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Council for Harm Reduced Alternatives v. State of Karnataka [India] [August 27, 2019]
Council for Harm Reduced Alternatives (Council) challenged a June 15, 2016 Government of Karnataka circular that prohibits the manufacture, sale, distribution, trade, import, and advertisement of e-cigarettes. Public health group, Verve Foundation Trust, intervened. At an initial hearing, the court refused to stay implementation of the circular. In a subsequent hearing, the court observed, "it is expressly clear that the petitioner which is . . . claiming to act in public interest is in fact espousing the cause of manufacturing units of ENDS." The court further stated that the petitioner has abused the court's jurisdiction and wants only to lift Karnataka's ban on e-cigarettes to ensure that manufacturing companies are benefited. Without ruling on the merits of the ban, the court accordingly dismissed the litigation and imposed costs on the Council in the amount of Rs. 1,00,000/-.
American Academy of Pediatrics, et al. v. FDA, et al. [United States] [May 15, 2019]
The Campaign for Tobacco-Free Kids, in conjunction with other public health and medical organizations and several individual pediatricians, challenged the U.S. Food and Drug Administration decision to allow e-cigarettes to remain on the market until 2022 before applying for FDA authorization and permitting products to remain on the market during review. The FDA also delayed the deadline for cigar manufacturers to file such applications until 2021. The court found that the FDA had exceeded its legal authority and the FDA’s delay had played a role in the skyrocketing youth use of e-cigarettes. The court gave the plaintiffs 14 days to submit additional briefing regarding a remedy and the FDA 14 days to respond.
American Academy of Pediatrics, et al. v. FDA [United States] [March 05, 2019]
In 2016, the Campaign for Tobacco-Free Kids in conjunction with seven other health organizations, medical groups, and several individual pediatricians, filed a lawsuit to force the FDA to issue a final rule requiring graphic health warnings on cigarette packing and marketing, as mandated by the 2009 Family Smoking Prevention and Tobacco Control Act. In September 2018, the District Court ruled in favor of the health groups finding that the FDA had both “unlawfully withheld” and “unreasonably delayed” agency action to require the graphic health warnings.
In March 2019, the District Court ordered that the FDA must issue a final rule by March 2020 for graphic health warnings on cigarette packaging and marketing. The ruling also requires the FDA to finish its study on the labels by April 15, 2019, and submit its proposed rule by August 15, 2019.
For the earlier decision, see: American Academy of Pediatrics, et al. v. U.S. Food & Drug Admin., No. 1:16-cv-11985 (D. Mass. 2018).
S. Suresh v. Union of India [India] [February 05, 2019]
S. Suresh, a media consultant for the Tobacco Free Kerala Campaign, seeks implementation of the Rules relating to point of sale advertising framed under COTPA Section 5. The court disposed of the matter, reserving Mr. Suresh's rights to file a new case that contained specific instances of violations of the Rules.
Manjinder Singh Sirsa v. Union of India [India] [January 19, 2019]
Manjinder Singh Sirsa requests the court to direct government authorities to prevent air pollution in restaurants and bars. Mr. Sirsa specifically alleges that hookahs contain hazardous substances and that the Delhi Pollution Control Committee should take action under the Air (Prevention and Control of Pollution) Act, 1981. By contrast, the government contends that hookahs are not hazardous. Noting that hookah is listed in the tobacco products schedule contained in India's omnibus tobacco control law, COTPA, the court dismissed the matter, finding that it did not possess jurisdiction to hear the application as its jurisdiction extends only to environmental questions.
