Type of Tobacco Product: Hookah, shisha, and water pipes

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Manjinder Singh Sirsa v. Union of India [India] [January 19, 2019]

Manjinder Singh Sirsa requests the court to direct government authorities to prevent air pollution in restaurants and bars. Mr. Sirsa specifically alleges that hookahs contain hazardous substances and that the Delhi Pollution Control Committee should take action under the Air (Prevention and Control of Pollution) Act, 1981. By contrast, the government contends that hookahs are not hazardous. Noting that hookah is listed in the tobacco products schedule contained in India's omnibus tobacco control law, COTPA, the court dismissed the matter, finding that it did not possess jurisdiction to hear the application as its jurisdiction extends only to environmental questions.

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).

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.

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.

Restaurant and Lounge Vyapari Association, Bhopal v. State of Madhya Pradesh [India] [August 21, 2015]

The Restaurant and Lounge Vyapari Association challenged two orders issued by the Bhopal government that sought to prohibit the operation of hookah bars. The court quashed both orders – one on procedural and one on substantive grounds. The court found one order temporary and no longer effective, observing that the statutory scheme authorizing the order contemplated redress of emergency situations and not relief for permanent or semi-permanent problems. The court found the other order too general because it did not reference violations of India's omnibus tobacco control law, COTPA, or its implementing rules. The court however noted that the government could take action against hookah bars if such establishments operated within 100 yards of educational institutions or if smoking occurred outside of smoking areas or places. The court further noted that the government may pass another order regarding hookah bars if another threatening situation emerged. The court however held that repetitive orders are not permitted.

Abbottabad Shisha Decision [Pakistan] [July 30, 2015]

A “shisha” café challenged a local government order ordering it to close. The court upheld the order because the government has imposed a ban on shisha (water pipe) smoking in all public places, including restaurants. The court noted the dangers posed by tobacco use, especially to nonsmokers in public places. 

City of Vancouver v. Abdolabbas Abdiannia [Canada] [June 19, 2015]

Two hookah bars challenged a law that prohibits smoking or burning substances in commercial establishments. The court found that the law applied to the hookah bars because warming of herbal shisha was considered “burning”. The court rejected arguments that the smoking law was overly broad and that it violated the Canadian Charter of Rights and Freedom, finding no connection between smoking hookahs and religion. 

Virginia Department of Health v. Kepa, Inc. [United States] [January 08, 2015]

The Virginia Department of Health challenged an interpretation of the state’s clean indoor air law that exempted a café and hookah lounge from the law’s smoking restrictions. In the final decision of this long-running case, the state Supreme Court determined that the law applies to any restaurant even if the restaurant is combined with another business, such as a tobacco retailer. The court concluded that the smoking prohibitions in the state law apply to the hookah lounge. 

Narinder S. Chadha & Ors. v. Municipal Corporation of Greater Mumbai & Ors. [India] [December 08, 2014]

The governments in Mumbai, Madras, and Gujarat prohibited the sale and use of hookah at restaurants through the process of issuing licenses. Hookah restaurants challenged court decisions in these regions allowing the government orders to be implemented. In this decision, the court found that the local government orders were beyond the scope of the Cigarette and Other Tobacco Products Act (COTPA) and Smoke-free Rules. The court ruled that because the law currently allows smoking areas in hotels, restaurants, and airports, prohibiting the sale of tobacco products or other services designed to facilitate smoking in these areas would exceed the scope of the law. The court set aside the judgments in Mumbai, Madras, and Gujarat that had allowed the local government orders prohibiting restaurants from selling or offering hookah products. 

Vancouver v. Abdiannia [Canada] [August 11, 2014]

City officials sanctioned two hookah bars for violating provisions of an ordinance that prohibit the smoking of hookah in indoor public places.   The defendants claimed that the tobacco-free herbal shisha should not be prohibited under the ordinance. Furthermore, they claimed that the herbal shisha was heated, not ignited, so does not fit under the definition of smoking.  The court ruled that the city had reasonable grounds to prohibit smoking of any substance, that the definition of smoking was neither too broad nor too vague, and that herbal shisha does get "burned" within the ordinary meaning of the word. The court also ruled that the hookah owners and their patrons were unable to show that hookah smoking was religious or that operating a hookah cafe for profit was a function of spiritual faith. Even if they had, the ordinance does not prevent them from smoking hookah in their homes. The court found that no fundamental rights were violated, and upheld the sanctions against the hookah cafes.