R.J. REYNOLDS TOBACCO COMPANY et al v. UNITED STATES FOOD AND DRUG ADMINISTRATION et al

Filing 44

Unopposed MOTION for Leave to File Amicus Brief by AMERICAN ADVERTISING FEDERATION, ASSOCIATION OF NATIONAL ADVERTISERS (Attachments: # 1 Exhibit Amicus Brief, # 2 Text of Proposed Order)(jf, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

R.J. REYNOLDS TOBACCO COMPANY,
LORILLARD TOBACCO COMPANY,
COMMONWEALTH BRANDS, INC.,
LIGGETT GROUP LLC, and SANTA FE
NATURAL TOBACCO COMPANY, INC.,
Plaintiffs,
v.

UNITED STATES FOOD AND DRUG
ADMINISTRATION, MARGARET
HAMBURG, Commissioner of the United
States Food and Drug Administration, and
KATHLEEN SEBELIUS, Secretary of the
United States Department of Health and
Human Services,
Defendants.

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Civil Action No. 11-01482 (RJL)

UNOPPOSED MOTION OF ASSOCIATION OF NATIONAL ADVERTISERS, INC.,
AND AMERICAN ADVERTISING FEDERATION FOR LEAVE TO FILE BRIEF AS
AMICI CURIAE IN SUPPORT OF PLAINTIFFS
Movants the Association of National Advertisers (“ANA”) and American Advertising
Federation (“AAF”) (collectively, the “Advertising Associations”), hereby move the Court for
leave to file a brief as amici curiae in support of the motion by Plaintiffs R.J. Reynolds Tobacco
Company, et al., for summary judgment on their Complaint against the graphic labeling
requirements for tobacco packaging and advertising adopted on June 22, 2011, under Section
201 of the Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat.
1776 (2009) (the “Tobacco Control Act”), by the Food and Drug Administration (“FDA”). See

Required Warnings for Cigarette Packages and Advertisements, 76 Fed. Reg. 36628 (June 22,
2011) (the “Graphic Warnings Rule”).
Movants are advertising trade associations that serve their members by advocating clear
and coherent legal standards governing advertising, and by opposing laws that violate established
First Amendment protections for commercial speech. Movant ANA’s members include over 400
companies with 9,000 brands that collectively spend over $250 billion annually in U.S.
marketing communications and advertising. The ANA provides insights, collaboration and
advocacy on behalf of its marketing community membership, which strives to communicate
marketing best practices, to lead industry initiatives, and to advance, promote, and protect
advertisers and marketers. Movant AAF is a trade association whose 130 advertiser, ad agency
and media company members, comprising the nation’s leading brands and corporations,
represent 50,000 advertising industry professionals.
The Advertising Associations’ interest in this matter lies in their concern that the Graphic
Warnings Rule, and the Tobacco Control Act under which the FDA adopted it, require tobacco
purveyors to carry government-mandated graphic images and textual warnings to proselytize the
public in an effort to change behavior, not to prevent deception or to convey product information
about which consumers are unaware.

Although the particular provisions challenged affect

tobacco marketing, the constitutional focus of this case is not “about” cigarettes or other tobacco
products, but rather involves our nation’s commitment to the First Amendment, and particularly
its command that “the speaker and the audience, not the government, assess the value of the
information presented.” Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2671-72 (2011) (quoting
Edenfield v. Fane, 507 U.S. 761, 767 (1993)). These constitutional concerns bear directly on the
Advertising Associations’ members, and the industry generally.

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Plaintiffs have consented to Movants’ filing of their amicus brief, and the government
parties have stated they do not object to its filing.
Finally, leave is sought insofar as this motion is being filed, and its accompanying amicus
brief re-filed, outside the time specified by the September 27, 2011, Stipulation and Order to
Establish Briefing Schedule for Summary Judgment (Dkt. 30) (“SJ Briefing Schedule”), which
the Court accepted the next day, establishing a November 18, 2011, due date for amicus briefs in
support of plaintiffs. The Advertising Associations in fact electronically filed their amicus brief
in support of plaintiffs on summary judgment on November 18, 2011. However, it was not
accompanied by a motion for leave to file (or a proposed order granting leave), based on prior
instruction from the Court. Specifically, before filing the amicus brief, this office contacted the
Court to inquire whether, since (a) the Advertising Associations had filed previously an amicus
brief in this case in support of plaintiffs’ motion for preliminary injunction, accompanied by a
motion for leave, which was granted (Dkt. 20), and (b) the parties expressly provided for amici
in the SJ Briefing Schedule, another motion for leave would be required. At that time, the Court
staff contacted indicated another such motion for leave was not required. In addition, in electronically filing the Advertising Associations’ amicus brief on summary judgment, this office
consulted with the Court again and was told, as ECF did not have an “amicus brief” option, it
could be submitted into ECF as a “memorandum,” which is how the brief was filed. 1 Accordingly, the Advertising Associations’ amicus brief was timely filed per the SJ Briefing Schedule.
However, on November 21, 2011, a notice issued from ECF instructing the Advertising
Associations to re-file their amicus brief, under cover of a motion for leave. After conferring
with ECF staff to confirm this obligation to re-file notwithstanding prior guidance received from
1

