Tobacco.org

Cigarette Ad Ruling Won’t Await Appeals Court, Judge Says  

A ruling on what cigarette makers must say in advertising about the dangers of smoking won’t await an appeals court decision in a related case, a federal judge said.

U.S. District Judge Gladys Kessler in Washington, who in 2006 found that tobacco companies violated the law by conspiring to hide the dangers of cigarettes, said today the public shouldn’t have to wait “one or more years” for a ruling in a separate case involving Food and Drug Administration rules.

Kessler is considering the proposed so-called corrective statements that tobacco companies may be forced by the government to put in advertisements. They include health warnings and confessions of past wrongdoing.

She said the statements are “necessary to prevent and restrain” tobacco companies from “making fraudulent public statements” on the health effects of smoking.

“The mere fact that First Amendment issues are being raised in both cases does not provide sufficient justification to delay the corrective action statements issue,” Kessler said in her ruling.

Jump to full article »

• 2012-01-26 MEMORANDUM OPINION on deferring a decision on corrective statements (PDF) 

The Court has concluded, for the following reasons, that there will be no deferral of decision-making regarding the corrective action statements.

1. It is perfectly clear from Defendants’ Response that the litigation challenging the Regulations promulgated by the Food and Drug Administration (“FDA”) . . . will not end (if ever) for an extremely long period of time. The case now pending before our Court of Appeals will, unquestionably, take at least one or more years to get resolved and an additional one to two years if the Supreme Court decides to grant certiorari which the loser before our Court of Appeals will undoubtedly request. In short, the period of any such deferral of decision-making would be both lengthy and indefinite. . . .

the public interest in obtaining such a remedy far outweighs any concern about judicial economy.

4. The issues to be addressed on remand here are very different substantively from and are governed by different statutory standards than those raised in R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Administration . . .

6. Finally, the Tobacco Control Act specifically stated in very clear language that “[n]othing in this Act . . . shall be construed to . . . affect any action pending in Federal, State or tribal court, or any agreement, consent decree, or contract of any kind.”

For all these reasons, the Court will not defer a decision on the corrective action statements pending the outcome of R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Administration.

Jump to full article »

• Judge won't delay decision in tobacco case  

A federal judge on Thursday said she won't delay an order in a 12-year-old lawsuit against the tobacco industry while other courts decide newer cases challenging tobacco marketing restrictions and graphic cigarette warning labels.

U.S. District Judge Gladys Kessler in Washington issued the decision in a case in which America's largest cigarette makers - including Philip Morris USA, maker of top-selling Marlboro cigarettes - were found to have concealed the dangers of smoking for decades.

Kessler has said she wants the industry to pay for ads, in broadcast and print. She has not said what corrective statements should be included in those ads, where they must be placed or for how long. That's the decision Kessler was considering delaying.

She asked the parties last November for input on whether she should delay her decision pending other lawsuits challenging marketing restrictions and new warning labels that the Food and Drug Administration proposed under authority it gained in 2009.

Kessler said that the corrective advertising that the Justice department wants the industry to pay for under a 2006 ruling is "significantly different from the verbal and pictorial advertisements" required by the FDA. She also noted that tobacco companies have brought two newer challenges to regulations the FDA proposed using its new authority.

In her decision Thursday, Kessler wrote: "It is perfectly clear" that the challenges to the FDA regulations "will not end (if ever) for an extremely long period of time."

Jump to full article »

ORDER #28-REMAND: CONSENT ORDER BETWEEN USA, INTERVENORS, AND LORILLARD re: DOCUMENT DISCLOSURE OBLIGATIONS (Dec. 27, 2011) 

Upon consideration of the Joint Motion for Consent Order Between the United States, the Public Health Intervenors (hereafter "Plaintiffs"), and Lorillard Tobacco Company (hereafter "Lorillard") Concerning Document Disclosure Obligations Under Order #1015, and the entire record herein, it is hereby ORDERED that:

A. Lorillard will deposit, on or before the dates indicated below, the amounts indicated below with the Registry of the Court:

Friday, January 13, 2012 $217,000

Monday, December 31, 2012 $217,000

Tuesday, December 31, 2013 $216,000

Total: $650,000

B. The Registry of the Court will, upon receipt of each of these installments, disburse the funds to the University of California, San Francisco (hereafter "UCSF").

