Discount Tobacco City & Lotter, et al v. USA, et al

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OPINION and JUDGMENT filed: Judgment of district court is reversed in part and affirmed in part; decision for publication pursuant to local rule 206. CLAY, J., announced the judgment of the court and delivered the lead opinion, which constitutes the unanimous opinion of the court on Sections I and IV-VI, and on parts of the analysis for Sections II and VII, but constitutes the dissent on Section III and on parts of the analysis for Sections II and VII. STRANCH, J. (pp. 57-84), delivered a separate opinion joined in full by BARRETT, D. J., which constitutes the majority opinion of the court on Section III and on parts of the analysis for Sections II and VII, as specified on pages 57 and 58 of the opinion. Eric L. Clay; Jane Branstetter Stranch, Circuit Judges; Michael R. Barrett, U.S. District Judge for the S. D. of OH. [10-5234, 10-5235]--[Edited 03/20/2012 by LKM]

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Case: 10-5234 Document: 006111245932 Filed: 03/19/2012 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Nos. 10-5234; 10-5235 Page: 1 FILED Mar 19, 2012 LEONARD GREEN, Clerk DISCOUNT TOBACCO CITY & LOTTERY, INC.; LORILLARD TOBACCO COMPANY; NATIONAL TOBACCO COMPANY, L.P.; R. J. REYNOLDS TOBACCO COMPANY; COMMONWEALTH BRANDS, INC.; AMERICAN SNUFF COMPANY, LLC, fka Conwood Company, LLC, Plaintiffs - Appellants/Cross-Appellees, v. UNITED STATES OF AMERICA; UNITED STATES FOOD & DRUG ADMINISTRATION; MARGARET HAMBURG, Commissioner of the United States Food and Drug Administration; KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, Defendants - Appellees/Cross-Appellants. Before: CLAY and STRANCH, Circuit Judges; BARRETT, District Judge. JUDGMENT On Appeal from the United States District Court for the Western District of Kentucky at Bowling Green. THIS CAUSE was heard on the record from the district court and was argued by counsel. IN CONSIDERATION WHEREOF, it is ORDERED that the judgment of the district court is REVERSED IN PART and AFFIRMED IN PART. ENTERED BY ORDER OF THE COURT Leonard Green, Clerk