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1094 decisions

Uruguay

Oct 19, 2022

Sociedad Uruguaya de Tabacología v. Executive Branch of the Uruguayan State

Sociedad Uruguaya de Tabacología (SUT) challenged Decree No. 282/022, issued by the executive branch, that modified Decree No. 120/019, regulating the Plain Packaging Law of tobacco products. While an administrative tribunal (Tribunal de lo Contencioso Administrativo) is considering the initial challenge, SUT also filed a rapid constitutional challenge, called an “amparo,” requesting suspension of the decree until the administrative challenge is decided. The amparo was filed in Family Court based on the Code for Children and Adolescents (CAN), which explains “the State has the obligation to especially protect children and adolescents from all forms of encouragement to tobacco consumption.” With regard to the amparo, the court decided in favor of SUT because the Decree fails to meet the objectives of the law that established plain packaging by not achieving the “plain” packaging design and labeling mandate. The Court concluded that any measures related to tobacco packaging, motivated by whatever reasons, must always consider the children and adolescents’ “best interest”, avoiding the violation of their rights to health, to a smoke-free environment and to a special protection from the encouragement of tobacco consumption.

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Colombia

Mar 2, 2022

Red PaPaz v. Rappi S.A.S

On December 2, 2019, the Colombian Association of Fathers and Mothers – Red PaPaz, filed a claim before the Colombian Superintendency of Industry and Commerce (SIC) against Rappi S.A.S (Rappi), a Colombian on-demand delivery online company, for the lack of mechanisms on Rappi's e-commerce website and mobile app to ensure that minors do not search and buy harmful products through them (such as alcohol and tobacco products). Specifically, the complaint alleged that minors could access, purchase and receive alcoholic beverages and tobacco products through Rappi's website without any significant limitations and without their age being verified at the time of purchase and delivery. This lack of protective measures violated the norms for the protection of minors established in Colombia's Law No. 1801-2016, Childhood and Adolescence Law. The complaint filed by Red PaPaz was investigated jointly, with many additional complaints filed by Colombian consumers against Rappi due to a series of infringements of the Colombian Consumer Protection Law. Upon completing the investigation, the SIC verified each of the infractions reported by Red PaPaz and several other consumers and determined to fine Rappi approximately $312,000.00 USD ($1,245,000,000.00 Colombian pesos). The decision has been challenged by Rappi.

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France

Oct 7, 2021

British American Tobacco France vs. National Committee for Tobacco Control

British American Tobacco France (BAT France) appealed a lower court ruling (in "urgent proceedings") ordering the deletion of materials and content promoting e-cigarettes from the website "govype.com/fr" and ordering BAT to pay certain costs and damages. The appellate court ruled that some of the disputed content clearly constituted messages of an advertising nature, having the effect of promoting the quality and safety of the products (e.g., "Vype is a pioneer in the science of vaping"), touting the sensations that can be expected during consumption (e.g., "freshness is in the spotlight"), encouraging consumption through a loyalty program (e.g., "subscribe & save"), and highlighting the advantages of the product by comparing it to tobacco products (e.g., "vaping on average can cost 3 times less than a pack of traditional cigarettes"). These types of statements on a website that sells e-cigarettes do not fall within the exception in the law permitting posters "placed inside establishments marketing [e-cigarettes] and not visible from the outside." The court concluded that the "notion of a poster refers to the obvious requirement for a paper medium and not a virtual one." As a result, the court ordered BAT France to delete a number of promotional statements from the website and pay the National Committee for Tobacco Control damages (€30,000), irrevocable costs under the French Code of Civil Procedure (€8,000), and legal costs.

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Italy

Sep 30, 2021

BAT - Surreptitious Advertising of Glo on Social Media

A consumer protection organization brought a complaint before the Italian Competition Authority alleging British American Tobacco Italia S.p.A. (BAT) and individual social media influencers violated the Consumer Code through Instagram posts promoting Glo Hyper, a heated tobacco product. The specific promotional practice at issue was a "call to action" where the influencers encouraged their followers to post content containing tags and hashtags related to Glo without asking them to also disclose the promotional nature of the posts. The influencers would then re-post the best user-generated content.

