On May 26, 2016, Altria Group, Inc. filed suit against the Food & Drug Administration (FDA) in a bid to keep using the Black & Mild brand name for its popular cigars.

The suit stems from the FDA’s deeming regulations published on May 10, 2016, which apply the Tobacco Control Act’s ban on unapproved “modified risk descriptors,” such as “light,” “low,” and “mild,” to cigars.  Words such as “mild,” the FDA contends, communicate to consumers that a product is safer than other tobacco products.

Altria disagrees.  In a civil complaint filed with United States District Court for the District of Columbia, Altria argues the use of the word “mild” in Black & Mild doesn’t convey anything about health, risk or safety.  According to Altria, the term describes “taste and body.”  The company maintains that the modified risk ban, as applied to Black and Mild, violates the First Amendment, which shields trademarks and brand names. It further asserts that the ruling also violates the Fifth Amendment, which prevents the government from taking private property (including trademarks) for public use without compensation.

The suit seeks declaratory and injunctive relief.

For questions and/or comments, please contact Bryan Haynes, Troutman Sanders tobacco practice partner, at 804.697.1420 or by email.