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Type of Litigation: Challenge to Government Policies Relating to Tobacco Control/Public Health

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Search Results Results 1-10 of 348

BAT Uganda Ltd. v. Attorney General and the Minister of Health [Uganda] [February 01, 2021]

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. 

Cubacigar Benelux NV v. State of the Netherlands (Ministry of Health, Welfare and Sport) [Netherlands] [June 30, 2020]

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.

Australia - Tobacco Plain Packaging Final Ruling [Australia] [June 09, 2020]

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.

Korea Electronic Cigarette Association v. Ministry of Health and Welfare [Republic of Korea] [March 17, 2020]

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.

Confederacao Nacional do Comercio de Bens, Servicos e Turismo v. Rio de Janeiro [Brazil] [December 20, 2019]

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.

Confederação Nacional do Turismo v. São Paulo [Brazil] [December 03, 2019]

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.

British American Tobacco Kenya, PLC v. Ministry of Health [Kenya] [November 26, 2019]

British American Tobacco Kenya filed a petition to the Kenya Supreme Court appealing a 2017 Court of Appeal decision upholding nearly all elements of Kenya’s Tobacco Control Regulations. The Supreme Court ruled that the tobacco company’s appeal had no merit, dismissed the petition in its entirety and affirmed the decision of the lower court.

Both lower courts upheld nearly all elements of the Regulations, which are designed to implement the Tobacco Control Act, including:

- a 2% annual contribution by the tobacco industry to help fund tobacco control education, research, and cessation;
- picture health warnings;
- ingredient disclosure;
- smoke-free environments in streets, walkways, verandas adjacent to public places and in private vehicles where children are present;
- disclosure of annual tobacco sales and other industry disclosures; and
- regulations limiting interaction between the tobacco industry and public health officials.

The Tel Aviv Chamber of Commerce v. State of Israel – Ministry of Health, Israeli Knesset, and Knesset Economics Committee [Israel] [November 25, 2019]

The importer and manufacturers' forum of vaporization products at the Tel Aviv Chamber of Commerce challenged amendments to the Restriction of Advertising and Marketing of Tobacco Products Law passed in December 2018. The Tel Aviv Chamber of Commerce specifically challenged the extension of tobacco-related restrictions to e-cigarettes, including an advertising ban, a display ban, and plain packaging, as well as a nicotine concentration limit of 20mg/ml for e-liquids. This case was dismissed.

National Council of Consumers and Users (Associazione dei Consumatori) v. two electronic cigarette manufacturers [names redacted] [Italy] [November 15, 2019]

The National Council of Consumers and Users, headquartered in Rome, petitioned a civil division at the Court of Rome on September 13, 2019 against two e-cigarette defendants to have their marketing removed on the internet (including via defendants’ own social media accounts), printed publications, and through organizing or sponsoring public events aimed at promoting e-cigarettes.

The Court found in favor of plaintiffs holding that “[i]n view of the "restrictive approach to the advertising of electronic cigarettes and liquid refill containers" aimed at achieving "a high level of protection of human health", clearly stated in Paragraph 43 of Directive 2014/40/EU, the defense argument shall be dismissed..

The Court ordered:

  1. Defendants’ remove all commercial communications related to electronic cigarettes and refill cartridges deemed unlawful (including content from their websites and social media pages and all unlawful content reposted by Defendants) within 15 days from the date of this judgment;
  2. Defendants will be fined € 500.00 for each violation and for each day of delay in the execution of this order; and
  3. Defendants are jointly liable to the reimbursement of all legal costs related to these proceedings in favor of plaintiffs and to a compensation of €6,000.00 in addition to administrative costs, VAT and CPA.

[Unnamed Actor] v. México [Mexico] [October 02, 2019]

An agent from the Federal Commission for the Protection Against Sanitary Risks (COFEPRIS) confiscated electronic cigarettes from the plaintiff under 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." The plaintiff filed an Amparo action challenging the interpretation of Article 16. The Ministers of the Second Chamber of the Supreme Court of Justice of the Nation (SCJN) decided unanimously that it is unconstitutional to ban the sale of electronic cigarettes while, on the other hand, the sale of tobacco products is allowed in Mexico. The Court considered that even though the law seeks to protect the right to health, this cannot be done at the cost of an excessive affectation of other goods and rights. The Ministers agreed that prohibiting the sale of electronic cigarettes while the sale of tobacco products is allowed violates the right to equality, and that the measure is not the least restrictive to guarantee other constitutionally protected rights. As a result, they revoked the order from COFEPRIS and ordered the return of the seized goods to the plaintiff.

This ruling applies only to the plaintiff who was a party to this case. However, if the same court issues five judgments with identical holdings, the decision would be binding nationally. This is the third such decision by the Second Chamber.