DOCKET for CIGAR ASSOCIATION v FDA, Feb 21-Mar 22, 2017

March 22, 2017 9:47 pm by Gene Borio

EXCERPT:

MINUTE ORDER granting 27 the parties’ Joint Motion to Amend Scheduling Order. The revised schedule is as follows: Defendants’ Opposition to Plaintiffs’ Motion for Summary Judgment and Cross-Motion for Summary Judgment shall be filed on or before May 1, 2017; briefs of any amici granted leave to file in support of Defendants shall be filed on or before May 8, 2017; Plaintiffs’ Reply in Support of its Motion for Summary Judgment and Opposition to Defendants’ Cross-Motion shall be filed on or before June 14, 2017; Defendants’ Reply in Support of their Cross-Motion for Summary Judgment shall be filed on or before July 14, 2017; Plaintiffs shall file the appendix of excerpts of the administrative record on or before July 28, 2017; and oral argument is scheduled for August 30, 2017, at 10 a.m. in Courtroom 10.

END EXCERPT

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CIGAR ASSOCIATION OF AMERICA, et al. v FDA: BRIEF OF THE STATES OF AZ, LA, MI AND TX AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS, Feb 21, 2016

March 17, 2017 5:17 pm by Gene Borio

The PDF is Here

EXCERPT:

First, the FDA failed to provide an adequate cost-benefit analysis determining that the benefits of deeming premium cigars to be regulated tobacco products outweigh the undeniably severe costs, particularly to thousands of small businesses. In doing so, the agency ignored the principles that Congress set for balancing the costs of regulation against its benefits: Congress sought “appropriate” regulations that permit the continued sale of cigars and pipe tobacco to adults. Secondly, the FDA failed to adequately address the way in which deeming cigars will undermine the public health programs funded by state excise taxes on non-cigarette tobacco products.

. . .

The decision to regulate premium cigars was not appropriate, not supported by quantitative analysis or reasoned decision making because the costs outweigh the benefits. The FDA failed to provide quantitative measurement of benefits that were aligned with the purposes of the Family Smoking Prevention Act and failed to justify its opinion that these benefits outweighed the extreme costs, which will shut down premium and pipe tobacco retailers and manufacturers and effectively make cigar and pipe tobacco products used by adults for decades unavailable for sale.

Finally, Amici States are concerned that the Final Rule will unsettle the evidence-based state tobacco control programs that are funded in many states by excise tax revenues on tobacco products. Excise taxes on tobacco products fund many other state budgetary priorities as well. Despite this, the FDA summarily dismissed comments raising this issue with the unsupported conclusory assertion that there will be “no net social cost or benefit associated with any reduction in excise tax collections.”1 This is a truly remarkable statement and is akin to an assertion that governments should not be collective taxes at all, if the money has equal social value in the hands of the private sector. Through its attack on the cigar industry, the FDA’s rule will reduce resources available to tobacco control programs that have been proven to reduce youth use and initiation in favor of a blunderbuss regulation the FDA barely can even speculate will have such an effect.

END EXCERPT

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CIGAR ASSOCIATION OF AMERICA, et al. v FDA: PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, Feb 13, 2017

February 15, 2017 12:27 pm by Gene Borio

The PDF is Here

EXCERPT:

For these reasons and those set out in the accompanying Memorandum of Law, Plaintiffs request that the Court grant their motion for summary judgment on all claims and: (1) vacate and set aside the Deeming Rule; (2) vacate and set aside the User Fee Rule; (3) declare that the User Fee Rule violates the Fifth Amendment; (4) declare that the Deeming Rule warning label requirements violate the First Amendment; (5) enter a permanent injunction restraining the FDA from implementing or enforcing the Deeming Rule or User Fee Rule; (6) award Plaintiffs their litigation costs and attorneys’ fees; and (7) order such other and further relief as the Court deems just and proper.

END EXCERPT

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DOCKET for CIGAR ASSOCIATION v FDA, Jul 15, 2016-Feb 16, 2017

February 15, 2017 11:58 am by Gene Borio

The PDF is Here

EXCERPT:

07/15/2016 1 COMPLAINT against SYLVIA M. BURWELL, in her official capacity as Secretary of Health and Human Services, Robert Califf, M.D., in his official capacity as Commissioner of Food and Drugs, UNITED STATES FOOD AND DRUG ADMINISTRATION, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES filed by CIGAR ASSOCIATION OF AMERICA, CIGAR RIGHTS OF AMERICA, INTERNATIONAL PREMIUM CIGAR AND PIPE RETAILERS ASSOCIATION.

. . .

