RICHMOND, Va. (CN) – Three small tobacco companies say a new FDA regulation favors Big Tobacco by imposing “Draconian restrictions” on commercial speech that could drive small tobacco companies out of business. The regulation bars use of cigarette brands that share a name with non-tobacco products.
Small companies, such as plaintiff Renegade Tobacco, will not be able to keep selling its “Tucson” brand cigarettes, because Hyundai uses the term for cars, according to the federal complaint.
But Big Tobacco companies already have cemented rights to their products, such as Marlboro and Camel, and so will not be affected.
Renegade Tobacco, Alternative Brands, and Seneca-Cayuga Tobacco say the Product Name Restriction regulation will restrict “the ability of cigarette manufacturers to engage in commercial speech using their federally registered trademarks, including brand names that have been in use for years.”
The regulation will impose civil and criminal penalties on manufacturers who sell cigarette brands that share a brand name with non-tobacco products – and in some instances these manufacturers could face jail time, according to the complaint.
Big Tobacco protected from the new restrictions because the FDA provides immunity for brand names that were in effect on Jan. 1, 1995, so long as there were no non-tobacco companies using the same name.
This immunity protects most of Big Tobacco’s major brands, the plaintiffs say.
“The practical effect of this regulation will be to unfairly drive the relatively new, small cigarette manufacturers out of business by banning the use of their established brand names, while protecting the big tobacco companies that have long dominated – and that continue to dominate – the cigarette market in the United States,” according to the complaint.
The regulation is to take effect on June 22.
The plaintiffs sued the FDA and Dr. Margaret Hamburg, Commissioner of Food and Drugs, seeking an injunction preventing enforcement of the regulation. They also want a declaration that the regulation violates due process and the First Amendment.
The companies are represented by William Hurd with Troutman Sanders.