Rolling Papers vs. Court Documents

BBK/HBI files suit against FDA to protect products sold separately from tobacco

PHOENIX -- BBK Tobacco & Foods, doing business as HBI International, has filed a federal lawsuit seeking to overturn the U.S. Food & Drug Administration's ban on flavored cigarette rolling papers that are sold in separate packages, according to the most recent issue of NATO E-News from the National Association of Tobacco Outlets.

"HBI is only seeking to protect its brands, namely Juicy Jays and Skunk," a company representative told NATO.

In late September, Moorpark, Calif.-based Kretek International Inc., importer and distributor of Djarum clove [image-nocss] cigars, filed a request for declaratory judgment against the FDA in federal district court in Washington, D.C. The Kretek filing, the company said, "comes after the FDA signaled its intention to exceed its legislative authority to regulate flavored cigarettes in order to ban other tobacco products as well." (Click here for previous CSP Daily News coverage.)

In its lawsuit, BBK Tobacco & Foods argued that while the new FDA law bans flavored cigarettes and the components parts of a flavored cigarette, such as the tobacco, paper and filter, the law does not mention that the ban extends to flavored cigarette rolling papers packaged separately.

The FDA overstepped its authority to regulate flavored cigarettes by banning the flavored rolling papers that are sold separately, BBK Tobacco & Foods claimed in the federal lawsuit, added a report by Courthouse News cited by NATO.

BBK Tobacco & Foods, a distributor and seller of flavored papers, said the FDA is trying to "expand its authority to regulate cigarettes containing 'characterizing flavors' under the Family Smoking Prevention & Tobacco Control Act."

The act, signed on June 22, provides that "a cigarette or any of its component parts...shall not contain, as a constituent or additive, an artificial or natural flavor," but allegedly made no mention of flavored papers that are sold separately.

According to BBK Tobacco, the act's definition of cigarette includes products that contain tobacco. Flavored paper sold separately does not include tobacco, BBK Tobacco argued, and therefore should not be included in the act.

The company says its sales of flavored papers comprise a "significant portion" of annual profits, and the act has had a "devastating impact" on its business.

It seeks an order declaring that U.S. agencies "have no authority to regulate flavored papers sold separately under the act," plus an injunction blocking the government from banning the papers.

The U.S. Department of Health & Human Services, FDA Commissioner Margaret A. Hamburg and HHS Secretary Kathleen Sebelius are also named as defendants.

BBK Tobacco is being represented by Joel Sannes of Lake & Cobb, Tempe, Ariz.