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Argument: Criminal Violation

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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."

State of Maharashtra v. Sayyed Hassan Sayyed Subhan [India] [September 20, 2018]

The government appealed a Bombay High Court order that overturned police action prosecuting individuals for violations of the Maharashtra gutkha ban under the Indian Penal Code. The Supreme Court reversed the Bombay High Court's finding regarding Indian Penal Code (IPC) prosecution, noting that there is no prohibition on IPC prosecution merely because provisions in the Food Safety Standards Act prescribe penalties. The Supreme Court remanded consideration of specific IPC offenses against the individuals to the Bombay High Court.

J. Anbazhagan v. Union of India [India] [April 26, 2018]

J. Anbazhagan, a member of the legislative assembly in the State of Tamil Nadu, filed a writ petition to highlight the illegal manufacture and sale of gutka and pan masala in the state and to urge the High Court of Madras to order an independent investigation into the matter. Mr. Anbazhagan alleged such sales were carried out in collusion with several high dignitaries and bureaucrats, such as central excise officials, central government officials, officials from different state governments, including the Government of Tamil Nadu, councilors of the Chennai Corporation, and officials of the food safety department, among others. The Court observed that it was compelled to take up the case as the issues involved the right to health and directed that the Central Bureau of Investigation investigate the matter, since, among other reasons, central government officials allegedly were involved.  In response to arguments made by the respondents, the Court also clarified that the definition of “food” under Section 3(j) of the Food Safety Act includes any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and that the definition undoubtedly was wide enough to include gutka, and other forms of chewable tobacco/nicotine products intended for human consumption. The Court further clarified that India’s omnibus tobacco control law, COTPA, and the Food Safety Act were not in conflict, but were meant to be read in conjunction with each other as COTPA does not contain a non-obstante clause that excludes operation of other laws.

United States v. Philip Morris USA Inc., et al. [United States] [October 05, 2017]

In 1999 the United States sued major U.S. tobacco companies for violating the Racketeer Influenced Corrupt Organization Act (RICO). The suit claimed tobacco companies had violated RICO for decades, by fraudulently misleading American consumers about the risks and dangers of smoking and secondhand smoke. In 2006, the U.S. District Court for the District of Colombia agreed, finding the tobacco companies did violate RICO and would continue to violate RICO.

As a means of preventing future RICO violations, the district court ordered the tobacco companies to issue corrective statements on five topics in which they had misled the public, including the adverse health effects of smoking and the addictiveness of smoking and nicotine. The companies challenged the language of the corrective statements ordered by the court and, in 2016, the district court affirmed the publication of the corrective statements.

Finally, in October 2017, the tobacco companies and U.S. Department of Justice reached an agreement on the details for implementing the corrective statements, which must begin to run on November 26, 2017. The agreement specifies the corrective statements that will be used in television and newspaper advertisements. To ensure the corrective statement are effective in reaching the public, the statements must be in the print and online Sunday edition of newspapers; must air on major television networks during high viewing times; and must appear in both English and Spanish. 

RJR Nabisco et al. v. European Community et al. [United States] [June 20, 2016]

The U.S. Supreme Court ruled that RJR Nabisco could not be sued under the federal Racketeer Influenced and Corrupt Organizations (RICO) Act for its conduct abroad. The European Union (known as the European Community in this case) sued RJR Nabisco claiming that the company directed and managed a global smuggling and money-laundering scheme with organized crime groups in violation of the RICO law. In this decision, the Supreme Court ruled that certain elements of RICO can apply to conduct that occurs outside of the United States. However, the Court also found that a private entity— this case, a foreign government­—cannot sue under RICO in the United States unless it has suffered a domestic injury. Because the European Union had earlier waived its claims of a domestic injury, the Court was forced to dismiss the EU’s remaining claims. 

United States v. Philip Morris USA Inc., et al. [United States] [February 08, 2016]

In 1999, the United States filed a lawsuit in the U.S. District Court for the District of Columbia against the major cigarette manufacturers and related trade organizations alleging that defendants, while acting as an enterprise, fraudulently misled American consumers for decades about the risks and dangers of cigarette smoking and exposure to secondhand smoke in violation of the Racketeer Influenced Corrupt Organizations Act (RICO). In 2006, the court found that defendants violated RICO and that there was a reasonable likelihood that defendants would continue to violate RICO in the future. On appeal, the district court’s findings were upheld, in part, vacated, in part, and remanded, in part, to the district court. After the U.S. Supreme Court declined to hear appeals from both sides in the case in June 2010, the district court began to implement the 2006 final order.

