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http://laws.findlaw.com/4th/971604orp.html |
FILED: November 10, 1998
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-1604
BROWN & WILLIAMSON TOBACCO CORPORATION; LORILLARD TOBACCO COMPANY; PHILIP MORRIS, INCORPORATED; RJ REYNOLDS TOBACCO COMPANY,
Plaintiffs - Appellants,
and
COYNE BEAHM, INCORPORATED; LIGGETT GROUP, INCORPORATED,
Plaintiffs,
versus
FOOD & DRUG ADMINISTRATION; DAVID A. KESSLER, M.D., Commissioner of Food and Drugs,
Defendants - Appellees.
ATTORNEYS GENERAL OF THE STATE OF MINNESOTA; STATE OF ALASKA; OF ARIZONA; STATE OF ARKANSAS; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF FLORIDA; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF INDIANA; STATE OF IOWA; STATE OF LOUISIANA; STATE OF KANSAS; STATE OF MAINE; STATE OF MARYLAND; STATE OF MASSACHUSETTS; STATE OF MICHIGAN; STATE OF MISSISSIPPI; STATE OF MISSOURI; STATE OF MONTANA; STATE OF NEVADA; STATE OF NEW HAMPSHIRE; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF OREGON; STATE OF PENNSYLVANIA; STATE OF RHODE ISLAND; STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATE OF VERMONT; STATE OF WASHINGTON; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; THE CITY AND COUNTY OF SAN FRANCISCO; PUBLIC CITIZEN; THE AMERICAN ACADEMY OF PEDIATRICS; AMERICAN CANCER SOCIETY; AMERICAN COLLEGE PREVENTIVE MEDICINE; AMERICAN HEART ASSOCIATION; AMERICAN LUNG ASSOCIATION; AMERICAN MEDICAL ASSOCIATION; AMERICAN MEDICAL WOMEN'S ASSOCIATION; AMERICAN PUBLIC HEALTH ASSOCIATION; AMERICAN SOCIETY OF ADDICTION MEDICINE; THE HMO GROUP; NATIONAL ASSOCIATION OF ELEMENTARY SCHOOL PRINCIPALS; NATIONAL ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS; NATIONAL CENTER FOR TOBACCO-FREE KIDS; STATE OF KENTUCKY; WASHINGTON LEGAL FOUNDATION ("WLF"); MARIO ANDRETTI; DON GARLITS; AL UNSER; RUSTY WALLACE; CALE YARBOROUGH; RICHARD BURR, CASS BALLENGER, HOWARD COBLE, United States Representatives, LAUCHCLOTH, United States Senator,
Amici Curiae.
No. 97-1581
COYNE BEAHM, INCORPORATED; BROWN & WILLIAMSON TOBACCO CORPORATION; PHILIP MORRIS, INCORPORATED; RJ REYNOLDS TOBACCO COMPANY; NATIONAL ASSOCIATION OF CONVENIENCE STORES; ACME RETAIL, INCORPORATED; UNITED STATES TOBACCO COMPANY; CONWOOD COMPANY, LP; NATIONAL TOBACCO COMPANY, LP; PINKERTON TOBACCO COMPANY; SWISHER INTERNATIONAL, INCORPORATED; CENTRAL CAROLINA GROCERS, INCORPORATED; J.T. DAVENPORT, INCORPORATED; NORTH CAROLINA TOBACCO DISTRIBUTORS COMMITTEE, INCORPORATED; THE AMERICAN ADVERTISING FEDERATION; AMERICAN ASSOCIATION OF ADVERTISING AGENCIES; ASSOCIATION OF NATIONAL ADVERTISERS, INCORPORATED; MAGAZINE PUBLISHERS OF AMERICA; THE OUTDOOR ADVERTISING ASSOCIATION OF AMERICA, INCORPORATED; POINT OF PURCHASE ADVERTISING INSTITUTE; LORILLARD TOBACCO COMPANY,
Plaintiffs - Appellees,
and
LIGGETT GROUP, INCORPORATED,
Plaintiff,
versus
FOOD & DRUG ADMINISTRATION; DAVID A. KESSLER, M.D., Commissioner of Food and Drugs,
Defendants - Appellants.
