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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. 

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.

Cigarette Distributors Division v. Ministry of Health [Israel] [July 03, 2013]

Owners of automatic cigarette vending machines challenged a law prohibiting the sale of cigarettes through such machines. The Supreme Court held that the infringement of the seller’s property rights and the right to freedom of occupation is justified as the law is rationally connected to the important public interest in limiting the access of minors to tobacco products, minimizing the risk of smoking, and restricting the advertisement of tobacco products.

U.S. Smokeless Tobacco Mfg. v. City of New York [United States] [February 26, 2013]

After the enactment of the Family Smoking Prevention and Tobacco Control Act by the U.S. government in 2009, Plaintiff tobacco companies challenged a New York City law prohibiting the sale of “any flavored tobacco product except in a tobacco bar.”  The law did not include cigarettes or flavors of tobacco, menthol, mint or wintergreen.  Plaintiffs asserted the New York City law was preempted by the federal act and was thus invalid.  This opinion of the Court of Appeals for the Second Circuit was delivered after the trial court ruled against the plaintiffs on summary judgment.  Plaintiffs argued the New York law was a “veiled attempt to regulate the manufacture of tobacco products” instead of a restriction on the retail sale of products with a specific characteristic.   The court held the law fit within the federal law because it invoked powers reserved for states and fell within the federal laws exemption clause for preemption that allowed states to enact laws restricting retail sales.  The court thus affirmed the lower court’s judgment and dismissed the appeal.

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