Cigar Firm Sues to Restore Black & Mild Mark

(CN) — The maker of Black & Mild cigars sued the Food and Drug Administration for banning any use of the word "mild" to describe tobacco products.

On May 10, 2016, the FDA issued a rule banning John Middleton Company from selling cigars and pipe tobacco under the brand name Black & Mild.

The FDA asserted that the trademarked name conveyed to consumers that the cigars were safer than other kinds of smoking tobacco.

"The Final Rule terminates this iconic brand name on the bare supposition that the word 'mild' impermissibly communicates to consumers that Black & Mild products are safer than other cigars and pipe tobacco. FDA cited no evidence that the Black & Mild name conveys any message about the health risks of the products," the complaint states.

John Middleton says the FDA ignored evidence that consumers understand the term "mild" to refer to taste, not the health risks of the cigar.

The company claims that "mild" "carries no safety-related connotation for cigars and pipe tobacco products, especially when it is integrated into a well-established brand name like Black & Mild."

The word "mild" allegedly does not carry the same associations for pipe tobacco as the word "light" for describing cigarettes, which has been found to give consumers the false impression that "light" cigarettes are safer than normal cigarettes.

The FDA's final rule bars the words "light" and "low," in addition to "mild" when used as descriptors of the health risks of a tobacco product.

"A per se ban on certain words in a trademark or brand name, without regard to their meaning in context, does not advance any legitimate government interest, much less a compelling one," John Middleton says in its complaint filed Thursday in Washington. "The sensible, less restrictive alternative - which Middleton proposed but FDA ignored - is for the agency to assess whether a word such as 'mild' conveys a modified risk claim in cigar and pipe tobacco labeling and advertising, including in the Black & Mild name."

John Middleton seeks a court order declaring the FDA's rule void for being arbitrary and capricious, and a violation of its free speech rights.

It is represented by Robert Weiner with Arnold & Porter in Washington D.C.

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