C. Lorillard will make these payments primarily in lieu of its prior obligations under Order #1015 to code the person mentioned, organization mentioned, and brand mentioned fields and as part of a resolution of the scope of Lorillard's coding obligations for documents posted on its public document websites as a result of production in court or administrative actions in the United States concerning smoking and health, marketing, addiction, low-tar or low-nicotine cigarettes, or less hazardous cigarette research both prior to November 15, 2011, and on or after that date. . . .

A. This Consent Order is without prejudice to Lorillard's argument that Order #1015 does not apply retrospectively, and no party will cite this Consent Order as a basis for arguing that any other part of Order #1015 applies retrospectively.

Jump to full article »

• ORDER #29-Remand halting removal of documents from MN Depository (2011-12-29) 

the Court has been reviewing the operation of the Depository. It has come to the Court’s attention that there is some degree of confusion and uncertainty about the proper interpretation and application of Chief Judge Lawrence Cohen’s Orders of January 12, 1999. In particular, there is concern about whether Defendants’ document removals have complied with the procedures spelled out by Chief Judge Cohen in his Order. 1 If and when Removals are not handled properly, the public suffers because the removed documents are no longer available to public inspection. A temporary halt to all document removals would prevent further problems while the Court is determining how to proceed in this matter and to ensure maximum public access to the documents in the Depository.

WHEREFORE, it is this 29th day of December, 2011, hereby

ORDERED, that no Defendant shall remove any documents from the population available to the public at the Depository until further Order of the Court.

Jump to full article »

DOCKET FOR USA v. PHILIP MORRIS USA, et al Dec. 23-Dec. 29, 2011. 

12/23/2011 5960 NOTICE by R.J. REYNOLDS TOBACCO COMPANY (Francisco, Noel) (Entered: 12/23/2011)

12/23/2011 DEPOSIT of Funds into registry of the Court on December 23, 2011, in the amount of $200,000.00. Receipt Number 4616044746 by RJ REYNOLDS TOBACCO CO. (dr) (Entered: 12/27/2011)

12/27/2011 5961 Consent ORDER 5958 Between the United States, the Public Health Intervenors, and Lorillard Tobacco Company Concerning Document Disclosure Obligations Under Order #1015. Signed by Judge Gladys Kessler on 12/23/11. (alp) (Entered: 12/27/2011)

12/29/2011 5962 ORDER #29-Remand: No Defendant shall remove any document from the population available to the public at the [Minnesota] Depository until further Order of the Court (see Order for details). Signed by Judge Gladys Kessler on 12/19/11. (CL, ) (Entered: 12/29/2011)

Jump to full article »

Philip Morris and R.J. Reynolds Settle with Justice Department Over Tobacco-Industry Document Databases  

The country's two biggest tobacco companies have agreed to improve public access to internal tobacco-industry documents and to pay $6.25 million into a court fund that will go to support the country's largest online collection of tobacco documents, the Justice Department announced today. The agreement is part of the United States' landmark case against the country's largest cigarette companies, filed in federal court in Washington. The settlement is with Philip Morris USA and its parent Altria Group, and with R.J. Reynolds Tobacco Company.

The agreement resolves a dispute between the tobacco companies and the United States about the online document databases that the court ordered in 2006. The court ruled then that Philip Morris, R.J. Reynolds and other cigarette companies had suppressed internal documents, information and research, as part of a broad campaign to deliberately deceive the American people about smoking's health effects, nicotine addiction, manipulating cigarette design to increase addiction, light- and low-tar cigarettes and marketing to youth. As a result, the court ordered the companies to provide public access to all documents they turned over in all smoking-and-health lawsuits in the United States for the next 15 years, through online document websites and through a hard-copy archive known as the Minnesota Depository. . . .

