Search Results Results 1-10 of 44
Australia - Tobacco Plain Packaging Final Ruling [Australia] [June 09, 2020]
The Appellate Body of the World Trade Organization (WTO) issued its final ruling affirming that Australia’s pioneering law requiring plain packaging for tobacco products and finding it entirely consistent with WTO agreements. In particular, the WTO appeal ruling confirmed the original finding that the evidence shows that tobacco plain packaging laws "are apt to, and do in fact, contribute to Australia's objective of reducing the use of, and exposure to, tobacco products."
The appeal ruling also confirmed that:
- Tobacco plain packaging is not more trade-restrictive than is necessary to meet its legitimate public health objective.
- Trademark owners do not have a positive right to use their trademarks under WTO TRIPS agreement, but only the right to prevent third parties from using them.
- Tobacco plain packaging is a justified restriction on the use of trademarks and does not violate trademark protections.
State of Maharashtra v. Sayyed Hassan Sayyed Subhan [India] [September 20, 2018]
The government appealed a Bombay High Court order that overturned police action prosecuting individuals for violations of the Maharashtra gutkha ban under the Indian Penal Code. The Supreme Court reversed the Bombay High Court's finding regarding Indian Penal Code (IPC) prosecution, noting that there is no prohibition on IPC prosecution merely because provisions in the Food Safety Standards Act prescribe penalties. The Supreme Court remanded consideration of specific IPC offenses against the individuals to the Bombay High Court.
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.
E. Sivakumar v. Union of India [India] [May 18, 2018]
Mr. Sivakumar appealed an April 26, 2018 Madras High Court judgment that ordered the transfer of a criminal investigation concerning the illegal manufacture and sale of gutkha and tobacco and/or nicotine pan masala from the State Vigilance Commission to the Central Bureau of Investigation (CBI). The court found that the court below "justly transferred the investigation to CBI after due consideration of all the relevant aspects . . . ." The court agreed that the facts and nature of the crime warranted CBI investigation and dismissed the appeal.
J. Anbazhagan v. Union of India [India] [April 26, 2018]
J. Anbazhagan, a member of the legislative assembly in the State of Tamil Nadu, filed a writ petition to highlight the illegal manufacture and sale of gutka and pan masala in the state and to urge the High Court of Madras to order an independent investigation into the matter. Mr. Anbazhagan alleged such sales were carried out in collusion with several high dignitaries and bureaucrats, such as central excise officials, central government officials, officials from different state governments, including the Government of Tamil Nadu, councilors of the Chennai Corporation, and officials of the food safety department, among others. The Court observed that it was compelled to take up the case as the issues involved the right to health and directed that the Central Bureau of Investigation investigate the matter, since, among other reasons, central government officials allegedly were involved. In response to arguments made by the respondents, the Court also clarified that the definition of “food” under Section 3(j) of the Food Safety Act includes any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and that the definition undoubtedly was wide enough to include gutka, and other forms of chewable tobacco/nicotine products intended for human consumption. The Court further clarified that India’s omnibus tobacco control law, COTPA, and the Food Safety Act were not in conflict, but were meant to be read in conjunction with each other as COTPA does not contain a non-obstante clause that excludes operation of other laws.
Central Arecanut Marketing Company v. Union of India [India] [September 23, 2016]
This order was one among a series of intermediary orders issued by the Supreme Court of India in a public interest litigation addressing non-compliance with a ban on manufacture and sale of gutka and pan masala with tobacco and/or nicotine under the Food Safety Standards Act, 2006 and Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011. The amicus curiae in this matter observed that 23 States and five Union Territories had prohibited the manufacture and sale of such products. Notwithstanding the ban, however, the amicus noted that manufacturers were flouting the prohibition by selling separate pouches of pan masala and flavored chewing tobacco together, meaning for the pouches to be mixed as one. The Supreme Court directed that representatives of the States and Union Territories that had not prohibited the manufacture and sale of such smokeless products indicate why they had not taken action. The Court also directed that all States and Union Territories representatives file affidavits regarding their total compliance with the ban before the next date of hearing.
M/s Omkar Agency v. Food Safety & Standards Authority of India [India] [July 19, 2016]
In the Patna High Court, smokeless tobacco manufacturers challenged a Food Safety Commissioner order prohibiting the sale of zarda, pan masala and gutka under Section 30(a) of the Food Safety and Standards Act, 2006 (“Food Act”). The manufacturers alleged that the prohibition was not permissible as such products were permitted for sale under India’s omnibus tobacco control law, COTPA. The manufacturers also alleged that they were not food business operators under the Food Act and, therefore, were not required to submit to the Act’s requirements. The Court struck down the prohibition, observing, among other things, that: (1) gutka and tobacco (generally), are not food as the Food Act does not prescribe standards for their manufacture, sale or distribution; (2) while pan masala is food, the Commissioner did not rely on objective evidence (which he/she must do under the Food Act) to issue the blanket prohibition on all brands of pan masala, whether or not they contain tobacco; (3) tobacco is not food and, therefore, cannot be regulated by the Food Act; and (4) since COTPA, which is a central law, permits the manufacture and production of tobacco and tobacco-based products, smokeless products cannot be banned altogether, and such a prohibition, therefore, amounts to excessive delegation of executive power.
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.