6167: UNITED STATES’ REPLY IN SUPPORT OF PLAINTIFFS’ MOTION TO FORMALLY REINSTATE THE DESCRIPTOR BAN

September 11, 2015 9:12 pm by Gene Borio

The PDF is Here

EXCERPT:

The tobacco companies’ brief appears to misapprehend two passages in Plaintiffs’ motion. Those passages explained that if the Court entered our proposed descriptor-ban language, and if a company subject to Order #1015 requested and received FDA authorization under the relevant modified-risk tobacco-product provisions, the relevant company could file “a Rule 60(b) motion for the Court to make an appropriately specific modification to the descriptor ban.” Pls.’ Mot. at 13 (Dkt. No. 6160; filed July 31, 2015) (emphasis added); see also id. at 14 (referring to “a Rule 60(b) motion seeking specific permission, based on specific and detailed representations to this Court . . . to modify the descriptor ban”) (emphasis added).

Today’s filing characterizes these passages as “representations” that the relevant company could “seek an order from this Court stating that use of the approved language in compliance with the Secretary’s order would not violate Order #1015.” Defs.’ Br. at 2 (emphases added). While in one sense parties may “seek” any kind of court order they wish, what Plaintiffs’ opening brief contemplated was a motion, filed under Rule 60(b), seeking not a “stat[ement]” that certain claims and descriptors “would not violate” the descriptor ban, but rather, seeking to modify the descriptor ban to allow the relevant claims and descriptors.

END EXCERPT

FULL TEXT:

Case 1:99-cv-02496-GK Document 6167 Filed 09/11/15 Page 1 of 2

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

and

TOBACCO-FREE KIDS ACTION FUND,
et al.,

Plaintiff-Intervenors,

v.

PHILIP MORRIS USA, INC., et al.,

Defendants

Civil Action No. 99-CV-2496 (GK)

Next scheduled court appearance:

October 1, 2015

____________________________________

UNITED STATES’ REPLY IN SUPPORT OF PLAINTIFFS’
MOTION TO FORMALLY REINSTATE THE DESCRIPTOR BAN

Earlier today, the tobacco companies withdrew their prior opposition to Plaintiffs’ motion to formally reinstate this Court’s descriptor ban. (Dkt. No. 6165). The United States submits this short filing to avoid any potential future confusion. The tobacco companies’ brief appears to misapprehend two passages in Plaintiffs’ motion. Those passages explained that if the Court entered our proposed descriptor-ban language, and if a company subject to Order #1015 requested and received FDA authorization under the relevant modified-risk tobacco-product provisions, the relevant company could file “a Rule 60(b) motion for the Court to make an appropriately specific modification to the descriptor ban.” Pls.’ Mot. at 13 (Dkt. No. 6160; filed July 31, 2015) (emphasis added); see also id. at 14 (referring to “a Rule 60(b) motion seeking specific permission, based on specific and detailed representations to this Court . . . to modify the descriptor ban”) (emphasis added).

Today’s filing characterizes these passages as “representations” that the relevant company could “seek an order from this Court stating that use of the approved language in compliance with

Case 1:99-cv-02496-GK Document 6167 Filed 09/11/15 Page 2 of 2

the Secretary’s order would not violate Order #1015.” Defs.’ Br. at 2 (emphases added). While in one sense parties may “seek” any kind of court order they wish, what Plaintiffs’ opening brief contemplated was a motion, filed under Rule 60(b), seeking not a “stat[ement]” that certain claims and descriptors “would not violate” the descriptor ban, but rather, seeking to modify the descriptor ban to allow the relevant claims and descriptors.

Respectfully submitted,

Dated: September 11, 2015
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
Civil Division

U.S. DEPARTMENT OF JUSTICE
Michael Blume, Director
Andrew Clark, Assistant Director
Consumer Protection Branch

___/s/___________________
DANIEL K. CRANE-HIRSCH
Trial Attorney
Consumer Protection Branch, Civil Division
United States Department of Justice
PO Box 386
Washington, DC 20004-0386
Telephone: 202-616-8242
Facsimile: 202-514-8742
E-mail address:
daniel.crane-hirsch@usdoj…

Attorneys for Plaintiff United States of
America

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