Topic: Price and Tax Measures

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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.

Ghumman v. National Health Services, Regulation and Coordination [Pakistan] [December 18, 2017]

Public health organization, Pakistan National Heart Association, through its General Secretary, Sana Ullah Ghumman, filed a complaint in the office of the Federal Ombudsman alleging that the Federal Board of Revenue (FBR) and the Ministry of Health made inappropriate tax decisions which resulted in a reduction in price for certain tobacco products.  The Ombudsman ruled that the government's departure from established practice amounted to maladministration under Article 2(1)(a) of President Order No. 1 of 1983. The Ombudsman directed the government to either mandatorily comply with Articles 6 and 15 of the FCTC, or intimate reasons for non-compliance under Article 11(2) of the President Order No. 1 of 1983, both within thirty days.  The FBR appealed to the President's Secretariat. The Secretariat set aside the Federal Ombudsman's decision, finding that the Ombudsman did not possess jurisdiction to hear the matter as taxation strategy cannot be reviewed for maladministration and a tax bill passed by Parliament is not an act of an agency as required by the President's Order establishing Federal Ombudsman jurisdiction. The Secretariat further held that compliance with treaty obligations is a government policy issue and cannot be reviewed by judicial or quasi-judicial bodies like the Federal Ombudsman.

Ghumman v. National Health Services, Regulation and Coordination [Pakistan] [September 23, 2017]

Public health organization, Pakistan National Heart Association, through its General Secretary, Sana Ullah Ghumman, filed a complaint in the office of the Federal Ombudsman alleging that the Federal Board of Revenue and the Ministry of Health made inappropriate tax decisions which resulted in a reduction in price for certain tobacco products.  The Ombudsman ruled that the government's departure from established practice amounted to maladministration under Article 2(1)(a) of President Order No. 1 of 1983. The Ombudsman directed the government to either mandatorily comply with Articles 6 and 15 of the FCTC, or intimate reasons for non-compliance under Article 11(2) of the President Order No. 1 of 1983, both within thirty days.

Hegar v. Texas Small Tobacco Tobacco Coalition [United States] [March 24, 2017]

Texas law imposed a higher tax on the tobacco products of manufacturers who were not members of any settlement agreements ("Small Tobacco"), compared to the tax rate for manufacturers who had entered into settlement agreements. The settlement agreements required annual payments and restricted advertising and lobbying activities in exchange for releasing claims against manufacturers. Some manufacturers who were members of the settlement agreements did not make any annual payments to the State of Texas, although their products were taxed at a lower rate pursuant to the law. Small Tobacco argued that the difference in the tax between their products and products produced by those manufacturers who were not making annual payments to Texas violated the constitutional guarantees of due process and equal protection. The Court rejected Small Tobacco's arguments and held that the law was constitutional.  
   

Smith v. Philip Morris Companies [United States] [July 18, 2014]

A class action lawsuit against major tobacco companies argued that the companies fixed prices following “Marlboro Friday,” a day in 1993 in which a Philip Morris retail promotion lowered the price of Marlboros by approximately 20 percent. The class action represented Kansas purchasers of cigarettes who alleged that the tobacco companies conspired to fix the wholesale price of cigarettes in violation of state law. The court ruled that the class had failed to provide evidence proving price fixing and affirmed an earlier judgment in favor of the tobacco companies. In particular, the court found that the class failed to provide evidence that the tobacco companies were actively colluding with each other and not acting independently in changing prices.

National Association of Tobacco Outlets v. City of New York [United States] [June 18, 2014]

Tobacco companies and retailers sued New York City challenging an ordinance that prohibits the sale of tobacco below the stated price, such as through coupons or two-for-one offers. The court upheld the ordinance, ruling that it does not violate the tobacco companies’ or retailers’ free speech rights under the First Amendment and that it is not preempted by state or federal law. The court found that ordinance does not violate the First Amendment because it regulates an economic transaction – the sale of tobacco products below the listed price – not speech. Additionally, the ordinance is not preempted by the Federal Cigarette Labeling and Advertising Act because it is a lawful restriction on the manner in which tobacco manufacturers and retailers advertise and promote their products and it does not regulate the content of cigarette advertising related to health warnings. Finally, the New York City ordinance is not preempted by state law because the state law relates only to the distribution of free tobacco products, not partially discounted tobacco products.

Customs vs. X [company importing and distributing tobacco products] [Netherlands] [March 13, 2014]

Information about this decision coming soon. 

Safa Enterprises Inc. v. Imperial Tobacco Company Limited [Canada] [December 09, 2013]

The owner of a convenience store brought an action against Imperial Tobacco Company for violation of Canada’s pricing laws. The convenience store was not allowed to participate in Imperial’s preferred pricing program. However, a competing convenience store was part of the program, which allowed the competing store to sell cigarettes at a lower price. The Competition Tribunal dismissed the case, finding that the convenience store bringing the action was unable to prove that Imperial’s alleged discrimination (by not allowing the store to participate in the pricing program) was because of the store’s low prices.

Philip Morris USA v. Vilsack [United States] [November 20, 2013]

Philip Morris challenged the Department of Agriculture's decision to use tax rates from 2003 instead of current tax rates. In this decision, the court concluded that the decision was a permissible interpretation of the statute. Nothing from the text of the statute or in Congress's actions indicated that the Department intended otherwise, or that the Department's interpretation was unreasonable. The court affirmed the district court's grant of the Department's motion for summary judgment. 

National Association of Tobacco Outlets, Inc. et al v. City of Providence, Rhode Island, et al [United States] [September 30, 2013]

Tobacco companies sued the City of Providence, Rhode Island challenging two different local ordinances: (1) restricting the sale of flavored tobacco products (other than cigarettes) except in a smoking bar; and (2) prohibiting retailers from accepting or redeeming coupons and certain multipack discounts (e.g., buy two, get one free). The Appeals Court upheld the lower court’s decision and found that both ordinances are legal. The “Flavor Ordinance” is not preempted by the Family Smoking Prevention and Tobacco Control Act. The “Price Ordinance” does not violate the First Amendment and is not preempted by the Federal Cigarette Labeling and Advertising Act. Additionally, neither ordinance is preempted by Rhode Island state law.