ATTORNEYS GENERAL OF THE STATE OF MINNESOTA; STATE OF ALASKA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF FLORIDA; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF INDIANA; STATE OF IOWA; STATE OF LOUISIANA; STATE OF KANSAS; STATE OF MAINE; STATE OF MARYLAND; STATE OF MASSACHUSETTS; STATE OF MICHIGAN; STATE OF MISSISSIPPI; STATE OF MISSOURI; STATE OF MONTANA; STATE OF NEVADA; STATE OF NEW HAMPSHIRE; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF OREGON; STATE OF PENNSYLVANIA; STATE OF RHODE ISLAND; STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATE OF VERMONT; STATE OF WASHINGTON; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; CITY AND COUNTY OF SAN FRANCISCO; PUBLIC CITIZEN; THE AMERICAN ACADEMY OF PEDIATRICS; AMERICAN CANCER SOCIETY; AMERICAN COLLEGE PREVENTIVE MEDICINE; AMERICAN HEART ASSOCIATION; AMERICAN LUNG ASSOCIATION; AMERICAN MEDICAL ASSOCIATION; AMERICAN MEDICAL WOMEN'S ASSOCIATION; AMERICAN PUBLIC HEALTH ASSOCIATION; AMERICAN SOCIETY OF ADDICTION MEDICINE; THE HMO GROUP; NATIONAL ASSOCIATION OF ELEMENTARY SCHOOL PRINCIPALS; NATIONAL ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS; NATIONAL CENTER FOR TOBACCO-FREE KIDS; STATE OF KENTUCKY; WASHINGTON LEGAL FOUNDATION, ("WLF"); MARIO ANDRETTI; DON GARLITS; AL UNSER; RUSTY WALLACE, CALE YARBOROUGH; RICHARD BURR, CASS BALLENGER, HOWARD COBLE, United States Representatives, LAUCH FAIRCLOTH, United States Senator,
Amici Curiae.
No. 97-1606
COYNE BEAHM, INCORPORATED; BROWN & WILLIAMSON TOBACCO CORPORATION; LORILLARD TOBACCO COMPANY; PHILIP MORRIS, INCORPORATED; RJ REYNOLDS TOBACCO COMPANY; UNITED STATES TOBACCO COMPANY; CONWOOD COMPANY, LP; NATIONAL TOBACCO COMPANY, LP; PINKERTON TOBACCO COMPANY; SWISHER INTERNATIONAL, INCORPORATED; CENTRAL CAROLINA GROCERS, INCORPORATED; J.T. DAVENPORT, INCORPORATED; NORTH CAROLINA TOBACCO DISTRIBUTORS COMMITTEE, INCORPORATED; THE AMERICAN ADVERTISING FEDERATION; AMERICAN ASSOCIATION OF ADVERTISING AGENCIES; ASSOCIATION OF NATIONAL ADVERTISERS, INCORPORATED; MAGAZINE PUBLISHERS OF AMERICA; THE OUTDOOR ADVERTISING ASSOCIATION OF AMERICA, INCORPORATED; POINT OF PURCHASE ADVERTISING INSTITUTE; NATIONAL ASSOCIATION OF CONVENIENCE STORES; ACME RETAIL, INCORPORATED,
Plaintiffs - Appellees,
and
LIGGETT GROUP, INCORPORATED,
Plaintiff,
versus
FOOD & DRUG ADMINISTRATION; DAVID A. KESSLER, M.D., Commissioner of Food and Drugs,
Defendants - Appellants.
ATTORNEYS GENERAL OF THE STATE OF MINNESOTA; STATE OF ALASKA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF FLORIDA; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF INDIANA; STATE OF IOWA; STATE OF LOUISIANA; STATE OF KANSAS; STATE OF MAINE; STATE OF MARYLAND; STATE OF MASSACHUSETTS; STATE OF MICHIGAN; STATE OF MISSISSIPPI; STATE OF MISSOURI; STATE OF MONTANA; STATE OF NEVADA; STATE OF NEW HAMPSHIRE; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF OREGON; STATE OF PENNSYLVANIA; STATE OF RHODE ISLAND; STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATE OF VERMONT; STATE OF WASHINGTON; STATE OF WEST VIRGINIA, STATE OF WISCONSIN; CITY AND COUNTY OF SAN FRANCISCO; PUBLIC CITIZEN; THE AMERICAN ACADEMY OF PEDIATRICS; AMERICAN CANCER SOCIETY; AMERICAN COLLEGE PREVENTIVE MEDICINE; AMERICAN HEART ASSOCIATION; AMERICAN LUNG ASSOCIATION; AMERICAN MEDICAL ASSOCIATION; AMERICAN MEDICAL WOMEN'S ASSOCIATION; AMERICAN PUBLIC HEALTH ASSOCIATION; AMERICAN SOCIETY OF ADDICTION MEDICINE; THE HMO GROUP; NATIONAL ASSOCIATION OF ELEMENTARY SCHOOL PRINCIPALS; NATIONAL ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS; NATIONAL CENTER FOR TOBACCO-FREE KIDS; STATE OF KENTUCKY; WASHINGTON LEGAL FOUNDATION ("WLF"); MARIO ANDRETTI; DON GARLITS; AL UNSER; RUSTY WALLACE; CALE YARBOROUGH; RICHARD BURR, CASS BALLENGER, HOWARD COBLE, United States Representatives, LAUCH FAIRCLOTH, United States Senator,
Amici Curiae.
No. 97-1614
NATIONAL ASSOCIATION OF CONVENIENCE STORES; ACME RETAIL, INCORPORATED,
Plaintiffs - Appellants,
versus
DAVID A. KESSLER, Commissioner of the Food & Drug Administration; FOOD & DRUG ADMINISTRATION,
Defendants - Appellees.
