TOBACCO CONTROL LAWS

BBK Tobacco & Foods v. U.S. Food and Drug Administration

BBK Tobacco & Foods asked a court to declare that its flavored rolling papers, which are sold separately from cigarettes, are not subject to regulation as “tobacco products” under the Family Smoking Prevention and Tobacco Control Act (“the Act”). The court dismissed BBK’s request, finding that the Food and Drug Administration (FDA) had not yet taken action against the company and, therefore, the company’s claim was premature. The court noted that the FDA had issued a guidance document, which declared that rolling papers intended for use in roll-your-own cigarettes were subject to regulation under the Act. However, the court determined that the FDA’s guidance document could not be used for enforcement of the Act and did not represent a “final” action of the FDA. 

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BBK Tobacco & Foods v. U.S. Food and Drug Admin, 672 F.Supp.2d 969 (D.Ariz., 2009).

  • United States
  • Dec 9, 2009
  • U.S. District Court, D. Arizona

Parties

Plaintiff BBK Tobacco & Foods, LLP

Defendant

  • Kathleen Sebelius, Secretary of the United States Department of Health and Human Services
  • Margaret A Hamburg, Commissioner of the United States Food and Drug Administration
  • U.S. Department of Health and Human Services
  • U.S. Food and Drug Administration

Legislation Cited

Family Smoking Prevention and Tobacco Control Act, Public Law 111-31, June 22, 2009

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Packaging and Labeling Measures
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging. (See FCTC Art. 11)

Substantive Issues

Tobacco Control Law Violation
A claim of a violation of a tobacco control law or statute.
Procedural Defect
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
Undue Burden
A discussion on whether the regulations impose an undue burden on the tobacco industry. This argument may involve the costs of implementing regulatory measures.

Type of Tobacco Product

None

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