Swedish Match Ltd. v. The Ministry of Health and Care Services
Swedish Match Ltd. filed a petition to appeal the 2017 Oslo County Court decision upholding Norway's plain packaging laws, specifically challenging 'snus' (oral tobacco). The Oslo County Court had dismissed the application ruling that plain packaging is both suitable, appropriate and necessary and that it does not involve any arbitrary discrimination or hidden trade restriction. The Borgarting Court of Appeal upheld the Oslo Country Court's decision and dismissed the appeal.
Swedish Match Ltd. v. the Ministry of Health and Care Services, Case No.: 18-004746ASK-BORG/04, Borgarting Court of Appeal (2018).
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.
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)
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.
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.
Tobacco products that are used by means other than smoking, such as chewing, sniffing, or placing between the teeth and gum. Examples include chewing tobacco, dipping tobacco, snuf, snus, gutkha or gutka, and dissolvable tobacco products.
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"With regard to Swedish Match's claim that an immediate and irreparable loss of reputation will arise when implementing the injunction, in addition to the financial loss that can be compensated for compensation, the Court of Appeal will also mention that the appellant's own conduct raises doubts about the gravity of this argument. As mentioned above, the regulations on standard snuff packaging have been in preparation since 2015. In the course of the process towards final legislative decision about a year ago, it must have been clear to Swedish Match that the company would not raise its objections to the proposed regulations in connection with the legislative process. Nevertheless, the company has still not taken legal action today to ensure that the injunction on standardised snuff packaging is illegal. Although it may not have been possible for a ruling to be enforceable before the injunction came into force on 1st of July 2018, it is likely that full consideration of the case at least in one court with the outcome expected by Swedish Match would increase the opportunity to reach with a delay in time to ward off the negative consequences of the implementation that are as immediate and irreversible as the accused party now claims."
"Regarding the argument that the requirement for standard snuff packaging must be interpreted as a statement from the authorities that snuff is as hazardous as cigarettes because cigarettes are subject to similar requirements for neutral packaging, the court of appeal is difficult to see that the accused party has coverage for such a postulate. It must be clear from the Court of Appeal that the type of injunction we are talking about here is based on threshold considerations and does not in itself involve any direct or indirect comparison of the degree of health harmfulness between the tobacco products covered by the injunction. In this context, it is also necessary to point out that the regulations on standard snuff packaging have the specific purpose of protecting teenagers from snuff usage, while the purpose of the corresponding cigarette rules applies to all sections of the population. During the legislative preparation, the majority of the Health and Care Committee at Parliament stated that "although smoking is far more dangerous than snuff, it is also not desirable for young people to start with snuff, which is highly addictive" (Rec. 101 L (2016-207) page 11). Appealing Party has not shown examples that the authorities have, in ways other than through common marketing and marketing restrictions, issued statements that cut snuff and cigarettes over one comb in health damage. On the other hand, the various requirements set out for mandatory health warnings on the packs for snuff and cigarettes, respectively, in FOR-2003- 02-06-141, sections 10 and 11, clearly indicate that cigarette smoking results in a significantly greater health risk than snuff use. The Court of Appeal cannot see that the appellant has proved that standardised snuff packages will cause reduced sales to those customers who would otherwise choose snuff as harmful alternatives to cigarettes."
"In connection with the "denormalizing effect" of snuff products as the accusing party claims to inflict damage to the company, the Court of Appeal notes that it is unlikely that over time a
certain loss of reputation will occur for both snuff and other tobacco products through the "Denormalization" of tobacco that is taking place in Norway and the EU. This is a desired
effect that is expressed both by the government's attitude campaigns and by the extensive public-law restrictions on the marketing and sale of such products. Negative consequences for
tobacco manufacturers of this regulation in terms of reduced use and sales, however, are not caused by the contested packaging requirement, and therefore cannot serve as a protection basis."
"Finally, the appellant claims that the most serious damage suffered by the company when implementing the injunction on standardised snuff packaging is that this will lead to immediate and irreversible reputation consequences in the form of an unjustified and unsustainable stigma of snuff. It is therefore a harm that not only affects Swedish Match, but all the snuff producers that sell in Norway. The claim of reputation loss includes, as the Court of Appeal sees, two arguments. Firstly, stigmatisation is unjustified because the actual assumptions about the health risk associated with the use of snuff on which the injunction is based is incorrect. Furthermore, by requiring standardised packaging for both snuff and cigarettes, the order misleads the market as believing that snuff is as harmful to cigarettes, thereby reducing both the turnover in general and the role of the snuff as harm-limiting alternative to cigarettes."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Swedish Match Ltd. filed a petition to appeal the 2017 Oslo County Court decision upholding Norway's plain packaging laws, specifically challenging 'snus' (oral tobacco). The Oslo County Court had dismissed the application ruling that plain packaging is both suitable, appropriate and necessary and that it does not involve any arbitrary discrimination or hidden trade restriction. The Borgarting Court of Appeal upheld the Oslo Country Court's decision and dismissed the appeal.