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Topic: Smoke Free Measures

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Search Results Results 1-10 of 337

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.

Dutch Non-Smokers Association CAN v. Netherlands [Netherlands] [February 13, 2018]

A public health organization (CAN) challenged a provision of the Tobacco and Smoking Products Act that permitted the establishment of smoking rooms in catering facilities. CAN argued that Article 8(2) of the WHO Framework Convention on Tobacco Control (FCTC) has direct effect and, therefore, this exception to the smoking ban should be considered non-binding because it conflicts with a higher law - the FCTC. The District Court ruled that FCTC Article 8(2) did not have direct effect and, therefore, could not be invoked in this case. CAN appealed this ruling.

On appeal, the Court concluded that FCTC Article 8(2) has direct effect and rejected the State's argument that the exception in the law is intended as a transitional measure. The Court stipulated that the FCTC Article 8 Guidelines "must be taken into account when interpreting Article 8 paragraph 2 of the WHO FCTC." Taking the Guidelines into account, the Court concluded that it is clear that separate smoking rooms "do not provide adequate protection against exposure to tobacco smoke" and, therefore, the exemption for smoking rooms in catering establishments is "contrary to Article 8(2) of the WHO FCTC."

B v. Waitemata District Health Board [New Zealand] [June 14, 2017]

A patient at a mental health facility sued the Waitemata District Health Board claiming that the Board’s smoke-free policy violated the Smoke-free Environments Act because it did not provide a smoking room for patients. The patient also claimed that the smoke-free policy violated his right to be treated with respect for dignity. In two earlier decisions, the High Court and the Court of Appeals found the smoke-free policy did not violate either the Smoke-free Environments Act or the Bill of Rights. The patient appealed the decision to the Supreme Court.

In this decision, the Supreme Court upheld the smoke-free policy. The Court found that the smoke-free policy did not violate the Smoke-free Environments Act because the law states that a smoking room “may” be provided. As a result, the Board is not required to provide a smoking room for patients. Further, the Supreme Court found the patient’s rights were not violated because smokers were given nicotine replacement therapy, which was a humane and meaningful treatment for nicotine withdrawal symptoms, consistent with the Bill of Rights. 

British American Tobacco Ltd v. Ministry of Health [Kenya] [February 17, 2017]

British American Tobacco appealed a 2016 court decision, which upheld nearly all elements of Kenya’s Tobacco Control Regulations. The appeals court ruled that the tobacco company’s appeal had no merit and affirmed the decision of the lower court. The earlier ruling upheld nearly all elements of the Regulations, which are designed to implement the Tobacco Control Act, including:

- a 2% annual contribution by the tobacco industry to help fund tobacco control education, research, and cessation;
- graphic health warnings;
- ingredient disclosure;
- smoke-free environments in streets, walkways, verandas adjacent to public places and in private vehicles where children are present;
- disclosure of annual tobacco sales and other industry disclosures; and
- regulations limiting interaction between the tobacco industry and public health officials.

The appeals court agreed with the lower court that the tobacco company had been given adequate opportunities for participation in the development of the regulations and that the regulations do not violate the tobacco company’s constitutional rights. 

NYC C.L.A.S.H. v. New York Office of Parks, Recreation and Historical Preservation [United States] [March 31, 2016]

A smokers’ rights group challenged a state agency regulation that prohibits smoking in certain outdoor areas, including state parks. The court affirmed an earlier decision finding that the agency’s regulation did not violate the constitutional principle of separation of powers. The court concluded that, in adopting the regulations, the agency acted within that authority delegated to it by the state legislature to provide for the health, safety, and welfare of the public in connection with the state park system.

British American Tobacco Kenya Ltd. v. Ministry of Health [Kenya] [March 24, 2016]

British American Tobacco's Kenyan subsidiary filed a lawsuit claiming that Kenya’s Tobacco Control Regulations are unconstitutional. The court ruled against the tobacco company, finding that the process of developing the regulations was lawful and conducted with sufficient participation by the tobacco industry. The court upheld nearly all elements of the Regulations, which are designed to implement the Tobacco Control Act, including:

- a 2% annual contribution by the tobacco industry to help fund tobacco control education, research, and cessation;
- graphic health warnings;
- ingredient disclosure;
- smoke-free environments in streets, walkways, verandas adjacent to public places;
- disclosure of annual tobacco sales and other industry disclosures; and
- regulations limiting interaction between the tobacco industry and public health officials.

The court specifically noted that the Tobacco Control Act and Regulations are intended to comply with the Framework Convention on Tobacco Control. Additionally, the court acknowledged the harm caused by tobacco products and stated it would make its decision within the context of a public health system balanced against the commercial rights of the tobacco company.

The court struck down a few minor elements of the regulations, ruling that (1) the tobacco industry is not required to provide evidence of its market share to the government; and (2) that penalties for violation cannot exceed the maximums authorized by law.

The court ruled that the regulations should take effect six months after the date of the decision. 

De Bruyn v. Victorian Institute of Forensic Mental Health [Australia] [March 22, 2016]

A patient at an Australian mental health facility sued to block implementation of the facility’s smoke-free policy. The court upheld the smoke-free policy because: (1) it was within the authority of the mental health hospital to adopt the policy; (2) the state tobacco control law did not create a right to smoke in mental health hospitals; and (3) the hospital properly considered the impact that the policy might have on the patient’s human rights, such as the right to dignity. In particular, the court found that the hospital gathered extensive input on policy over a four-year period and that the policy would be implemented along with psychological and other support systems, including nicotine replacement therapy and cessation counseling. 

Black v. Secretary of State for Justice [United Kingdom] [March 08, 2016]

A prisoner claimed that smoking should be prohibited inside a state-run prison. The lower court ruled that the national law prohibiting smoking in workplaces also applied to prisons, including state prisons. The Secretary of State for Justice appealed the decision. The appeals court found that the state is not bound by the national law prohibiting smoking in the workplace. Therefore, the prison is not required to implement the smoking ban. 

Shoeab Aslam v. Health and Family Welfare [India] [January 07, 2016]

Shoeab Aslam, owner of a hotel business called Cafe and Sheesha Lounge, challenged a November 2015 order issued by the District Magistrate in Indore directing compliance with India's omnibus tobacco control law (COTPA) and its rules on smoking in public places. Mr. Aslam maintained that there cannot be a complete ban on smoking in hotels. The government however noted that the order did not completely ban smoking, but instead permitted the activity in smoking zones. The court took into account earlier judgments from the Supreme Court and the Madhya Pradesh High Court on hookah bars and upheld the order, finding it in consonance with COTPA and its rules.

Bhandari v. Laming [Australia] [October 16, 2015]

A landlord was ordered to pay compensation to his tenant (a percentage of the rent and moving costs) for breaching a rental agreement. The tenant moved out due to an ongoing issue of smoke drifting from a downstairs apartment. The appeals panel which heard the case agreed there was a structural ventilation problem with the building which allowed smoke to flow into the apartment, making it unfit for habitation. Although the landlord was not responsible for the drifting smoke, the panel agreed that he was nevertheless responsible for providing a unit fit for habitation and dismissed the landlord’s appeal.