"To prevent future wrongdoing, the court ordered the tobacco companies to make all documents they disclosed in certain types of lawsuits publicly available for the next 15 years and to pay more than $6 million to maintain the document database," said Tony West, Assistant Attorney General for the Civil Division of the Department of Justice. "This agreement helps make sure that these documents will be accessible to researchers, journalists, students, lawyers, the government and the public at large - anyone who is interested in learning more about the defendants' efforts to mislead consumers about the effects of smoking."

Jump to full article »

Justice Department Acts to Enforce Court Order Requiring Continued Disclosure of Tobacco Industry Documents  

Judge Kessler ordered tobacco companies to continue disclosing internal documents until 2021. This requirement is critical to preventing continued tobacco industry wrongdoing and to exposing and stopping the industry's efforts to deceive the public and market to children. The Legacy Tobacco Documents Library will become an even more valuable resource for researchers, journalists, regulators and members of the public. The documents provide an important window into what the tobacco industry knows -- and tries to hide -- about the health harms of its products, how it manipulates its products and how it markets them.

Jump to full article »

RJR Notice of Deposit of $200,000 (PDF) 

NOTICE

Defendant R.J. Reynolds Tobacco Company hereby gives notice that it has deposited its payment of $200,000 due by December 31, 2011 pursuant to Order #27-Remand into the Registry of the Court.

Dated: December 22, 2011

Jump to full article »

(Proposed) ORDER #___-REMAND: CONSENT ORDER BETWEEN USA AND LORILLARD re: DOCUMENT DISCLOSURE OBLIGATIONS UNDER ORDER #1015  

Upon consideration of the Joint Motion for Consent Order Between the United States, the Public Health Intervenors (hereafter “Plaintiffs”), and Lorillard Tobacco Company (hereafter “Lorillard”) Concerning Document Disclosure Obligations Under Order #1015, and the entire record herein, it is hereby ORDERED that: . . .

II. Monetary Terms

A. Lorillard will deposit, on or before the dates indicated below, the amounts indicated below with the Registry of the Court:

Friday, January 13, 2012 $217,000

Monday, December 31, 2012 $217,000

Tuesday, December 31, 2013 $216,000

Total: $650,000

B. The Registry of the Court will, upon receipt of each of these installments, disburse the funds to the University of California, San Francisco (hereafter “UCSF”).

C. Lorillard will make these payments primarily in lieu of its prior obligations under Order #1015 to code the person mentioned, organization mentioned, and brand mentioned fields and as part of a resolution of the scope of Lorillard’s coding obligations for documents posted on its public document websites as a result of production in court or administrative actions in the United States concerning smoking and health, marketing, addiction, low-tar or low-nicotine cigarettes, or less hazardous cigarette research both prior to November 15, 2011, and on or after that date. . . .

A. This Consent Order is without prejudice to Lorillard’s argument that Order #1015 does not apply retrospectively, and no party will cite this Consent Order as a basis for arguing that any other part of Order #1015 applies retrospectively.

Jump to full article »

NOTICE OF UCSF AGREEING TO BE SUBJECT TO CONSENT ORDER CONCERNING TOBACCO-DOCUMENT ACCESSABILITY  

We submit this Notice to certify that:

1. UCSF is aware of and consents to the terms that refer to the university in the (proposed) consent order;

2. UCSF voluntarily submits itself to the personal jurisdiction of the Court concerning any disputes about UCSF’s obligations under the (proposed) consent order;

3. UCSF agrees to use the moneys disbursed to it by the Registry of the Court under the (proposed) consent order to improve access to and functionality of the Legacy Tobacco Documents Library, e.g., through coding documents and providing enhanced search capabilities (with the understanding that the university may assess some percentage for indirect costs), and not for any other purpose.

4. As a condition for receipt of the payments provided under the (proposed) consent order, UCSF agrees to file through the ECF system, by December 31 of each year (beginning in 2012) and up to and including the final year in which these funds are spent, a certification confirming that these funds have been used only for the purposes described in Paragraph (3) and not for any other purpose.

