16

‐ 1472

Rozema v. U.S. Dep’t of Health & Human Servs., et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC

DATABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING

TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 1

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2

City of New York, on the 15 th day of March, two thousand seventeen

. 3

4

PRESENT: ROBERT D. SACK, 5

RAYMOND J. LOHIER, JR., 6

Circuit Judges, 7

GREGORY H. WOODS,  8

District Judge. 9

-------------------------------------- ------------------- 10

Kyle Thomas Rozema, 11

12

Plaintiff

‐ Appellant

, 13

14

v. No. 16

‐ 1472 15

16

United States Department of Health and 17

Human Services, United States Food and 18

Drug Administration, 19

20

Defendants

‐ Appellees

, 21

 Judge Gregory H. Woods, of the United States District Court for the Southern

District of New York, sitting by designation.2 1

Philip Morris USA, ITG Brands, LLC, 2

R.J. Reynolds Tobacco Company, Santa Fe 3

Natural Tobacco Company, Inc., 4

5

Intervenors

. 6

---------------------------- ------------------------------ 7

8

FOR APPELLANT: Kyle Thomas Rozema, pro se

, Chicago, IL. 9

10

FOR APPELLEES: Karen Folster Lesperance, William F. Larkin, 11

Assistant United States Attorneys, for Richard S. 12

Hartunian, United States Attorney for the 13

Northern District of New York, Albany, NY; 14

James C. Fraser, Associate Chief Counsel, United 15

States Food and Drug Administration, Silver 16

Spring, MD. 17

18

FOR INTERVENORS: Mark S. Brown, Ashley C. Parrish, King & 19

Spalding LLP, Washington, D.C.; Kristen R. Ittig, 20

Geoffrey J. Michael, Arnold & Porter, LLP, 21

Washington, D.C.; Mark H. Lynch, Covington & 22

Burling LLP, Washington, D.C. 23

24

Appeal from a judgment of the United States District Court for the 25

Northern District of New York (Glenn T. Suddaby, Chief Judge ). 26

UPON DUE CONSIDERATION, it is ORDERED, ADJUDGED, AND 27

DECREED that the judgment of the District Court is AFFIRMED. 28

Kyle Thomas Rozema, pro se, appeals from a judgment of the District 29

Court (Suddaby, C.J.) granting summary judgment in favor of the United States 30

Food and Drug Administration (“FDA”) and the United States Department of 313 Health and Human Services with respect to Rozema’s Freedom of Information 1

Act (“FOIA”) request. Rozema requested that the FDA disclose data it had 2

gathered detailing the quantity of menthol in cigarettes by brand. The District 3

Court held that the information was properly withheld under FOIA’s exemption 4

for trade secrets and confidential commercial information. We assume the 5

parties’ familiarity with the facts and record of the prior proceedings, to which we 6

refer only as necessary to explain our decision to affirm. 7

FOIA exempts from disclosure materials that contain “trade secrets and 8

commercial or financial information obtained from a person and privileged or 9

confidential.” 5 U.S.C. § 552(b)(4). Rozema acknowledges that the data he 10

requested—the quantity of menthol in cigarettes by brand—contains trade secrets 11

and confidential commercial information within the meaning of the FOIA 12

exemption and is, therefore, exempt from disclosure. See Inner City Press/Cmty. 13

on the Move v. Bd. of Governors of the Fed. Reserve Sys., 463 F.3d 239, 244 (2d 14

Cir. 2006). Rozema has not identified any statutory provision that requires 15

disclosure of the requested data. The FDA has not included menthol on its list of 16

harmful and potentially harmful constituents, so the agency is not required to 17

disclose menthol

‐ related data under the Family Smoking Prevention and Tobacco 18

Control Act. See 21 U.S.C. §§ 387d(d), (e). Nor has Congress obligated the FDA 194 to add menthol to its harmful constituents list and disclose the data. See id. 1

§ 387g(e)(3). We therefore conclude that the FDA correctly applied the FOIA 2

exemption to deny Rozema’s FOIA request. 5 U.S.C. § 552(b)(4). 3

We have considered Rozema’s remaining arguments and conclude that 4

they are without merit. For the foregoing reasons, the judgment of the District 5

Court is AFFIRMED. 6

FOR THE COURT: 7

Catherine O’Hagan Wolfe, Clerk 8