1. November 17, 20091 Reena Raman, Esq. Associate Kleinfeld Kaplan & Becker LLP Washington, DC www.kkblaw.com

2.  Filed August 31, 2009 - Western District of Kentucky  Parties:  Plaintiffs: Commonwealth Brands, Inc., Conwood Co., Discount Tobacco City & Lottery, Inc., Lorillard Tobacco Co., National Tobacco Co., RJ Reynolds Tobacco Co.  Defendants: FDA  Seeking declaratory judgment and injunction to prevent FDA from enforcing certain marketing provisions

3.  Provisions Challenged as Violating the 1 st Amendment:  Ban on color and graphics in most advertising  Mandated warnings  Prohibition on the sale of “modified risk tobacco products” without prior approval  Ban on certain outdoor advertising  Ban on brand name sponsorship of events  Ban on brand name merchandise  Ban on references to FDA  Ban on distributing product samples  Ban on combination product marketing  Ban on promotions offering gifts for the purchase of cigarettes or smokeless tobacco  State/local authority to adopt additional, more restrictive laws

4.  Government has to show:  The restrictions are intended to further a substantial government interest  The restrictions directly advance the government interest  The restrictions are narrowly tailored and not more extensive than necessary to advance the government interest

5.  Status:  Nov. 5, 2009  Judge denied plaintiffs’ motion for preliminary injunction to prevent FDA from enforcing the modified risk provision  Judge noted that plaintiffs have “little likelihood of success on the merits of their facial First Amendment challenge” to the modified risk provision  Nov. 30, 2009: Motions for summary judgment due

6.  Filed Oct. 7, 2009 – District of Arizona  Parties  Plaintiff: BBK - distributor of flavored rolling papers  Defendant: FDA  Plaintiff’s Argument  FDA’s Q&A states that the flavor ban applies to rolling papers BUT  Flavored rolling papers sold separately do not meet the definition of “cigarette” and therefore are not subject to the ban on characterizing flavors  Seeking declaratory judgment and injunction to prevent FDA from regulating flavored papers

7.  Status:  FDA has not filed its answer  Nov. 3, 2009: Plaintiff filed a motion for summary judgment  Nov. 17, 2009: Defendant to respond and file cross motion  Dec. 1, 2009: Bench trial

8.  Filed Sept. 22, 2009 – DC District  Parties  Plaintiff: Kretek - cigar importer and distributor  Defendant: FDA, HHS  Plaintiff’s Argument  FDA’s Q&A states that the flavor ban applies to cigarettes, as defined in the FSPTCA, even if labeled as cigars or little cigars  Because cigars do not meet the definition of cigarette, they are not subject to the flavor ban – FDA must preserve the established distinction  Seeking declaratory judgment and injunction to prevent FDA from regulating its clove cigars as cigarettes under the FSPTCA

9.  Status:  Only the complaint has been filed  FDA has not filed an answer