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BAT v. UK Department of Health (Appeal) [United Kingdom] [November 30, 2016]
An appeal against the earlier High Court judgment which upheld the UK's Standardised Packaging of Tobacco Products Regulations 2015.
British American Tobacco, Japan Tobacco International and Imperial Tobacco, together with the tipping paper company Tannpapier, appealed the High Court judgment of May 2016. The Appeal Court rejected all grounds of appeal.
The appeal concerned the nature of the claimants' trade mark rights, the extent to which the Regulations interfere with those rights and the lawfulness of any interference. The Claimants also appealed the High Court judgment on the proportionality of the Regulations. The case concerned issues of European Union law and the European Convention on Human Rights (the right to property in Article 1 of Protocol 1), as well as domestic common law.
The Appeal Court confirmed that a positive 'right to use' a registered trade mark did not exist in either domestic law, European Union law or international law. The Court also confirmed that the Regulations amounted to a control on the use of the tobacco trade marks and did not amount to a deprivation of those marks. The Regulations were a proportionate response to the public health objectives and struck a fair balance between the objectives and the interference with the claimant's rights.
BAT v. UK Department of Health [United Kingdom] [May 19, 2016]
The judgment dismissed all grounds of challenge against the UK's standardised (or "plain") packaging regulations. The judgment has significant wider implications because Mr Justice Green carefully considered all the evidence as part of the proportionality analysis, which will be similar to the justification analysis for plain packaging in most other jurisdictions. He was highly critical of the evidence put forward by the tobacco industry and provided a damning critique of individual studies and experts as well as making wider criticisms of the tobacco companies including that they failed to disclose any internal documents about their research or consideration of the impact of plain packaging on their business or smoking rates. He also linked his conclusions to the 2006 judgment of Judge Kessler in USA v Philip Morris Inc et al when she found, upon the basis of comprehensive evidence which included internal documents, that the tobacco companies were well aware of the strong causal nexus between advertising and consumer reaction.
The judge's conclusions on whether plain packaging amounts to an expropriation of the tobacco trade marks; on their claim for compensation; on the relevance of the FCTC and its guidelines; and on the compatibility with the WTO TRIPS agreement all have wider international relevance.
A summary of the key findings that have wider application is in the additional documents.
The McCabe Centre has produced an analysis of the key points for other jurisdictions which can be found here: http://www.mccabecentre.org/downloads/McCabe_Centre_-_Key_Points_on_UK_plain_packaging.pdf
Black v. Secretary of State for Justice [United Kingdom] [March 08, 2016]
A prisoner claimed that smoking should be prohibited inside a state-run prison. The lower court ruled that the national law prohibiting smoking in workplaces also applied to prisons, including state prisons. The Secretary of State for Justice appealed the decision. The appeals court found that the state is not bound by the national law prohibiting smoking in the workplace. Therefore, the prison is not required to implement the smoking ban.
ASA Adjudication on Hubbly Bubbly [United Kingdom] [June 10, 2015]
A variety of ads for Hubbly Bubbly electronic cigarettes were challenged by the government agency that regulates e-cigarettes. The Advertising Standards Authority (ASA) concluded that one of the ads did not make clear that the product contained nicotine as required by the country’s Advertising Code. The ads also included celebrity endorsements, depicted models who did not appear to be over the age of 25 using the devices, and were filmed in cool and trendy scenes. The ASA concluded that these communications created an association with youth culture and would be likely to appeal to those under the age of 18 in breach of the Code. The ASA ordered the company not to use the ads again in their current form.
ASA Adjudication on Mirage Cigarettes Ltd [United Kingdom] [April 29, 2015]
The Advertising Standards Authority (ASA) reviewed a television ad depicting a couple using electronic cigarettes in a sultry and glamorous manner. The couple was shown surrounded by heavy vapor, which appeared to be a result of the product being used off screen. The ASA found that the ad created a strong association with traditional tobacco smoking and that by depicting this behavior in a positive light, indirectly promoted the use of tobacco products in violation of the Advertising Code. The ASA ordered the company not to broadcast the ads again in their current form.
ASA Ruling on Lightercase Inc. [United Kingdom] [March 11, 2015]
The Advertising Standards Authority (ASA) reviewed a sponsored Facebook ad for a mobile phone case containing a built in cigarette lighter. The ad depicted a cigarette being lit followed by the text “TAG SOMEONE WHO CAN USE THIS.” The ASA noted that, although there are no advertising restrictions on cigarette lighters, the ad presented smoking in a positive light and could not be used again in its current form.
Black v. Secretary of State for Justice [United Kingdom] [March 05, 2015]
A prisoner claimed that smoking should be prohibited inside the prison. The court found that the national law prohibiting smoking in workplaces also applied to prisons, including state prisons. The court determined that the purpose of the law would be frustrated if it did not also apply to the government. The court found that it did not violate human rights laws or the prison rules to deny the prisoner access to a confidential complaint line to complain about smoking in the prison.
ASA Adjudication on Must Have Ltd [United Kingdom] [December 24, 2014]
Two television ads for e-cigarettes featured a close-up of a woman’s face while using an e-cigarette and exhaling vapor. In response to nearly 200 complaints, the Advertising Standards Authority (ASA) investigated the ads and found that they indirectly promoted the use of tobacco products because the ads created a strong association with traditional tobacco smoking and presented the product in a sultry and glamorous way. In response to other complaints, the ASA found that the ads were not likely to cause offense as overtly sexual, the ads did not appeal to minors, and the ads did not encourage the use of e-cigarettes. The ASA ordered the ad not to appear in its current form.
ASA Adjudication on Vape Nation Ltd [United Kingdom] [December 24, 2014]
A television ad featured a group of adults discussing e-cigarettes, with one stating, “I used to smoke normal cigarettes but after I quit, I tried these.” The Advertising Standards Authority (ASA) ruled that the ad violated the country’s Advertising Code as irresponsible because it encouraged non-smokers to begin using e-cigarettes. The ASA noted that the ad implied that the man who spoke had stopped smoking for a period of time and was therefore a non-smoker who had subsequently begun using the company’s e-cigarettes. The ASA ordered that the ad should not appear again in its current form.
ASA Adjudication on Imperial Tobacco Ltd [United Kingdom] [November 12, 2014]
The Advertising Standards Authority (ASA) reviewed an ad for “Smoke Spots,” a smartphone app and website that helps users find places to smoke. Based on the language in the ad and a link to a video that featured several people smoking, the ASA found that the ad was harmful and irresponsible and that it presented smoking in a positive light. Five other challenges to the ad were not upheld. The ASA ordered the company not to use the ad again in its current form and to ensure that future ads do not condone or encourage any unsafe practice.