Since the WLF brief is already filed in time, can groups like CASAA ask the WLF to be added to their brief?
Smoking Everywhere V. FDA Daily Docket Sheet Update--APPEAL's COURT ISSUES STAY
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Since the WLF brief is already filed in time, can groups like CASAA ask the WLF to be added to their brief?
There is still time for sure Kristin. A motion can be filed asking for leave to join WLF in the Brief and have the Court reckonize CASAA as an Amicus.
Sun
Which leads me to another question. Would an organization like CASAA, need to hire an attorney to file an Amicus Brief, or could they just make a onetime payment to one to do the paperwork and submit it?
Would council even need to be hired/retained...I thought it's just the filing of a brief and not truely active partcipation in the case itself... and I thought that CASAA has a legal director...if it's within their capabilities couldn't they just pen the brief?
Kinda what I was getting at...I thought CASSA has an attorney on the board...not that it would be totally fair to ask them to pen a brief without being retained...but I'd be willing to send a few bucks to CASSA for it if they can file the brief..I'm sure some others probably would too..
Members of the Vapers Coalition filed the amicus brief in Judge Leon's court - I'm confident we could do it again. I've broached the subject with them and it'll be discussed soon.
Many will do it for a flat fee. Also there is the option of Law Schools where Law Professors take on filings like this for Law Review and 3rd year students. There are many options out there.
Sun
That's good to know, Sun. Maybe CASAA can get one for a reduced fee or even better, pro bono.
With the names now in this case Jerry, many Counsel would love to get in the game. Pro Bono is not out of the question.
Sun
Windsage said:
The issue of the 60 day period aside, what you need to understand is that an appellate brief, filed by anyone whether it be a party to the case or amici, may not introduce or attempt to rely on any new evidence whatsoever. The Court is bound to review only matters that are already on the record from below, and the briefs are merely legal arguments based on the matters of record from the proceedings below.
So no one can introduce or talk about things like the surveys that have been done or any scientific studies or reports that were not part of the existing record of the case.
Not even to refute grossly inaccurate statements made in the other briefs?..
All these breifs talking about how children are being targeted, etc, and you can't refute that by showing evidence to the contrary?...even though that is the position of SE...that they are marketing to adult smokers?
Must the briefs be points of law? How about logic?
Based on the fact that the FDA claims that electronic cigarettes represent a great danger to public health, could we not refute that? We could argue that based on a comparison of substances in smoke versus in vapor, there is no way smoke could be the safer of the two types of products. We can cite information about low TSNA levels (ref. Health New Zealand)
Judge Leon already noted the lack of any evidence showing people have been harmed. Further proof that they do not present a danger is the fact that a large percentage of our users are reporting improved health, probably attributable to the fact that so many have are using the e-cigarette as a complete replacement for their tobacco cigarettes. We could even quote the web sites of the ALA, ACS, and AHA about how harmful SMOKE is!
Although the CASAA survey is interesting, it would be better to cite the Univesity of Alberta study because it is about to be published in the Tobacco Harm Reduction Yearbook. PUblished studies with statistical analyses carry a lot more weight.
We could end our brief by turning the tables and asserting that the true danger to public health is taking away a tool that so many people have found to be an acceptable substitute for the very harmful act of smoking.
Based on the fact that the FDA claims that electronic cigarettes represent a great danger to public health, could we not refute that? We could argue that based on a comparison of substances in smoke versus in vapor, there is no way smoke could be the safer of the two types of products. We can cite information about low TSNA levels (ref. Health New Zealand)
Judge Leon already noted the lack of any evidence showing people have been harmed. Further proof that they do not present a danger is the fact that a large percentage of our users are reporting improved health, probably attributable to the fact that so many have are using the e-cigarette as a complete replacement for their tobacco cigarettes. We could even quote the web sites of the ALA, ACS, and AHA about how harmful SMOKE is!
