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British American Tobacco France vs. National Committee for Tobacco Control [France] [October 07, 2021]
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.
National Committee for Tobacco Control v. British American Tobacco France [France] [February 12, 2021]
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.
National Committee for Tobacco Control v. S.A. Philip Morris Products, et al. [France] [May 15, 2019]
The National Committee for Tobacco Control (CNCT) filed a lawsuit against Philip Morris Products (Philip Morris) and Ducati Motor Holdings (Ducati) to prevent the companies from using their "Mission Winnow" trademark at an upcoming Grand Prix event in France (French motorcycle Grand Prix at Le Mans) because it would amount to unlawful tobacco advertising, promotion and sponsorship. CNCT also sought disclosure of the partnership agreements between Philip Morris and Ducati.
In its decision, the Le Mans High Court agreed that:
- The colors of the “Mission Winnow” project and its logo clearly recall the Marlboro cigarette brand that has long been associated with motorsports.
- Professionals of the sector knew that the “Mission Winnow” project only conceals sponsorship actions from a tobacco manufacturer.
- The “Mission Winnow” name and logo constitute some reference, although indirect, to tobacco and in particular to the Marlboro brand and its owner, Philip Morris.
- The violation of provisions in the Public Health Code is sufficiently obvious that the use of the “Mission Winnow” logo or even the existence of the project, as well as the partnership agreement with Ducati, can be questioned under the law.
As a result of these findings, the Court prohibited either company from using the mark, logo or expression “Mission Winnow” under penalty of €10,000 for each violation, and ordered Philip Morris and Ducati to pay €10,000 to CNCT. Additionally, the Court granted CNCT's request for disclosure of the partnership agreement.
Japan Tobacco International and Others v. Ministry of Health (plain packaging laws) [France] [December 23, 2016]
Legal challenges to the plain packaging of tobacco products laws dismissed.
On December 23, 2016 the Conseil d’Etat (the Council of State, the highest administrative jurisdiction in France) dismissed six legal challenges that were brought against the tobacco products plain packaging laws. Previously, in January 2016, the Constitutional Council had also upheld the law as in accordance with the constitution, on a referral from members of parliament.
In brief, six cases were brought challenging the regulations - four by the tobacco companies, one from the confederation of tobacco retailers, and one from a tobacco paper manufacturer. The Conseil d'Etat dismissed all the claims and held that:
1. The ban on using figurative, semi-figurative signs, and logos on packaging of tobacco products was valid because the brand and variant name is still permitted allowing the identification of the product.
2. Plain packaging constitutes an infringement of property rights, but that this infringement is justified in the light of the objective pursued (public health) and because the measure regulates the use of trademarks but does not completely ban them.
3. There was no 'deprivation' of property rights.
4. For the same reasons, the Conseil d'État held that the national legislation is a quantitative restriction on the importation of goods but this is in conformity with European Union law because the introduction of such restrictions is permitted where they are justified by a public health objective and the protection of human life. The court held that in this case, the challenged provisions must be considered as unable to do anything other than, over time, reduce the consumption of tobacco. The evidence in the case file also showed that neutral packaging would reduce the attractiveness of tobacco products. The measures were therefore proportionate and justified.
A summary of the decisions from the two separate courts is attached in French and English in the section on "Related Documents".
Non-Smokers' Rights Association v. British American Tobacco [France] [September 12, 2013]
This is an appeal of a 2012 decision that found British American Tobacco (BAT) France guilty of violating the country’s advertising laws. The appeals court affirmed the earlier decision that BAT France and its president were guilty of civil and criminal violations for (1) distributing a poster to 28,000 retailers saying “false cigarette, true risk” with the BAT logo; and (2) publishing a document on the company’s website about a BAT France campaign to raise awareness of counterfeit tobacco cigarettes. The appeals court found that the campaigns had the effect of enhancing BAT’s image and encouraging the sale of tobacco products. The appeals court increased the amount of the fines imposed on BAT France and ruled that the NGO Non-Smokers’ Rights Association had proper standing to file the lawsuit.
Non-Smokers' Rights Association v. British American Tobacco [France] [April 23, 2013]
Non-Smokers' Rights Association brought suit against British American Tobacco (BAT) France for distributing free pocket-ashtrays at beaches in violation of France's tobacco advertising ban. BAT argued that the ashtrays could not be considered advertisements, because there were no brands or logos on the ashtrays, only a message about the environment and BAT France's website (which did not mention any of its brands). The court agreed with BAT and dismissed the suit.
Non-Smokers' Rights Association v. British American Tobacco [France] [October 05, 2012]
Non-Smokers' Rights Association sued British American Tobacco (BAT) France for violating the country’s tobacco advertising laws in 2010. The court found BAT France and its president guilty of both criminal and civil violations for (1) distributing a poster to 28,000 retailers saying “false cigarette, true risk” with the BAT logo; and (2) publishing a document on the company’s website announcing a BAT France campaign to raise awareness of counterfeit tobacco cigarettes. The court found that the poster and the campaign constituted illegal tobacco advertising by encouraging people to consume tobacco products and by enhancing the value of the BAT France brand. BAT was ordered to pay a fine for violating the law.
Amateur Cigar Society v. Republic of France [France] [January 24, 2012]
Amateur Cigar Society and its directors were sued for unlawful advertising of tobacco products. Amateur Cigar alleged, however, that the tobacco advertising law was unconstitutional because it violated Amateur Cigar’s right to equal protection. The trial court forwarded the constitutionality question to the Court of Cassation which upheld the legislation, reasoning that the goal of protecting public health outweighed Amateur Cigar's rights.
Patrick A. v. Département du Nord [France] [December 30, 2011]
Patrick A., who suffers from lung cancer, appealed a lower court decision finding his illness was not work-related, and the Council of State affirmed. The Council of State, however, held that, even if the cancer could not be linked to his workplace, Patrick A. may be due damages because his employer failed to enforce the smoking ban and to protect its employees. Patrick A. thus was exposed to passive smoking in the workplace. The Council of State remanded the matter in order for this question to be analyzed and awarded Patrick A. 3,000 Euros in costs.
National Committee for Tobacco Control v. SNC La Gascogne [France] [September 12, 2011]
The National Committee for Tobacco Control (CNTC) alleged that a tobacco vendor unlawfully advertised tobacco products by displaying four different brands at the store’s counter and by posting a sign provided by BAT France warning of the dangers of counterfeit cigarettes. CNTC requested that the court award 8,000 Euros for damages, and the vendor requested an acquittal and an exemption from the penalty. The court held the vendor both civilly and criminally liable for violating tobacco advertising laws and imposed a fine (3,000 Euros as penalty and 2,000 Euros as interest) plus 1,500 Euros for CNTC’s court costs.