TOBACCO CONTROL LAWS

Philip Morris (Thailand) Limited et al. v. Ministry of Public Health

Tobacco manufacturers brought case to stop the Minister of Public Health from implementing a rule that would expand the size of the combined picture and text health warnings from 55% to 85% of the front and back of cigarette packaging. The tobacco companies argued, among other things, that the Minister lacked the legal authority to make the rule, the rule infringed on their property rights, and that the rule did not meet necessity and proportionality standards under administrative law.  The court granted a temporary injunction, preventing implementation of the larger health warnings until the court issues a final decision on the merits of the case.  

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Philip Morris (Thailand) Limited et al. v. Ministry of Public Health, Central Administrative Court, Black Case No. 1324/2556, Aug. 23, 2013.

  • Thailand
  • Aug 23, 2013
  • Central Administrative Court

Parties

Plaintiff

  • JT International Company (Thailand), Ltd.
  • JT International, SA
  • Philip Morris (Thailand) Limited

Defendant

  • Minister of Public Health
  • Ministry of Public Health

Legislation Cited

Ministry of Public Health Notice of Rules, Procedures, and Conditions for the Display of Images, Warning Statements, and Contact Channels for Smoking Cessation on Cigarette Labels, 2013

International/Regional Instruments Cited

WHO Framework Convention on Tobacco Control (WHO FCTC)

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Packaging and Labeling Measures
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging. (See FCTC Art. 11)

Substantive Issues

Right to Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
Right to Property
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Intellectual Property Violation
Regulations may infringe on intellectual property rights, which may be protected by international treaties. The industry may argue that bans on "deceptive" packaging that eliminate the use of colors, numbers or trademarks threaten intellectual property rights.
Non-Mandatory WHO FCTC Guidelines
The WHO FCTC Guidelines are not mandatory for Parties and merely suggest policies, or a discussion on the effect of the Guidelines on national legislation.
Procedural Defect
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
Reactionary Regulation
Regulatory measures consisting of political actions designed to punish the tobacco industry or tobacco users. The industry may argue such arbitrary and capricious regulations will fail to achieve the stated objective. They may also argue that the measures are too extreme, prohibitively expensive, and violate the principle of proportionality.
Undue Burden
A discussion on whether the regulations impose an undue burden on the tobacco industry. This argument may involve the costs of implementing regulatory measures.

Type of Tobacco Product

None

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