Judge Tosses Big Tobacco |Request for His Recusal

(CN) - A federal judge refused to recuse himself from a Big Tobacco challenge to new labeling rules the industry considers "draconian."

Philip Morris and other tobacco companies seek to invalidate a Food and Drug Administration "guidance," issued in September 2015, describing the "FDA's current thinking on whether and when a change to a tobacco product's label, product quantity in the package, additives, or specifications renders that later product a 'new tobacco product' subject to premarket review."

Since a tobacco product's label is now considered "part" of that product, under the amended Tobacco Control Act, the guidance states that a label change to a tobacco product will create a "new tobacco product," raising a host of other regulatory issues.

Philip Morris asserts the guidance violates its First Amendment rights as well as administrative procedural requirements.

The tobacco companies moved to have U.S. District Judge Amit Mehta recuse himself based on his former law partner's representation of an anti-tobacco organization, Campaign for Tobacco-Free Kids.

The organization submitted comments to the FDA about the disputed guidance.

Mehta was a partner at Zuckerman Spaeder for four years before his appointment to the bench in December 2014. His wife is presently a partner at the same firm, which has represented other anti-tobacco organizations.

But Mehta disagreed that his personal connections to his former firm created an "appearance of partiality," as the tobacco plaintiffs claim.

"Although I generally knew that CTFK was a Zuckerman Spaeder client, I was not aware at the time the advice was given that the firm was advising CTFK in connection with the draft guidance," he said.

And while CTFK naturally has an interest in the outcome of the case, Mehta said it was unlikely to seek to intervene, and at any rate, its interest is not enough to warrant his recusal.

Mehta noted that members of the D.C. bench often had careers with large law firms in the city with extensive legislative and government regulatory practices.

"Given these realities, it is not hard to conceive how litigants could be emboldened to judge-shop if I were to recuse in this case," Mehta said. "If I accepted plaintiffs' position, would a judge be required to recuse when her former law partner, unbeknownst to the judge while she was at the firm, lobbied Congress on behalf of a client in favor of a piece of legislation that is later challenged as unconstitutional? Or, instead of lobbying Congress, what if the former partner met on behalf of a client with an Executive Branch official about an executive order that is later challenged as exceeding the President's authority?"

These situations are not unusual, especially in the nation's capital, the judge said. He also said his wife has never provided any legal services to CTFK or any of the firm's other anti-tobacco clients.

"A judge is not required to recuse merely because a litigant has discovered an attenuated connection between the judge's former law firm and the issues before the court," Mehta concluded.

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