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Argument: Right to Judicial Protection

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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.

Pranvesh v. Union of India [India] [June 30, 2016]

A University of Allahabad student filed a writ petition alleging the unabated sale of tobacco to minors and adults in the city of Allahabad. The High Court of Allahabad found that temporary and permanent shops located near schools and other public institutions were making such sales. The Court also found that certain tobacco manufacturers presented misleading information about their products in print and visual media and failed to comply with the requirement for pictorial warnings on tobacco products.  The Court passed the following directions: (1) that all temporary/permanent establishments selling tobacco within a 100 yard radius of educational institutions be removed; (2) that all temporary/permanent establishments selling tobacco within 500 meter radius of the High Court and the District Court be removed; (3) that the sale of tobacco to persons seated in parked cars on roads and road sides be stopped; and (4) that strict action be taken against tobacco manufacturers who violate the requirement for compulsory statutory warnings on their products.

Ravishankar v. Union of India [India] [October 28, 2013]

A tobacco control advocate filed a lawsuit against various government agencies seeking full enforcement of India's omnibus tobacco control law and the rules promulgated to implement the law. The advocate did not allege any specific violations of the law. After receiving information from government agencies that they plan to take appropriate action to enforce the law against violators, the court disposed of the petition. The court noted that it is not appropriate to go directly to the court for enforcement of a law if law enforcement agencies are designated.

Tennessee v. NV Sumatra Tobacco Trading Co. [United States] [March 28, 2013]

The State of Tennessee sought to recoup money owed to it under legislation related to the 1998 Master Settlement Agreement (MSA) for cigarettes sold in the state.  Under the MSA and Tennessee law, tobacco manufacturers who did not agree to settle were required to establish escrow accounts in states where they continued to sell cigarettes.  In this case, an Indonesian tobacco manufacturer sold cigarettes through a series of intermediaries that eventually were sold to consumers in Tennessee.  Neither the distributor in the U.S. nor the manufacturer paid any money into the escrow accounts as required by the MSA.  The manufacturer challenged the case by claiming that Tennessee courts did not have personal jurisdiction over the company under the due process clause of the 14th amendment.  After conflicting conclusions in the lower courts, the Tennessee Supreme Court found the company did not have the necessary minimum contacts necessary to establish personal jurisdiction.  The court said the company did not purposely avail itself of the state's laws and the contacts with the state were attributable to uncontrolled third parties.  The court upheld the trial court's ruling and dismissed the case.

Ceylon Tobacco v. Minister of Health [Sri Lanka] [February 22, 2013]

The Sri Lanka Ministry of Health passed a regulation requiring tobacco products to contain graphic pictorial health warnings on 80% of the pack.  The Ceylon Tobacco Company challenged the regulation as ultra vires the authority of the ministry and sought an interim order to stop the implementation of the regulation until their substantive challenge was concluded.  Here the Court of Appeal denied the tobacco company’s request to delay implementation of the regulation.  The court found the regulation was sufficiently clear for implementation.  The court said the timeline of the regulation provided sufficient time for implementation and the balance of convenience supported the Minister.

Sinditabaco v. ANVISA [Brazil] [December 17, 2012]

A Brazilian tobacco lobbying group, Sinditabaco, brought an action to stop the National Health Surveillance Agency, ANVISA, from implementing a rule to ban the use of additives and flavorings in cigarettes.  The group argued that ANVISA did not have the legal authority to make the rule and that the rule was not supported by any scientific evidence as to the health effects of the flavorings.  The group claimed the rule would affect over 95% of tobacco users and presented a petition signed by various stakeholders in the tobacco product supply chain claiming that it would cause billions of dollars of losses.  The legal representatives of ANVISA were not present at the hearing on the issue.  The court agreed to grant the preliminary injunction stopping the implementation of the rule, pending a hearing on the merits of the case.

Imperial Tobacco v. Lord Advocate (Scotland) [United Kingdom] [December 12, 2012]

Imperial Tobacco lost this final stage in its legal challenge of Scotland’s legislation to prohibit the display of tobacco products at the point of sale and to ban the sale of tobacco products from vending machines (originally passed by the Scottish Parliament in 2010). Imperial claimed the legislation exceeds Scotland’s powers granted during devolution, such that the legislation was beyond the competency of the Scottish Parliament to pass. The Supreme Court of the United Kingdom, agreeing with both of the lower courts’ decisions, found all of Imperial’s challenges unfounded and dismissed the appeal.  The Supreme Court found that the law was designed to protect public health by reducing the attractiveness and availability of tobacco products, not prohibit their sale.

National Association of Tobacco Outlets, Inc. et al v. City of Providence, Rhode Island [United States] [December 10, 2012]

Various tobacco companies sought to prevent the implementation of ordinances passed by the City of Providence, Rhode Island to prohibit the sale of certain flavored non-cigarette tobacco and certain price based promotions like “buy-two-get-one-free”. The court found that Providence’s restrictions are reasonable regulations of the sales of tobacco products and serve the city’s legitimate goal of reducing smoking and other tobacco use, especially among kids.  The court rejected arguments by tobacco companies that the ordinances violated their First Amendment rights or are also preempted by federal and state law.  Holding that, “Neither of the Ordinances at issue precludes the Plaintiffs from engaging in activities that can be considered ‘commercial speech’,” and “(t)he three provisions of the FSPTCA (Family Smoking Prevention and Tobacco Control Act) constitute no impediment to the City’s prohibition against the sale of flavored tobacco products.”

Attorney General of Canada v. Imperial Tobacco Ltd. et al. [Canada] [November 14, 2012]

This class action suit was brought by 1.8 million people in Quebec against three major tobacco manufacturers.  The tobacco companies claimed that if they were found liable for personal injury, then the government should share financial responsibility as well, because tobacco products are government regulated products.  The Supreme Court of Canada rejected this argument in July 2011 in a separate, but similar, case.   In this decision, the Quebec Court of Appeal also rejected the tobacco manufacturers’ arguments and reversed the lower court ruling.  The Court of Appeal granted a motion to dismiss by the government, and prohibited the amendment of the complaint to include the Canadian government as a potential defendant. 

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.