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Argument: Tobacco Control Law Violation

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B v. Waitemata District Health Board [New Zealand] [June 14, 2017]

A patient at a mental health facility sued the Waitemata District Health Board claiming that the Board’s smoke-free policy violated the Smoke-free Environments Act because it did not provide a smoking room for patients. The patient also claimed that the smoke-free policy violated his right to be treated with respect for dignity. In two earlier decisions, the High Court and the Court of Appeals found the smoke-free policy did not violate either the Smoke-free Environments Act or the Bill of Rights. The patient appealed the decision to the Supreme Court.

In this decision, the Supreme Court upheld the smoke-policy. The Court found that the smoke-free policy did not violate the Smoke-free Environments Act because the law states that a smoking room “may” be provided. As a result, the Board is not required to provide a smoking room for patients. Further, the Supreme Court found the patient’s rights were not violated because smokers were given nicotine replacement therapy, which was a humane and meaningful treatment for nicotine withdrawal symptoms, consistent with the Bill of Rights. 

S. Cyril Alexander v. Union of India [India] [June 22, 2016]

Cyril Alexander, a tobacco control advocate, filed a public interest lawsuit requesting that the government exclude tobacco companies from the corporate social responsibility (csr) requirements mandated by Indian law in order to prevent the companies from earning goodwill. The court directed the government to determine how tobacco companies can best meet their csr obligations and to take appropriate action within four months of the decision. Not satisfied that the government had undertaken the court's requested actions, Mr. Alexander filed a contempt petition. The court dismissed the petition on the basis that a May 2016 government circular clarifies that tobacco industry csr shall not contravene India's omnibus tobacco control law. Although Mr. Alexander maintained that his request seeks a general prohibition on tobacco industry csr, the court held that such a request cannot be the subject matter of the contempt petition. 

Black v. Secretary of State for Justice [United Kingdom] [March 08, 2016]

A prisoner claimed that smoking should be prohibited inside a state-run prison. The lower court ruled that the national law prohibiting smoking in workplaces also applied to prisons, including state prisons. The Secretary of State for Justice appealed the decision. The appeals court found that the state is not bound by the national law prohibiting smoking in the workplace. Therefore, the prison is not required to implement the smoking ban. 

R.J. Reynolds v. United States Food and Drug Administration [United States] [January 15, 2016]

Tobacco companies challenged the composition of the Tobacco Products Scientific Advisory Committee (TPSAC), which was established by the U.S. Food and Drug Administration (FDA) to advise the agency on scientific issues related to tobacco products, including the use of menthol in cigarettes. The tobacco companies alleged that three of the scientific members of the Committee had both an actual and a perceived conflict of interest because each consulted with companies that developed nicotine replacement therapies and testified as expert witnesses in lawsuits against tobacco manufacturers. The court ruled in favor of the tobacco companies, finding that the challenged committee members had both financial conflicts of interest and an appearance of conflicts of interest, which fatally tainted the composition of the Committee and its work product, including the 2011 Committee report on menthol in cigarettes. The court issued an order requiring the FDA to reconstitute the Committee’ membership to comply with ethics laws and barred the agency from using the Committee’s menthol report, which had recommended removing menthol cigarettes from the marketplace.  The FDA appealed, and a three-judge panel of the appeals court unanimously reversed the lower court ruling, finding that plaintiffs had not shown imminent injury from the appointment or the actions of challenged Committee members.

Shoeab Aslam v. Health and Family Welfare [India] [January 07, 2016]

Shoeab Aslam, owner of a hotel business called Cafe and Sheesha Lounge, challenged a November 2015 order issued by the District Magistrate in Indore directing compliance with India's omnibus tobacco control law (COTPA) and its rules on smoking in public places. Mr. Aslam maintained that there cannot be a complete ban on smoking in hotels. The government however noted that the order did not completely ban smoking, but instead permitted the activity in smoking zones. The court took into account earlier judgments from the Supreme Court and the Madhya Pradesh High Court on hookah bars and upheld the order, finding it in consonance with COTPA and its rules.

Karnataka Beedi Industry Association v. Union of India [India] [December 08, 2015]

The Karnataka Beedi Industry Association challenged the legality (as it relates to beedis) of an October 2014 Ministry of Health notification establishing pack warnings on 85% of both sides of tobacco product packaging.  Without ruling on the merits of the case, the court stayed the implementation of the pack warnings notification in a preliminary order. 

Institute of Public Health v. Union of India [India] [October 16, 2015]

The Institute of Public Health (IPH) filed suit seeking to bar government officials from participating in the 12th Annual Asia-Pacific Tax Forum organized by the International Tax and Investment Center (ITIC).  IPH maintained that ITIC is an organization controlled by the tobacco industry and has an interest in promoting tax policies beneficial to this industry.  IPH alleged that government officials' participation in the Forum violates Art. 5.3 of the Framework Convention on Tobacco Control (FCTC) and the FCTC Art. 5.3 Guidelines which obligate FCTC Parties to protect their public health policies from the commercial and other vested interest of the tobacco industry.  The court dismissed the petition finding that the FCTC Art. 5.3 only requires transparency of government and tobacco industry interactions on matters related to tobacco control or public health and does not prohibit government officials from participating in conferences sponsored by the tobacco industry.  IPH sought review of the court's dismissal of the petition, alleging that the court's order contained erroneous factual findings.  The court disposed of IPH's petition for review finding that IPH's observations cannot change the facts that were initially before the court.  The court however left open the opportunity for a future petitioner to set forth the correct position with regard to the erroneous facts. 

Recommendation of the European Ombudsman in the inquiry into complaint 852/2014/LP against the European Commission regarding its compliance with the Tobacco Control Convention [European Union] [October 01, 2015]

A non-governmental organization (NGO) complained that the European Commission was violating the Framework Convention on Tobacco Control, which requires parties to protect against commercial and other vested interests of tobacco companies. The European Ombudsman agreed with the NGO that the European Commission’s policies did not provide sufficient transparency about its meetings with tobacco industry representatives. The Ombudsman recommended that the Commission put into place a policy—similar to the policy currently in place by the Directorate General for Health and Food Safety—that requires online publication of all meetings with tobacco industry representatives and publication of the minutes from those meetings. 

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. 

Diamond Enterprises v. State of Karnataka [India] [September 03, 2015]

Diamond Enterprises, owner of a hookah bar, alleges that, contrary to a government requirement, it does not have to obtain a license to serve hookah. The court agreed with Diamond Enterprises. The court observed that, pursuant to India's omnibus tobacco control law, smoking, although restricted, is defined as using tobacco with a wrapper or in any instrument and does not require a license.  The court noted that the government could take action if illegal activity was found while monitoring the premises.

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