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D.C. Circuit Says Big Tobacco Is Still a Threat

(Courthouse News Service) The tobacco industry still is regulated by an injunction born out of a 13-year-old federal lawsuit that bars tobacco companies from misleading consumers about the risks of smoking, the D.C. Circuit ruled.

“In this latest round in the government’s heavyweight bout against the tobacco industry, the defendant cigarette manufacturers challenge the district court’s refusal to vacate injunctions imposed in 2009,” Judge Janice Brown wrote for the three-judge panel. “Because the district court’s ruling survives our review, we give this round to the government.”

A federal judge issued the injunction after finding that the industry committed more than 100 RICO violations over more than 50 years.

But when President Obama signed the Family Smoking Prevention and Tobacco Control Act into law just 1 month after the ruling, Phillip Morris and other Big Tobacco companies sought to vacate the injunctions.

They claimed the new law removed jurisdiction from the courts, handing over regulatory responsibility to the FDA. They also claimed the new law “eliminated any ‘reasonable likelihood’” of future RICO violations.

The court rejected both arguments, prompting the appeal.

After “13 years of litigation, nine months of trial, and 4,000 findings of fact” the D.C. Circuit affirmed the district court’s expertise in the matter and agreed that a likeliness of future RICO violations did exist.

The D.C. Circuit also reaffirmed – for the second time – that the district court had jurisdiction over the matter.

The 2009 injunction restrains tobacco companies from committing RICO violations, including intentionally and deliberately deceiving consumers, and forces the companies to make corrective statements about the health effects of smoking. The injunction also forces disclosure of the industry’s marketing and sales information to the public and the Justice Department.

Last year, five tobacco companies, including R.J. Reynolds, Lorillard, and the Liggett Group, successfully sued the FDA to stop the agency from forcing the companies to place graphic warning messages on cigarette packages – including one message containing a picture of a dead body lying on an autopsy table.

A federal judge granted an injunction enjoining the FDA from enforcing the rule until the court could issue a final ruling.

Though the injunction will stave off the graphic warnings for 15 months, the appeals court ruling will hold the tobacco industry responsible for warning its customers of the risks associated with tobacco.

“The district court did not clearly err when it found the defendants were reasonably likely to commit future RICO violations despite the passage of the Tobacco Control Act,” the D.C. Circuit rules. “Nor did the court abuse its discretion when it refused to vacate its injunctions under the primary jurisdiction doctrine. Accordingly, the district court’s denial of the defendants’ motion to vacate the injunction is affirmed.”

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By RYAN ABBOTT/ Courthouse News Service

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