Argument: Cultural Norms

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Vancouver v. Abdiannia [Canada] [August 11, 2014]

City officials sanctioned two hookah bars for violating provisions of an ordinance that prohibit the smoking of hookah in indoor public places.   The defendants claimed that the tobacco-free herbal shisha should not be prohibited under the ordinance. Furthermore, they claimed that the herbal shisha was heated, not ignited, so does not fit under the definition of smoking.  The court ruled that the city had reasonable grounds to prohibit smoking of any substance, that the definition of smoking was neither too broad nor too vague, and that herbal shisha does get "burned" within the ordinary meaning of the word. The court also ruled that the hookah owners and their patrons were unable to show that hookah smoking was religious or that operating a hookah cafe for profit was a function of spiritual faith. Even if they had, the ordinance does not prevent them from smoking hookah in their homes. The court found that no fundamental rights were violated, and upheld the sanctions against the hookah cafes.

ASA Adjudication on Nicofresh [United Kingdom] [August 06, 2014]

An ad for e-cigarettes featured an elderly white woman and a young black man on a sofa; the man had his arm around the woman. The woman was holding an e-cigarette and the ad stated “No tobacco. No taboo.” In response to numerous complaints, the Advertising Standards Authority (ASA) investigated the ad and found that it was likely to cause offense on the grounds of race and age because it portrayed the relationship between the two individuals as something unusual or socially unacceptable. The ASA ordered the ad not to appear again in its current form.

Gallagher v. City of Clayton, et al. [United States] [November 08, 2012]

In this appeal, the 8th Circuit Court of Appeals affirmed the ruling of the District Court dismissing the claims by the Plaintiff challenging a city ordinance banning smoking in city parks.  The plaintiff, a person who “ecstatically” smoked in the parks, argued that his rights under the U.S. and Missouri constitutions were violated by the smoking ban.  The court held that smoking is not a fundamental right and thus the law does not require strict scrutiny review, nor does it require intermediate scrutiny because smokers are not a suspect class.  The court also found the purpose of protection of public health cited by the city as sufficient to survive the challenge under a rational basis review.  While lacking the basic requirements of the plaintiff’s further constitutional challenges, the court held his complaint was “facially implausible” and thus was properly dismissed before trial by the lower court.

Plaintiff's petition for a writ of certiorari to the Supreme Court of the United States was denied without comment on May 13, 2013.

Judicial Review of Law No. 36 of 2009, Ruling in Case No. 24 [Indonesia] [September 05, 2012]

Officials from a local Indonesian farming administration and their representative farmers challenged the constitutionality of Article 113 of Indonesia’s Health Law.  The farmers claimed the law excluded any beneficial uses for tobacco and thus severely damaged their livelihoods as tobacco farmers.  The court accepted the arguments and found that tobacco also has other beneficial uses despite its dangers to human health.  The court granted the petition holding parts of Article 113 unconstitutional and suggesting a changing of the wording to embody the court’s ruling.

Judicial Review of Law No. 36 of 2009, Ruling in Case No. 57 [Indonesia] [April 09, 2012]

Petitioners, Indonesian smokers, challenged the constitutionality of Indonesia’s Health law that sought to restrict smoking in work and public places.  The law sought to create no smoking and designated smoking areas to combat the problem of second-hand smoke.  The petitioners specifically challenged the words “can” and “may” in relation to the establishment of designated smoking areas in Article 115 of the law.  The court granted the petitioners request and held that parts of Article 115 violated the constitution of Indonesia.  The court held these parts would no longer have legal force.

Judicial Review of Article 113 of Law No. 36 of 2009, Ruling in Case No. 19 [Indonesia] [November 01, 2011]

Petitioner, a representative from a tobacco growing region of Indonesia, challenged the portions of the 2009 Health Law that deal with addictive substances, including tobacco products.  Petitioner alleged that the law caused financial losses and alleged violation of the constitutional rights of tobacco farmers, clove farmers, cigarette factory workers and other concerned parties.  The Court rejected the petition in its entirety, ruling that tobacco was addictive and properly included within the law.  They held that to treat it differently from other addictive substances would also result in impermissible legal uncertainty.  Furthermore, they rejected petitioners claims that the regulation of tobacco as an addictive substance violated the right to work by harming the tobacco production industry. The decision in this case is final; no further appeals are permitted.

Judicial Review of Articles 113, 114 and 199 of Law No. 36 of 2009, Ruling in Case 34 [Indonesia] [October 18, 2011]

Several petitioners who farmed tobacco or otherwise were employed by or represented the Indonesian domestic tobacco industry argued that provisions of the Health Law addressing tobacco products would cause a decrease in production which would infringe on their right to work.  Petitioners also challenged that tobacco was unfairly targeted as opposed to other "similar" addictive products, such as food, coffee or sports drinks.  The court examined the constitutional issue of "whether the obligation inclusion of health warnings on cigarettes is discriminatory, does not guarantee a decent living, and not provide a fair legal certainty." The Court found that the law was compatible with the petitioner's right to work, because they would still be able to continue their trade and that the right to health took priority over the other less definite constitutional rights asserted by petitioners. Upholding the graphical warning requirement, the Court stated that graphical warnings "will further ensure the fulfillment constitutional rights of citizens of Indonesia, especially the consumer and/ or potential consumers of cigarettes to obtain information about the dangers of smoking, as consumers and / or prospective customers." 

Mahesh Bhatt, et al. v. Union of India & Anr. [India] [January 23, 2009]

A well-known film director challenged the Ministry of Health and Family Welfare rules regarding tobacco products on television and in film.  The petitioner argued that the rule that, among other things, prohibits the display of tobacco products in films and television programs, is unconstitutional.  Kasturi and Sons (a Hindu newspaper in Madras) argued, among other things, that the rule requiring that brand names and logos of tobacco products be cropped in print and electronic media in certain circumstances is beyond the scope of the COTPA.  Noting that freedom of expression cannot be suppressed unless the situation is "pressing and the community interest is endangered," the Court held that the contended parts of the rule violated the Constitution and exceeded the power provided by COTPA to enact implementing rules.  

United States v. Philip Morris USA [United States] [February 04, 2005]

In 1999, the United States filed a lawsuit against the major cigarette manufacturers and related trade organizations alleging that defendants 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.

Defendants filed an interlocutory appeal in response to the court’s denial of defendants’ motion for partial summary judgment dismissing the government’s disgorgement claim. The appellate court reversed the district court’s decision and granted partial summary judgment to the defendants.