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Argument: Right to Work

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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.

Godfrey Phillips India Limited vs. Union of India [India] [August 31, 2018]

ITC and Godfrey Phillips India filed petitions in the Karnataka High Court challenging new 85% health warnings (dated April 3, 2018) that prescribed new images along with a quit line number. The tobacco companies asserted that the Government was not free to amend the Rules as the legality of related Rules (establishing 85% pack warnings) currently is pending in the Supreme Court. The Government maintains that the legality of the April 3rd pack warnings also was challenged in the Supreme Court, where the court refused to stay implementation, choosing instead to condense this matter with the review of the related 85% pack warnings. The Karnataka court refused to stay the April 3rd warnings, noting that using these new images would not constitute hardship to the tobacco companies as already 85% pack warnings are placed on packs.

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.

FIC Argentina v. Buenos Aires City Government [Argentina] [August 15, 2014]

A tobacco control NGO sued the Buenos Aires city government arguing that the lack of implementation of the local tobacco control law, with regards to smoke-free environments, violated the right to health. Furthermore, considering the violations of the law were higher in places like bars and night clubs, the NGO argued that workers in those places had lower standards of protection of their right to health. The judge rejected the lawsuit considering there was no illegal or arbitrary act from the local government. In addition, the judge stated that courts should not replace political decisions.

Philip Morris GmbH v. Land of Bavaria [Germany] [December 11, 2013]

Philip Morris International’s German subsidiary appealed a city authority's decision to ban the tobacco company’s “Don’t Be a Maybe - Be Marlboro" advertising campaign launched in Germany in 2011. The tobacco advertising contained six different forms of a theme - the words “Maybe” or “Be” and short phrases containing these words, coupled with images of young people engaging in daring and rebellious activities.  The administrative court upheld the ban and found that the Marlboro campaign encouraged teenagers as young as 14 years of age to smoke in violation of Germany’s tobacco advertising laws. Additionally, the administrative court found that the campaign created an unfair advantage for Philip Morris International as compared to tobacco companies that abided by the advertising regulations. In its decision, the administrative court stated “the advertising specifically targets risk-taking, rebellious youths” and found that Philip Morris International’s argument that the purpose of "Be Marlboro" advertising was to encourage adult smokers to switch to Marlboro cigarettes was not credible based on the fact that “there is already a high degree of brand loyalty in this group of persons.”

Dutch Association of CAN v. Netherlands [Netherlands] [March 26, 2013]

A public health organization challenged a government decree that allowed smoking in small cafes and bars that are less than 70 square meters.  In this decision the Court applied FCTC Article 8 to the Dutch law.  The court found the exception for smoking in small bars to be inconsistent with Article 8.2 of the FCTC requiring legislation to provide effective protection from exposure to tobacco smoke in indoor public places, without exception.  The court held this section to have direct effect on Dutch regulations despite the flexibility contained in other parts of the FCTC.  The court ultimately set aside the ruling of the lower court and ordered the government to enforce their ruling.

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.

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. 66 [Indonesia] [September 05, 2012]

Petitioners, Indonesian tobacco farmers and workers in the tobacco industry, filed a constitutional challenge to Indonesia’s Health Law that regulated the use of tobacco.  After establishing the right of the petitioners to challenge the law, the court looked at previous challenges to the same law.  The court decided that petitioners’ challenge was close enough to previous, already decided challenges, to preclude this case and rejected the petition.

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.