02/16/2017 MINUTE ORDER resetting briefing deadline in this case. Briefs of any amici granted leave to file in support of Plaintiffs shall be filed on or before February 21, 2017. The court hereby vacates the previous deadline of February 20, 2017, due to the federal holiday. Signed by Judge Amit P. Mehta on 02/16/2017. (lcapm3) (Entered: 02/16/2017)

END EXCERPT

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CEI v DOT: ORDER: Schedule, Feb 14, 2017

February 14, 2017 9:35 pm by Gene Borio

The PDF is Here

EXCERPT:

O R D E R

It is ORDERED, on the court’s own motion, that this case be scheduled for oral argument on April 10, 2017, at 9:30 A.M. The composition of the argument panel will usually be revealed thirty days prior to the date of oral argument on the court’s web site at www.cadc.uscourts.gov.

The time and date of oral argument will not change absent further order of the Court.

A separate order will be issued regarding the allocation of time for argument.

END EXCERPT

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USA v PHILIP MORRIS, et. al. Appeal: COURTROOM MINUTES OF ORAL ARGUMENT, Feb 14, 2017

February 14, 2017 9:29 pm by Gene Borio

The PDF is Here

EXCERPT:

PROCLAMATION BEING MADE, the Court opened on February 14, 2017 at 9:41 a.m. The cause was heard as case No. 1 of 3 and argued before the Court by:

Michael A. Carvin, counsel for Appellant Philip Morris USA, Inc.

Melissa N. Patterson (DOJ), counsel for Appellee USA.

Eric R. Glitzenstein, counsel for Appellees Tobacco-Free Kids Action Fund, et al.

END EXCERPT

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DOCKET for FORSYTH v MPAA, Jan 30-Feb 15, 2017

February 7, 2017 10:54 pm by Gene Borio

EXCERPT:

02/14/2017 77 CLERK’S NOTICE RESETTING THE TIME ON MOTION HEARING as to 66 MOTION for Attorney Fees . Motion Hearing set for 3/23/2017 at 02:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. (This is a text-only entry generated by the court. There is no document associated with this entry.) (clS, COURT STAFF) (Filed on 2/14/2017) (Entered: 02/14/2017)

02/15/2017 78 USCA ORDER AND MANDATE as to 70 Notice of Appeal, filed by Timothy Forsyth. (gbaS, COURT STAFF) (Filed on 2/15/2017) (Entered: 02/15/2017)

02/15/2017 79 CLERK’S Letter Spreading Mandate to Counsel. (gbaS, COURT STAFF) (Filed on 2/15/2017) (Entered: 02/15/2017)

END EXCERPT

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DOCKET for USA v PHILIP MORRIS, et. al. Appeal #: 16-5127

February 7, 2017 10:50 pm by Gene Borio

EXCERPT:

02/07/2017 FORM 72 submitted by arguing attorney, Michael A. Carvin, on behalf of Appellants Altria Group, Inc., Commonwealth Brands Incorporated, Commonwealth-Altadis, Inc., ITG Brands, LLC, Philip Morris USA Inc. and R.J. Reynolds Tobacco Company in 16-5101 (For Internal Use Only: Form is restricted to protect counsel’s personal contact information). [16-5101, 16-5127] (Mandell, Jeffrey)

02/07/2017 FORM 72 submitted by arguing attorney, Melissa N. Patterson, on behalf of Appellee USA in 16-5101, 16-5127 (For Internal Use Only: Form is restricted to protect counsel’s personal contact information). [16-5101, 16-5127] (Patterson, Melissa)

02/07/2017 FORM 72 submitted by arguing attorney, Eric R. Glitzenstein, on behalf of Appellees American Cancer Society, American Heart Association, American Lung Association, Americans For Nonsmokers’ Rights, National African American Tobacco Prevention Network and Tobacco-Free Kids Action Fund in 16-5101, 16-5127 (For Internal Use Only: Form is restricted to protect counsel’s personal contact information). [16-5101, 16-5127] (Glitzenstein, Eric)

END EXCERPT

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USA v PHILIP MORRIS, et. al. Appeal: ORDER for Oral Argument, Feb 6, 2017

February 6, 2017 8:31 pm by Gene Borio

The PDF is Here

EXCERPT:

It is ORDERED, on the court’s own motion, that the following times are allotted for the oral argument of this case scheduled for February 14, 2017, at 9:30 A.M.:

Appellant Philip Morris USA, Inc. -10 Minutes

Appellees -10 Minutes (to be divided among appellees as they see fit)

One counsel per side to argue. The panel considering this case will consist of CircuitJudge Brown, and Senior Circuit Judges Sentelle and Randolph.

END EXCERPT

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ORDER #66-Remand explaining why the Status Conference set for January 31, 2017, was cancelled

January 31, 2017 6:35 pm by Gene Borio

The PDF is Here

EXCERPT:

On January 3, 2017, the Court Ordered counsel to appear on this date for a Status Conference since the Court of Appeals had issued the Mandate on a Motion on which it had recently ruled. As counsel know, there are two more Appeals pending before the Court of Appeals, in which oral arguments have been scheduled for February 14, 2017. After reading the briefs, the Court concluded that the holding of a Status Conference would not be worthwhile and should await the Court of Appeals’ ruling in the Appeals now before it.

The Court hopes that the Parties were not inconvenienced by this change.

END EXCERPT

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