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Argument: "Democratic Rule of Law"

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La Republicana S.A. v. State - Executive Branch [Uruguay] [July 24, 2019]

Compañía Industrial de Tabacos Montepaz S.A. and La Republicana S.A. challenged Decree No. 120/2019, issued by the executive branch, that requires plain packaging of tobacco products. The Court rejected the challenge and found that the decree is not clearly illegitimate, and therefore, the plaintiffs did not meet the required standard. The Court further held that Congress was the appropriate institution to approve plain packaging and impose restrictions on the tobacco industry (done via Law No. 19.723), and therefore, the executive branch did not exceed its authority when it issued Decree No. 120/2019. Additionally, the Court found that even though the implementation timeline might be strict (one year), the industry had prior knowledge given that there was a previous decree and a pending bill in Congress.

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.

American Academy of Pediatrics, et al. v. FDA, et al. [United States] [May 15, 2019]

The Campaign for Tobacco-Free Kids, in conjunction with other public health and medical organizations and several individual pediatricians, challenged the U.S. Food and Drug Administration decision to allow e-cigarettes to remain on the market until 2022 before applying for FDA authorization and permitting products to remain on the market during review. The FDA also delayed the deadline for cigar manufacturers to file such applications until 2021. The court found that the FDA had exceeded its legal authority and the FDA’s delay had played a role in the skyrocketing youth use of e-cigarettes. The court gave the plaintiffs 14 days to submit additional briefing regarding a remedy and the FDA 14 days to respond.

National Committee for Tobacco Control v. S.A. Philip Morris Products, et al. [France] [May 15, 2019]

The National Committee for Tobacco Control (CNCT) filed a lawsuit against Philip Morris Products (Philip Morris) and Ducati Motor Holdings (Ducati) to prevent the companies from using their "Mission Winnow" trademark at an upcoming Grand Prix event in France (French motorcycle Grand Prix at Le Mans) because it would amount to unlawful tobacco advertising, promotion and sponsorship. CNCT also sought disclosure of the partnership agreements between Philip Morris and Ducati.

In its decision, the Le Mans High Court agreed that:

- The colors of the “Mission Winnow” project and its logo clearly recall the Marlboro cigarette brand that has long been associated with motorsports.
- Professionals of the sector knew that the “Mission Winnow” project only conceals sponsorship actions from a tobacco manufacturer.
- The “Mission Winnow” name and logo constitute some reference, although indirect, to tobacco and in particular to the Marlboro brand and its owner, Philip Morris.
- The violation of provisions in the Public Health Code is sufficiently obvious that the use of the “Mission Winnow” logo or even the existence of the project, as well as the partnership agreement with Ducati, can be questioned under the law.

    As a result of these findings, the Court prohibited either company from using the mark, logo or expression “Mission Winnow” under penalty of €10,000 for each violation, and ordered Philip Morris and Ducati to pay €10,000 to CNCT. Additionally, the Court granted CNCT's request for disclosure of the partnership agreement.

    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.

    American Academy of Pediatrics, et al. v. FDA [United States] [March 05, 2019]

    In 2016, the Campaign for Tobacco-Free Kids in conjunction with seven other health organizations, medical groups, and several individual pediatricians, filed a lawsuit to force the FDA to issue a final rule requiring graphic health warnings on cigarette packing and marketing, as mandated by the 2009 Family Smoking Prevention and Tobacco Control Act. In September 2018, the District Court ruled in favor of the health groups finding that the FDA had both “unlawfully withheld” and “unreasonably delayed” agency action to require the graphic health warnings.  

    In March 2019, the District Court ordered that the FDA must issue a final rule by March 2020 for graphic health warnings on cigarette packaging and marketing.  The ruling also requires the FDA to finish its study on the labels by April 15, 2019, and submit its proposed rule by August 15, 2019.

    For the earlier decision, see: American Academy of Pediatrics, et al. v. U.S. Food & Drug Admin., No. 1:16-cv-11985 (D. Mass. 2018).

    Quebec Class Action Appeal [Canada] [March 01, 2019]

    Quebec residents filed two separate class action lawsuits against the Canadian tobacco companies of British American Tobacco ("BAT"), Philip Morris International ("PMI"), and Japan Tobacco International ("JTI") ("tobacco companies"). The first class involved Quebec residents who had lung cancer, throat cancer, or emphysema. The second class involved Quebec residents addicted to nicotine. The court found that the tobacco companies caused injury, failed to inform customers of the risks and dangers of its products, and violated Quebec law.