Ultimately, the regulatory authority declined to find an offense because both BAT and the influencers made certain commitments that the regulatory authority felt were sufficient to provide consumers with complete and accurate information going forward. These commitments by BAT included: (1) the adoption of Influencer Marketing Guidelines; (2) the addition of contractual provisions should BAT directly contract with influencers in the future; (3) the addition of contractual language if BAT contracts with influencers through an agency that would require the agency to monitor the influencers' activities and adherence to the Guidelines; (4) asking followers to include appropriate hashtags in any future calls to action; and (5) removal of the pages/posts that are subject to this dispute. The influencers agreed to: (1) remove the posts at issue; (2) use the appropriate hashtags in any future advertising and marketing activities; and (3) inform their followers that any user-generated content that doesn't contain the necessary tags or hashtags will not be considered in any contests.

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Philippines

Jul 13, 2021

Dep't of Health v. Philippine Tobacco Institute

In 2011, the Philippine Tobacco Institute (PTI) sued for declaratory relief, seeking to set aside the "Implementing Rules and Regulations of the Republic Act No. 9711" (otherwise known as the "Food and Drug Administration Act of 2009" or "IRR").  PTI sought to prohibit the Department of Health and the Food and Drug Administration of the Philippines from implementing the IRR "insofar as it relates to the regulation of Tobacco Products." The Court held the law constitutional and explained that the PTI "failed to establish an existing right that was violated" and that any "alleged damage or injury the subject IRR would cause is merely speculative and prospective in nature." 

On January 27, 2012, the Regional Trial Court ruled on the merits and granted PTI's petition, voiding the IRR insofar as it regulated tobacco products and the tobacco industry.  PTI argued that they should be principally regulated by the Inter-Agency Committee on Tobacco as provided for by the Tobacco Regulation Act of 2003 (IAC-Tobacco) and the court agreed that it was improper for the DOH or FDA to regulate tobacco products outside of IAC-Tobacco.

On March 29, 2012, the DOH and FDA filed a Petition for Review to the Supreme Court. On July 13, 2021, the Supreme Court granted the Petition, reversing and setting aside the 2012 decision which nullified certain provisions of the IRR insofar as it regulated tobacco products and the tobacco industry. The Supreme Court held that (1) Section 25 of the IRR does not exclude the regulation of the health aspects of tobacco products from the FDA's authority and (2) tobacco products are "health products" under the definition provided under Section 10(ff) of Republic Act No. 3720, as amended by Section 9 of the IRR. The Supreme Court stated that principal regulation by IAC-Tobacco would be contrary to law and the international obligations of the Philippines. The Supreme Court held the given IRR, the Constitution, and the WHO Framework Convention on Tobacco Control, petitioners have technical authority of matters of public health and therefore, regulation of the health aspects of tobacco products fall under the FDA's authority.

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Argentina

May 13, 2021

Tabacalera Sarandí S.A. v. Argentine Tax Authority (AFIP)

Tabacalera Sarandí S.A. had obtained a preliminary injunction to suspend the application of the minimum amount of a tax established for the commercialization of tobacco. Thus, the company could apply the tax rate (70%) on the retail price without considering the minimum amount. The company argued that this minimum put it at a disadvantage with other multi-national tobacco companies. The Argentine Tax Authority appealed the decision, saying that the ruling affected the public interest and the extra-fiscal purpose of the tax, which is the protection of public health. The Supreme Court ruled that the tobacco company had not sufficiently demonstrated its injury and did not prove the requirements to be granted with the injunction. Thus, the Court revoked the injunction.

