Deeming Rule, to the extent it applies to premium

cigars. See 5 U.S.C. § 706. Plaintiffs further respectfully request that the Court permanently

enjoin enforcement of the Final Deeming Rule against premium cigars. At a minimum, the Court’s

vacatur of the Final Deeming Rule and permanent injunction should extend to those cigars

previously defined as “premium cigars” in this Court’s Memorandum Opinion and Order of

August 19, 2020 (ECF No. 214).2

2
This Court previously defined a premium cigar as “a cigar that: (1) is wrapped in whole
tobacco leaf; (2) contains a 100 percent leaf tobacco binder; (3) contains at least 50 percent (of the
filler by weight) long filler tobacco (i.e., whole tobacco leaves that run the length of the cigar); (4)
is handmade or hand rolled (i.e., no machinery was used apart from simple tools, such as scissors
to cut the tobacco prior to rolling); (5) has no filter, nontobacco tip, or nontobacco mouthpiece; (6)
does not have a characterizing flavor other than tobacco; (7) contains only tobacco, water, and
vegetable gum with no other ingredients or additives; and (8) weighs more than 6 pounds per 1,000
units.” Mem. Op. and Order, ECF No. 214, at 8 (Aug. 19, 2020).

2
 Case 1:16-cv-01460-APM Document 247 Filed 02/19/21 Page 3 of 4

Date: February 19, 2021 Respectfully submitted,

/s/ Michael J. Edney

Michael J. Edney, DC Bar No. 492024
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue NW
Washington, DC 20036
Telephone: (202) 429-3000
Facsimile: (202) 429-3902
medney@steptoe.com

Attorney for Plaintiffs Premium Cigar

Association and Cigar Rights of America

/s/ Mark S. Raffman_______________________

Mark S. Raffman, DC Bar No. 414578
Andrew Kim, DC Bar No. 1029348
GOODWIN PROCTER LLP
1900 N Street, NW
Washington, DC 20036
Telephone: (202) 346-4000
Fax: (202) 346-4444
mraffman@goodwinlaw.com
andrewkim@goodwinlaw.com

Attorneys for Plaintiff Cigar Association of

America

3
 Case 1:16-cv-01460-APM Document 247 Filed 02/19/21 Page 4 of 4

CERTIFICATE OF SERVICE

I, Michael J. Edney, an attorney, hereby certify that on February 19, 2021, I caused a true
and correct copy of the foregoing motion to be served via Court’s ECF system upon all counsel of
record.

/s/ Michael J. Edney