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

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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.

Plume Vapour Private Ltd. v. Union of India [India] [October 01, 2019]

Plume Vapor challenges the government's ordinance banning the sale of e-cigarettes and seeks a stay on the ban's implementation.  The government asserts that a stay at this interim stage before affidavits and hearing is inappropriate.  In an interim order, the Kolkata High Court refused to stay the ban, but stayed the requirement for sellers to prepare a list of their existing stock of e-cigarettes and submit such stock to authorities for disposal.

(Heard along with a similar challenge from Woke Vapors.)

La Republicana S.A. v. State - Executive Branch [Uruguay] [July 24, 2019]

Compañía Industrial de Tabacos Montepaz S.A. and La Republicana S.A. challenged Decree No. 120/2019, issued by the executive branch, that requires plain packaging of tobacco products. The Court rejected the challenge and found that the decree is not clearly illegitimate, and therefore, the plaintiffs did not meet the required standard. The Court further held that Congress was the appropriate institution to approve plain packaging and impose restrictions on the tobacco industry (done via Law No. 19.723), and therefore, the executive branch did not exceed its authority when it issued Decree No. 120/2019. Additionally, the Court found that even though the implementation timeline might be strict (one year), the industry had prior knowledge given that there was a previous decree and a pending bill in Congress.

Philippine Tobacco Institute v. the City of Balanga, et al. [Philippines] [July 22, 2019]

The tobacco industry challenged as unconstitutional and invalid a City of Balanga ordinance making the City's 80-hectare University Town and its 3 kilometer radius tobacco-free, where the sale, use and marketing of tobacco products and e-cigarettes are banned. PTI filed the case on July 31, 2017 and a decision from a Regional Trial Court was issued in July 2018 in favor of the industry. An appeal was filed by the City and is currently pending with the Supreme Court.

Litejoy International v. Union of India [India] [July 11, 2019]

Litejoy International challenges a Drugs Controller General of India (DCGI) order calling for enforcement of a Ministry of Health and Family Welfare Advisory instructing states to undertake a ban on the sale (including online sale), manufacture, distribution, trade, import and advertisement of e-cigarettes, among other products. On March 18, 2019, a single judge of the Delhi High Court stayed the DCGI order’s implementation, holding that e-cigarettes do not fall within the definition of a ‘drug’, as defined under section 3(b) of the Drugs and Cosmetics Act 1940.

(Heard along with M/S Focus Brands Trading v. Directorate General of Health Services, W.P. (C) 2688/2019 and Piush Ahluwalia v. Union of India, W.P. (C) 2735/2019.)

BAT Uganda Ltd v. Attorney General & Center for Health, Human Rights and Development [Uganda] [May 28, 2019]

British American Tobacco Uganda (BATU), a subsidiary of British American Tobacco, filed a lawsuit in the Constitutional Court of Uganda in 2016 challenging the constitutionality of several key provisions in the Tobacco Control Act, 2015. The Court dismissed the Petition in its entirety and awarded costs to the government. The Court found that the Petition appeared to have been misconceived or brought in bad faith as part of a global strategy to fight tobacco control legislation. The challenged provisions upheld by the Court include provisions:

- requiring 65% or larger picture health warnings;
- banning smoking in all indoor public places and workplaces, on all means of public transport, and in specified outdoor public places;
- banning all tobacco advertising, promotion, and sponsorship, including product displays at points of sale;
- prohibiting the sale of tobacco products in specified places (health institutions, schools, prisons, and other places);
- prohibiting the import, manufacture, distribution, and sale of electronic nicotine delivery systems, and shisha, smokeless, and flavored tobacco;
- banning the sale of tobacco products through vending machines and through remote means of sale (e.g., mail, internet); and
- implementing WHO FCTC Article 5.3.

M/S Marvelous Creations v. Deputy Commissioner of Customs [India] [May 08, 2019]

M/S Marvelous Creations (Marvelous) seeks release of a consignment containing such items as hookah flavorings, e-sheesha pens and e-liquid.  The government retained these items because of Marvelous' failure to follow the procedures set out in the November 27, 2018 Drugs Controller General order calling for enforcement of an e-cigarettes ban.  Marvelous asserted, however, that the November 2018 order had been stayed by the Delhi High Court and the government's retention of its consignment is due only to the pendency of this writ petition.  The court ordered the release of Marvelous' consignment.  

Doctors for You v. Ministry of Environment, Forest and Climate Change [India] [April 12, 2019]

Doctors for You sought cigarettes and bidi butts to be declared toxic waste and to prohibit tobacco consumption in any form in all public places. The National Green Tribunal directed the Indian Institute of Toxicological Research, Lucknow (with expenses borne by the Central Pollution Control Board) to ascertain whether discarded butts are toxic waste and, if yes, to frame rules for waste management.

Grişciuc, Simion v. Republic of Moldova [Moldova] [April 08, 2019]

On April 8, 2019, the Constitutional Court upheld the Tobacco Control Law’s provision banning tobacco sales from commercial establishments that are smaller than 20 m^2 (i.e., kiosks) and are located within 200 meters of educational and healthcare facilities. This provision was adopted in May 2015 and came into force on September 17, 2015, but the Moldovan Parliament passed an amendment delaying the effective date to January 1, 2019 for commercial establishments that were in existence before July 1, 2016.

A Member of Parliament filed a complaint alleging that the provision violated several articles of the Constitution, including equal protection, freedom of commerce and entrepreneurial activity, and protection of fair competition, among others.

In upholding the measure, the court concluded that the policy serves a legitimate aim – limiting access by minors and protecting the health of minors and patients – and there were no less restrictive alternative measures that would be as effective in achieving the objectives. The court also cited the four-year delay in implementation given to existing commercial establishments, concluding that this time period provided sufficient time to adapt to the new sales restrictions. The decision is final and cannot be appealed.

Planta Tabak-Manufaktur Dr. Manfred Obermann GmbH & Co. KG v. Land Berlin [European Union] [January 30, 2019]

Planta Tabak, a Berlin-based tobacco company that primarily manufactures and markets flavored roll-your-own tobacco, challenged provisions of the EU Tobacco Products Directive (Directive 2014/40/EU) that prohibit characterizing flavors in cigarettes and roll-your-own tobacco and prohibit packaging from alluding to flavors, among others. The plaintiffs sought a declaration that these provisions were not applicable to its products and alleged that they violated the principles of legal certainty, equal treatment, and proportionality. Planta Tabak objected to the fact that manufacturers of flavored tobacco products with an EU-wide sales volume of 3% or more in a particular product category were given until May 2020 to comply with the ban on flavorings, while manufacturers of flavored products with a smaller sales volume must comply as of May 2016.

The Court held that flavored tobacco products were particularly attractive to young people and facilitate the initiation of tobacco consumption. While the Court admitted that the ban was a restriction on the EU's free movement of goods, "it was justified by the balancing of its economic consequences against the requirement to ensure a high level of protection of human health." Further, the Court found that the difference in treatment of products based on sales volume was intended to give consumers adequate time to switch to other products and was, therefore, objectively justified. The Court also upheld the ban on any indication of flavor on the product packaging and labeling.

The case now reverts to Berlin's administrative court, where Planta Tabak filed its initial challenge.