Lawyers for major tobacco companies said Monday they do not want the full U.S. Court of Appeals for the D.C. Circuit to touch a panel’s ruling that went against the government’s controversial graphic warning labels requirement.

A divided three-judge panel of the D.C. Circuit in August ruled against the U.S. Food and Drug Administration’s requirement that cigarette packs carry graphic images that depict the dangers of smoking. Judge Janice Rogers Brown called the images “inflammatory” and said they were “unabashed attempts to evoke emotion.” The court said the proposed warning images violate the First Amendment.

The U.S. Justice Department wants the full D.C. Circuit to overturn the panel decision. Yesterday, responding to DOJ, lawyers for tobacco companies that include R.J. Reynolds and Lorillard urged the D.C. Circuit not to tangle with the panel decision. Ultimately, the U.S. Supreme Court could be asked for its assessment.

“The proposed warnings will not create more informed consumers and were never intended to,” Jones Day litigation partner Noel Francisco, lead counsel for R.J. Reynolds Tobacco Co., said in a court filing Monday. Francisco also said the images “had no measurable effect on consumer knowledge of the smoking risks the warnings address.”

“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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