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Japan Tobacco International and Others v. Ministry of Health (plain packaging laws) [France] [December 23, 2016]

Legal Challenges to the plain packaging of tobacco products laws dismissed. 

On December 23, 2016 the Conseil d’Etat (the Council of State, the highest administrative jurisdiction in France) dismissed six legal challenges that were brought against the tobacco products plain packaging laws. Previously, in January 2016, the Constitutional Council had also upheld the law as in accordance with the constitution, on a referral from members of parliament.

In brief, six cases were brought challenging the regulations - four by the tobacco companies, one from the confederation of tobacco retailers, and one from a tobacco paper manufacturer. The Conseil d'Etat dismissed all the claims and held that:

  1. The ban on using figurative, semi-figurative signs, and logos on packaging of tobacco products was valid because the brand and variant name is still permitted allowing the identification of the product.
  2. Plain packaging constitutes an infringement of property rights, but that this infringement is justified in the light of the objective pursued (public health) and because the measure regulates the use of trademarks but does not completely ban them.
  3. There was no 'deprivation' of property rights. 
  4. For the same reasons, the Conseil d'État held that the national legislation is a quantitative restriction on the importation of goods but this is in conformity with European Union law because the introduction of such restrictions is permitted where they are justified by a public health objective and the protection of human life. The court held that in this case, the challenged provisions must be considered as unable to do anything other than, over time, reduce the consumption of tobacco. The evidence in the case file also showed that neutral packaging would reduce the attractiveness of tobacco products. The measures were therefore proportionate and justified. 

A summary of the decisions from the two separate courts is attached in French and English in the section on "Related Documents". 

Non-Smokers' Rights Association v. British American Tobacco [France] [September 12, 2013]

This is an appeal of a 2012 decision that found British American Tobacco (BAT) France guilty of violating the country’s advertising laws. The appeals court affirmed the earlier decision that BAT France and its president were guilty of civil and criminal violations for (1) distributing a poster to 28,000 retailers saying “false cigarette, true risk” with the BAT logo; and (2) publishing a document on the company’s website about a BAT France campaign to raise awareness of counterfeit tobacco cigarettes. The appeals court found that the campaigns had the effect of enhancing BAT’s image and encouraging the sale of tobacco products. The appeals court increased the amount of the fines imposed on BAT France and ruled that the NGO Non-Smokers’ Rights Association had proper standing to file the lawsuit.

Non-Smokers' Rights Association v. British American Tobacco [France] [April 23, 2013]

Non-Smokers' Rights Association brought suit against British American Tobacco (BAT) France for distributing free pocket-ashtrays at beaches in violation of France's tobacco advertising ban.  BAT argued that the ashtrays could not be considered advertisements, because there were no brands or logos on the ashtrays, only a message about the environment and BAT France's website (which did not mention any of its brands). The court agreed with BAT and dismissed the suit.

Non-Smokers' Rights Association v. British American Tobacco [France] [October 05, 2012]

Non-Smokers' Rights Association sued British American Tobacco (BAT) France for violating the country’s tobacco advertising laws in 2010. The court found BAT France and its president guilty of both criminal and civil violations for (1) distributing a poster to 28,000 retailers saying “false cigarette, true risk” with the BAT logo; and (2) publishing a document on the company’s website announcing a BAT France campaign to raise awareness of counterfeit tobacco cigarettes. The court found that the poster and the campaign constituted illegal tobacco advertising by encouraging people to consume tobacco products and by enhancing the value of the BAT France brand. BAT was ordered to pay a fine for violating the law.

Amateur Cigar Society v. Republic of France [France] [January 24, 2012]

Amateur Cigar Society and its directors were sued for unlawful advertising of tobacco products.  Amateur Cigar alleged, however, that the tobacco advertising law was unconstitutional because it violated Amateur Cigar’s right to equal protection.  The trial court forwarded the constitutionality question to the Court of Cassation which upheld the legislation, reasoning that the goal of protecting public health outweighed Amateur Cigar's rights.

Patrick A. v. Département du Nord [France] [December 30, 2011]

Patrick A., who suffers from lung cancer, appealed a lower court decision finding his illness was not work-related, and the Council of State affirmed.  The Council of State, however, held that, even if the cancer could not be linked to his workplace, Patrick A. may be due damages because his employer failed to enforce the smoking ban and to protect its employees.  Patrick A. thus was exposed to passive smoking in the workplace.  The Council of State remanded the matter in order for this question to be analyzed and awarded Patrick A. 3,000 Euros in costs. 

National Committee for Tobacco Control v. SNC La Gascogne [France] [September 12, 2011]

The National Committee for Tobacco Control (CNTC) alleged that a tobacco vendor unlawfully advertised tobacco products by displaying four different brands at the store’s counter and by posting a sign provided by BAT France warning of the dangers of counterfeit cigarettes.  CNTC requested that the court award 8,000 Euros for damages, and the vendor requested an acquittal and an exemption from the penalty. The court held the vendor both civilly and criminally liable for violating tobacco advertising laws and imposed a fine (3,000 Euros as penalty and 2,000 Euros as interest) plus 1,500 Euros for CNTC’s court costs.

Non-Smokers' Rights Association v. Arafa [France] [September 09, 2011]

The Non-Smokers' Rights Association (DNF) brought an action against multiple drinking and dining establishments because the establishments permitted smoking in enclosed patios, failed to post no-smoking signs in places open to the public and provided ashtrays in areas where smoking should have been prohibited in violation of smoke free laws. The lower court dismissed the charges against the establishments, and, in this decision, the Court of Appeals affirmed.

Laulhere v. National School for Architecture of Toulouse [France] [March 17, 2011]

In this case, the Court evaluated plaintiff's claim that passive smoking during her thirty years as a teacher at the National School for Architecture caused her lung cancer. Weighing the expert testimony regarding plaintiff's injury, the duration of her tenure at the school, the timing of her injury, and a court's prior decision that the school had not complied with smoke free laws, the Court awarded damages to plaintiff and held that the school was liable for causing her illness.

National Committee for Tobacco Control v. BAT Netherlands [France] [November 03, 2010]

Information about this decision coming soon.

The materials and analysis available at this website are for informational and educational purposes only and not for the purpose of providing legal advice.