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Lithuania

Mar 24, 2021

Philip Morris Baltic v. Department of Drug, Tobacco and Alcohol Control

Philip Morris Baltic ("Philip Morris") appealed a decision by the Department of Drug, Tobacco and Alcohol Control ("the Department") fining the manufacturer 2,100 Euros for illegal tobacco advertising and promotion. A lower court had previously rejected Philip Morris's initial complaint. The advertisements in question were promoting IQOS heating devices and involved both internet advertising and point of sale advertising. Philip Morris argued that the tobacco control law does not apply to electronic devices, that the information provided was not about tobacco products or related products, nor was it presented in a way that may mislead consumers. The court upheld the Department's decision, which was based on the finding that the advertising in question constituted unlawful hidden advertising of tobacco products. In disseminating information about the IQOS device, Philip Morris was also unlawfully disseminating information about and promoting the use of tobacco products.

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France

Feb 12, 2021

National Committee for Tobacco Control v. British American Tobacco France

This order for urgent proceedings was brought by the National Committee for Tobacco Control (CNCT) against British American Tobacco France (BAT France), which had posted on a website marketing an e-cigarette called "VYPE ePod" in violation of tobacco advertising and promotion laws. CNCT asked the Nanterre Judicial Court to compel BAT France to delete the site; to disclose to CNCT data on sales volumes and related information through the site; and to pay both advance compensation and compensation under relevant articles of the the French Code of Civil Procedure.

The Court referred the parties to appeal on the substance of the dispute, and provisionally reserved judgment as to the parties' claims. It dismissed CNCT's claims for the disclosure of sales data. It ordered deletion of certain language on the website and ordered BAT France to pay CNCT €1,000 as an advance payment on its claim for damages, €5,000 to CNCT in irrecoverable costs under the French Code of Civil Procedure, and legal costs.

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Uganda

Feb 1, 2021

BAT Uganda Ltd. v. Attorney General and the Minister of Health

British American Tobacco Uganda (BATU) challenged Uganda's Tobacco Control Regulations, 2019. BATU's court submissions raised a number of substantive and procedural claims, including the insufficient time to implement warnings, size of warnings, ban on some misleading descriptors, and flavoring ban. BATU sought and was granted a temporary injunction suspending implementation of Regulations 3, 4, 5, and 6. However, BAT subsequently withdrew its complaint and the injunction was lifted. 

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Mexico

Jan 13, 2021

Vap Labs v. Mexico

Vap Labs asked the Federal Commission for Protection Against Health Risks (COFEPRIS) about the requirements needed to import and commercialize electronic cigarettes (e-cigarettes). COFEPRIS responded that the commercialization of e-cigarettes was banned under the scope of Article 16(vi) of the General Law on Tobacco Control, which states: “It is prohibited to trade, sell, distribute, display, promote or produce any object that is not a tobacco product which contains some of the brand elements or any type of design or auditory sign that identifies it with tobacco products.” Vap Labs filed an Amparo action based on alleged violations of constitutional principles. The District Court agreed and ordered COFEPRIS to authorize the importation, sale and marketing of e-cigarettes in Mexico. The COFEPRIS and the Chamber of Deputies of the Congress of Mexico requested the revision of the District Court's decision. They argued that the District Court decision should be void since the import and commercialization ban incorporated in Article 16(vi) does not violate the Mexican Constitution; Article 16(vi) instead establishes reasonable and proportionate restrictions on the exercise of Vap Labs economic freedom. The Supreme Court of Justice for the Second Chamber agreed and ordered the District Court's decision revocation and amendment, declaring Art. 16(vi) constitutional. This is the fifth decision on this issue of the Second chamber. Similar to a previous case, the Court distinguished between systems that operate exclusively with tobacco and those that do not. The Supreme Court of Justice for the Second Chamber clarified that Article 16(vi)’s ban applied only to e-cigarettes, and not to heated tobacco products as these were tobacco products. This ruling applies only to the plaintiff who was a party to this case. See also Saborn Hermanos Sociedad Anonima v. Mexico, 853/2019, Mexican Supreme Court (2020).

