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Type of Tobacco Product: E-cigarettes and other ENDS products

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Korea Electronic Cigarette Association v. Ministry of Health and Welfare [South Korea] [March 17, 2020]

The Korea Electronic Cigarette Association challenged the Ministry of Health and Welfare’s directive, which held that e-cigarettes and heated tobacco products are not safer alternatives for smokers who are trying to quit cigarettes. The association also disagreed with the claim that small amounts of vitamin E acetate, a thickening agent that has been linked to vaping-related lung injuries, had been found in some products. The Constitutional Court ruled in favor of the Ministry of Health and Welfare because directives do not infringe on e-cigarette companies' constitutional rights, as they are only recommendations and are not legally binding.

ASA Ruling on British American Tobacco UK Ltd. [United Kingdom] [December 18, 2019]

Following complaints by leading health organizations, the UK’s Advertising Standards Authority (ASA) ruled that British American Tobacco (BAT) can no longer use any public Instagram account to promote e-cigarettes in the UK. The ruling includes BAT’s use of influencer marketing to advertise e-cigarettes and orders BAT to remove unlawful e-cigarette advertising content currently on Instagram.

UK regulations clearly prohibit online advertising of e-cigarettes, but allow a manufacturer to provide factual product information such as the name, content and price of the product on its own websites. The ASA ruling has clarified that public social media accounts, like @govype run by BAT, are not analogous to a website, and therefore, neither factual nor promotional content for e-cigarettes is permitted.

The Tel Aviv Chamber of Commerce v. State of Israel – Ministry of Health, Israeli Knesset, and Knesset Economics Committee [Israel] [November 25, 2019]

The importer and manufacturers' forum of vaporization products at the Tel Aviv Chamber of Commerce challenged amendments to the Restriction of Advertising and Marketing of Tobacco Products Law passed in December 2018. The Tel Aviv Chamber of Commerce specifically challenged the extension of tobacco-related restrictions to e-cigarettes, including an advertising ban, a display ban, and plain packaging, as well as a nicotine concentration limit of 20mg/ml for e-liquids. This case was dismissed.

National Council of Consumers and Users (Associazione dei Consumatori) v. two electronic cigarette manufacturers [names redacted] [Italy] [November 15, 2019]

The National Council of Consumers and Users, headquartered in Rome, petitioned a civil division at the Court of Rome on September 13, 2019 against two e-cigarette defendants to have their marketing removed on the internet (including via defendants’ own social media accounts), printed publications, and through organizing or sponsoring public events aimed at promoting e-cigarettes.

The Court found in favor of plaintiffs holding that “[i]n view of the "restrictive approach to the advertising of electronic cigarettes and liquid refill containers" aimed at achieving "a high level of protection of human health", clearly stated in Paragraph 43 of Directive 2014/40/EU, the defense argument shall be dismissed..

The Court ordered:

  1. Defendants’ remove all commercial communications related to electronic cigarettes and refill cartridges deemed unlawful (including content from their websites and social media pages and all unlawful content reposted by Defendants) within 15 days from the date of this judgment;
  2. Defendants will be fined € 500.00 for each violation and for each day of delay in the execution of this order; and
  3. Defendants are jointly liable to the reimbursement of all legal costs related to these proceedings in favor of plaintiffs and to a compensation of €6,000.00 in addition to administrative costs, VAT and CPA.

Plume Vapour Private Ltd. v. Union of India [India] [October 01, 2019]

Plume Vapor challenges the government's ordinance banning the sale of e-cigarettes and seeks a stay on the ban's implementation.  The government asserts that a stay at this interim stage before affidavits and hearing is inappropriate.  In an interim order, the Kolkata High Court refused to stay the ban, but stayed the requirement for sellers to prepare a list of their existing stock of e-cigarettes and submit such stock to authorities for disposal.

(Heard along with a similar challenge from Woke Vapors.)

Council for Harm Reduced Alternatives v. State of Karnataka [India] [August 27, 2019]

Council for Harm Reduced Alternatives (Council) challenged a June 15, 2016 Government of Karnataka circular that prohibits the manufacture, sale, distribution, trade, import, and advertisement of e-cigarettes.  Public health group, Verve Foundation Trust, intervened.  At an initial hearing, the court refused to stay implementation of the circular.  In a subsequent hearing, the court observed, "it is expressly clear that the petitioner which is . . . claiming to act in public interest is in fact espousing the cause of manufacturing units of ENDS."  The court further stated that the petitioner has abused the court's jurisdiction and wants only to lift Karnataka's ban on e-cigarettes to ensure that manufacturing companies are benefited.  Without ruling on the merits of the ban, the court accordingly dismissed the litigation and imposed costs on the Council in the amount of Rs. 1,00,000/-.

Philippine Tobacco Institute v. City of Balanga, et al. [Philippines] [July 22, 2019]

The tobacco industry challenged as unconstitutional and invalid a City of Balanga ordinance making the City's 80-hectare University Town and its 3 kilometer radius tobacco-free, where the sale, use and marketing of tobacco products and e-cigarettes are banned. PTI filed the case on July 31, 2017 and a decision from a Regional Trial Court was issued in July 2018 in favor of the industry. The City is appealing to the Court of Appeals.

Litejoy International v. Union of India [India] [July 11, 2019]

Litejoy International challenges a Drugs Controller General of India (DCGI) order calling for enforcement of a Ministry of Health and Family Welfare Advisory instructing states to undertake a ban on the sale (including online sale), manufacture, distribution, trade, import and advertisement of e-cigarettes, among other products. On March 18, 2019, a single judge of the Delhi High Court stayed the DCGI order’s implementation, holding that e-cigarettes do not fall within the definition of a ‘drug’, as defined under section 3(b) of the Drugs and Cosmetics Act 1940.

(Heard along with M/S Focus Brands Trading v. Directorate General of Health Services, W.P. (C) 2688/2019 and Piush Ahluwalia v. Union of India, W.P. (C) 2735/2019.)

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.

American Academy of Pediatrics, et al. v. FDA, et al. [United States] [May 15, 2019]

The Campaign for Tobacco-Free Kids, in conjunction with other public health and medical organizations and several individual pediatricians, challenged the U.S. Food and Drug Administration decision to allow e-cigarettes to remain on the market until 2022 before applying for FDA authorization and permitting products to remain on the market during review. The FDA also delayed the deadline for cigar manufacturers to file such applications until 2021. The court found that the FDA had exceeded its legal authority and the FDA’s delay had played a role in the skyrocketing youth use of e-cigarettes. The court gave the plaintiffs 14 days to submit additional briefing regarding a remedy and the FDA 14 days to respond.