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Type of Tobacco Product: Cigars, cigarillos, and other combustible products (excluding cigarettes)

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R (on the Application of) Philip Morris Brands SARL et al. v. Secretary of State for Health [European Union] [May 04, 2016]

A challenge to the validity of the European Union’s (EU) Tobacco Products Directive (TPD) 2014 brought by Philip Morris and British American Tobacco was dismissed on all grounds by the Court of Justice of the European Union (CJEU). The amended TPD was adopted in April 2014 and provides a wide range of requirements relating to emissions, reporting, 65% pictorial health warnings, packaging and labeling, a ban on characterising flavors and other additives, and regulates e-cigarettes. Article 24(4) permits member states to adopt further requirements to standardise packaging. The TPD applies to all countries within the EU.

In this case, Philip Morris and BAT brought a judicial review against the United Kingdom based on the government’s intention to implement the TPD requirements in UK legislation. The tobacco companies claimed that parts of the TPD and the Directive as a whole, were invalid because it was incompatible with the EU Treaties; was not proportionate or supported by evidence; was not sufficiently harmonising in nature; and contravened the principle of subsidiarity.  The UK court hearing the case referred questions on the interpretation of EU law to the CJEU. The CJEU upheld all aspects of the TPD, including provisions to require pictorial warning labels, to prohibit menthol cigarettes, and to allow countries to prohibit cross-border sales and to adopt additional packaging restrictions, such as plain packaging. The court noted that the EU may act to prevent obstacles to the trade of tobacco products while also ensuring a high level of public health protection. The court found that the packaging and labeling requirements were proportionate and did not go beyond what were necessary and appropriate. 

In addition the court highlighted the importance of the FCTC as a tool for interpretation and stated that it could have a 'decisive influence' on the interpretation of both EU law and Member States' tobacco control legislation. 

EU Member States are obliged, under the TPD, to implement most provisions of the TPD into domestic law by May 20, 2016 (although a number of states have been late in their implementation).

Bonavista Management Inc. v. Absolute Star Design Ltd. [Canada] [June 11, 2015]

A business was sued by its neighbors and the property management company because of cigar smoke and fumes drifting into adjoining businesses. The court granted a permanent injunction prohibiting anyone in the offending business from smoking cigars or any other tobacco or marijuana products on the business premises. The court found that the cigar smoking violated a local smoking law, constituted a nuisance, and interfered with the use and enjoyment of other rental units.

Big John's Billiards Inc. v. State of Nebraska et al. [United States] [August 29, 2014]

A smoke-free law prohibited smoking in public places and places of employment, except for certain facilities, including: (1) certain guestrooms in hotels and lodging, (2) tobacco retail outlets, and (3) cigar bars.  A billiards hall challenged the law, because the law prohibited smoking in some places but not others, which could be considered discriminatory (here called "special legislation"). The court found that the similarity between guestrooms and private residences was sufficient to allow smoking.  By contrast, tobacco retail shops and cigar bars must be treated the same as other public places and work places under the law, so the exceptions allowing smoking there were unconstitutional.  The court also found that the smoke-free law was not a regulatory taking and did not impair contract rights.  The unconstitutional provisions were severable, so the rest of the smoke-free law was upheld.

MacKay v. Metropolitan Toronto Condominium Corp. [Canada] [May 12, 2014]

The owners of a Toronto condominium unit complained to condominium management about cigar smoke drifting into their condo from an upstairs unit. The condominium corporation eventually hired a variety of engineers and consultants to correct the problem and the neighbor agreed to stop smoking. However, the condominium owners’ insurance company found the unit “uninhabitable” and paid for the owners to move to a hotel, where they had lived for 10 months at the time of the court decision. The court found that problem of drifting smoke had finally been resolved after numerous repairs and therefore the condominium corporation was not in violation of its obligations to repair or maintain the building’s common elements under Ontario law. The court ordered that costs be paid to the condominium owners.

National Association of Tobacco Outlets, Inc. et al v. City of Providence, Rhode Island, et al [United States] [September 30, 2013]

Tobacco companies sued the City of Providence, Rhode Island challenging two different local ordinances: (1) restricting the sale of flavored tobacco products (other than cigarettes) except in a smoking bar; and (2) prohibiting retailers from accepting or redeeming coupons and certain multipack discounts (e.g., buy two, get one free). The Appeals Court upheld the lower court’s decision and found that both ordinances are legal. The “Flavor Ordinance” is not preempted by the Family Smoking Prevention and Tobacco Control Act. The “Price Ordinance” does not violate the First Amendment and is not preempted by the Federal Cigarette Labeling and Advertising Act. Additionally, neither ordinance is preempted by Rhode Island state law.

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.”

Alroi v. Philip Morris [Israel] [November 27, 2012]

Smokers of cigarettes marked as “light,” sued Philip Morris, a tobacco company, for violations of the Consumer Protection Law by presenting the product to be less harmful than other cigarettes. The court denied the certification of the claim as class action, stating that the smokers knowingly accepted the risk because all cigarettes packets—including “light” cigarettes—contain warnings of the dangers of smoking while no misrepresentation was made by the tobacco company that “light” cigarettes are less harmful than non-“light” ones. The court added that the declaratory relief became moot, since the state bars marking cigarettes as “light,” “mild,” or “low tar.”

Saad v. Village of Orland [United States] [July 09, 2012]

A village enacted a smoke-free law that had a single exception for Tobacco House, a cigar lounge so long as that Tobacco House sold nothing but tobacco products and that the owners maintained a business license in good standing. The owner of the cigar lounge pled guilty for tax evasion, and the village later denied the business license.  The cigar lounge claimed the license denial violated equal protection, and that the smoke-free law violated due process, because it was unconstitutionally vague. The village moved to dismiss the case, and the court agreed.

Amateur Cigar Society v. Republic of France [France] [January 24, 2012]

Amateur Cigar Society and its directors were sued for unlawful advertising of tobacco products.  Amateur Cigar alleged, however, that the tobacco advertising law was unconstitutional because it violated Amateur Cigar’s right to equal protection.  The trial court forwarded the constitutionality question to the Court of Cassation which upheld the legislation, reasoning that the goal of protecting public health outweighed Amateur Cigar's rights.

Non-Smokers' Rights Association v. Dassault [France] [July 08, 2010]

The Non-Smokers’ Rights Association (DNF) sued Le Figaro Magazine and its editors for unlawful advertising of tobacco products, alleging that a link on Le Figaro's website, entitled  "P. Morris Against Cigarette Candies," led to a website that sold discounted tobacco products and depicted photos of Marlboro brand cigarettes and packaging. DNF also alleged that Le Figaro published cigar advertising in their magazine supplement. Le Figaro argued that they should not be held liable for the link on their website as it was placed by Google's AdSense program and Le Figaro had no control over the content. With regard to the cigar advertising, Le Figaro argued that holding them liable would violate their right to freedom of expression. The court ruled in favor of Le Figaro and its editors with regard to the link that was placed by Google AdSense. The court however imposed fines for the unlawful advertising of cigars in its magazine supplement.

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