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Argentina

Dec 28, 2020

Baldassare v. British American Tobacco Argentina

The plaintiff brought an action against British American Tobacco (BAT) Argentina, seeking damages for all the health problems allegedly resulting from his use of tobacco products. In particular, he sought compensation for a heart attack he suffered. He claimed that when he began smoking, the advertisements were misleading and did not warn him about the possible health problems caused by the substances in cigarettes. The judge determined that: (i) the case was not time-barred, (ii) tobacco consumption was probably one of the reasons for the heart attack, and (iii) the victim did not assume the risks of smoking because he was not sufficiently well informed, as required by the country's consumer protection law, and because he was not free to direct his actions due to the addiction. The lower court determined that BAT had to pay compensatory damages and also a fine as punitive damages.

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Mexico

Nov 25, 2020

Saborn Hermanos Sociedad Anonima v. Mexico

Saborn Hermanos Sociedad Anónima, a chain of cafés, asked the Federal Commission for Protection Against Health Risks (COFEPRIS) about the requirements needed to manufacture, import, and commercialize electronic cigarettes (e-cigarettes). COFEPRIS responded that the commercialization of e-cigarettes was banned under the scope of Article 16(vi) of the General Law on Tobacco Control, which states: “It is prohibited to trade, sell, distribute, display, promote or produce any object that is not a tobacco product which contains some of the brand elements or any type of design or auditory sign that identifies it with tobacco products.” Saborn filed an Amparo action alleging a violation of the principles of equality and non-discrimination. The District Court agreed and declared Article 16(vi) contrary to the Political Constitution. However, the COFEPRIS and the Chamber of Deputies of the Congress argued before the Supreme Court of Justice for the Second Chamber that Article 16(vi) establishes reasonable and proportionate restrictions on the exercise of Saborn’s economic freedom. The Supreme Court of Justice for the Second Chamber agreed and ordered the District Court's decision revoked.  This is the fourth decision regarding this issue in the Second chamber, but this marked the first time that the Supreme Court of Justice for the Second Chamber declared Art. 16(vi) constitutional. However, it distinguished between systems that operate exclusively with tobacco and those that do not. The Supreme Court of Justice for the Second Chamber clarified that Article 16(vi)’s ban applied only to e-cigarettes, and not to heated tobacco products as these were tobacco products. This ruling applies only to the plaintiff who was a party to this case.

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Brazil

Nov 2, 2020

Public Ministry of Rio de Janeiro v. Rock World SA, Souza Cruz Ltda, and Vega Fina Tabacaria Eireli

The Public Ministry in Rio de Janeiro presented a civil action against Rock World SA, Souza Cruz Ltda, and Vega Fina Tabacaria Eireli for illegal advertising in the festival "Rock in Rio" 2017. On November 2, 2020, the court concluded that the defendants engaged in unlawful advertising during the festival. The illegal advertising included (i) visually ostentatious advertising of smoking products and (ii) "mobile sellers.” On the other hand, the sale of a kit that included cigarettes and a lighter with the logo of "Rock in Rio" was not recognized as an illegal practice. The defendants were sanctioned as follows – (1) Defendants were fined R$ 2,000,000.00 for collective moral damages. For individual material and moral damages, each consumer will need to prove individually the actual damage suffered. (2) Defendants must carry out counter-advertising in partnership with public universities and hospitals informing consumers about the risks, prevention, and treatment of Chronic Obstructive Pulmonary Disease (COPD), and smoking cessation.

In addition to bringing this enforcement action against the illegal advertising that took place at the Rock in Rio 2017, the Public Ministry sought an interim judgment barring illegal promotional activities at the then upcoming Rock in Rio 2019 festival. In response to this request, the court issued a series of orders restricting the promotional activities at the 2019 festival.