Undersigned counsel was able to do so using his ECF password and identifying the
Advertising Associations as amicus parties.
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the Court, 2 this motion is submitted in furtherance of the ECF instruction (via email, according
to the Court’s protocol). To the extent re-filing of the motion and accompanying amicus brief
fall outside the date the SJ Briefing Schedule specifies, it is hereby further respectfully requested
that, in granting leave to file, the Court accept the Advertising Associations’ amicus brief on
summary judgment and deem it timely filed.
WHEREFORE, Movants respectfully request that this Court grant their Unopposed
Motion for Leave to File Memorandum in Support of Plaintiffs and enter the attached proposed
order.
Respectfully submitted,

/s/ Robert Corn-Revere
Robert Corn-Revere (D.C. Bar No. 375415)
Ronald G. London (D.C. Bar No. 456284)
DAVIS WRIGHT TREMAINE LLP
19191 Pennsylvania Avenue, N.W., Suite 800
Washington, D.C. 20006-3401
Tel: [phone]
Fax: [phone]
COUNSEL FOR AMICI CURIAE
ASSOCIATION OF NATIONAL ADVERTISERS
AMERICAN ADVERTISING FEDERATION
November 22, 2011

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During that consultation with ECF staff, this office was instructed that, although the
original motion for leave to file the Advertising Associations amicus brief in support of plaintiffs’ motion for a preliminary injunction was required to have a Corporate Disclosure Statement
pursuant to LCVR 7.1, another Corporate Disclosure Statement would not be required with this
motion, unless the information in the original Statement has changed, which it has not.
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CERTIFICATE OF SERVICE
I hereby certify that the foregoing Unopposed Motion for Leave to File Brief as Amici
Curiae in Support of Plaintiffs, Proposed Order on Motion for Leave to File Brief as Amici
Curiae, and Proposed Amici Curiae Brief were, this 22nd day of November, 2011, filed via email
to the court’s generic email address. After being docketed by the case administrator into the
ECF system, the system electronically will send a notice of electronic filing to the following
counsel for all parties in this case:
Noel J. Francisco
Geoffrey K. Beach
Warren Postman
JONES DAY
51 Louisiana Avenue, N.W.
Washington, D.C. 20001

Floyd Abrams
Joel Kurtzberg
Kayvan Sadeghi
CAHILL GORDON & REINDELL LLP
80 Pine Street
New York, N.Y. 10005
- and-

Counsel for Plaintiff R. J. Reynolds and
Santa Fe Natural Tobacco Company
Philip J. Perry
LATHAM & WATKINS LLP
555 11th Street, N.W., Suite 1000
Washington, D.C. 20004

Patricia A. Barald
Scott D. Danzis
COVINTON & BURLING LLP
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

Counsel for Plaintiff Commonwealth
Brands, Inc.

Counsel for Plaintiff Lorillard Tobacco
Company

Jonathan D. Hacker
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006

Drake S. Cutini
DEPARTMENT OF JUSTICE
Civil Division
Office of Consumer Litigation
P.O. Box 386
Washington, D.C. 20044

Counsel for Plaintiff Liggett Group LLC

Counsel for Defendant United States Food
and Drug Administration, Margaret A.
Hamburg and Kathleen Sebelius

/s/ Robert Corn-Revere
Robert Corn-Revere
DAVIS WRIGHT TREMAINE LLP
19191 Pennsylvania Avenue, N.W., Suite 800
Washington, D.C. 20006-3401
Tel: [phone]
Fax: [phone]