TOBACCO CONTROL LAWS

National Committee for Tobacco Control v. Philip Morris France SAS

The National Committee for Tobacco Control (CNCT) and Non-Smokers' Rights Association (DNF) alleged that Philip Morris France SAS (“PMF”) and Philip Morris Products SA (“PMP”) illegally advertised IQOS in France, in violation of France’s Public Health Code. In a joint criminal and civil ruling, the Paris court convicted the defendants, fining PMF 75,000 EUR and PMP 50,000 EUR for the illegal marketing of IQOS between 2017 and 2019. Civilly, the court also ordered each defendant to pay 50,000 EUR to the CNTC and DNF as well as 5,000 EUR under France’s Code of Criminal Procedure.

PMF and PMP argued that IQOS was an electronic device, not a “tobacco product” and therefore could be advertised. The defendants also argued that IQOS was not advertised but instead merely “presented” to consumers. They also suggested that PMP, which was based in Switzerland but which manufactured and packaged IQOS, could not be held criminally responsible for illegal marketing in France.

The court concluded that IQOS was a “tobacco product” under the Public Health Code as IQOS induced the use of tobacco. Therefore, unless permitted under the Public Health Code, IQOS was illegal to advertise.

The court also concluded that there was a “community of interest” between PMF and PMP and, therefore, both defendants could be charged with illegal advertising.

 

National Committee for Tobacco Control v. Philip Morris France SAS, Paris Tribunal de Grande Instance (2021)

  • France
  • Dec 3, 2021
  • Tribunal Judiciaire de Paris (Tribunal Correctionnel)
View Case History Download Document

Parties

Plaintiff

  • National Committee for Tobacco Control
  • Non-Smokers' Rights Association

Defendant

  • Philip Morris France SAS
  • Philip Morris Products SA

Legislation Cited

Code of Public Health

French Code of Criminal Procedure

French Criminal Code

Related Documents

Decision in French

Type of Litigation

Enforcement Action by a Private Individual or Private Entity
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.

Tobacco Control Topics

Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)

Substantive Issues

Right to Health
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
Right to Commerce
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
Right to Access to Information
A violation of the public’s right to information. The tobacco industry may claim that advertising, promotion or sponsorship, or packaging regulations limit the industry’s ability to communicate information to their customers and therefore infringes on the customer’s right to receive information, and to distinguish one product from another. Alternatively, public health advocates may claim that tobacco industry misinformation violates their right to accurate information or that government must be transparent in its dealings with the tobacco industry.
Consumer Protection Violation

Any violation of a law designed to ensure fair trade, competition, or the free flow of truthful information in the marketplace. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue.

Industry-Perpetrated Fraud
The tobacco industry may have perpetrated a fraud upon the public or the courts by presenting false information or deliberately hiding known-facts.

Type of Tobacco Product

Heated tobacco products (HTPs)

Heated tobacco products (HTPs) are tobacco products that require the use of an electronic device to heat a tobacco insert (stick or pod of compressed tobacco). HTP systems are fully integrated so that the heating device and tobacco insert for each system must be used together.

"Use of the IQOS product implies subsequent use of the tobacco product, if the latter is to be usable. Consequently, the mere fact that IQOS and its inserts are sold separately does not constitute an obstacle to the conviction of the defendants, since the promotion of the first product is linked to that of tobacco. Moreover, the links between IQOS and HEETS are obvious, having even been protected by a European trademark “Heets for IQOS”. Consequently, claims that the IQOS product is “less harmful” than ordinary cigarettes are prohibited by law. In addition, any promotion of the IQOS tobacco heating system directly or indirectly promotes the tobacco insert produced by the same manufacturer, and thus promotes the consumption of a tobacco product produced and marketed by the defendants. Tobacco advertising is prohibited."

"According to the defendants’ arguments, the IQOS electronic device is neither a tobacco product nor a vaping product as defined by the French Public Health Code, because IQOS uses a solid tobacco stick, without a mouthpiece and without refillable cartridges and tanks, unlike electronic cigarettes. What’s more, IQOS would not be a tobacco product, as tobacco would not be one of its components and would not be consumable. IQOS would be part of a harm reduction approach… However, it is clear from PHILIP MORIS’s [sic] three-part description of the IQOS product that it is a product that requires the use of tobacco in order to function. In fact, the product’s usefulness lies in heating tobacco. “Heets”, tobacco in the form of inserts sold by the defendant companies. The selling price of a pack of “Heets” is identical to that of a pack of Marlboro, a cigarette brand of the PHILIP MORRIS group. Secondly, it is clear from the IQOS user guide marketed by the defendants that the IQOS “tobacco heating system” “works exclusively with compatible tobacco sticks”. As a result, the presentation of its operation is based on the use of tobacco, and the user guide mentions the need to “insert a tobacco stick” in order to use the IQOS for “14 puffs” of tobacco. Furthermore, the defendants qualify IQOS as a tobacco product, as evidenced by an advertisement inserted in issue 697 of June 4, 2021 of Revue des Tabacs, the brand being associated with the message “this tobacco product harms your health and is addictive”. (Exhibit No.37 PC conclusions)...As a result, the notified companies themselves recognized that IQOS was a tobacco product. As a result, the IQOS tobacco product, presented as revolutionary because it eliminates combustion and consequently tobacco smoke, is a tobacco product, its use necessarily requiring the insertion of a “Heets” tobacco inserts, the only accountable one."

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