ATTORNEYS GENERAL OF THE STATE OF MINNESOTA; STATE OF ALASKA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF FLORIDA; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF INDIANA; STATE OF IOWA; STATE OF LOUISIANA; STATE OF KANSAS; STATE OF MAINE; STATE OF MARYLAND; STATE OF MASSACHUSETTS; STATE OF MICHIGAN; STATE OF MISSISSIPPI; STATE OF MISSOURI; STATE OF MONTANA; STATE OF NEVADA; STATE OF NEW HAMPSHIRE; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF OREGON; STATE OF RHODE ISLAND; STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATE OF VERMONT; STATE OF WASHINGTON; STATE OF WISCONSIN; STATE OF WEST VIRGINIA; CITY AND COUNTY OF SAN FRANCISCO; PUBLIC CITIZEN; THE AMERICAN ACADEMY OF PEDIATRICS; AMERICAN CANCER SOCIETY; AMERICAN COLLEGE PREVENTIVE MEDICINE; AMERICAN CANCER SOCIETY; AMERICAN LUNG ASSOCIATION; AMERICAN MEDICAL ASSOCIATION; AMERICAN MEDICAL WOMEN'S ASSOCIATION; AMERICAN PUBLIC HEALTH ASSOCIATION; AMERICAN SOCIETY OF ADDICTION MEDICINE; THE HMO GROUP; NATIONAL ASSOCIATION OF ELEMENTARY SCHOOL PRINCIPALS; NATIONAL ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS; NATIONAL CENTER FOR TOBACCO-FREE KIDS; STATE OF KENTUCKY; WASHINGTON LEGAL FOUNDATION, ("WLF'); MARIO ANDRETTI, DON GARLITS; AL UNSER; RUSTY WALLACE; CALE YARBOROUGH; RICHARD BURR, CASS BALLENGER, HOWARD COBLE, United States Representatives, LAUCH FAIRCLOTH, United States Senator,
Amici Curiae.
No. 97-1605
UNITED STATES TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; CONWOOD COMPANY, LP; NATIONAL TOBACCO COMPANY, LP; PINKERTON TOBACCO COMPANY; SWISHER INTERNATIONAL, INCORPORATED; CENTRAL CAROLINA GROCERS, INCORPORATED; J.T. DAVENPORT, INCORPORATED; NORTH CAROLINA TOBACCO DISTRIBUTORS COMMITTEE, INCORPORATED,
Plaintiffs - Appellants,
versus
FOOD & DRUG ADMINISTRATION; DAVID A. KESSLER, M.D., Commissioner of Food and Drugs,
Defendants - Appellees.
ATTORNEYS GENERAL OF THE STATE OF MINNESOTA; STATE OF ALASKA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF FLORIDA; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF INDIANA; STATE OF IOWA; STATE OF LOUISIANA; STATE OF KANSAS; STATE OF MAINE; STATE OF MARYLAND; STATE OF MASSACHUSETTS; STATE OF MICHIGAN; STATE OF MISSISSIPPI; STATE OF MISSOURI; STATE OF MONTANA; STATE OF NEVADA; STATE OF NEW HAMPSHIRE; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF OREGON; STATE OF PENNSYLVANIA; STATE OF RHODE ISLAND; STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATE OF VERMONT; STATE OF WASHINGTON; STATE OF WISCONSIN; STATE OF WEST VIRGINIA; CITY AND COUNTY OF SAN FRANCISCO; PUBLIC CITIZEN; THE AMERICAN ACADEMY OF PEDIATRICS; AMERICAN CANCER SOCIETY; AMERICAN COLLEGE PREVENTIVE MEDICINE; AMERICAN HEART ASSOCIATION; AMERICAN LUNG ASSOCIATION; AMERICAN MEDICAL ASSOCIATION; AMERICAN MEDICAL WOMEN'S ASSOCIATION; AMERICAN PUBLIC HEALTH ASSOCIATION; AMERICAN SOCIETY OF ADDICTION MEDICINE; THE HMO GROUP; NATIONAL ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS; NATIONAL ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS; NATIONAL CENTER FOR TOBACCO-FREE KIDS; STATE OF KENTUCKY; WASHINGTON LEGAL FOUNDATION, ("WLF"); MARIO ANDRETTI; DON GARLITS; AL UNSER; RUSTY WALLACE; CALE YARBOROUGH; RICHARD BURR, CASS BALLENGER, HOWARD COBLE, United States Representatives; LAUCH FAIRCLOTH, United States Senator,
Amici Curiae.
O R D E R
On a poll of the court on the petition for rehearing en banc there voted in favor of rehearing en banc Judges Murnaghan, M. Blane Michael and Motz, and there voted against rehearing en banc Judges Widener, Ervin, Niemeyer, Luttig, Williams and Traxler.
It is accordingly ADJUDGED and ORDERED that the petition for rehearing en banc shall be, and it hereby is, denied.
The panel considered the petition for rehearing and is of opinion it is without merit.
It is accordingly ADJUDGED and ORDERED that the petition for rehearing shall be, and it hereby is, denied.
With the concurrence of Judge James H. Michael.
Judge Hall dissents. He would grant the petition for rehearing for the reasons expressed in his separate opinion filed with the opinion of the panel.
/s/ H. E. Widener, Jr.
For the Court
Chief Judge Wilkinson, and Judges Wilkins, Hamilton and King, being disqualified, did not participate in this decision.