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Health Groups: Justice Department Should Recuse Lawyers Who Represented Tobacco Companies from Tobacco-Related Cases

Letter Focuses on Solicitor General Nominee and Acting Assistant Attorney General of Civil Division
March 27, 2017

WASHINGTON, D.C. –Four leading public health groups today urged the U.S. Department of Justice (DOJ) to recuse any lawyers who previously represented tobacco companies from any tobacco-related litigation while serving in the government. The letter specifically expresses concerns about Noel Francisco, the nominee for Solicitor General, and Chad Readler, currently Acting Assistant Attorney General of the Civil Division, both of whom represented R.J. Reynolds in lawsuits against the government while they were partners at the law firm Jones Day.

“Such recusals are essential to ensure the appearance of impartiality and to give the public the greatest possible confidence that decisions about the federal government’s litigation positions are taken solely based on the facts and the law to advance the public health and public interest,” the health groups wrote in a letter to Attorney General Jeff Sessions.

The letter was sent by the Campaign for Tobacco-Free Kids, American Cancer Society Cancer Action Network, American Heart Association and Truth Initiative.

Mr. Francisco, the nominee for Solicitor General, has long represented R.J. Reynolds in tobacco litigation. While at Jones Day, he represented R.J. Reynolds in the still-ongoing litigation over a U.S. district court order – issued in the government’s civil racketeering (RICO) lawsuit against the tobacco companies – that requires R.J. Reynolds and other tobacco companies to publish corrective statements about the health risks of smoking and other topics. The case resulted in a landmark judgment that tobacco companies have engaged in a decades-long conspiracy to deceive the American people. The tobacco company defendants are continuing to challenge the wording of the corrective statements, requiring the DOJ to defend them.

Mr. Francisco also represented R.J. Reynolds in two lawsuits challenging provisions of the 2009 law granting the U.S. Food and Drug Administration (FDA) authority over tobacco products. Among other things, these cases challenged the constitutionality of requiring graphic warning labels on cigarette packs and advertising, a topic that continues to be the subject of litigation.

“Given his prominent role in representing the tobacco industry in litigation, Mr. Francisco should not be permitted to participate in the government’s defense of laws he attacked in private practice or laws that his former client attacks in the future,” the letter states.

Mr. Readler, the Acting Assistant Attorney General of the Civil Division, regularly represented R.J. Reynolds when he was a partner at Jones Day. During that time, R.J. Reynolds submitted comments to the FDA opposing, on First Amendment and other grounds, parts of the recent rule that established FDA oversight of electronic cigarettes, cigars and other previously unregulated tobacco products. Tobacco companies have filed several challenges to this rule, including one case – Cyclops Vapor 2, LLC v. U.S. Food & Drug Admin. – that argues part of the rule violates the First Amendment. Despite the fact that his previous client, R.J. Reynolds, has made the same arguments, Mr. Readler has been listed as counsel representing the government in this case. Before Mr. Readler joined the DOJ, the department vigorously defended the FDA rule. With Mr. Readler now on the case, the government filed a motion requesting an extension “to more fully consider the issues raised.”

Mr. Readler’s participation in this case or related litigation “is not appropriate and, if continued, would give the appearance of a conflict of interest and risk the reputation of the DOJ for strict adherence to well recognized ethical standards,” the letter argues.

The health groups also call for the recusal policy to apply throughout the government.

“We believe that existing ethical standards would be compromised if any former partner of Jones Day, which has worked tirelessly on behalf of the tobacco industry, participates in the DOJ’s defense of tobacco regulations or other actions by FDA affecting the industry. This recusal policy should apply not only to lawyers in the DOJ, but also to lawyers in the White House Counsel’s Office and attorneys who work at federal agencies. It also should apply to lawyers from other law firms that have participated in litigation on behalf of tobacco-industry clients,” the letter states.