NCLA Weighs in on Cigar Rules Litigation

The New Civil Liberties Alliance (NCLA) has filed an amicus curiae brief in Cigar Association of America v. FDA, urging the U.S. Court of Appeals for the District of Columbia Circuit to reject the “remand without vacatur” legal doctrine. This practice allows administrative agencies to continue enforcing rules that the court has just declared unlawful.

In August 2023, the U.S. District Court for the District of Columbia concluded that the U.S. Food and Drug Administration’s final deeming rule regulating tobacco products was “arbitrary and capricious” with respect to premium cigars because the FDA failed to account for evidence regarding the potentially differential health effects between premium cigars and other tobacco products.

The court then set the rule aside to the extent that it addresses premium cigars. The FDA now asks the D.C. Circuit to either reverse the district court’s ruling or to at least allow it to continue enforcing the remaining unlawful rule under the “remand without vacatur” doctrine while it considers its options.

Without taking a position on whether the FDA’s conduct was arbitrary and capricious, the NCLA argues that the Administrative Procedure Act requires courts to set aside unlawfully promulgated rules completely. According to the group, this duty necessarily follows from basic principles underlying both the rule of law and the U.S. constitution.