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Topic: Sales to or by Minors

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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.

Nicopure Labs, LLC v. Food and Drug Administration [United States] [July 21, 2017]

A manufacturer of e-cigarette devices and liquids challenged a federal regulation that deemed e-cigarettes to be “tobacco products.” This rule subjects e-cigarettes to the same federal laws as traditional cigarettes under the Tobacco Control Act (TCA). The manufacturer argued that the Food and Drug Administration (FDA), which issued the regulations, did not have the authority to regulate empty e-cigarettes or nicotine free e-liquids, because they were not made or derived from tobacco. The company also argued that the TCA’s ban on distributing free samples and pre-approval for modified risk statements was arbitrary and violated their First Amendment rights.

In this decision, the District Court upheld the FDA’s rule. The TCA gives the FDA the power to regulate “components” of tobacco products. The court found empty e-cigarettes and nicotine-free e-liquids are “components” of a tobacco product because together they make up an electronic nicotine delivery system. Further, the court found that the rule did not violate the manufacturers’ First Amendment rights because the ban on free samples was regulating conduct, not speech. The court also held that pre-approval for modified risk statements did not violate the First Amendment because it does not ban modified risk statements, it only requires the claims be substantiated. Finally, the court found because of the public health risks associated with nicotine and increasing rates of e-cigarette use in adolescents and adults, the decision to subject e-cigarettes to the TCA was not arbitrary. 

Pranvesh v. Union of India [India] [June 30, 2016]

A University of Allahabad student filed a writ petition alleging the unabated sale of tobacco to minors and adults in the city of Allahabad. The High Court of Allahabad found that temporary and permanent shops located near schools and other public institutions were making such sales. The Court also found that certain tobacco manufacturers presented misleading information about their products in print and visual media and failed to comply with the requirement for pictorial warnings on tobacco products.  The Court passed the following directions: (1) that all temporary/permanent establishments selling tobacco within a 100 yard radius of educational institutions be removed; (2) that all temporary/permanent establishments selling tobacco within 500 meter radius of the High Court and the District Court be removed; (3) that the sale of tobacco to persons seated in parked cars on roads and road sides be stopped; and (4) that strict action be taken against tobacco manufacturers who violate the requirement for compulsory statutory warnings on their products.

Vekony v. Hungary [Hungary] [January 13, 2015]

A tobacco retailer was forced to apply for a new license after a national law created a state monopoly on tobacco sales. The retailer’s application for a tobacco license was denied and, as a result of the lost sales, his shop was forced to close. The retailer claimed that the loss of his tobacco license unjustly deprived him of his property. The court found that the government’s decision not to grant the tobacco license interfered with the “peaceful enjoyment of possessions” guaranteed in the European Human Rights Convention. The court also found that the retailer had to suffer an excessive burden and awarded him 15,000 Euros to compensate for the lost business, plus 6,000 Euros for attorney costs. 

Naya Bans Sarv Vyapar Association v. Union of India [India] [November 11, 2014]

An association of tobacco wholesalers challenged a provision of India's omnibus tobacco control law that prohibits the sale tobacco products within 100 yards of a school. An earlier judgment ruled that the law applied to wholesale as well as retail tobacco sales and allowed the association to conduct its wholesale business within 100 yards of a school only after 2 pm. This decision modified the earlier order by changing the time that the association is allowed to conduct business to after 4 pm. 

Manager Smoke Sheesha Abbotabad v. Asst. Commissioner Abbottabad [Pakistan] [August 05, 2014]

A government inspector sent a final warning to a sheesha cafe to stop selling sheesha in public places, and to persons under the age of 18 years old. The manager of the sheesha cafe sought a Criminal Revision, but the court rejected the petition because it was without substance.

Dinar Yashwant Sohoni v. State of Maharashtra [India] [February 25, 2014]

A public interest lawsuit requested implementation of the rule requiring educational institutions to post a sign stating that cigarettes and other tobacco products may not be sold within a 100 yard radius of a school. The court found this requirement mandatory and ordered the state government’s Education Department to instruct all schools to implement the rule before the start of the 2014-2015 academic year.

The Libra India v. Union of India [India] [January 12, 2014]

A public interest organization sued the government asking it to prohibit the sale, manufacture, and storage of all forms of tobacco and to study the contents of cigarettes, beedis, and other products for smoking tobacco. The court took note of the extensive information submitted by the petitioner about the huge loss of life and impacts on health due to tobacco use. The court noted that although the petition had been filed nearly a year earlier, the government had not yet provided a response. The court ordered the government to respond to the petition within six weeks from the date of the decision. 

The Government of Saskatchewan v. Rothmans, et al [Canada] [October 01, 2013]

The government of Saskatchewan sued a number of tobacco companies seeking to recover the health care costs of treating citizens with tobacco-related disease.  The government alleged that the tobacco companies engaged in a decades-long conspiracy to mislead Saskatchewan about the health risks of smoking and to suppress information about the dangers of smoking. Three of the tobacco companies sought to dismiss the claim, arguing that the court did not have sufficient jurisdiction over them. The court rejected the tobacco companies’ argument and allowed the claim to proceed. The court found that there was enough evidence to show a real and substantial connection between Saskatchewan and the tobacco companies.

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.