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Dir. of CPI of SIC v. Coltabaco S.A.S. et al. [Colombia] [December 27, 2019]
In 2017, the Directorate of Consumer Protection Investigations of the Superintendence of Industry and Commerce ("SIC") opened an investigation following a complaint to prompt the SIC to stop IQOS marketing. The SIC issued a decision in the pending administrative investigation dismissing the complaint.
The SIC closed their decision after taking the following into consideration:
- The Ministry of Health asks for IQOS products to be treated as tobacco products.
- The 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 the 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.
ASA Ruling on British American Tobacco UK Ltd. [United Kingdom] [December 18, 2019]
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.
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:
- 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;
- Defendants will be fined € 500.00 for each violation and for each day of delay in the execution of this order; and
- 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.
Philippine Tobacco Institute v. 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. The City is appealing to the Court of Appeals.
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.
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.
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.
IQOS hidden self-advertising decision [Italy] [December 19, 2018]
Philip Morris International’s Italian affiliate company Philip Morris Italia S.r.l (PMI) was found guilty of a breach of the Consumer Code as a result of 'hidden advertising.' There were a number of magazine articles that appeared in various publications in Italy, which on the face of them were about other subjects (ex. how to freshen up a used car or to cook at the right temperature), but also used part of the article to extol the virtues of IQOS. The Italian Competition Authority held that this was a violation of non-transparent advertising and was in breach of the Consumer Code. PMI was fined 500,000 Euro (the maximum), and the publisher was fined 50,000 Euro.