Search Results Results 1-10 of 41
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.
National Committee for Tobacco Control v. S.A. Philip Morris Products, et al. [France] [May 15, 2019]
The National Committee for Tobacco Control (CNCT) filed a lawsuit against Philip Morris Products (Philip Morris) and Ducati Motor Holdings (Ducati) to prevent the companies from using their "Mission Winnow" trademark at an upcoming Grand Prix event in France (French motorcycle Grand Prix at Le Mans) because it would amount to unlawful tobacco advertising, promotion and sponsorship. CNCT also sought disclosure of the partnership agreements between Philip Morris and Ducati.
In its decision, the Le Mans High Court agreed that:
- The colors of the “Mission Winnow” project and its logo clearly recall the Marlboro cigarette brand that has long been associated with motorsports.
- Professionals of the sector knew that the “Mission Winnow” project only conceals sponsorship actions from a tobacco manufacturer.
- The “Mission Winnow” name and logo constitute some reference, although indirect, to tobacco and in particular to the Marlboro brand and its owner, Philip Morris.
- The violation of provisions in the Public Health Code is sufficiently obvious that the use of the “Mission Winnow” logo or even the existence of the project, as well as the partnership agreement with Ducati, can be questioned under the law.
As a result of these findings, the Court prohibited either company from using the mark, logo or expression “Mission Winnow” under penalty of €10,000 for each violation, and ordered Philip Morris and Ducati to pay €10,000 to CNCT. Additionally, the Court granted CNCT's request for disclosure of the partnership agreement.
Grişciuc, Simion v. Republic of Moldova [Moldova] [April 08, 2019]
On April 8, 2019, the Constitutional Court upheld the Tobacco Control Law’s provision banning tobacco sales from commercial establishments that are smaller than 20 m^2 (i.e., kiosks) and are located within 200 meters of educational and healthcare facilities. This provision was adopted in May 2015 and came into force on September 17, 2015, but the Moldovan Parliament passed an amendment delaying the effective date to January 1, 2019 for commercial establishments that were in existence before July 1, 2016.
A Member of Parliament filed a complaint alleging that the provision violated several articles of the Constitution, including equal protection, freedom of commerce and entrepreneurial activity, and protection of fair competition, among others.
In upholding the measure, the court concluded that the policy serves a legitimate aim – limiting access by minors and protecting the health of minors and patients – and there were no less restrictive alternative measures that would be as effective in achieving the objectives. The court also cited the four-year delay in implementation given to existing commercial establishments, concluding that this time period provided sufficient time to adapt to the new sales restrictions. The decision is final and cannot be appealed.
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."
Australia - Tobacco Plain Packaging [Australia] [June 28, 2018]
In 2012 and 2013, Honduras, Indonesia, Cuba and Dominican Republic brought complaints in the World Trade Organization (WTO) claiming that Australia's tobacco plain packaging laws breached the WTO agreements. The complaining countries argued that Australia’s law breached the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) by failing to provide required protections to trademarks rights and because it is an unjustifiable encumbrance on the use of tobacco trademarks; and the Agreement on Technical Barriers to Trade (TBT Agreement) because it is more trade-restrictive than necessary to fulfill a legitimate objective.
This long anticipated ruling by the WTO rejected all grounds of complaint against Australia's plain packaging laws in a 900 page ruling. The panel's authoritative ruling should be powerful in persauding governments to move forward with tobacco plain packaging and can be used to resist many of the flawed arguments the tobacco industry puts forward to oppose the policy. The WTO considered extensive evidence from Australia and the complaining countries and found the evidence demonstrates tobacco plain packaging works to reduce tobacco use. The panel re-affirmed that states have the right to regulate for public health under WTO law and the policy does not interfere with international trademark rights. The panel made strong findings of fact which undermine many of the other arguments that the tobacco industry tries to use to oppose plain packaging laws. These are detailed in the briefing document that can be downloaded under the 'additional documents' tag.
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.