Although the CASAA survey is interesting, it would be better to cite the Univesity of Alberta study because it is about to be published in the Tobacco Harm Reduction Yearbook. PUblished studies with statistical analyses carry a lot more weight.
We could end our brief by turning the tables and asserting that the true danger to public health is taking away a tool that so many people have found to be an acceptable substitute for the very harmful act of smoking.
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You can't directly introduce testimony, but you get to explain why you are an interested party.
i.e. ...representing hundreds of members, approximately two thirds of whom have switched from traditional cigarettes to the new devices and have a personal health stake in the outcome of any ban that would, force them back to traditional cigarettes.
Its important to make the point that there is more at stake than just someone's business plan. These decisions effect the lives and health of normal people that are happily using these products in a healthy manner.
i.e. ...representing hundreds of members, approximately two thirds of whom have switched from traditional cigarettes to the new devices and have a personal health stake in the outcome of any ban that would, force them back to traditional cigarettes.
Its important to make the point that there is more at stake than just someone's business plan. These decisions effect the lives and health of normal people that are happily using these products in a healthy manner.
Although the Record on Appeal is in fact grounded only on the Record below, the issues are in fact usually extrapolated in an Amicus Brief. That is why in many important cases you will see numerous Advocacy Groups all filing Amicus Briefs. They all want to emphasize their positions and points of view. The Amicus Briefs also become part of the record should the case go higher up in the Appellant process.
Sun
ok now I'm confused....yvilla says that nothing that's not in the original record of the case can be in the brief...
but here Sun is saying that Advocacy Groups filing briefs extrapolating the facts and emphasizing their positions and points of view.....
so which is it?... if it's our position and point of view that the FDA and these other groups are a bunch of filthy liars because of x,y,and z...and how the so called FDA report is scewed and how when anyone with half a brain follows what it really says...and the position that these are marketed to children when all evidence points to the contrary...etc.
Drozd--We are saying the same thing. If it is issue or fact that was raised below, you can expand on it and make your argument about it. It must have at least been raised or stated within the record below.
The Appeal's Court just does not hear what was already argued---they what to know why the lower Court erred or should be affirmed. So you cite caselaw that was not cited in the lower Court to make your case to either affirm or reverse the Order.
Sun
If I understand the process correctly, you cannot take action in the case and do not provide actual testimony, but you can introduce facts and concerns. This is especially true when the result of a case may create ripples far beyond the case itself. For instance, this case is really just about FDA seizing some shipments from 2 vendors, but if the FDA prevails they have said the intend to use this case to create a defacto ban of an entire industry. They have claimed 2 vendors use misleading statements and all this other crap, but these are not the only vendors. The court needs to know that there is other legitimate concern.
What we bring to this is the voices of people who have tried other means quit cigarettes and while we have not quit, we have switched. This shows that there is a useful place for this product to the benefit of the consumer.
What we bring to this is the voices of people who have tried other means quit cigarettes and while we have not quit, we have switched. This shows that there is a useful place for this product to the benefit of the consumer.
This is the last time I'm saying this. While Windsage is perfectly correct that amici get to explain why they are interested in the case, and why they think they have a perspective to offer that would be helpful to the appellate court, NO ONE gets to introduce, discuss or argue facts that are not in the record. Do that and your brief, or at least those parts of it that do contain matters not on the record, are subject to a motion to strike, which should be granted.
This of course applies to the 3 letter abominations as well. They cannot argue about children being targeted, or about any supposed toxicity of ecigs, not unless it's based on allegations that were made a part of the record in Judge Leon's court!
This of course applies to the 3 letter abominations as well. They cannot argue about children being targeted, or about any supposed toxicity of ecigs, not unless it's based on allegations that were made a part of the record in Judge Leon's court!
I guess we will have to wait to see if CASSA is going to try to make some kind of filings. It is either that or rely on the Washington Group for an Amicus. Or maybe some other entity will step up.
Sun
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