5. UCSF agrees that if it spends any of these funds in a manner inconsistent with Paragraph (3), it will refund any such funds to the Registry of the Court.

6. UCSF understands that under the (proposed) consent order, it may allocate the monies received for the purposes specified in Paragraph (3) through December 31, 2025. UCSF will have until that date to spend all the funds provided by the (proposed) consent order, and agrees to continue filing annual certifications until all funds are spent. UCSF agrees that if any of the funds remain unspent by that date, it will refund any remaining funds to the Registry of the Court.

Jump to full article »

DEFENDANTS’ RESPONSE TO ORDER OF NOVEMBER 17, 2011 on Correctives 

Defendants respectfully submit this response to this Court’s Order of November 17, 2011, which directed the parties “to submit their views on the following questions: (1) should this Court defer consideration of the issue of corrective action statements (as well as the issue of retail store advertising placement), (2) if so, for how long should such consideration be deferred?” D.E. 5950 at 2 (Nov. 17, 2011). In Defendants’ view, this Court should defer its resolution of the pending corrective-statement and point-of-sale issues until the conclusion of the ongoing appellate proceedings in the D.C. Circuit, and any subsequent proceedings in the U.S. Supreme Court, in R.J. Reynolds Tobacco Co. v. United States FDA, _ F. Supp. 2d _, 2011 WL 5307391 (D.D.C. Nov. 7, 2011), appeal pending No. 11-5332 (D.C. Cir.). That appeal from Judge Leon’s order preliminarily enjoining the FDA’s graphic-warnings rule raises several issues that overlap with those before this Court, and is currently proceeding on an expedited briefing schedule. In the interests of judicial economy, this Court should therefore await the resolution of that appeal before deciding the pending corrective-statement and point-of-sale issues.

In R.J. Reynolds, Judge Leon issued a preliminary injunction against the implementation of an FDA rule that requires cigarette manufacturers to display a series of nine rotating graphic- warning labels on the top 50% of the front and back of every cigarette package and the top 20% of advertisements. . . .

Deferring resolution of the corrective-statement and point-of-sale issues until the D.C. Circuit rules is unlikely to generate significant delay. After noticing an appeal on November 29, 2011, the Government filed an Unopposed Motion to Set Expedited Briefing Schedule. Pursuant to that request, the D.C. Circuit expedited briefing of the appeal: The Government has already filed its opening brief and all briefing in the appeal will be completed by February 13, 2012; oral argument is scheduled for April 10, 2012. It is therefore possible that the D.C. Circuit will be in a position to issue an opinion in the spring of 2012. See also 28 U.S.C. § 1657(a) (requiring “each court of the United States” to “expedite the consideration of . . . any action for temporary or preliminary injunctive relief”).

Deferring resolution of the pending corrective-statement and point-of-sale issues would therefore constitute a sound case-management decision that is likely to conserve this Court’s resources without engendering significant delay.

CONCLUSION

This Court should defer resolution of the pending corrective-statement and point-of-sale issues until the conclusion of appellate proceedings in the D.C. Circuit, and any subsequent proceedings in the U.S. Supreme Court, in R.J. Reynolds Tobacco Co. v. United States FDA.

Jump to full article »

USA re Correctives, Dec. 20, 2011 

UNITED STATES’ RESPONSE TO ORDER SEEKING VIEWS ON DEFERRING CONSIDERATION OF RECOMMENDED CORRECTIVE STATEMENTS

On November 17, 2011, the Court directed the parties to submit their views on whether the Court should defer considering the issue of corrective statements and point-of-sale placement of the corrective statements within retail stores; and if so, for how long. The United States urges the Court to continue to move forward on this remedy expeditiously. The time that the Court originally contemplated for the Defendants to make the required corrective statements has long since passed. Waiting for further events in other cases is unnecessary, as future appellate decisions will not assist the Court in resolving the issues before it here, and delay is not in the public interest. What is more, the Court has already addressed—and explicitly rejected—the arguments that Defendants are most likely to muster in favor of further waiting.