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Brazil

Aug 24, 2020

Confederação Nacional do Turismo et. Confederacao Nacional do Comercio de Bens, Servicos e Turismo v. Paraná

The National Confederation of Tourism, together with the National Confederation of Commerce of Goods, Services, and Tourism, filed a lawsuit against the Paraná (state-level) tobacco control law, which prohibits smoking in public or private collective environments in the state of Paraná. The Court unanimously held that state legislative assembly did not exceed its competence to legislate public health. The Court concluded that the state law did not offend fundamental freedoms since it did not prohibit the exercise of the individual's right to consume tobacco products. Furthermore, the Court affirmed that the restriction of using tobacco products in collective enclosed environments respected the rights of non-smokers and the adequate protection of health.

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Brazil

Aug 24, 2020

Confederacao Nacional do Comercio de Bens, Servicos e Turismo v. Paraná

The National Confederation of Commerce of Goods, Services, and Tourism filed a lawsuit against the Paraná (state-level) tobacco control law, which prohibits smoking in public or private collective environments in the state of Paraná. The Court unanimously held that the state legislative assembly did not exceed its competence to legislate public health. The Court also concluded that the state law did not offend fundamental freedoms since it did not prohibit the exercise of the individual's right to consume tobacco products. Furthermore, the Court affirmed that the restriction of using tobacco products in collective enclosed environments respected the rights of non-smokers and the adequate protection of health.

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Netherlands

Jun 30, 2020

Cubacigar Benelux NV v. State of the Netherlands (Ministry of Health, Welfare and Sport)

Cubacigar Benelux NV (Cubacigar) appealed a lower court decision upholding packaging restrictions contained in the Tobacco and Smoking Regulations. Specifically, Cubacigar had challenged restrictions limiting the use of metallic foils and embossing (“glitter and glamor” elements) on cigar boxes. The lower court held that these restrictions in the Tobacco and Smoking Regulations did not conflict with the EU Tobacco Products Directive. The court also determined that although the packaging requirements restricted the free movement of goods, the requirements were justified from a public health point of view because they are aimed at reducing the attractiveness of tobacco products. Further, the requirements of the principle of proportionality were also met.

On appeal, the Court of Appeal upheld the lower court's decision that the packaging requirements under the Tobacco and Smoking Regulations are in line with the EU Tobacco Products Directive. The Court concluded that the government presented sufficient evidence demonstrating that the measures are justified on grounds of public health protection and are proportionate.

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Australia

Jun 9, 2020

Australia - Tobacco Plain Packaging Final Ruling

The Appellate Body of the World Trade Organization (WTO) issued its final ruling affirming that Australia’s pioneering law requiring plain packaging for tobacco products and finding it entirely consistent with WTO agreements. In particular, the WTO appeal ruling confirmed the original finding that the evidence shows that tobacco plain packaging laws "are apt to, and do in fact, contribute to Australia's objective of reducing the use of, and exposure to, tobacco products."

The appeal ruling also confirmed that:

  • Tobacco plain packaging is not more trade-restrictive than is necessary to meet its legitimate public health objective.
  • Trademark owners do not have a positive right to use their trademarks under WTO TRIPS agreement, but only the right to prevent third parties from using them.
  • Tobacco plain packaging is a justified restriction on the use of trademarks and does not violate trademark protections.
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Republic of Korea

Mar 17, 2020

Korea Electronic Cigarette Association v. Ministry of Health and Welfare

The Korea Electronic Cigarette Association challenged the constitutionality of the Ministry of Health and Welfare’s guidance urging the public to stop using e-cigarettes at least until a safety management system could be put into place and research into human toxicity was completed. The Constitutional Court ruled in favor of the Ministry of Health and Welfare, holding that the guidance did not infringe on e-cigarette companies' constitutional rights. The ministerial guidance did not amount to an "exercise of government power" because it had no direct legal effect on the rights and duties of the people and is, therefore, not subject to adjudication on a constitutional complaint.