As a means of preventing future RICO violations, the district court ordered the tobacco companies to issue corrective statements on five topics in which they had misled the public, including the adverse health effects of smoking and the addictiveness of smoking and nicotine. The companies challenged the language of the corrective statements ordered by the court. A previous decision upheld all of the corrective statements with the exception of the introductory sentence. In this decision, the district court found that a revised introductory statement submitted by the government is acceptable because it removes any reference to tobacco companies’ prior deceptive conduct. The judge castigated the tobacco companies for attempting to rewrite the corrective statements entirely, calling it a “ridiculous – a waste of precious time, energy, and money for all concerned – and a loss of information for the public.” The court also refused to change any of the terms in the previously agreed upon consent order. 

State of New York et. al v. United Parcel Service [United States] [September 16, 2015]

The court allowed a lawsuit to proceed against United Parcel Service (UPS) for allegedly delivering contraband untaxed cigarettes within the state of New York. The court dismissed two of the claims because UPS had an agreement in place with the New York Attorney General prohibiting them from delivering cigarettes to unauthorized recipients. However, the court found there was enough information for the other claims—based on violations of federal and state law—to continue. 

United States v. Philip Morris USA [United States] [May 22, 2015]

In 1999, the United States filed a lawsuit in the U.S. District Court for the District of Columbia against the major cigarette manufacturers and related trade organizations alleging that defendants, while acting as an enterprise, fraudulently misled American consumers for decades about the risks and dangers of cigarette smoking and exposure to secondhand smoke in violation of the Racketeer Influenced Corrupt Organizations Act (RICO). In 2006, the court found that defendants violated RICO and that there was a reasonable likelihood that defendants would continue to violate RICO in the future. On appeal, the district court’s findings were upheld, in part, vacated, in part, and remanded, in part, to the district court. After the U.S. Supreme Court declined to hear appeals from both sides in the case in June 2010, the district court began to implement the 2006 final order.

As a means of preventing future RICO violations, the district court ordered the tobacco companies to issue corrective statements on five topics in which they had misled the public, including the adverse health effects of smoking and the addictiveness of smoking and nicotine. The companies challenged the language and form of the corrective statements. In this decision, the Court of Appeals found that the tobacco companies had waived their right to challenge the wording of the corrective statements. However, the court found that an introduction to the corrective statements (explaining that a federal court has ruled that tobacco companies deliberately deceived the American public) exceeded the scope of scope of remedies allowed under RICO. Finally, the court found that tobacco companies had waived their right to challenge the distribution of corrective statements via company websites, cigarette packages, and newspaper and television ads.

European Community v. RJR Nabisco, Inc. [United States] [April 13, 2015]

This case involves a claim against RJR Nabisco that the company directed and managed a global smuggling and money-laundering scheme with organized crime groups in violation of the Racketeer Influenced and Corrupt Organizations (RICO) law. The court upheld an earlier decision finding that the RICO law could apply to actions that happen outside of the United States when the underlying laws that constitute racketeering explicitly apply to foreign activity. 

Hawkins v. Van Heerden [Australia] [June 24, 2014]

The defendant was previously convicted of selling products designed to resemble a tobacco product in breach of s106(a) of the Tobacco Products Control Act 2006 (WA). The defendant had been selling e-cigarettes and nicotine-free 'e-Juice'. (See: Hawkins v Van Heerden [2014] WASC 127 (10 April 2014)).

In this decision, the Supreme Court imposed a fine of $1,750 for the offence and ordered the defendant to pay the costs of the trial and the appeal. In doing so, Pritchard J observed that it was not necessary to decide whether e-cigarettes were harmful to their users, because whether or not the product sold was harmful to human health was not an element of the offence under s106 of the Act. Rather, the purpose of s106 is to discourage the promotion of tobacco products and smoking by banning the sale of products which resemble tobacco products and contribute to normalising the activity of smoking.