US: Judge Declines Recusal Request in Tobacco Lawsuit against FDA

Source from:  Winston-Salem Journal 01/15/2016

A federal judge has denied a recusal request from the Big Three tobacco manufacturers involving their lawsuit against the Food and Drug Administration.

The manufacturers want a permanent injunction against the FDA to prevent implementation of new packaging guidelines.

Altria Group Inc., Lorillard Inc. and Reynolds American Inc., along with subsidiaries, sued April 14 over rules for packaging labels that they consider too restrictive under the federal Tobacco Control Act of 2009.

The FDA issued an interim enforcement policy May 29 on new tobacco products that appeared to be a response to the lawsuit. The manufacturers agreed to drop the lawsuit June 2 based on the FDA's willingness to consider regulatory comments and delay enforcing the initial guidelines.

The FDA's new guidelines were issued Sept. 8. The lawsuit was revived Sept. 30, with ITG Brands LLC taking the place of Lorillard. The manufacturers said in the revived lawsuit that the guidelines imposed similar restrictions.

On Nov. 2, the manufacturers asked Judge Amit Mehta to grant summary judgment on their motion.

On Nov. 11, the manufacturers said in their recusal motion that Mehta had been a partner in the Washington office of Zuckerman Spaeder LLP for 10 years before becoming a federal judge in January 2015. Mehta's wife has been a law firm partner since 2008.

The law firm provided legal counsel to anti-tobacco advocacy group Campaign for Tobacco-Free Kids "relating to the comments that it submitted" to the FDA advocating the regulatory action that plaintiffs are challenging.

Mehta said Wednesday in his 26-page response that his former law firm's advice to the advocacy group is not likely "to become an issue in this litigation" because the advocacy group "is unlikely to become a party or witness in this matter."

Mehta said he and his wife were not directly involved with the law firm's assistance with the advocacy group.

"The reasonable, informed person would not think I am reflexively 'anti tobacco' or that I could not impartially consider the merits of the case before me," Mehta wrote.

Mehta said agreeing to recusal "would encourage inappropriate judge-shopping by future litigants."

Altria and Reynolds declined to comment on the decision. Enditem