Rozema v. U.S. Dep't of Health & Human Servs., 5:14-CV-0495 (GTS/DEP)

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Writing for the CourtGLENN T. SUDDABY, Chief United States District Judge
Citation167 F.Supp.3d 324
Parties Kyle Thomas Rozema, Plaintiff, v. U.S. Department of Health and Human Services; and U.S. Food and Drug Administration, Defendants, Philip Morris USA, Inc.; Lorillard Tobacco Co.; R.J. Reynolds Tobacco Co.; and Santa Fe Natural Tobacco Co., Inc., Intervenors-defendants.
Decision Date02 March 2016
Docket Number5:14-CV-0495 (GTS/DEP)

167 F.Supp.3d 324

Kyle Thomas Rozema, Plaintiff,
v.
U.S. Department of Health and Human Services; and U.S. Food and Drug Administration, Defendants,

Philip Morris USA, Inc.; Lorillard Tobacco Co.; R.J. Reynolds Tobacco Co.; and Santa Fe Natural Tobacco Co., Inc., Intervenors-defendants.

5:14-CV-0495 (GTS/DEP)

United States District Court, N.D. New York.

Signed March 2, 2016


167 F.Supp.3d 327

KYLE THOMAS ROZEMA, Plaintiff, Pro Se, 340 East North Water Street, Apt. 3308, Chicago, IL 60611.

WILLIAM F. LARKIN, ESQ., Assistant United States Attorney, HON. RICHARD S. HARTUNIAN, United States Attorney for the, Northern District of New York, Counsel for Defendants, 100 South Clinton Street, Syracuse, NY 13261.

RICHARD T. SULLIVAN, ESQ., HARRIS BEACH LLP, Counsel for Intervenor-Defendant, Philip Morris USA, Inc., 726 Exchange Street, Suite 1000, Buffalo, NY 14210.

DOUGLAS S. CURRAN, ESQ., COVINGTON & BURLING LLP, Counsel for Intervenor-Defendant, Lorillard Tobacco Company, 620 Eighth Avenue, New York, NY 10018.

MEREDITH MOSS, ESQ., KING & SPALDING LLP, Counsel for Intervenor-Defendants, R.J. Reynolds Tobacco Company and Santa Fe Natural Tobacco Company, Inc., 1700 Pennsylvania Ave, NW, Washington, DC 20006.

DECISION and ORDER

GLENN T. SUDDABY, Chief United States District Judge

Currently before the Court, in this action pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et. seq. , filed by Kyle Thomas Rozema (“Plaintiff”) against the United States Department of Health and Human Services (“HHS”) and the United States Food and Drug Administration (“FDA”), are the following motions: (1) a motion for summary judgment filed by Defendants HHS and FDA (Dkt. No. 40); (2) a motion for summary judgment filed jointly by three of four Intervenor-Defendants, Philip Morris USA Inc. (“Philip Morris”), R.J. Reynolds Tobacco Company (“Reynolds”), and Santa Fe Natural Tobacco Company, Inc. (“Santa Fe”) (Dkt. No. 41); (3) a motion for summary judgment filed by the fourth Intevenor-Defendant, Lorillard Tobacco Company (“Lorillard”) (Dkt. No. 42); and (4) Plaintiff's cross-motion for summary judgment (Dkt. No. 45). For the reasons set forth below, Defendants' motions are granted, and Plaintiff's cross-motion is denied.

I. RELEVANT BACKGROUND

A. Introduction

This action arises from Plaintiff's challenge to the administrative denial of his FOIA request dated September 19, 2013, directed to the FDA, for information regarding the quantities of menthol contained in cigarettes “by brand and by quantity in each brand and subbrand from 2000 to 2010.” (Dkt. No. 1, ¶ 6 [Plf.'s

167 F.Supp.3d 328

Compl.].) Generally, Plaintiff's Complaint alleges that HHS and FDA (collectively, “the Agency Defendants”) improperly withheld the requested records and that Plaintiff has exhausted his administrative remedies. (Id. , ¶¶ 7-15.) On that basis, Plaintiff seeks an Order directing the Agency Defendants to disclose the requested records and an award of costs and attorney's fees regarding his request. (Id. )

After Plaintiff filed his Complaint in this action, Philip Morris, Reynolds, Santa Fe, and Lorillard moved (collectively, “Intervenors”)1 moved to intervene for the purpose of defending against the disclosure of the information Plaintiff seeks, which includes menthol quantities contained in products manufactured by those entities. (Dkt. Nos. 14, 23, 27.) Those motions were granted without opposition by Plaintiff or the Agency Defendants. (Dkt. Nos. 22, 28, 34.)2

B. Statutory Framework

Congress enacted the Family Smoking Prevention and Tobacco Control Act (“the Act”), 21 U.S.C. § 387 et seq. , to grant FDA the authority to regulate, among other things, “all cigarettes [and] cigarette tobacco[.]” 21 U.S.C. § 387a(b) ; U.S. Smokeless Tobacco Mfg. Co. LLC v. City of New York , 708 F.3d 428, 430 (2d Cir.2013).3 As part of the Act, Congress also directed FDA to establish a twelve-member Tobacco Products Scientific Advisory Committee (“TPSAC”), the duties of which include providing advice, information, and recommendations to FDA on safety issues related to menthol cigarettes. 21 U.S.C. §§ 387g(e), 387q(c). While the Act grants a broad scope of authority to FDA, Plaintiff's FOIA request implicates that portion of the Act's statutory and regulatory framework governing the submission of health-related information to FDA by tobacco product manufacturers (“TPMs”).

