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Red PaPaz v. Rappi S.A.S [Colombia] [March 02, 2022]
On December 2, 2019, the Colombian Association of Fathers and Mothers – Red PaPaz, filed a claim before the Colombian Superintendence of Industry and Commerce (SIC) against Rappi S.A.S (Rappi), a Colombian on-demand delivery online company, for the lack of mechanisms on Rappi's e-commerce website and mobile app to ensure that minors do not search and buy harmful products through them (such as alcohol and tobacco products). Specifically, the complaint alleged that minors could access, purchase and receive alcoholic beverages and tobacco products through Rappi's website without any significant limitations and without their age being verified at the time of purchase and delivery. This lack of protective measures violated the norms for the protection of minors established in Colombia's Law No. 1801-2016, Childhood and Adolescence Law. The complaint filed by Red PaPaz was investigated jointly, with many additional complaints filed by Colombian consumers against Rappi due to a series of infringements of the Colombian Consumer Protection Law. Upon completing the investigation, the SIC verified each of the infractions reported by Red PaPaz and several other consumers and determined to fine Rappi approximately $312,000.00 USD ($1,245,000,000.00 Colombian pesos). The decision has been challenged by Rappi.
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.
BAT - Surreptitious Advertising of Glo on Social Media [Italy] [September 30, 2021]
A consumer protection organization brought a complaint before the Italian Competition Authority alleging British American Tobacco Italia S.p.A. (BAT) and individual social media influencers violated the Consumer Code through Instagram posts promoting Glo Hyper, a heated tobacco product. The specific promotional practice at issue was a "call to action" where the influencers encouraged their followers to post content containing tags and hashtags related to Glo without asking them to also disclose the promotional nature of the posts. The influencers would then re-post the best user-generated content.
Ultimately, the regulatory authority declined to find an offense because both BAT and the influencers made certain commitments that the regulatory authority felt were sufficient to provide consumers with complete and accurate information going forward. These commitments by BAT included: (1) the adoption of Influencer Marketing Guidelines; (2) the addition of contractual provisions should BAT directly contract with influencers in the future; (3) the addition of contractual language if BAT contracts with influencers through an agency that would require the agency to monitor the influencers' activities and adherence to the Guidelines; (4) asking followers to include appropriate hashtags in any future calls to action; and (5) removal of the pages/posts that are subject to this dispute. The influencers agreed to: (1) remove the posts at issue; (2) use the appropriate hashtags in any future advertising and marketing activities; and (3) inform their followers that any user-generated content that doesn't contain the necessary tags or hashtags will not be considered in any contests.
Dep't of Health v. Philippine Tobacco Institute [Philippines] [July 13, 2021]
In 2011, the Philippine Tobacco Institute (PTI) sued for declaratory relief, seeking to set aside the "Implementing Rules and Regulations of the Republic Act No. 9711" (otherwise known as the "Food and Drug Administration Act of 2009" or "IRR"). PTI sought to prohibit the Department of Health and the Food and Drug Administration of the Philippines from implementing the IRR "insofar as it relates to the regulation of Tobacco Products." The Court held the law constitutional and explained that the PTI "failed to establish an existing right that was violated" and that any "alleged damage or injury the subject IRR would cause is merely speculative and prospective in nature."
On January 27, 2012, the Regional Trial Court ruled on the merits and granted PTI's petition, voiding the IRR insofar as it regulated tobacco products and the tobacco industry. PTI argued that they should be principally regulated by the Inter-Agency Committee on Tobacco as provided for by the Tobacco Regulation Act of 2003 (IAC-Tobacco) and the court agreed that it was improper for the DOH or FDA to regulate tobacco products outside of IAC-Tobacco.
On March 29, 2012, the DOH and FDA filed a Petition for Review to the Supreme Court. On July 13, 2021, the Supreme Court granted the Petition, reversing and setting aside the 2012 decision which nullified certain provisions of the IRR insofar as it regulated tobacco products and the tobacco industry. The Supreme Court held that (1) Section 25 of the IRR does not exclude the regulation of the health aspects of tobacco products from the FDA's authority and (2) tobacco products are "health products" under the definition provided under Section 10(ff) of Republic Act No. 3720, as amended by Section 9 of the IRR. The Supreme Court stated that principal regulation by IAC-Tobacco would be contrary to law and the international obligations of the Philippines. The Supreme Court held the given IRR, the Constitution, and the WHO Framework Convention on Tobacco Control, petitioners have technical authority of matters of public health and therefore, regulation of the health aspects of tobacco products fall under the FDA's authority.