American Academy of Pediatrics et al. v. U.S. Food and Drug Administration [United States] [September 05, 2018]
In a lawsuit filed by eight public health and medical groups and several individual pediatricians, plaintiffs filed suit to force the U.S. Food and Drug Administration (FDA) to issue a final rule requiring pictorial health warnings on cigarette packs and advertising, as mandated by the 2009 Family Smoking Prevention and Tobacco Control Act. The FDA's previous final rule was struck down in August 2012 by the U.S. Court of Appeals for the D.C. Circuit, which ruled that the proposed warnings violated the First Amendment. Ruling in a separate case in March 2012, the U.S. Court of Appeals for the Sixth Circuit upheld the law’s requirement for pictorial health warnings, finding that this provision did not violate the First Amendment. That court found the warnings “are reasonably related to the government’s interest in preventing consumer deception and are therefore constitutional.” The U.S. Supreme Court declined to hear a tobacco industry appeal of this ruling. Taken together, these two federal court decisions meant the FDA was still legally obligated to require pictorial health warnings, and the agency was free to use different images than those struck down by the D.C. Circuit in 2012. The FDA stated in March 2013 that it planned to issue a new rule, but had yet to act when plaintiffs filed suit.
The judge agreed with the health groups that the FDA has both “unlawfully withheld” and “unreasonably delayed” agency action to require the pictorial warnings. The judge set a deadline of September 26, 2018, for the FDA to provide an expedited schedule for the proposal, review, and issuance of final pictorial health warnings in accordance with the law.
Seema Sehgal v. Union of India [India] [August 21, 2018]
Homemaker, Seema Sehgal, seeks extension of the COTPA regulatory scheme to e-cigarettes. Cancer Patients Aid Association (CPAA), filed an impleadment application, and court admitted the association as a party. In its petition, CPAA submitted that regulating e-cigarettes will undermine efforts of state governments to prohibit such products and that a comprehensive ban on the manufacture, import, sale, distribution, storage and advertisement of e-cigarettes throughout India is imperative and in the public interest. On August 21, 2018, the court issued direction to the Ministry of Health & Family Welfare to indicate within a week the timeframe in which regulatory measures regarding Electronic Nicotine Delivery Systems (ENDS)/e-Cigarettes shall be undertaken.
Dutch Non-Smokers Association CAN v. Netherlands [Netherlands] [February 13, 2018]
A public health organization (CAN) challenged a provision of the Tobacco and Smoking Products Act that permitted the establishment of smoking rooms in catering facilities. CAN argued that Article 8(2) of the WHO Framework Convention on Tobacco Control (FCTC) has direct effect and, therefore, this exception to the smoking ban should be considered non-binding because it conflicts with a higher law - the FCTC. The District Court ruled that FCTC Article 8(2) did not have direct effect and, therefore, could not be invoked in this case. CAN appealed this ruling.
On appeal, the Court concluded that FCTC Article 8(2) has direct effect and rejected the State's argument that the exception in the law is intended as a transitional measure. The Court stipulated that the FCTC Article 8 Guidelines "must be taken into account when interpreting Article 8 paragraph 2 of the WHO FCTC." Taking the Guidelines into account, the Court concluded that it is clear that separate smoking rooms "do not provide adequate protection against exposure to tobacco smoke" and, therefore, the exemption for smoking rooms in catering establishments is "contrary to Article 8(2) of the WHO FCTC."
Esperanza Cerón Villaquirán et al v. Superintendencia de Industria y Comercio (SIC) [Colombia] [November 17, 2017]
Tobacco control advocates challenged the Superintendency of Industry and Commerce (Superintendencia de Industria y Comercio – SIC) resolutions that regulated point of sale tobacco product displays. Tobacco control advocates alleged that these resolutions violated the complete ban on advertising, promotion and sponsorship established through Law No. 1335. The Colombian State Council held that these resolutions violated Article 13 of the Framework Convention on Tobacco Control (FCTC) and its guidelines that state that product display should be considered a form of advertisement. Consequently, the State Council mandated the SIC to repeal the resolutions, which was done through Resolution No. 1/2018.
Rishabh Kapur v. Union of India [India] [April 21, 2017]
Rishabh Kapur seeks a prohibition on the direct and indirect advertisement and promotion of the production, sale, and consumption of cigarettes, tobacco products, liquor or other intoxicants on the internet and a direction to the Ministry of Communication & Information Technology to frame laws in this regard. Although the court noted that it could not direct the ministry to frame a policy or legislate, there is no prohibition on the ministry itself from considering the matter. The court accordingly dismissed the matter, but directed that the writ petition be considered as a representation to the ministry to consider and if appropriate express a view within three months.