More specifically, section 904 of the Act, 21 U.S.C. § 387d, requires TPMs to submit to FDA certain information concerning, among other things, the cigarettes that they manufacture. As is relevant here, first, TPMs are required to submit “a listing of all ingredients, including tobacco, substances, compounds, and additives that are ... added by the manufacturer to the tobacco, paper, filter, or other part of each tobacco product by brand and by quantity in each brand and subbrand.” 21 U.S.C. § 387d(a)(1) (“Ingredient Listings”). Second, TPMs must submit, at FDA's request, documents and information related to research activities and scientific findings pertaining to, among other things, the health effects of tobacco products and their constituents. 21 U.S.C. § 387d(b)(1)–(3) (“Research Documents”). Third, and perhaps most importantly here, TPMs must submit listings of all constituents identified by

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FDA as harmful or potentially harmful (“HPHCs”) in each tobacco product, “by brand and by quantity in each brand and subbrand.” 21 U.S.C. § 387d(a)(3). FDA published a list of 93 HPHCs (“HPHC List”) in 2012, and menthol was not listed. 77 Fed. Reg. 20034, 20036–37 (Apr. 3, 2012).4 FDA is required to “place on public display” the HPHC quantities reported by TPMs in a format that is “not misleading to a lay person” and “in a manner determined by” FDA. 21 § U.S.C. 387d(d)(1).5 With limited exceptions not applicable here, any information that TPMs report to FDA pursuant to 21 U.S.C. § 387d, which also constitutes trade secret and/or commercial or financial information under FOIA Exemption 4, 5 U.S.C. § 552(b)(4), “shall be considered confidential and shall not be disclosed[.]” 21 U.S.C. 387f(c) ; see also 21 C.F.R. § 20.61(c) (“Data and information submitted or divulged to the Food and Drug Administration which fall within the definitions of a trade secret or confidential commercial or financial information are not available for public disclosure.”).

C. Procedural History and Undisputed Material Facts

1. Plaintiff's Failure to File a Statement of Material Facts

As a preliminary matter, in his memorandum of law in opposition to the motions for summary judgment filed by Defendants and in support of his cross-motion for summary judgment, Plaintiff acknowledges that FDA “conducted an adequate search” in response to his FOIA request, but argues that it improperly withheld the responsive records that it located. (Dkt. No. 45 at 1 [Plf.'s Memo. of Law].) Plaintiff filed neither a response to Defendants' Statements of Material Facts nor a Statement of Material Facts in support of his cross-motion, as required by Local Rule 7.1(a)(3) of the Local Rules of Practice; indeed, in his memorandum of law, he asserts that no factual dispute exists and expressly incorporates by reference both the “background” and “legal standard” portions of the memorandum of law filed by the Agency Defendants. (Id. at 1-2.)

Pursuant to Local Rule 7.1(a)(3), a party moving for summary judgment is required to submit a statement of material facts. N.D.N.Y. L.R. 7.1(a)(3). Moreover, a party opposing a motion for summary judgment is required to submit a statement of material facts, even where the opposing party intends to admit facts asserted by the moving party. N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs.”). Upon an opposing party's failure to submit a statement of material facts, [t]he Court shall deem admitted any properly supported facts set forth in a moving party's statement of material facts. Id. [emphasis in original]. Plaintiff was reminded of his obligation to file a Rule 7.1 Response when the Agency Defendants and Philip Morris, Reynolds, and Santa Fe filed their respective motions for summary judgment. (Dkt. No. 40, Attach. 7 [Notification of the Consequences of Failing to Respond to a Summary Judgment

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Motion]; Dkt. No. 41, Attach. 18 [same].)

In this case, Plaintiff does not (and apparently did not intend to) dispute any of the factual assertions advanced in support of Defendants' motions for summary judgment, but rather disagrees with FDA's application of the statutory framework–particularly FOIA Exemptions 3 and 4–in denying his FOIA request. (See, e.g., Dkt. No. 45 at 2 [acknowledging that “requiring public disclosure of the quantities of cigarette constituents imposes economical costs on tobacco product manufacturers to a significant, and perhaps incalculable,...

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  • Batoh v. McNeil-PPC, Inc., No. 3:14-cv-01462 (MPS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 10, 2016
    ...speech has nothing to do with the events in this case, the congressperson's statements are not based on personal knowledge, and the 167 F.Supp.3d 324statements themselves refer to the actions of McNeil executives—not J&J. (ECF No. 142 at 2-4.) Neither statement provides a basis for finding ......
1 cases
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    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 10, 2016
    ...speech has nothing to do with the events in this case, the congressperson's statements are not based on personal knowledge, and the 167 F.Supp.3d 324statements themselves refer to the actions of McNeil executives—not J&J. (ECF No. 142 at 2-4.) Neither statement provides a basis for finding ......

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