ARGUMENT

1. POSTPONING DECISION ON CORRECTIVE STATEMENTS WILL NOT CONSERVE JUDICIAL RESOURCES, BUT WILL GIVE DEFENDANTS INDIRECTLY WHAT THE COURT REFUSED TO GIVE THEM DIRECTLY . . .

2. POSTPONING DECISION ON THE CORRECTIVE STATEMENTS WOULD BE CONTRARY TO THE PUBLIC INTEREST, AS THIS COURT HAS PREVIOUSLY FOUND . . .

When denying Defendants’ vacatur motion in this case nearly six months ago, the Court observed that “[i]t has been well over eleven years since this case was filed and nearly five years since this Court found that Defendants ‘knowingly and intentionally engaged in a scheme to defraud smokers and potential smokers, for purposes of financial gain, by making false and fraudulent statements, representations, and promises.’ ” US v. PM Vacatur Decision, 787 F. Supp. 2d at 82 (internal citation omitted). It is now more than twelve years since this case was filed, and over five years since the Court found Defendants liable and ordered a corrective- statement remedy. The corrective-statement remedy should be implemented now.3

CONCLUSION

For the reasons stated above, the United States respectfully urges the Court not to defer its consideration of this important remedy.

Jump to full article »

PUBLIC HEALTH INTERVENORS’ RESPONSE TO THE COURT’S NOVEMBER 17, 2011 ORDER ON CORRECTIVES  

The Court has already correctly determined that the remedies imposed in this case remain necessary and appropriate irrespective of the Family Smoking Prevention Act. See United States v. Philip Morris USA, Inc., 787 F. Supp. 2d 68 (D.D.C. 2011) (denying Defendants’ motion for vacatur). This is particularly true with regard to the corrective statements remedy, which the Court of Appeals explained will “prevent and restrain [Defendants] from making fraudulent public statements on smoking and health matters in the future.” In short, while litigation over the Family Smoking Prevention Act is likely to continue for years, corrective statements are needed now to prevent and restrain Defendants from their continuing misconduct, which the Court has already found – and the Court of Appeals affirmed – is likely to continue. 566 F.3d at 1134 (the record “amply support[s]” the “conclusion that Defendants ‘continue to make false and misleading statements . . . .”) (other citations omitted); see also, e.g., United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 910 (D.D.C. 2006) (“As Defendants’ senior executives took the witness stand at trial, one after another, it became increasingly clear that these Defendants have not, as they claim, ceased their wrongdoing or, as they argued throughout the trial, undertaken fundamental or permanent institutional change”). . . .

Finally, the mere fact that First Amendment arguments are being raised against both this Court’s corrective statement remedy and the FDA Act certainly does not counsel in favor of delaying resolution of corrective statements until such matters have been completely resolved (including on appeal) in the other case pending in this Circuit. Should any future decisions regarding that case – such as, for example, a ruling in the Court of Appeals – become relevant to any issues remaining before this Court, they can be taken into account at that time, just as the ultimate resolution of the issues this Court is considering regarding the corrective statement remedy may inform the resolution of the challenge to the FDA Act (which has not yet even been heard on summary judgment). Accordingly, the mere fact that both cases involve the First Amendment issues is not a reason to delay the corrective statements remedy in this case.

Conclusion

For the foregoing reasons, the Court should not delay resolution of the corrective statements remedy in light of the ongoing litigation under the FDA Act and its implementing regulations or for any other reason. Rather, to prevent and restrain further misconduct, the Court should order Defendants to issue corrective statements without delay.

Jump to full article »

Philip Morris Notice of $200,000 payment (PDF) for Documents  

NOTICE

Defendants Altria Group, Inc. and Philip Morris USA Inc. hereby give notice that they have deposited their payment of $200,000 due by December 31, 2011 pursuant to Order #27- Remand into the Registry of the Court.

Jump to full article »