Kretek Sues FDA Over Flavor Ban

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Kretek Sues FDA Over Flavor Ban

WASHINGTON -- Kretek International Inc., importer and distributor of Djarum clove cigars, filed Wednesday a request for declaratory judgment against the Food and Drug Administration (FDA), following what it claimed was the FDA's intention to exceed its legislative authority to regulate flavored cigarettes by banning other tobacco products as well.

The suit was filed in Federal District Court in Washington, DC.

As of Sept. 22, 2009, cigarettes with a characterizing flavor other than tobacco or menthol are illegal, according to a new FDA law. But cigars are not covered by the FDA's new authority, Kretek said in a statement, adding the purpose of the suit is to prevent the FDA from taking action against Kretek's Djarum cigar products.

The Djarum cigars are the latest products in the line. With the banning of market shipments of Djarum cigarettes, Kretek's cigars have taken on additional prominence with distributors and retailers, the company said.

In 2007, the current Djarum cigars were classified by the Tobacco Tax and Trade Bureau (TTB) as cigars under the code of federal regulations, and an advanced ruling was issued, stating they met the legal test as a cigar product, according to Kretek.

"We have made every effort to meet the letter and spirit of the law, and to ensure that these products are displayed in the cigar section of the tobacco counter," John Geoghegan of Kretek said in a statement. "The Djarum product is clearly labeled as a cigar in at least seven places on the pack, in addition to clear merchandising messaging."

And as many consumers are finding their preferred flavored cigarettes extinct, retailers worry that the incidences of cigarette smuggling will increase.

The store manager at HSB Tobacconist, located in the St. Louis area, expects a loss of business as a result of the flavor ban.

"We sold a lot of cloves," the store manager, who declined to be identified, told "The people who bought cloves were 18 and up. Some people in their 40s or 50s smoked cloves all their lives. Same thing with chocolate, cherry and vanilla. It wasn't just young kids."

Ahead of the ban, the manager saw huge sales increases on flavored cigarettes. "We had people buy 40 cartons," he told the Web site. "They wanted cloves."

HSB had sold out of most of its inventory of flavored cigarettes, but the remainder was thrown away, the store manager said. He also predicted an increase in the black market and smuggling.

"The Russians will provide people with cloves," he said in the report.

With the ongoing confusion over which flavored tobacco products are now illegal and which are not, the National Association of Tobacco Outlets (NATO) is asking tobacco retailers to send a letter to the FDA's tobacco committee director, Dr. Lawrence Deyton. The letter, available on its Web site, requests that the FDA a list by brand name of those flavored tobacco products which are and are not banned.

And several other tobacco companies issued statements to their retailer and wholesaler partners, indicating whether or not their products are impacted by the flavor ban. Among them was Mayodan, N.C.-based General Tobacco (GT), which said the ban has no effect on the company's products.

"GT has no products affected by the new ban," J. Ronald Denman, general counsel and executive vice president of General Tobacco, said in a statement. Denman supported the legislation, according to the statement.

Meanwhile, National Tobacco issued a statement clarifying that its Zig-Zag Cigar Wraps are a cigar product and are not a cigarette product. The product is designed to be used with Zig-Zag Pipe Tobacco Cigar, and for this reason, "these products are not impacted by the FDA ban on flavored cigarettes, flavored roll-your-own cigarette tobacco, and flavored cigarette papers and filters," the company stated.

In addition, New Image Global Inc., maker of Royal Blunts and True Blunts, stated the ban does not affect any of its products, including its EZ Roll cigar wraps.

Related News:

FDA Clarifies Flavored Cigarette Ban

Tobacco Cos. Reassure Retailers Ahead of FDA Flavor Ban

FDA Alerts Industry of Flavored Cigarette Deadline