Tabacalera Sarandí S.A. v. Argentine Tax Authority (AFIP) [Argentina] [May 13, 2021]
Tabacalera Sarandí S.A. had obtained a preliminary injunction to suspend the application of the minimum amount of a tax established for the commercialization of tobacco. Thus, the company could apply the tax rate (70%) on the retail price without considering the minimum amount. The company argued that this minimum put it at a disadvantage with other multi-national tobacco companies. The Argentine Tax Authority appealed the decision, saying that the ruling affected the public interest and the extra-fiscal purpose of the tax, which is the protection of public health. The Supreme Court ruled that the tobacco company had not sufficiently demonstrated its injury and did not prove the requirements to be granted with the injunction. Thus, the Court revoked the injunction.
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.
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.
Vap Labs v. Mexico [Mexico] [January 13, 2021]
Vap Labs asked the Federal Commission for Protection Against Health Risks (COFEPRIS) about the requirements needed to import and commercialize electronic cigarettes (e-cigarettes). COFEPRIS responded that the commercialization of e-cigarettes was banned under the scope of 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.” Vap Labs filed an Amparo action based on alleged violations of constitutional principles. The District Court agreed and ordered COFEPRIS to authorize the importation, sale and marketing of e-cigarettes in Mexico. The COFEPRIS and the Chamber of Deputies of the Congress of Mexico requested the revision of the District Court's decision. They argued that the District Court decision should be void since the import and commercialization ban incorporated in Article 16(vi) does not violate the Mexican Constitution; Article 16(vi) instead establishes reasonable and proportionate restrictions on the exercise of Vap Labs economic freedom. The Supreme Court of Justice for the Second Chamber agreed and ordered the District Court's decision revocation and amendment, declaring Art. 16(vi) constitutional. This is the fifth decision on this issue of the Second chamber. Similar to a previous case, the Court distinguished between systems that operate exclusively with tobacco and those that do not. The Supreme Court of Justice for the Second Chamber clarified that Article 16(vi)’s ban applied only to e-cigarettes, and not to heated tobacco products as these were tobacco products. This ruling applies only to the plaintiff who was a party to this case. See also Saborn Hermanos Sociedad Anonima v. Mexico, 853/2019, Mexican Supreme Court (2020).
Baldassare v. British American Tobacco Argentina [Argentina] [December 28, 2020]
The plaintiff brought an action against British American Tobacco (BAT) Argentina, seeking damages for all the health problems allegedly resulting from his use of tobacco products. In particular, he sought compensation for a heart attack he suffered. He claimed that when he began smoking, the advertisements were misleading and did not warn him about the possible health problems caused by the substances in cigarettes. The judge determined that: (i) the case was not time-barred, (ii) tobacco consumption was probably one of the reasons for the heart attack, and (iii) the victim did not assume the risks of smoking because he was not sufficiently well informed, as required by the country's consumer protection law, and because he was not free to direct his actions due to the addiction. The lower court determined that BAT had to pay compensatory damages and also a fine as punitive damages.
Saborn Hermanos Sociedad Anonima v. Mexico [Mexico] [November 25, 2020]
Saborn Hermanos Sociedad Anónima, a chain of cafés, asked the Federal Commission for Protection Against Health Risks (COFEPRIS) about the requirements needed to manufacture, import, and commercialize electronic cigarettes (e-cigarettes). COFEPRIS responded that the commercialization of e-cigarettes was banned under the scope of 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.” Saborn filed an Amparo action alleging a violation of the principles of equality and non-discrimination. The District Court agreed and declared Article 16(vi) contrary to the Political Constitution. However, the COFEPRIS and the Chamber of Deputies of the Congress argued before the Supreme Court of Justice for the Second Chamber that Article 16(vi) establishes reasonable and proportionate restrictions on the exercise of Saborn’s economic freedom. The Supreme Court of Justice for the Second Chamber agreed and ordered the District Court's decision revoked. This is the fourth decision regarding this issue in the Second chamber, but this marked the first time that the Supreme Court of Justice for the Second Chamber declared Art. 16(vi) constitutional. However, it distinguished between systems that operate exclusively with tobacco and those that do not. The Supreme Court of Justice for the Second Chamber clarified that Article 16(vi)’s ban applied only to e-cigarettes, and not to heated tobacco products as these were tobacco products. This ruling applies only to the plaintiff who was a party to this case.