    On March 1, 2019, the Quebec Court of Appeals ("the Court") unanimously upheld the lower Quebec Superior Court decision and found that the tobacco companies intentionally misled consumers about the dangers associated with their products for more than 50 years. The Court upheld the lower court's decision, but made technical corrections, that the appellants pay moral damages to members of the Blais action, as well as punitive damages to both classes, with interest and the additional indemnity provided by law. The appellants’ liability was based on private law of general application (Civil Code of Lower Canada and Civil Code of Quebec ), the Tobacco-related Damages and Health Care Costs Recovery Act, the Charter of Human Rights and Freedoms and the Consumer Protection Act.

    All three tobacco companies have indicated that they will likely appeal the decision to the Supreme Court of Canada.

    For the earlier decision, see: JTI, et al. v. Letourneau, et al., No 500-06-000076-980 and No 500-06-000070-983, (Quebec 2015).

    Planta Tabak-Manufaktur Dr. Manfred Obermann GmbH & Co. KG v. Land Berlin [European Union] [January 30, 2019]

    Planta Tabak, a Berlin-based tobacco company that primarily manufactures and markets flavored roll-your-own tobacco, challenged provisions of the EU Tobacco Products Directive (Directive 2014/40/EU) that prohibit characterizing flavors in cigarettes and roll-your-own tobacco and prohibit packaging from alluding to flavors, among others. The plaintiffs sought a declaration that these provisions were not applicable to its products and alleged that they violated the principles of legal certainty, equal treatment, and proportionality. Planta Tabak objected to the fact that manufacturers of flavored tobacco products with an EU-wide sales volume of 3% or more in a particular product category were given until May 2020 to comply with the ban on flavorings, while manufacturers of flavored products with a smaller sales volume must comply as of May 2016.

    The Court held that flavored tobacco products were particularly attractive to young people and facilitate the initiation of tobacco consumption. While the Court admitted that the ban was a restriction on the EU's free movement of goods, "it was justified by the balancing of its economic consequences against the requirement to ensure a high level of protection of human health." Further, the Court found that the difference in treatment of products based on sales volume was intended to give consumers adequate time to switch to other products and was, therefore, objectively justified. The Court also upheld the ban on any indication of flavor on the product packaging and labeling.

    The case now reverts to Berlin's administrative court, where Planta Tabak filed its initial challenge.

    Dutch Youth Smoking Prevention Foundation, Van Veen, Breed v. PMI, BAT, JTI, IT [Netherlands] [December 06, 2018]

    Anne Marie van Veen and Lia Breed, two patients who suffer from lung cancer and respiratory disease, and the Dutch Youth Smoking Prevention Foundation filed a complaint in 2016 with the Dutch public prosecutor’s office against tobacco makers Philip Morris International Inc., British American Tobacco Plc, Japan Tobacco International and Imperial Tobacco Beneluin. The complaint alleged that the tobacco manufacturers are, in short, guilty of attempted manslaughter and/or murder, attempted severe and premeditated assault and/or attempted premeditated harm to health with intent.  It also alleged that tobacco companies used deliberately misleading laboratory tests to gauge levels of tar, nicotine and carbon monoxide. The complaint described that the tobacco companies were liable because of “the large-scale, decades-long and ongoing production and sale of addictive tobacco products in the Netherlands.” The Dutch public prosecutor’s office declined to pursue a case against tobacco makers finding that "[a] successful prosecution of the tobacco manufacturers -- one resulting in a conviction -- is not possible within the current regulations and parameters."

    The Appellate Court upheld the Dutch public prosecutor's decision. The Appellate Court found that "the cigarettes of the tobacco producers are made and tested according to stringent Dutch and European laws and regulations. As long as the tobacco producers comply with these European and national rules, the Member States (and therefore also the Netherlands) must not prohibit the trade in cigarettes according to the same European rules. The (European) regulator can only decide overriding measures against tobacco producers."

    B.A.T. v. Executive Branch [Uruguay] [October 11, 2018]

    British American Tobacco (BAT) challenged an executive decree requiring plain packaging of tobacco products. While an administrative tribunal (Tribunal de lo Contencioso Administrativo) is considering the initial challenge, BAT also filed a rapid constitutional challenge, called an “amparo,” requesting suspension of the decree until the administrative challenge is decided (which may take up to one year). With regard to the amparo, the Administrative First Instance Court decided in favor of BAT because the plain packaging policy was approved through a decree instead of a law passed by Congress.

    Here, the government appealed the decision by the Administrative First Instance Court, and the Court of Appeals ruled in favor of the government. The Court of Appeals found that the amparo was not the proper mechanism for the challenge, because there is a pending administrative claim. This decision was final, and BAT cannot appeal the decision. The decision does not address the merits as to whether the policy is constitutional, only that the President did not have the power to enact the policy by way of executive order.