6166: DEFENDANTS’ AND POST-JUDGMENT PARTIES REGARDING REMEDIES’ RESPONSE TO PLAINTIFFS’ MOTION TO REINSTATE THE DESCRIPTOR BAN

September 11, 2015 11:31 am by Gene Borio

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EXCERPT:

Defendants and Post-Judgment Parties Regarding Remedies (collectively, the “Tobacco Companies”) initially sought additional language in a reformulated descriptor ban, and this Court issued Order #58-Remand to schedule briefs in which the parties would exchange views. Upon further consideration and in reliance on representations that, should a Tobacco Company obtain approval from the Secretary of the United States Department of Health & Human Services to use a prohibited descriptor or other modified health claim, as authorized by 21 U.S.C. § 387k, the Tobacco Company may 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…, the Tobacco Companies do not oppose the proposal set out in Plaintiffs’ July 31 motion.

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FULL TEXT:

Case 1:99-cv-02496-GK Document 6166 Filed 09/11/15 Page 1 of 3

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,

and

ITG BRANDS, INC., et al.,

Post-Judgment Parties

Regarding Remedies

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

Next scheduled court appearance:

Status Conference, October 1, 2015

___________________

DEFENDANTS’ AND POST-JUDGMENT PARTIES REGARDING REMEDIES’ RESPONSE TO PLAINTIFFS’ MOTION TO REINSTATE THE DESCRIPTOR BAN

Among other provisions, Order #1015, as originally formulated, contained a prohibition on the use of descriptors in brand names, on packaging, or in advertising and other promotional materials. Order #1015, § III.A(¶4) (Dkt. No. 5733; filed Aug. 17, 2006); United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 938 (D.D.C.). In May 2009, the D.C. Circuit issued a ruling upholding most of Order #1015, but vacating and remanding this provision because it lacked “limiting language” that would prevent the descriptor ban from having world-wide reach. United States v. Philip Morris USA Inc., 566 F.3d 1095, 1138 (D.C. Cir. 2009). The D.C. Circuit instructed this Court to “reformulate” this provision on remand. Id. Since then, the parties and the

Case 1:99-cv-02496-GK Document 6166 Filed 09/11/15 Page 2 of 3

Court have engaged in extensive remand proceedings. But, as the parties informed the Court during the status conference held on May 19, 2015, they appear to have overlooked this particular issue for several years, presumably because domestic tobacco companies had already stopped using descriptors. 5/19/2015 Hr’g Tr. at 32:23-34:2 (Dkt. No. 6145; filed May 20, 2015). On July 31, 2015, Plaintiffs filed a motion to reinstate in Order #1015 a prohibition on the use of health descriptors. (Dkt. No. 6160; filed July 31, 2015.)

Defendants and Post-Judgment Parties Regarding Remedies (collectively, the “Tobacco Companies”) initially sought additional language in a reformulated descriptor ban, and this Court issued Order #58-Remand to schedule briefs in which the parties would exchange views. (Dkt. No. 6162; filed Aug. 4, 2015.) Upon further consideration and in reliance on representations that, should a Tobacco Company obtain approval from the Secretary of the United States Department of Health & Human Services to use a prohibited descriptor or other modified health claim, as authorized by 21 U.S.C. § 387k, the Tobacco Company may 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, see United States v. Philip Morris USA, Inc., 787 F. Supp. 2d 68, 81 (D.D.C. 2011), aff’d, 686 F.3d 832, 835 (D.C. Cir. 2012); (see also Dkt. No. 6160 at 13, 14), the Tobacco Companies do not oppose the proposal set out in Plaintiffs’ July 31 motion.

Dated: September 11, 2015 Respectfully submitted,

/s/ Noel J. Francisco

Noel J. Francisco (D.C. Bar No. 464752)
Peter J. Biersteker (D.C. Bar No. 358108)
JONES DAY
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113
Telephone: (202) 879-3939
Fax: (202) 626-1700

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Case 1:99-cv-02496-GK Document 6166 Filed 09/11/15 Page 3 of 3

Jeffrey A. Mandell (D.C. Bar No. 999791)
STAFFORD ROSENBAUM LLP
222 West Washington Avenue
Madison, WI 53703
Telephone: (608) 256-0226
Facsimile: (608) 259-2600

Attorneys for Defendant R. J. Reynolds Tobacco
Company (individually and as successor to Lorillard
Tobacco Company)

Miguel A. Estrada (D.C. Bar No. 456289)
Amir C. Tayrani (D.C. Bar No. 490994)
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
Telephone: (202) 955-8257
Fax: (202) 530-9016

Attorneys for Defendants Altria Group, Inc. and
Philip Morris USA Inc.

Robert J. Brookhiser, Jr. (D.C. Bar No. 202168)
Elizabeth B. McCallum (D.C. Bar No. 451361)
BAKER & HOSTETLER LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5304
Telephone: 202-861-1500
Facsimile: 202-861-1783

Attorneys for Post-Judgment Parties Regarding Remedies ITG Brands, LLC, Commonwealth Brands, Inc. and Commonwealth-Altadis, Inc.

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