Kretek Sues FDA To Stop Possible Flavored-Cigar Ban

A top importer of clove-flavored cigars filed suit against the U.S. Food and Drug Administration in federal court Wednesday to prevent the agency from banning flavored cigars.

The suit comes a day after a ban on flavored cigarettes went into effect and after FDA officials warned companies not to try to circumvent the ban by introducing little cigars or other products similar to Vogue cigarettes. The lawsuit is the latest among other suits filed by tobacco companies against the agency that will likely tie up the implementation and enforcement of a tobacco- regulation law approved in June.

Kretek International Inc., importer and distributor of Djarum clove cigars, is seeking to stop the FDA from banning its flavored cigars. Kretek is privately held firm based in Moorpark, Calif.

John Geoghegan, Kretek’s director of product development, said the company stopped importing flavored cigarettes several weeks ago in anticipation of the ban on flavored cigarettes. The ban applies to cigarettes with fruit, candy or clove flavors but doesn’t apply to the much larger segment of menthol-flavored cigarettes.

The FDA was given the authority to regulate tobacco as part of the tobacco law and the flavored-tobacco ban was called for as part of the legislation.

Geoghegan said Kretek has been importing clove-flavored cigars for several years, but “because of the banning of market shipments of Djarum cigarettes, distributor and retailer focus on Kretek’s cigars has taken on additional prominence.” He said the company didn’t just start importing cigars to get around the ban on flavored cigarettes.

While the flavored-cigarette ban doesn’t apply to menthol cigarettes, the FDA said Tuesday that it is “examining options” for regulating menthol cigarettes as well as other tobacco products such as smokeless tobacco products that are also available in several flavors.

The tobacco law allows the FDA to regulate cigars but requires the agency to first issue regulations deeming cigars to be subject to the law, a process that could take years.

But Lawrence Deyton, director of FDA’s Center for Tobacco Products, explained that the federal definition of a cigarette includes “any roll of tobacco wrapped in paper,” suggesting certain cigars could immediately fall under the tobacco law and the flavored-cigarette ban.

An FDA lawyer said the FDA would look at “little cigars” and similar products on a “case-by-case basis.”

In a memo to industry, the FDA said the tobacco law applies to all tobacco products that meet the definition of a “cigarette,” even if they aren’t labeled as cigarettes or “are labeled as cigars or some other product.”

However, Kretek noted that the Treasury Department’s Tobacco Tax and Trade Board classified its Djarum clove-flavored cigars as cigars under federal law in 2007. “The difference between cigarettes and cigars has been clearly defined by standing law for more than 30 years,” the company said.

Last month some tobacco companies including Reynolds American Inc. (RAI) and Lorillard Inc. (LO) filed a lawsuit seeking to block certain provisions of the tobacco law on grounds that it violates the companies’ First Amendment rights by restricting rights to advertise the products to adult consumers.


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