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British American Tobacco Panama v. Panama [Panama] [August 03, 2016]
Decree 611 establishes that Panama's ban on the advertising, promotion and sponsorship of tobacco products includes a ban on tobacco product display at the point of sale. BAT Panama SA and other tobacco companies filed suit requesting an order declaring Decree 611 illegal, arguing that it violated the right to property including intellectual property and consumers’ right to access information. The Administrative Chamber of the Supreme Court of Panama upheld the decree finding that there was no violation of trademark rights as trademark registration and use still were allowed. The court also found that consumers’ right to access information was assured through the use of the textual listing of products and their prices and through health warnings on packages. Notably, the court used FCTC guidelines to interpret FCTC obligations with regard to tobacco advertisement, promotion and sponsorship.
S. Cyril Alexander v. Union of India [India] [June 22, 2016]
Cyril Alexander, a tobacco control advocate, filed a public interest lawsuit requesting that the government exclude tobacco companies from the corporate social responsibility (csr) requirements mandated by Indian law in order to prevent the companies from earning goodwill. The court directed the government to determine how tobacco companies can best meet their csr obligations and to take appropriate action within four months of the decision. Not satisfied that the government had undertaken the court's requested actions, Mr. Alexander filed a contempt petition. The court dismissed the petition on the basis that a May 2016 government circular clarifies that tobacco industry csr shall not contravene India's omnibus tobacco control law. Although Mr. Alexander maintained that his request seeks a general prohibition on tobacco industry csr, the court held that such a request cannot be the subject matter of the contempt petition.
R (on the Application of) Philip Morris Brands SARL et al. v. Secretary of State for Health [European Union] [May 04, 2016]
A challenge to the validity of the European Union’s (EU) Tobacco Products Directive (TPD) 2014 brought by Philip Morris and British American Tobacco was dismissed on all grounds by the Court of Justice of the European Union (CJEU). The amended TPD was adopted in April 2014 and provides a wide range of requirements relating to emissions, reporting, 65% pictorial health warnings, packaging and labelling, a ban on characterising flavors and other additives, and regulates e-cigarettes. Article 24(4) permits member states to adopt further requirements to standardise packaging. The TPD applies to all 28 countries within the EU.
In this case, Philip Morris and BAT brought a judicial review against the United Kingdom based on the government’s intention to implement the TPD requirements in UK legislation. The tobacco companies claimed that parts of the TPD and the Directive as a whole, were invalid because it was incompatible with the EU Treaties; was not proportionate or supported by evidence; was not sufficiently harmonising in nature; and contravened the principle of subsidiarity. The UK court hearing the case referred questions on the interpretation of EU law to the CJEU. The CJEU upheld all aspects of the TPD, including provisions to require pictorial warning labels, to prohibit menthol cigarettes, and to allow countries to prohibit cross-border sales and to adopt additional packaging restrictions, such as plain packaging. The court noted that the EU may act to prevent obstacles to the trade of tobacco products while also ensuring a high level of public health protection. The Court found that the packaging and labelling requirements were proportionate and did not go beyond what were necessary and appropriate.
In addition the court highlighted the importance of the FCTC as a tool for interpretation and stated that it could have a 'decisive influence' on the interpretation of both EU law and Member States' tobacco control legislation.
EU Member States are obliged, under the TPD, to implement most provisions of the TPD into domestic law by May 20, 2016 (although a number of states have been late in their implementation).
In re NJOY, Inc. Consumer Class Action Litigation [United States] [February 02, 2016]
A court ruled that a lawsuit against e-cigarette maker NJOY could not proceed as a class action. Potential class members had asserted that NJOY: (1) conducted misleading advertising indicating that e-cigarettes are safer than regular cigarettes; and (2) omitted information on its packaging about product ingredients and the risks of such ingredients. The court affirmed an earlier ruling prohibiting the lawsuit from proceeding as a class action, saying that class members failed to demonstrate how damages can be proven for the entire class. Specifically, the court said that the class was not able to show how it could calculate the difference between the price paid by consumers of NJOY and the true market price that reflects the impact of the unfair or fraudulent business practices. Although the ruling means that the case may not proceed as a class action, individuals may sue NJOY independently.
Price v. Philip Morris, Inc. [United States] [November 04, 2015]
A group of smokers filed a class action against Philip Morris alleging that the company’s marketing of “light” and “lowered tar and nicotine” cigarettes violated certain fraud statutes. The trial court denied the company’s attempt to dismiss the case and awarded the smokers $10.1 billion. After numerous appeals, an Illinois court reinstated the case in 2014. In this decision, the Illinois Supreme Court rejected the appeals court’s decision (based on procedural reasons) and dismissed the class action, effectively ending the case.
Nobleza Piccardo v. Provincia de Santa Fe [Argentina] [October 27, 2015]
Nobleza Piccardo, a BAT affiliate, challenged the constitutionality of a sub-national law that established a complete ban on tobacco advertisement, promotion and sponsorship in the Province of Santa Fe. The tobacco company argued that this measure violated freedom of expression and commercial freedoms and that sub-national governments were not entitled to legislate in these matters. The Argentine Supreme Court ruled in favor of the sub-national tobacco control law, finding that this ban was a reasonable restriction of commercial freedoms. Considering the impact of tobacco use, the Court connected these measures to be obligations derived from the right to life and the right to health. With regards to freedom of expression, the Court found that commercial speech is not entitled the same level of protection as political or social speeches. The Court also understands that health is an area of concurrent power and thus shared by both the federal and the sub-national governments. Notably, even though Argentina has not ratified the FCTC, the Court uses it as an international standard for tobacco control policies.
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.
Quebec Class Action [Canada] [May 27, 2015]
Two class action lawsuits were filed in Canada in 1998 against major tobacco companies; the cases were later combined. One class (Blais) involved Quebec residents with lung cancer, throat cancer, or emphysema. The other class (Letourneau) involved Quebec residents addicted to nicotine. After a lengthy trial, the court found that the tobacco companies caused injury, failed to inform customers of the risks and dangers of its products, and violated Quebec law.
In the Blais case, the court awarded moral damages (e.g., for pain and suffering) of $15.5 billion, to be paid jointly by the three tobacco companies. In the Letourneau case, although the court found that the tobacco companies were at fault, it did not award moral damages because there was not enough evidence to determine the total amount of the class members’ claims. In both cases the court awarded punitive damages, which it calculated based on one year of before-tax profits for each tobacco company. In Blais, the court reduced this award to the symbolic amount of $30,000 for each defendant, representing one dollar for each death the tobacco industry causes in Canada each year. In Letourneau, the court awarded punitive damages of $131 million. The tobacco companies must make an initial deposit on the judgment of $1 billion while the appeal is pending.
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.