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Panama

Mar 5, 2020

La Prensa S.A. v. General Directorate of Public Health of the Ministry of Health

An amparo remedy was filed against Resolution No. 0573 of February 27, 2019, issued by the General Directorate of Public Health of the Ministry of Health. The resolution sanctioned La Prensa S.A. with a fine of B$ 10,000.00 for publishing a news article on IQOS sponsored by Philip Morris. The article was titled "NEW ALTERNATIVES COMING FOR ADULT SMOKERS". La Prensa was fined as a result of non-compliance with the total ban on tobacco advertising, promotion and sponsorship. La Prensa objected to the fine on the basis that its constitutional rights to be heard, to offer evidence, and to due process were violated. However, the Court declined to grant the amparo and upheld the sanction since the Ministry of Health acted according to its legal powers.

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Colombia

Dec 27, 2019

Directorate of CPI of SIC v. Coltabaco S.A.S. et al.

In 2017, the Directorate of Consumer Protection Investigations of the Superintendency of Industry and Commerce (SIC) opened an investigation following a complaint to prompt SIC to stop IQOS marketing.

SIC dismissed the complaint after taking the following into consideration:

- The Ministry of Health asked for IQOS products to be treated as tobacco products.
- SIC focused on the fact that only the tobacco sticks for heated tobacco products, as opposed to the IQOS device, are mandated to have health warnings.
- According to SIC, IQOS does not fall under the authority of the tobacco control law in Colombia (Law No. 1335).
- IQOS marketing practices have not violated consumer protection regulations in Colombia.

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Brazil

Dec 20, 2019

Confederacao Nacional do Comercio de Bens, Servicos e Turismo v. Rio de Janeiro

The National Confederation of Commerce of Goods, Services, and Tourism filed a lawsuit against Rio de Janeiro's tobacco control law on smoke-free environments, which banned smoking in public or private collective environments. The Court unanimously held that the state legislative assembly did not exceed its competence to legislate public health. The Court noted that local regulations could be more restrictive than the federal regulation. Further, the judges established that (i) freedom of commerce must be interpreted together with the principle of consumer protection and (ii) restrictions on products that are potentially dangerous are legitimate.

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Belgium

Dec 18, 2019

British American Tobacco Belgium v. Belgium

Tobacco manufacturers requested both the annulment of and, in the interim, a suspension in the implementation of plain (or standardized) packaging. The court denied their request for a suspension, finding that there would be no irreversible damage to the manufacturers' reputations since they are still permitted to use their brand names on the new package format. The court also concluded that the transition period allotted by the legislation was sufficient in length. Finally, the manufacturers failed to prove that they would incur financial consequences large enough to justify suspension of implementation.

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United Kingdom

Dec 18, 2019

ASA Ruling on British American Tobacco UK Ltd.

Following complaints by leading health organizations, the UK’s Advertising Standards Authority (ASA) ruled that British American Tobacco (BAT) can no longer use any public Instagram account to promote e-cigarettes in the UK. The ruling includes BAT’s use of influencer marketing to advertise e-cigarettes and orders BAT to remove unlawful e-cigarette advertising content currently on Instagram.

UK regulations clearly prohibit online advertising of e-cigarettes, but allow a manufacturer to provide factual product information such as the name, content and price of the product on its own websites. The ASA ruling has clarified that public social media accounts, like @govype run by BAT, are not analogous to a website, and therefore, neither factual nor promotional content for e-cigarettes is permitted.

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Brazil

Dec 3, 2019

Confederação Nacional do Turismo v. São Paulo

The National Confederation of Tourism filed a lawsuit against a São Paulo (state-level) tobacco control law regulating smoke-free places. The judge considered that the action was impaired because, after the claim was filed, a federal law was enacted which regulated smoke-free places in a more comprehensive manner. The newly enacted federal law banned smoking lounges, which the challenged state law had already done.

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