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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).

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."

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.

Youth Smoking Prevention Foundation v. Netherlands [Netherlands] [November 09, 2015]

A non-governmental organization sued the Dutch government for violating Article 5.3 of the WHO Framework Convention on Tobacco Control (FCTC). Article 5.3 of the FCTC requires Parties to the Convention to protect tobacco control policies from the commercial and vested interests of the tobacco industry.  The court ruled that the NGO cannot require the Dutch government to take action in furtherance of Article 5.3 because the Article does not have a direct effect on the Dutch government. Additionally, the court found that Article 5.3’s requirements are not sufficiently clear. However, as a result of the lawsuit, the government created a document clarifying how it will implement Article 5.3. 

Nobleza Piccardo v. Provincia de Santa Fe [Argentina] [October 27, 2015]

Nobleza Piccardo, a BAT affiliate, challenged the constitutionality of a sub-national law that established a complete ban on tobacco advertisement, promotion and sponsorship in the Province of Santa Fe. The tobacco company argued that this measure violated freedom of expression and commercial freedoms and that sub-national governments were not entitled to legislate in these matters. The Argentine Supreme Court ruled in favor of the sub-national tobacco control law, finding that this ban was a reasonable restriction of commercial freedoms. Considering the impact of tobacco use, the Court connected these measures to be obligations derived from the right to life and the right to health. With regards to freedom of expression, the Court found that commercial speech is not entitled the same level of protection as political or social speeches. The Court also understands that health is an area of concurrent power and thus shared by both the federal and the sub-national governments. Notably, even though Argentina has not ratified the FCTC, the Court uses it as an international standard for tobacco control policies. 

British American Tobacco Colombia v. Ministry of Health [Colombia] [September 24, 2015]

British American Tobacco (BAT) Colombia requested that the State Council annul a Ministry of Health administrative decision that did not approve the use of expressions “Click & On,” “Click & Roll,” “Krystal Frost,” “Filter Kings,” and “Frozen Nights” on tobacco products packages.  The Ministry’s administrative decision considered such expressions a form of deceptive advertising and thus prohibited under Law 1335. A lower administrative court rejected BAT Colombia’s request, and the State Council, the highest judicial body for administrative matters, upheld the lower court’s decision.  The State Council found the expressions to be deceptive advertising and that economic freedoms must be restricted for the protection of the right to health, the right to life and the public interest.  Notably and responding to BAT’s allegation, the State Council found no expropriation of intellectual property.  The Council observed that intellectual property rights need to be exercised in conformity to human rights obligations. Moreover, responding to the argument that similar expressions had been approved in the past, the Council found that there was no violation of good faith and noted that tobacco control measures are expected to increase in light of further evidence.

Quebec Class Action [Canada] [May 27, 2015]

Two class action lawsuits were filed in Canada in 1998 against major tobacco companies; the cases were later combined. One class (Blais) involved Quebec residents with lung cancer, throat cancer, or emphysema. The other class (Letourneau) involved Quebec residents addicted to nicotine. After a lengthy trial, 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.

In the Blais case, the court awarded moral damages (e.g., for pain and suffering) of $15.5 billion, to be paid jointly by the three tobacco companies. In the Letourneau case, although the court found that the tobacco companies were at fault, it did not award moral damages because there was not enough evidence to determine the total amount of the class members’ claims. In both cases the court awarded punitive damages, which it calculated based on one year of before-tax profits for each tobacco company. In Blais, the court reduced this award to the symbolic amount of $30,000 for each defendant, representing one dollar for each death the tobacco industry causes in Canada each year. In Letourneau, the court awarded punitive damages of $131 million. The tobacco companies must make an initial deposit on the judgment of $1 billion while the appeal is pending.

Burning Brain Society v. India [India] [November 05, 2012]

In this public interest litigation, a public health organization, Burning Brain Society, brought a case against the Indian government and several state governments seeking to ban the operation of hookah bars.  The petitioners argued that nicotine is a poisonous drug and that its use in hookah violated the right to life guaranteed by the Indian constitution.  The petitioners argued that concentrated nicotine was added to the hookah tobacco to create a more dangerous and addicting product.  The court found the tobacco products used in hookah to be commonly laced with nicotine and that this was a harmful and dangerous drug.  Ruling for the petitioners, the court required the closing of the hookah bars and for the States to create a permanent task force to monitor and enforce the use of nicotine in hookah bars and to pursue criminal penalties against violators of the law.

Indian Dental Association of U.P. State and Another v. State Of U.P. and Another [India] [September 17, 2012]

In a further development of this case, the court recognizes the directions of the Federal government requiring the state of U.P. to place restrictions on the sale and distribution of “pan masala” or “gutka” that contains tobacco.  Here the court recognizes the State’s failure to implement the required restrictions and the existence of similar restrictions, with court approval, in other Indian states.  The court demands implementation of the regulations within 14 days and threatens to issue a mandamus demand to the state government and the food business operators if the regulations are not implemented.

Kerala Voluntary Health Services v. Union of India, et al. [India] [March 26, 2012]

Kerala Voluntary Health Services (Kerala VHS) sued the Union of India, et al. to enforce the provisions of India's omnibus tobacco control law, COTPA.  Kerala VHS claimed that the Union of India, et al. had been negligent in enforcing COTPA as evidenced by the tobacco industry's facilitating smoking in films and engaging in sale of tobacco near educational facilities.  The Court observed that Indian Constitution's right to freedom of speech and expression is circumscribed by the Constitution's right to life and found that provisions of COTPA had been violated.  To remedy these violations, the Court imposed measures for compliance and appropriate implementation mechanisms for such measures.