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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).

M/s Prabhat Zarda Factory India v. The State of Bihar [India] [December 23, 2014]

The government of Bihar issued a one-year ban on the sale, manufacture, or storage of certain flavored tobacco products, such as beetelnut. A number of manufacturers challenged the ban. In this decision, the court ruled that Pan Masala is not subject to the ban and that it may be sold, manufactured, or stored, so long as the companies comply with the Food Safety and Standards Regulations. The court also ruled that Zarda is not subject to the ban because it is a flavored tobacco product and not a food product or food additive. 

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.

Doctors For You v. State of Bihar [India] [September 24, 2013]

Doctors for You, a humanitarian organization, sued the State of Bihar seeking enforcement of various provisions of India's omnibus tobacco control law. The court ordered the government to undertake an educational campaign (including newspaper, electronic media, and radio communications as well as through displays at public places) on the harmful effects of smoking and chewing tobacco prior to taking any enforcement action.

Ghodawat Pan Masala v. State of Karnataka [India] [June 25, 2013]

A company that manufactures pan masala challenged a government order prohibiting it from manufacturing, selling, or distributing gutkha and pan masala containing tobacco. The court rejected the company’s request for relief from the government order saying that to grant it would harm public health. The court noted that the government does have the authority to issue the order prohibiting the manufacture and sale of gutkha and pan masala containing tobacco. Additionally, the court rejected the company’s argument that it did not have sufficient warning about the order, noting that government enforcement did not take place until nearly a year and eight months after the ban on gutkha and pan masala went into effect.

Rajat Industries v. Union of India [India] [April 25, 2013]

A company that manufactures gutkha sued the government of India objecting to letters sent by the Ministry of Health and Family Welfare to various state governments requesting that they consider banning smokeless/chewing tobacco in the form of gutkha, pan masala, zarda and other chewable products with nicotine. The court dismissed the claim as premature because it does not challenge any bans on gutkha and pan masala, merely the informational letters sent by the government.

Ankur Gutkha v. India Asthma Care Society [India] [April 03, 2013]

The Court directed State Governments that have banned the sale and manufacture of gutka and pan masala containing tobacco to file compliance reports and State Governments that have not banned such sales to file affidavits stating why they have not implemented a ban.

S.J.J. Exports Company v. Food Safety Commissioner [India] [March 01, 2013]

The court dismissed an appeal of a decision ruling that the Indian Food Safety and Standards Act prohibits both the manufacture and export of gutka that contains tobacco.

U.S. Smokeless Tobacco Mfg. v. City of New York [United States] [February 26, 2013]

After the enactment of the Family Smoking Prevention and Tobacco Control Act by the U.S. government in 2009, Plaintiff tobacco companies challenged a New York City law prohibiting the sale of “any flavored tobacco product except in a tobacco bar.”  The law did not include cigarettes or flavors of tobacco, menthol, mint or wintergreen.  Plaintiffs asserted the New York City law was preempted by the federal act and was thus invalid.  This opinion of the Court of Appeals for the Second Circuit was delivered after the trial court ruled against the plaintiffs on summary judgment.  Plaintiffs argued the New York law was a “veiled attempt to regulate the manufacture of tobacco products” instead of a restriction on the retail sale of products with a specific characteristic.   The court held the law fit within the federal law because it invoked powers reserved for states and fell within the federal laws exemption clause for preemption that allowed states to enact laws restricting retail sales.  The court thus affirmed the lower court’s judgment and dismissed the appeal.

S.J.J. Exports Company v. Food Safety Commissioner [India] [January 21, 2013]

A company that exports gutkha challenged the seizure of its products by the Indian government. The company argued that the ban on gutkha and pan masala applied only to the manufacture, storage, and sale of the products within the State of Maharasthra and not to the export of such products. The court ruled that the Indian Food Safety and Standards Act prohibits both the manufacture and export of gutkha that contains tobacco.

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